SC determines when religious beliefs exclude liability for draft evasion
Kyiv • UNN
The Supreme Court ruled that the right to conscientious objection is not absolute and can be restricted during mobilization by requiring objective evidence of sincere and consistent religious beliefs that go beyond one's own statements.
The right to manifest one's religion or beliefs in terms of the possibility of conscientious objection to military service is not absolute, but may be limited in the context of mobilization and military service. In addition, when refusing to serve in the Armed Forces on grounds of conscience, a person must demonstrate the existence of relevant deep, sincere and consistent religious beliefs by certain data, in addition to his or her own words and statements of close persons.
UNN reports this with reference to the Supreme Court.
The court found the citizen guilty of evading military service during the general mobilization announced by the Decree of the President of Ukraine of February 24, 2022 No. 69/2022 in connection with the introduction of martial law throughout Ukraine due to the armed aggression of the Russian Federation against our country
It is reported that after being notified in July 2022 of the obligation to report to the recruiting station of the territorial center for recruitment and social support for mobilization to the Armed Forces of Ukraine, the person liable for military service, who had no right to a deferment from conscription, refused to receive the call-up in the absence of grounds for replacing military service with an alternative (non-military) service, explaining that military service contradicts his religious beliefs.
He did not arrive at the recruiting station at the time specified in the summons, thus violating the requirements of Article 65 of the Constitution of Ukraine and the procedure for manning the Armed Forces established by the Law of Ukraine "On Mobilization Training and Mobilization".
The CCU SC noted that the right to manifest one's religion or beliefs guaranteed by Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms in terms of the possibility of conscientious objection to military service is not absolute, but may be restricted solely for the purposes and in the manner specified in Part 2 of this Article
It is noted that the criteria for the legitimacy of the relevant restriction are:
⦁ legality;
⦁ legitimate purpose - the interests of public safety, the need to protect public order, health or morals, as well as the protection of the rights and freedoms of others;
⦁ proportionality, which outlines the limits of lawful interference with the right and allows it to be carried out only to the extent necessary to achieve the above-mentioned legitimate goals.The provision of Part 4 of Article 35 of the Constitution of Ukraine as a constitutional and legal norm in accordance with Part 3 of Article 8 of the Basic Law is a direct effect norm.
However, this constitutional provision only provides for a constitutional guarantee of replacement of military service with alternative non-military service, provided that there is a circumstance such as incompatibility of military duty with religious beliefs of a citizen. At the same time, the Constitution of Ukraine does not regulate the method of proving this circumstance, which is determined by special legislation.
In the context of the armed aggression of the Russian Federation against Ukraine, when the life, health, safety of other citizens and the very existence of the state are threatened, there is an urgent need for proper manning of the Armed Forces of Ukraine to repel aggression and high risks of unscrupulous behavior of persons subject to conscription aimed at evading the constitutional duty to defend the Fatherland. Under such special conditions, achieving a fair balance between the human right under Article 9 of the Convention and Article 35 of the Constitution of Ukraine in terms of the possibility of conscientious objection to military service and the interests of protecting the sovereignty, territorial integrity of Ukraine, and the rights and freedoms of others requires ensuring an objective verification of a person's claims that his or her religious beliefs are incompatible with military service and confirmation by evidence of the existence of such beliefs
It is noted that this does not mean that the possibility of exercising the right to conscientious objection to military service is limited to membership in registered religious organizations whose doctrine provides for the absolute inadmissibility of such service, carrying and use of weapons.
The right to freedom of religion has both external and internal aspects, and association with other people in religious organizations as social structures is only one of the alternative forms of its external expression. However, when refusing to serve in the armed forces on grounds of conscience, a person must demonstrate the existence of relevant deep, sincere and consistent religious beliefs by certain data, in addition to his or her own words and statements of close persons
In this case, the Supreme Court took into account that the convict does not belong to any religious organizations and served in the armed forces, including for 5 months after the formation of his stated religious beliefs. In these circumstances, the panel of judges agreed with the conclusions of the courts of first instance and appeal that the convict had not proved that he had a deep and insurmountable conflict between his beliefs and his military duty. In view of the above, the Court recognized the correct criminal law qualification of the person's actions as evasion of mobilization under Article 336 of the Criminal Code of Ukraine.
