The Criminal Court of Cassation as part of the Supreme Court determined when a personʼs religious beliefs allow him to avoid punishment for evading conscription during mobilization (Article 336 of the Criminal Code).
The press service of the Supreme Court writes about it.
The case: a citizen who was conscripted and at that time limitedly fit for service evaded conscription for military service during martial law. The court found him guilty of this.
The man was served with a summons in July 2022, but he did not accept it, citing the fact that military service conflicts with his religious beliefs. Therefore, he did not arrive at the TCC and SP, violating the requirements of Art. 65 of the Constitution of Ukraine and the Law "On Mobilization Training and Mobilization".
The Criminal Court of Cassation noted that guaranteed by Art. 9 of the Convention on the Protection of Human Rights and Fundamental Freedoms, the right to practice oneʼs religion or belief in terms of the possibility of conscientious objection to military service is not absolute. This right may be limited for the purposes and in the manner referred to in part 2 of this article. That is, for the interests of public safety, protection of the rights and freedoms of other people.
The provisions of Part 4 of Art. 35 of the Constitution of Ukraine provides a guarantee of replacing military service with an alternative non-military one, if a person cannot perform military duty due to religious beliefs. However, the Constitution of Ukraine does not regulate the way in which a person can prove this circumstance.
The court notes that for the balance between human rights under Art. 9 of the Convention and Art. 35 of the Constitution of Ukraine in the aspect of the possibility of refusing military service and in the interests of protecting the sovereignty and territorial integrity of Ukraine, there is a need to objectively verify the words of a person about the incompatibility of his religious beliefs with military service.
"This does not mean that the possibility of exercising the right to conscientiously refuse military service is limited to membership in registered religious organizations, the content of whose creed provides for the unconditional inadmissibility of such service, carrying and using weapons," the court emphasized.
Participation in a religious organization is only one possible form of religious expression. Therefore, one who refuses to serve for this reason must demonstrate deep, sincere and consistent religious convictions by some evidence, other than his own words and those of relatives.
In this case, the Supreme Court noted that the convict does not belong to any religious organizations and served a term of service, in particular, for 5 months after the formation of his declared religious beliefs. The panel of judges agreed that the man did not prove that he had an irreconcilable conflict between the stated beliefs and military duty.