The new law on mobilization establishes the procedure for administrative detention of citizens for delivery to the TCC. The police and TCC representatives now have clear restrictions on their actions.
According to Resolution No. 560, employees of the TCC have the right to apply to the police for the administrative delivery of persons to military commissariats or to conduct measures together with law enforcement agencies against citizens who refuse to receive summonses or violate the rules of military registration. However, according to Article 262 of the Code of Criminal Procedure, the police do not have the right to issue summonses, but only carry out administrative detention of conscripts who have violated military registration.
When detaining, the police is obliged to draw up a protocol, which will indicate the date, place of detention, information about the detainee's identity, reasons for detention and other characteristics. Also, the police must inform the detainee's relatives about his whereabouts.
According to the new rules, the TCC does not have the authority to independently detain and bring citizens to itself. Such powers belong only to the police, and only in cases defined by law. The police also cannot serve a summons on their own without a representative of the TCC.
Bodies (officials) authorized to carry out administrative detention inform centers for providing free secondary legal assistance about each case of administrative detention of persons in accordance with the procedure established by the Cabinet of Ministers of Ukraine, except for cases where the person defends himself personally or has invited a defense attorney.
Administrative detention may last no more than 3 hours.
Regarding another procedure - delivery - part 1 of Art. 259 of the Code of Criminal Procedure, which regulates the delivery of the violator, defines the following:
"For the purpose of drawing up a report on an administrative offense, if it is impossible to draw it up at the place of the offense, if drawing up a report is mandatory, the violator can be taken to the police, to the unit of the Military Law and Order Service of the Armed Forces of Ukraine, to the territorial center of recruitment and social support , to the body of the State Border Guard Service of Ukraine, the headquarters of a public formation for the protection of public order and the state border or a public point for the protection of public order by a police officer, an official of the Military Law and Order Service in the Armed Forces of Ukraine, a serviceman or an employee of the State Border Service of Ukraine or a member of a public formation for protection public order and the state border, and in case of violation of the legislation on state secrets or violation by conscripts or reservists who are in the reserve of the Security Service of Ukraine, rules of military accounting, legislation on defense, mobilization preparation and mobilization - to the authorities of the Security Service of Ukraine by its employee. Delivery of a violator from among personnel employees of the intelligence agency of Ukraine in the performance of his official duties is carried out only in the presence of an official representative of this agency."
So, first of all, there are no employees of the TCC in the list of persons who make deliveries to the TCC. Secondly, due to the changes made to Article 258 of the Code of Administrative Offenses by Law No. 3696-IX, which entered into force the day after the law on mobilization, on May 19, 2024 (draft law 10379 on absentee fines), drawing up a protocol on violations of the rules of military accounting and legislation on mobilization is no longer mandatory.
Thus, the new law specifies that "a protocol shall not be drawn up in the event of the commission of administrative offenses in a special period, provided for in Articles 210, 210-1 of the Code of Administrative Offenses, the consideration of which is assigned to the competence of the TCC, if the person did not appear without valid reasons or did not report the reason for non-appearance to the summons of the TCC, having been duly notified of the date, time and place of the summons, and if the TCC has documents confirming that the person received the summons."
As stated in Clause 47 and Clause 54 of the Procedure for Conscription of Citizens for Military Service, approved by Cabinet Resolution No. 560 dated May 16, 2024, the police detain and bring a citizen to the TCC is carried out on the basis of Articles 261 (which provides for the mandatory drawing up of a protocol ) and 262 of the Code of Criminal Procedure (which defines the circle of persons who have the right to detain).
Regarding the initiation of detention and delivery to the TCC, Resolution No. 560 defines the following powers of the TCC.
Heads of district (city) TCCs:
- appeal to the police for administrative detention and delivery to the TCC of persons who have committed administrative offenses provided for in Articles 210 and 210-1 of the Criminal Procedure Code;
- take measures together with police representatives for administrative detention and delivery to the TCC of persons who refuse to receive summonses or who have violated the rules of military registration.
What exactly is meant by "taking measures" is not specified, but this does not mean that the TCC has thus authorized the implementation of detention and delivery.
At the same time, it should be noted a certain contradiction with another current resolution of the Cabinet of Ministers of December 30, 2022 No. 1487 "On approval of the Procedure for the organization and maintenance of military records of conscripts, conscripts and reservists", which specifies that TCCs apply to the National Police bodies - in case the impossibility of drawing up a protocol on an administrative offense at the place of its commission for delivering persons who have committed administrative offenses provided for in Articles 210, 210-1 of the Code of Administrative Offenses for the purpose of drawing up protocols on administrative offenses to the relevant TCC in which this person is (must be) on military duty accounting That is, again, there is a condition - the impossibility of drawing up the protocol on the spot.
Regarding the powers of the police in the context of detention and delivery to the TCC, Resolution No. 560 determines the following.
During notification - in case of refusal to receive a summons, a police officer who is part of the notification group conducts administrative detention and transport of the citizen to the district (city) TCC on the basis of Articles 261 and 262 of the Code of Criminal Procedure. At the same time, police officers do not have the right to serve summonses, but they can join alert groups and check military registration documents.
During the check of military registration documents - in case of refusal to proceed to the district (city) TCC, a police officer who is part of the alert group conducts administrative detention and delivery of the citizen to the TCC on the basis of Articles 261 and 262 of the Criminal Procedure Code.
In turn, during the verification of documents, the proposal to "follow up" to the TCC must come from the senior notification group (judging by the resolution, the senior can only be a representative of the TCC) in the following cases:
- in the case of establishing that a citizen violates the rules of military registration, defined by the Procedure for the organization and maintenance of military registration of conscripts, conscripts and reservists, approved by Resolution of the CMU No. 1487 or the Law "On Mobilization Training and Mobilization",
- detection of discrepancies of the military registration document with the military registration data of the Unified State Register "Oberig".
In addition, police officers can independently carry out administrative detention and deliver a person to the TCC:
– in the absence of a military registration document (or VOD in electronic form)
- availability of information in registers and data bases (banks) included in the unified information system of the Ministry of Internal Affairs, about the search for such a person.
It is also determined that the heads of territorial bodies (subdivisions) of the police:
- organize, at the request of the TCC, the administrative detention and delivery of police bodies (subunits) to the specified centers and bodies of reservists and conscripts who have committed administrative offenses provided for by Articles 210 and 210-1 of the Code of Administrative Offenses. Administrative detention of such persons is carried out regardless of their place of stay in the military register. In this case, the person is taken to the nearest TCC;
- notify the TCC of the impossibility of carrying out administrative detention and delivery within 30 calendar days to such a center of persons who have committed administrative offenses provided for by Articles 210 and 210-1 of the Criminal Procedure Code;
- organize police checks of male persons aged 18 to 60 years of military registration document (VOD in electronic form) together with a document certifying identity, and in case such a person does not have a VOD (VOD in electronic form) or information is available in the registers and data bases (banks) included in the single information system of the Ministry of Internal Affairs, about the search for such a person, the implementation of administrative detention and the delivery of such a person to the nearest TCC.
However, once again, questions arise regarding the compliance of the rules on delivery "to the nearest TCC" with Cabinet Resolution No. 1487 dated December 30, 2022, according to which the delivery of persons who have committed administrative offenses is provided for in Articles 210, 210-1 of the Code of Criminal Procedure with the purpose of drawing up protocols is "to the relevant TCC in which this person is (must be) on military registration".
Also, the National Police, based on reports from the TCC, SBU bodies, and relevant units of intelligence agencies, conducts pre-trial investigations of persons who have committed criminal offenses stipulated in Articles 335, 336, 337 of the Criminal Code. We remind you that according to Article 337 of the Criminal Code, criminal liability is provided for the evasion of a conscript, a conscript, a reservist from military registration after a warning issued by the relevant head of the TCC.
