Vital ruling as court in Ukraine acknowledges right of believers to not take up arms even in wartime
A court in Kyiv has acquitted a Jehovah’s Witness who was accused of trying to evade mobilization. In so doing, the court found that the constitutional right to alternative service where a person’s religious beliefs prohibit them from taking up arms apply also to conditions of martial law. This is a crucial ruling and one that runs counter to the position taken by Ukraine’s Defence Ministry which asserts that the right to alternative service applies only to conscription, not to mobilization as a result of Russia’s war of aggression against Ukraine.
It was who drew attention to passed by the Boryspil Municipal-District Court on 12 January 2024 which acquitted the defendant of having deliberately sought to evade military service.
In June 2023, the defendant had undergone a medical examination and had been sent a summons to attend a military training centre. He refused to receive the summons and, of course, to attend the training. He provided the court with a letter from the Jehovah’s Witnesses confirming his participation as a believer in the Ukrainian community of Jehovah’s Witnesses from 1998. Since his faith does not permit him to bear arms or take part in any military training or combat, he asked that he be allowed to exercise his constitutional right to non-military service.
A lawyer working for a mobilization unit asserted that this was not possible, that Ukraine’s legislation does not envisage such non-military alternative service where mobilization is concerned during martial law. She cited the Law on Military Duty and Military Service which does envisage that, during martial law or states of emergency certain restrictions on the right to alternative service can be imposed. In fact, however, a presidential decree from 26 November 2018, which envisaged the suspension of certain rights and liberties enshrined in Ukraine’s Constitution, did not include the right unequivocally spelled out in part 4 of Article 35 of the Constitution. The latter does indeed say that “No one shall be relieved of his or her duties before the State or refuse to perform the laws for reasons of religious beliefs,”, however “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.”
The right to alternative service is restricted to those whose religious beliefs do not allow military service, with conscientious objection, for example, on the grounds of pacifist views, not envisaged. Where religious grounds are involved, however, other laws on martial law, mobilization and military service also did not contain specific restrictions during martial law or mobilization.
This, however, did not stop the Ministry of Defence from asserting, in in September 2022 that Ukraine’s Law on Alternative Service is about service alternative to conscription. Such ordinary conscription had been suspended due to Russia’s full-scale invasion of Ukraine and the state of martial law, and service alternative to mobilization was not envisaged.
The Boryspil court did not agree and considered that the defendant had the right to an alternative, non-military, form of service during mobilization, since he belongs to a faith which prohibits any use of weapons. The court did point to failings in legislation, including the argument cited by the Ministry of Defence. The fact, however, that the Law on Mobilization did not specify the right to alternative non-military service in the case of mobilization and during martial law did not negate the right to such alternative service, as enshrined in the Constitution. This was, in fact, confirmed by a ruling from the Higher Specialized Court of Ukraine on Civil and Criminal Matters on 23 June 2015. The Court then considered the situation given the so-called ‘anti-terrorist operation’ in Donbas and Russia’s occupation of Crimea. It concluded that the lack of a mechanism for alternative non-military service during mobilization cannot constitute grounds for prosecuting a person who, for religious reasons, seeks to exercise the right to such an alternative form of service.
Other courts have taken a different position.
46-year-old Vitaly Alekseenko, a Christian conscientious objector from Ivano-Frankivsk, was taken into custody in February 2023, after receiving a one-year sentence for refusing mobilization on the grounds of conscience.
The sentence by Ukraine’s Supreme Court in May 2023, which ordered Alekseenko’s release, but sent the case back to the original court for retrial, with his request for the possibility to do alternative service still ignored.
As of 1 November 2023, that courts had handed down three prison sentences, of which two had later been overturned, and at least nine suspended sentences. There had also been two acquittals which the prosecutor was challenging,
There had also been one overturned acquittal after the prosecutor challenged the acquittal in June of 45-year-old Seventh-day Adventist Dmytro Zelinsky. On 28 August the Ternopil Court of Appeal allowed the appeal lodged by prosecutor Roman Harmatiuk, and sentenced Zelinsky to three years’ imprisonment. That sentence was in enforced immediately, however a further (presumably cassation) appeal was planned to the Supreme Court.
Judging by the above, it seems likely that the 12 January acquittal will also be challenged.