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JUNE 8, 2015

Ukraine Courts Recognize Right to Conscientious Objection During Military Mobilization

Civil unrest and war in eastern regions of Ukraine moved the president of Ukraine to decree a partial military mobilization in the summer of 2014. Vitaliy Shalaiko, a former soldier in the Ukrainian army and now one of Jehovah’s Witnesses, answered his summons issued under the decree. Appearing before the local Military Commissariat, Mr. Shalaiko stated that he is a conscientious objector and expressed his willingness to perform alternative nonmilitary service.

The military office rejected Mr. Shalaiko’s claim to the right of conscientious objection and pressed criminal charges of evading military service during mobilization. For the current conflict, this was the first indictment in Ukraine for objection to mobilization based on religious convictions.

As a former soldier, Mr. Shalaiko understands the government’s interest in protecting its sovereignty and its obligation to safeguard its citizens. Yet, Mr. Shalaiko weighed the summons to military service against the Biblical principle to render “Caesar’s things to Caesar, but God’s things to God.” * As a Christian minister, he feels compelled to respect human life and to show love at all times and to all people. *

On Trial: Is Alternative Service an Evasion of Military Duty?

On November 13, 2014, the Novomoskovsk District Court in the Dnipropetrovsk region heard the criminal charge that Mr. Shalaiko avoided military mobilization. It found that he did not evade military officials and investigators but, rather, appeared when the military summoned him. The court determined that Mr. Shalaiko “has the right to substitution of military duty, including military service during mobilization, for alternative service, because he belongs to a religious organization whose religious teachings do not allow the use of arms.”

Additionally, the district court confirmed that Mr. Shalaiko’s right to alternative service is “guaranteed by the Constitution of Ukraine.” It further acknowledged that the European Convention on Human Rights * and the judgments of the European Court of Human Rights (ECHR) protect religious freedom. The judge acquitted Mr. Shalaiko on the charge of avoiding mobilization. The prosecutor filed an appeal.

On Appeal: Does Mobilization Override Conscience?

In his appeal, the prosecutor argued that the constitutional duty to defend the country overrides the right to religious freedom and to alternative nonmilitary service. He reasoned that the relevant decisions of the ECHR do not apply during periods of mobilization.

On February 26, 2015, the Appeal Court of the Dnipropetrovsk region determined that “objection to mobilization for conscientious reasons is not avoidance of mobilization without valid reasons.” In its decision, the court took note of Mr. Shalaiko’s religious convictions and referred to ECHR judgments stating that “such religious convictions attract the guarantees of Article 9 of the [European] Convention” * to freedom of thought, conscience, and religion.

The appeal court also recognized that Article 9 of the European Convention on Human Rights does not allow concern for “‘State security’ . . . to justify limitations of the exercise of rights which are guaranteed.” The judges reasoned that “the right to conscientious objection cannot be restricted in the interests of national security.” They concluded that Ukraine’s law on the right to alternative service applies even during times of mobilization. Affirming the trial court’s decision, the appeal court acquitted Vitaliy Shalaiko.

Exercising Human Rights Is Not a Crime

These decisions of the trial and appellate courts in eastern Ukraine recognize and uphold the rights to conscientious objection and to alternative civilian service—even in times of national emergency. The decisions in Mr. Shalaiko’s case also align with the progress in international law recognizing the fundamental right to conscientious objection. *

Nonetheless, the prosecutor has appealed, providing the High Specialized Court of Ukraine for Civil and Criminal Cases with the same arguments examined and dismissed by the appeal court. On April 30, 2015, legal counsel for Mr. Shalaiko filed objections to the prosecutor’s appeal.

Vitaliy Shalaiko is one of thousands of Ukrainian Witnesses called up for military service. They respectfully respond to the summons and request alternative service that does not conflict with their deeply held religious beliefs. These requests are generally respected, and few Witnesses have faced prosecution. It is now in the hands of Ukraine’s high court to provide assurance that Ukraine will honor the Witnesses’ request for recognition as conscientious objectors.

^ Ukraine ratified the European Convention on Human Rights in 1997.

^ The appellate court decision specifically referred to the ECHR judgments of Jehovah’s Witnesses of Moscow and Others v. Russia and Bayatyan v. Armenia.

^ See Bayatyan v. Armenia [GC], no. 23459/03, §§ 98-111, ECHR 2011; Jeong et al. v. Republic of Korea, UN Doc CCPR/C/101D/1642-1741/2007 (24 March 2011) §§ 7.2-7.4.