The Institute of Precedent

Ruling of the Constitutional Court of 5 March 2013 № 353-O on the refusal to accept for consideration the complaints of the citizens A.V.Kapaev and A.O.Tsvetkov against the violations of their constitutional rights by paragraph 2"а" of Article 24 of the Federal law “On the Military Duty and Military Service”

Court:: Constitutional Court

Legal issue: the constitutionality of the rule which allows drafting the persons who are receiving secondary professional education as soon as they reach 20 years of age, irrespective of whether they have already graduated or not, thus depriving them of the opportunity to complete their education without breaks and putting them in unequal position as compared to citizens receiving higher professional education.

Ratio decidendi: the Court refused to accept the complaint for consideration, arguing that, although the contested provision had been applied by courts against the applicants, the latter were still given the chance to continue education and were not actually drafted; consequently, as a matter of fact their rights were not violated by the contested provision.

Dissenting opinion:

Aranovskiy Konstantin

Gadzhiev Gadis

In their joint dissent the two judges argue that:

- the contested law grants draft deferment precisely for the period of education, but in contradiction to this it does not permit the citizen to complete education within the deferment, which makes the rule uncertain and requires a solution as to the constitutionality of the respective provisions;

- this deferment is granted as an act of fulfilling the duties of the social state, not as a free and unconditioned benefaction of the State. This obliges the State to pursue public interest within constitutional framework; granting deferment till the completion of education does not cause a disproportionate damage to public interests (in particular, the security of the country), but in the meantime it promotes education, which conforms to the principal task of the social state, that is, the removal of obstacles against and assistance in the citizen’s independent pursuance of his vital aims, on which depends his well-being;

- the very fact that the applicants were not yet drafted does not mean that they are free from legal restrictions imposed by the contested provisions, and therefore the Court ought to consider their application.

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Subject areas:

Social security Education