Cases of mobilization of citizens, which are reserved for enterprises that are critical for the functioning of the economy and ensuring the life of the population during a special period, periodically appear in the media.
Recently, the mobilization of an employee of one of the enterprises who had a reservation was widely publicized by the Nikolaev TCC and SP.
ICTV Facts explains whether it is possible to mobilize a reserved worker and how legal it is.
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Mobilization of the reserved
Managing partner of the Evrika Law law firm, head of the National Bar Association Committee on Investment Activities and Privatization Andrey Shabelnikov explained to Fakty ICTV that such cases are quite rare, since the enterprise simultaneously had critical status and was carrying out a mobilization task.
“It was precisely after the cancellation of the mobilization task that the mistaken mobilization of the worker took place, despite the criticality of the enterprise where he worked,” he noted.
Andrey Shabelnikov explained that in accordance with paragraphs 2, 3, paragraph 31 of the Procedure for the reservation of military personnel for the period of mobilization and for wartime, approved by the Resolution of the Cabinet of Ministers of Ukraine dated January 27, 2023 No. 76,
The granted deferment is subject to cancellation in certain cases . Among them:
- completion by a critically important enterprise of the production of goods, execution of works and provision of services to meet the needs of the Armed Forces of Ukraine and other military formations;
- deprivation of the status of a critical enterprise or institution by a government agency that made the decision to determine such status.
According to him, if a critical enterprise has completed a mobilization mission or the enterprise has lost its criticality status, then the employees' reservations are subject to cancellation.
In this case, workers can be mobilized, since from the moment the booking is cancelled they lose the right to a deferment.
Can the reserved ones be mobilized?
Managing partner of AO Winner Partners, lawyer Sergei Litvinenko told ICTV Fakty in what cases a deferment is provided and whether reserved workers can be mobilized.
“I consider it necessary to note that Article 23 of Law No. 3543-XII provides for a deferment from conscription for military service upon mobilization, which is granted, in particular, to military personnel reserved for the period of mobilization and for wartime by state authorities, other state bodies, local government bodies, as well as enterprises, institutions and organizations,” he noted.
According to him, in accordance with paragraph 15 of the Regulation on territorial recruitment and social support centers, approved by Cabinet of Ministers Resolution No. 154, the head of the TCC is obliged to organize checks on the status of military personnel’s reservations for the period of mobilization.
From the above, one should come to the conclusion that the current legislation prohibits the mobilization of reserved persons , the lawyer explained.
In addition, the responsibility for checking the availability of a deferment from conscription for mobilization for military service and the grounds for its provision is assigned to district territorial recruitment and social support centers.
This is why the TCC must check whether a citizen has the right to a deferment from conscription for mobilization, noted Sergei Litvinenko.
Mobilization of reserved TCCs: what to do in such cases
Managing partner of the Evrika Law law firm, head of the National Bar Association Committee on Investment Activities and Privatization Andrey Shabelnikov noted that there are frequent cases when TCC and SP unlawfully mobilize persons with a valid reservation.
— As a rule, in such cases, the TCC and SP do not properly check the information about the employee or, for technical reasons, the booking status is not displayed in the Oberig system. It is worth noting that such actions by the TCC and SP are illegal , — he claims.
Andrey Shabelnikov advises calling the police to report illegal actions by the TCC and SP.
According to him, it is possible to appeal such actions of the TCC directly through its head, as well as the Ministry of Defense of Ukraine.
It is necessary to file a claim in court to cancel the mobilization order issued in relation to the reserved employee. In the future, recognition of such an order as illegal may be the basis for demobilization of the conscript, the lawyer noted.
Managing partner of JSC Winner Partners Sergey Litvinenko advises not to waste time and to seek qualified help from lawyers for relatives and friends of a person who was mobilized despite the fact that he had legal grounds for a deferment, in particular, a reservation.
— An analysis of current judicial practice on this issue shows that enrollment in the personnel of a military unit and the issuance of an order by the head of the TCC on conscription for military service upon mobilization is not evidence of the irreversibility of the processes for a person who, having legal grounds for a deferment, was mobilized. Therefore, in no case should you give up , — he said.
Lawyer Serhiy Litvinenko cited as an example the decision of the Ivano-Frankivsk District Administrative Court dated July 19, 2024 in case No. 300/4328/24.
According to the plot of the court decision, the man filed a lawsuit against the TCC and SP, a military unit, to recognize as illegal and cancel the order of the head of the TCC on conscription for military service, as well as the obligation to exempt him from military service.
Following the consideration of the case, the lawyer noted, the plaintiff's claim was satisfied. In particular:
- recognized as unlawful, the order of the head of the TCC and SP on conscription for military service upon mobilization of the plaintiff was cancelled;
- The military unit is obliged to make a decision to release the plaintiff from military service.
