Supreme Court determines when religious beliefs exclude liability for draft evasion
The Court found the citizen guilty of evading conscription into military service during a general mobilization declared by the Decree of the President of Ukraine of February 24, 2022, No. 69/2022, due to the introduction of martial law throughout the territory of Ukraine caused by armed aggression by the Russian Federation against our state. This was reported by the Supreme Court's press service.
After receiving a summons in July 2022 to appear at the conscription office of the territorial recruitment and social support center for conscription into the Armed Forces of Ukraine under mobilization, the individual, being a military conscript recognized as partially fit for military service, refused to appear, citing the inconsistency of military service with his religious beliefs. At the specified time in the summons, the individual did not arrive, thus violating the requirements of Article 65 of the Constitution of Ukraine and the procedure for the recruitment of the Armed Forces of Ukraine established by the Law of Ukraine "On Mobilization Training and Mobilization."
The Supreme Court noted that the guaranteed right under Article 9 of the European Convention on Human Rights to manifest one's religion or beliefs in the aspect of conscientious objection to military service is not absolute and may be limited solely for the purposes and in the manner specified in paragraph 2 of this article. The criteria for the lawfulness of such restriction are: legality; legitimate aim - the interests of public safety, the need to protect public order, health or morals, and the protection of the rights and freedoms of others; proportionality, which delineates the boundaries of lawful interference in the right and allows its exercise only to the extent necessary to achieve the above-mentioned legitimate goals.
The provisions of paragraph 4 of Article 35 of the Constitution of Ukraine as a constitutional legal norm, according to paragraph 3 of Article 8 of the Basic Law, are a norm of direct action. However, this constitutional provision only provides for the constitutional guarantee of replacing military service with alternative non-military service in the presence of such circumstances as the incompatibility of military duty with the citizen's religious beliefs. 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 conditions of armed aggression by the Russian Federation against Ukraine, when the lives, health, safety, and the very existence of the state are threatened, there is an urgent need for the proper staffing of the Armed Forces of Ukraine to repel aggression, and there are high risks of dishonest behavior by persons subject to conscription aimed at evading the constitutional duty to defend the Motherland. In such special conditions, achieving a fair balance between the right of the individual 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, the rights, and freedoms of others requires ensuring an objective verification of the person's assertions about the incompatibility of their religious beliefs with military service and confirming them with evidence of the presence of relevant convictions. 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, the tenets of which envisage the unconditional inadmissibility of such service, the 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 alternatively possible forms of its external expression. However, in refusing military service on conscientious grounds, the person must demonstrate the presence of corresponding deep, sincere, and consistent religious beliefs by certain data, in addition to their own words and the statements of close persons.
In this case, the Supreme Court took into account that the convicted person did not belong to any religious organizations and served in the Armed Forces, including for 5 months after stating, according to him, the declared religious beliefs. Under these circumstances, the panel of judges agreed with the conclusions of the courts of first and appellate instances that the convicted person did not prove the existence of a deep and insurmountable conflict between the stated beliefs and military duty.
In view of the above, the Court upheld the correct criminal qualification of the person's actions as evasion of conscription by mobilization under Article 336 of the Criminal Code of Ukraine.
Resolution of the Cassation Criminal Court of the Supreme Court in case No. 344/12021/22 (proceedings No. 51-90км24) –https://reyestr.court.gov.ua.
