13.12.2002 | Inna Sukhorukova, Kharkov

„Absence of a law does not free one from its execution“ (a proverb of the Soviet times)


The most interesting feature of the Ukrainian Law „On the alternative (non-military) service“ is that it directly and openly contradicts Articles 34 item 1 and 35 of the Ukrainian Constitution. For some reasons nobody pays attention to this fact. In comparison, the fact that the Law contradicts the European Convention on protecting human rights and basic freedoms looks negligent. Who would pay attention to some European Convention, when our legislators managed to ignore our own Basic Law? It is easy to prove what we have said by comparing the Law with the corresponding articles of the Constitution and by considering this problem practically, taking into account the complaints of the alternative servicemen. But the most striking feature of this law is that it reflects the intellectual and legal level both of our people’s representatives and our society as a whole.

Let us consider separate clauses, such as Article 8 of the Law on the alternative service and Article 55 of Resolution of the Cabinet of Ministers No. 2066 of 10 November 1999 on the procedure of the alternative service. Article 55 of the Resolution reads: „The alternative service may be terminated before the term by a decision of the commission, if a citizen dodges the alternative service or commits other actions envisaged by item 43 of this Law (a belated information of the commission about shorter working day, giving a leave on the initiative of the enterprise owner, etc.), about which the citizen and the corresponding recruiting commission must be informed within 5 days. In such cases the citizen must be recruited to the conventional military service as everyone else“. It should be added that in such cases the time actually spent at the alternative service is not counted in the conventional service. The enterprise may have nothing to occupy the alternative serviceman with, and he must wait. And the law does not envisage the transfer of the alternative servicemen to another job.

In general, according to Article 30 of the Resolution, „a citizen, who is at the alternative service, may obtain a job requiring professions 2-9 from the list (ДК 003-95) approved by the State committee of standards“. But mostly the alternative servicemen are given jobs of street sweepers or constructive workers. Nothing can be added. One may only shrug and recollect that our country built and is building Potemkin’s phantom villages. We showed to Europe how liberal and democratic we are: created the Law on the alternative service. But if any European expert read this law attentively, he would be terrified.

One may oppose that the number of alternative servicemen is very little: during the monitoring in 2000 their number in the Kharkov oblast was only 70, this year – 72. And the number of those, who could not fulfil their work or admitted other violations such that their contracts were broken, is negligible. But we encounter mainly with such rare cases.

Alternative serviceman B., a Baptist, honestly worked as a street sweeper in Kharkov. But now, during the massive unemployment, even such a job is desirable for many, so there is a competition. We do not know, who pretended to the job of B. yet, the administrators began to find petty faults in B.’s work everywhere and finally wrote a complaint to the commission on the alternative service. The administrators were not lucky. The boy was so diligent that the dwellers of the neighborhood, where he worked, collected signatures and sent a letter to the Kharkov oblast union of soldiers’ mothers. The union passed the letter to the district executive committee. The affair had a happy end, but such ends happen infrequently. Under modern conditions any administrator may need any job for another person. And in these cases are almost hopeless for the alternative servicemen. Not every of them knows, to where he must turn, if his rights were violated.

Different cases happen in this respect. For example, this year alternative serviceman S., or to be more exact, his parents, turned to us. They turned to us when the boy’s case was already being considered by the commission on the alternative service of the Zhovtnevy district of Kharkov, the matter was about the pre-tern termination of his contract. The boy at this time was on the sick list. Doctors asked S.’s bosses to transfer him to an easier work because of spine disease, but the bosses answered that they had no such jobs. The representatives of the commission answered the same. The argument was that the district recruiting commission found S. able-bodied for the conventional service. This means that he is able-bodied for the alternative service even more. But the recruits are divided into 7 categories by their state of health: the 7 thand 6 thconsidered not able-bodied, the 5 thdemands the postponement of the conscription. The 3 rdand 4 thcategories demand individual approach to the recruit, especially the 4 thone. The latter category means that the servicemen shall not fulfil heavy physical work. That is why military commanders unwillingly take to their units recruits with the 4 thcategory.

Yet, the alternative servicemen are not divided into any categories and must fulfil all their duties. So, the boy with spine and nervous diseases loaded garbage containers, thus making his diseases more virulent. The Zhovtnevy district executive committee got rid of this case passing the boy’s documents to the district recruiting commission. In the recruiting commission they told us that the executive committee broke the law, but could not solve the problem. Finally, the oblast recruiting commission solved this problem on their responsibility and sent S. to the Kharkov military hospital for medical examination. And what would happen if they would decide that the affair does not concern them (having the legal right for this)?

We have two more similar complaints. Two more youths with chronic diseases cannot stand the strain of the alternative service, but they are afraid to complain to recruiting commissions, where they are usually treated in a rather rude way. Maybe, this is the reason why the number of alternative servicemen is so small? The adopted law does not stipulate the right for the alternative service to pacifists. By the way, in Russia, where the law on the alternative service was adopted only two months ago, pacifists have already won a number of claims, since the Russian Constitution distinctly stipulates that personal convictions (both religious and not) give the right for the alternative service. In the Ukrainian Constitution this is written rather vaguely, so our legislators used it. Yet, our greatest pain is not legislators, who only embody the mass state consciousness into their laws, but when during the adoption of this law a woman-MP loudly protested: „So my son will serve in the army, and somebody will stay home! It is absurd!“ Other women, whose sons must be conscripted to the conventional service, will protest in the same way. Which pacifism can be discussed, when people have such an outlook? MPs traditionally forget about the superiority of the right and the Constitution. So, there are no petty legal problems in Ukraine – there is general neglect of an individual. The Law „On the alternative (non-military) service“ is the brightest example of such neglect.

Р. S.When this article was already written, we received a letter from a military unit. It read:

„The commandment of the military unit informs you that an unregistered Baptist church functions in Kharkov. The church conducts anti-state religion activities directed for prohibiting to hold weapons and take the military oath for the members of the church community.

Private D., who got to our unit, lived in Kharkov and attended this church; now he categorically refuses to take the oath to be faithful to the Ukrainian people“.

The problem is even more acute in this letter. The Constitution of Ukraine does not restrict the freedom of consciousness by the registration of the church, to which a youth must belong to be permitted to go to the alternative service. This means that freedom of consciousness is a so-called general or inalienable freedom stipulated by the Ukrainian Constitution. At the same time the Law „On the alternative (non-military) service“ reads that the recruit must belong to a religion community, which is included to „The List of religion organizations, whose doctrine prohibits using weapons“ approved by Resolution of the Cabinet of Ministers No. 2066 of 10 November 1999. Article 9 of the Resolution on the procedure of the alternative (Non-military) service suggests to a citizen to hand, if needed, at the sitting of the commission additional (?!) confirmation of the authenticity of his religion beliefs in a documentary or other form. That is, we again see a brutal violations of the Ukrainian Constitution.

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