Conscientious objectors in Ukraine – expert interview

15 February 2024, 10:35 PM

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Mykhailo Yavorsky, 41, voluntarily came to a military recruitment office in Ivano-Frankivsk a few days after the start of the war. The military officials wanted to mobilize him right away, because he had previously served, but Yavorsky explained that he could not take up arms due to religious beliefs and wanted to help in another way, such as digging trenches, logistics, or cooking food. But the officials sent him back home instead.

Later, Yavorsky received a mobilization notice, but refused to go to the front, explaining this by his faith. Finally, the court found him guilty of evading mobilization and sentenced him to one year in prison, followed by an appeal and a three-year suspended sentence.

Ukraine has already many similar stories. Conscientious objectors ask to be given the opportunity to undergo alternative (non-military) service, the right to which is enshrined in Ukrainian legislation. But in return, they receive long legal proceedings.

Maksym Vasin, a Doctor of Law and CEO at Institute for Religious Freedom, commented on this issue in an interview with NV.

NV: Is it possible to undergo alternative service (AS) in Ukraine today? Legislation provides for the possibility of limiting AS during martial law, but it wasn’t introduced in Ukraine, right?

Vasin: Article 35 of the Constitution of Ukraine guarantees the right to AS to those citizens who cannot perform military duty due to their religious beliefs. This right was not limited under martial law since presidential decree No. 64/2022 of Feb. 24, 2022 “On the introduction of martial law in Ukraine” does not contain any restrictions on the constitutional right to freedom of conscience and religion. Therefore, Ukrainian believers who, according to their religious beliefs, cannot defend the state with arms in their hands, have the right to AS even now.

However, in practice, believers cannot use this right as there is no corresponding legal procedure in case of mobilization.

NV: There are many administerial jobs in the army. Can a believer join the army, but perform other duties, such as being a driver, a military medic, etc.? What are the difficulties for those who want to replace military service with an alternative one?

Vasin: The problem with AS has existed since March 2014, when the state announced partial mobilization due to the first wave of Russian armed aggression against Ukraine. Since then, neither the government nor the parliament has shown enough interest to pass legislative amendments to ensure this constitutional right during mobilization. Therefore, believers are still forced to defend themselves against criminal prosecution in courts.

However, it would be much more useful for the state to involve believers who cannot fight with arms in their hands in civilian defense tasks instead of prison sentences. For example, such believers could work in hospitals, during rescue operations, clearing rubble after missile attacks, in restoration work, etc.

It’s important to understand that AS is not a way of evading mobilization, but participation in defending the country outside of military formations.

Ukraine is currently discussing a compromise solution to let believers who cannot take up arms be mobilized into the army as drivers, cooks, military medics, etc. However, I would like to note that such an alternative won’t be suitable for all religious denominations, like Jehovah’s Witnesses.

The general international standard, as well as Ukrainian legislation, provides that AS should be purely civilian, i.e., outside of military formations.

Last year, the government initiated a working group with the participation of various religious denominations to resolve this issue. However, until now, for almost 10 years, the issue of AS during mobilization remains unresolved, while the courts continue to pass sentences on believers.

However, it’s beneficial for Ukraine to ensure the resolution of the AS issue at the legislative level. First, it will allow to legally mobilize believers into civilian service to strengthen the state’s defense capabilities. Secondly, it will allow to direct the resources of the police and the prosecutor’s office to the fight corruption—not conscientious objectors

In addition, adopting a law like that would be an important signal to the international community that Ukraine is a democratic state where human rights and the rule of law are respected even in wartime. By the way, the AS issue was one of the first topics during the meetings of the Ukrainian delegation with U.S. government officials and journalists as part of the International Religious Freedom Summit, which was recently held in Washington.

NV: How does a person prove that he cannot undergo military service due to his religious beliefs? If a person is not a parishioner or cannot get a certificate from a pastor, for example, does he have a chance to prove his religious beliefs?

Vasin: Not every citizen and not every believer has the right to AS in Ukraine. This right, for example, cannot be used by secular pacifists and citizens with other non-religious beliefs that prevent them from taking up arms.

At the same time, a person’s religiosity and church affiliation doesn’t automatically mean that they have this right. In particular, the creeds of the most widespread religious denominations in Ukraine, including Orthodox, Greek Catholic, and Roman Catholic, don’t contain prohibitions on military service. Therefore, believers of these churches have no right to AS. In fact, a very small percentage of believers, mainly Protestant churches, as well as Jehovah’s Witnesses can use this right.

A religious person who does not belong to a relevant religious community and cannot obtain a certificate of membership will find it difficult to prove that he has religious beliefs incompatible with military service.

NV: How many court cases against people who refused military service due to their religious beliefs were initiated in Ukraine after Feb. 24, 2022? What’s the percentage of acquittals?

Vasin: Ukrainian courts have handed down three prison sentences (two of them later overturned), at least nine suspended prison terms, and two acquittals (which the prosecution is now challenging) in AS-related cases over the past two years, according to the Forum18 human rights organization. At least seven criminal trials are ongoing.

The most recent is the verdict of the Boryspil City District Court of Kyiv Oblast, which on Jan. 12, 2024, acquitted a citizen who has been a member of the Jehovah’s Witnesses religious community since 1998. He was accused of evading military service during mobilization, but the court found no criminal motives in his actions.

Ukrainian courts mostly protected the right of believers to AS before Russia’s full-scale invasion. However, the number of acquittals overturned after prosecution appeals has increased recently.

As an example, Seventh-day Adventist Dmytro Zelinsky, 45, has recently been sentenced to three years in prison for asking to be sent to AS instead of being mobilized into the army. He was acquitted in June 2023, but the prosecutor’s office filed an appeal. On Aug. 28, 2023, the Ternopil Court of Appeal overturned the acquittal and granted the prosecutor’s appeal. The sentence entered into force from the moment it was announced. Now Zelinsky is preparing an appeal to the Supreme Court.

The High Specialized Court of Ukraine considered a similar cassation appeal from a member of the Jehovah’s Witnesses religious community in June 2015. At that time, the court confirmed the right to AS even during mobilization, and this ruling became decisive for further judicial practice. We hope this time the Supreme Court will also defend the constitutional right to AS. This is important for Ukraine to demonstrate to foreign partners its commitment to the rule of law and compliance with international human rights obligations.

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