Court sentences conscientious objector to a year in jail
On January 16, 2023, the Ivano-Frankivsk Court of Appeal rejected the appeal of 46-year-old Christian, who appealed the sentence imposed for refusing to be mobilized because of religious beliefs. The man was sentenced to one year in prison.
The international NGOreported on the details of the case.
Vitalii Alekseienko had to be sent to jail on January 19, the day the verdict was to come into force.
According to Forum 18, this is the fifth court conviction for conscientious objection to the army service since the beginning of the full-scale invasion of the Russian Federation in Ukraine. It is the first actual sentence: four other cases have resulted in suspended sentences.
“I told the court I agree that I have broken the law of Ukraine, but I am not guilty under the law of God. I want to remain honest with myself,” commented Alekseienko on the court's decision.
Vitalii believes that if he had repented of the so-called “crime”, he would have received a suspended sentence. But, asked the believer, “how could I do this if I am not guilty.”
According to Forum 18, Alekseienko intends to file a cassation appeal. However, even a review of the case will not prevent the imprisonment, which was to begin on January 19.
Alekseienko's story and the position of the military enlistment office
Vitalii V. Alekseienko was born on December 2, 1976, and at the time of the full-scale Russian invasion, he lived in the city of Sloviansk. In 2017, he was registered at the military enlistment office in Sloviansk but did not receive a military ID. Instead, he was issued a certificate valid until 2022, which confirmed that he did not serve in the army because of his beliefs when he lived in Uzbekistan.
In May 2022, Vitalii Alekseienko moved from the Donetsk region. The man is an internally displaced person.
On June 2, Vitalii was summoned to the military enlistment office in Ivano-Frankivsk. Alekseienko explained in the office that he could not take up arms for religious reasons. “I told them I was ready to join alternative service and wrote a corresponding application,” Vitaly recalls. He also explained that he had refused the military draft while living in Uzbekistan.
On June 6, Alekseienko was summoned to the military enlistment office again. There he was informed that his application for alternative service had been rejected. When Vitalii Alekseienko refused to be mobilized, the military enlistment office employees called the police.
According to Alekseienko, he was unafraid and decided not to run away or hide from the authorities. As he told Forum 18, “I'm not afraid even to be imprisoned.”
According to Forum 18, an employee of the Ivano-Frankivsk military enlistment office, who refused to give his name, said he knew nothing about Alekseienko's case, so he could not answer questions. He told Forum 18 that “we usually offer alternative service to members of religious communities.” However, the official refused to inform Forum 18 how many people could choose an alternative service after February 24, 2022. The military enlistment office employee also did not explain why Vitalii Alekseienko was not permitted to join alternative service.
When Forum 18 informed him that Alekseienko's reluctance to serve in the Armed Forces was based on his religious beliefs, the official replied: “Let him come to us once more.” Being informed that Alekseienko would not be able to revisit the military enlistment office because he would soon be imprisoned, this official only repeated that they did not know the details of the case...
The court decision
The investigator informed Vitalii Alekseienko that a criminal case would be opened against him under Article 336 of the Criminal Code of Ukraine, stating the punishment for evading the military draft when mobilization is decreed. This article provides for imprisonment of three to five years.
On the investigator's advice, Alekseienko pleaded guilty but refused to repent of his actions “because he is confident that he behaved decently, in a Christian way, followed the dictates of his conscience and did nothing wrong.”
During proceedings in the Ivano-Frankivsk City Court on September 15, 2022, Judge Roman Khorostil found Alekseienko guilty under Article 336 of the Criminal Code of Ukraine. Forum 18 noted that prosecutor Olga Gazukina insisted on a three-year suspended sentence.
However, Judge Khorostil ignored the prosecutor's request. He took into account the pre-trial report, which stated that Vitalii Alekseienko did not pose a danger to society, and reduced the sentence to one year in prison. The verdict says that the term begins from the date of the actual detention of Alekseienko.
“They told me that there are not enough proofs that I am a believer,” Vitaliy told Forum 18. “They said that only representatives of registered denominations are eligible for alternative service.” Vitaly said that he believes in Jesus Christ and his command to resist evil without resorting to violence, as written in the Sermon on the Mount. "But I don't attend any church because they don't follow what Christ said,” explained Alekseienko, clarifying his stand.
Alekseienko appealed to the Ivano-Frankivsk Court of Appeal. According to court records, after the appeal hearing was postponed due to a power outage, the hearing took place on January 16, 2023. Judge Volodymyr Povzlo presided, accompanied by fellow judges Oleksandr Vasiliev and Bohdan Kukurudz.
One of the judges asked Vitaly how he could prove that killing people was incompatible with his religious beliefs. The man replied that if the court does not believe him, he can't convince it. After that, Alekseienko reiterated his religious beliefs.
Forum 18 could not reach Prosecutor Gazukina on January 17 to receive her comment on the court's decision.
Alekseienko told Forum 18 that he would continue to appeal the court verdict because he “does not want anyone else to suffer for the same reason.” However, Vitalii said that he had accepted his fate.
Court decisions in cases of refusing to be drafted to military service
Forum 18statistics on court decisions in similar cases. According to the available data, in addition to the verdict in Alekseienko's case, in 2022, Ukrainian courts handed down four more verdicts in similar cases. In all these cases, verdicts were suspended sentences.
- On May 18, Andrii Kucher, city of Mukachevo, received a suspended sentence of four years in prison.
- On June 21, Dmytro Kucherov, city of Oleksandriya, Kirovohrad region, received a suspended sentence of three years in prison.
- On August 17, Oleksandr Korobko, city of Mukachevo, received a suspended sentence of three years in prison.
- On August 22, Marian Kapats, city of Mukachevo, received a suspended sentence of three years in prison.
Among the four convicts, only Kucherov refused to join the army on the grounds of religious beliefs.
The right to refuse military service
According to the Ukrainian Cabinet of Ministers Resolution of November 10, 1999, only believers belonging to ten religious denominations recognized as pacifist were allowed, when drafted, to choose alternative (non-military) service. In Ukraine, this list includes the following religious denominations:
- Reformed Adventists;
- Seventh-day Adventists;
- Evangelical Christians;
- Evangelical Christians-Baptists;
- Pokutnyky (Penitents) (Slavic Church of the Holy Spirit);
- Jehovah's Witnesses;
- Society of Krishna Consciousness;
- Charismatic Christian churches (and churches equated to them according to their registered charters);
- Pentecostals (and churches equated to them according to their registered charters);
- Evangelical Christians.
People who do not belong to these denominations are not eligible for alternative service.
According to Dmytro Vovk, who studies religion and law, the court should have been guided not by this list compiled some time ago but by the Constitution of Ukraine. It would be advisable to check not whether a person belongs to a religious organization included in this list (because this list can change over time) but whether the beliefs of a particular person really are incompatible with military service. “Accordingly, if a person has such beliefs, the court should recognize that they have the right to alternative service,” stressed Dmytro Vovk.
Article 35 of the Constitution of Ukraine provides for freedom of religion and guarantees respect for any religion that rejects violence.
This article states: “Everyone has the right to freedom of personal philosophy and religion. This right includes the freedom to profess or not to profess any religion, to perform alone or collectively and without constraint religious rites and ceremonial rituals, and to conduct religious activity. No one shall be relieved of his or her duties before the State or refuse to perform the laws for reasons of religious beliefs. In the event that the performance of military duty is contrary to the religious beliefs of a citizen, the performance of this duty shall be replaced by alternative (non-military) service.”
For example, Jehovah's Witnesses refuse military service in all countries of the world. At the same time, most members of this community are ready to join alternative service.
Jehovah's Witnesses told Forum 18 that after the start of the full-scale invasion of Russia and the declaration of martial law, thousands of believers belonging to their denomination were summoned to the military enlistment offices. After they refused to join military service, prosecutors opened criminal proceedings against 67 persons. So far, 44 of these proceedings have been closed.
“Considering that thousands of Jehovah's Witnesses were summoned to the military enlistment offices, this is an extremely positive situation,” believers told Forum 18. “It is a positive sign that the government respects conscientious objectors even at the time of military conflict.” Representatives of the Jehovah's Witnesses thanked the Ukrainian authorities for respecting the requests for alternative service “despite the complicated situation.”
Closed register of court decisions
Unfortunately, the right to alternative service is still being violated. In addition, the verdicts in five criminal cases of conscientious objectors are no longer available in the public online register of court decisions.
The State Judicial Administration in Kyiv did not respond to Forum 18's written request to explain why the public online register of court decisions does not contain any more verdicts in these five cases.
When a person attempts to access the relevant court decisions, a request is redirected to a page that reads, “Page view is unavailable. Invalid or outdated link”. Most of the verdicts in other cases handed down by the same courts on the same dates were publicly available as early as January 17, 2023, Forum 18 noted, adding that its employees checked these decisions.
UN position and alternative service under martial law
In its Concluding Observations on the eighth periodic report of Ukraine of February 9, 2022, the UN Human Rights Committee emphasized that alternatives to military service should be available to all conscientious objectors without discrimination as to the nature of their beliefs. After reviewing Ukraine's report on the implementation of the Covenant in 2013, the Committee's Concluding Observations stated that “alternative service arrangements should be accessible to all conscientious objectors without discrimination as to the nature of the beliefs (religious or non-religious beliefs grounded in conscience) justifying the objection.”
In 2019, the UN Working Group on Arbitrary Detention stated that “the right to conscientious objection to military service is part of the absolutely protected right to hold a belief under article 18(1) of the Covenant, which cannot be restricted by States.”
Article 4 of the Law “On military duty and military service” states that citizens of Ukraine have the right to replace the performance of military duty with alternative (non-military) service following the Constitution of Ukraine and the Law of Ukraine "On alternative (non-military) service.” At the same time, certain restrictions on the right of citizens to choose alternative service may be established under martial law or a state of emergency but with a clear indication of the duration of these restrictions.
Earlier, the Kharkiv Human Rights Protection Group wrote that the Presidential Decree “On the introduction of martial law in Ukraine” does not contain any limitation of article 35 of the Constitution, which provides for the right to alternative service. Therefore, the possibility of non-military service should be guaranteed even during martial law. The gap in the laws arises because the provision on alternative service covers only the regular military draft, which formally differs from military service under mobilization.
“At the same time, Article 35 of the Constitution is legally still in force, but the legislation does not regulate the procedure for non-military service under martial law. Article 23 of the law “On preparation for and execution of mobilization” says nothing on this subject," noted lawyer Andriy Novak. In cases when a person is mobilized whose faith does not allow them to use weapons, Novak advised sending a written application to the military enlistment office and performing non-military work. If a person is drafted for military service anyway, they should file a complaint with the court and refer to article 35 of the Constitution of Ukraine.
Forum 18 mentions a letter it sent to the Ministry of Defense regarding alternative service under martial law.
The response from the Ministry of August 21, 2022, stated that, according to the law “On Alternative Service,” Ukrainian citizens can choose alternative service “if the performance of their military duties is contrary to their religious beliefs” and “if they belong to religious organizations acting under the laws of Ukraine whose doctrine prohibits the use of weapons.” According to Forum 18, this answer was given by Colonel Oleh Khristenko, Deputy Head of the General Staff's Main Personnel Department.
Khristenko also noted that due to the Russian invasion and the declaration of martial law, the regular military draft was suspended and replaced by mobilization. “Therefore, based on the above, the exercise of the constitutional right of citizens to alternative (non-military) service under the legal regime of martial law and during the period of mobilization is not applicable due to the absence of conscription for compulsory military service.” Colonel Khrystenko added that the law “On preparation for and execution of mobilization" “does not provide for alternative (non-military) service for conscripts called up for military service during mobilization.”
But the UN Human Rights Committee's General Comment No. 22 on Article 18 (The right to freedom of thought, conscience, and religion) of the International Covenant on Civil and Political Rightsthat “this right cannot be derogated from even in time of public emergency threatening the life of the nation.”
The director of the Kharkiv Human Rights Group, Yevhen Zakharov, earlier noted that if the issues of conscription were decided directly by the commanders of military units, they would categorically refuse to accept a person “who does not want to take up arms and does not want to fight,” because the military "needs motivated people who want to serve and defend their country.” Also, it is very easy to resolve problems with alternative service. You need only add just one provision to the law “On mobilization,” emphasized Yevhen Zakharov.