SC Criminal Cassation Court determines when a citizen's religious beliefs exclude criminal liability for evading conscription for military service during mobilisation under Article 336 of the Criminal Code of Ukraine

The court found that the citizen, who was liable for military service and recognised as partially fit for military service, evaded conscription during the general mobilisation proclaimed by Decree of the President of Ukraine No. 69/2022 of 24 February 2022 in connection with the introduction of martial law throughout Ukraine due to the armed aggression of the Russian Federation against our country.

Having been informed in July 2022 of his obligation to report to the recruitment station of the Territorial Centre for Recruitment and Social Support for Mobilisation in the Armed Forces of Ukraine, the conscript, who had no right to deferment and no grounds for substituting military service with alternative (non-military) service, refused to accept the call-up, arguing that military service was contrary to his religious beliefs. He did not report to the recruitment station at the time specified in the notice of call-up, 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 mobilisation training and mobilisation".

The Criminal Cassation Court of the Supreme Court 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. The criteria for the legitimacy of the restriction in question are: legality; legitimate purpose - the interests of public security, the need to protect public order, health or morals, and the protection of the rights and freedoms of others; proportionality, which defines the limits of legitimate interference with the right and allows it only to be carried out to the extent necessary to achieve the above-mentioned legitimate objectives.

The provision of part 4 of Article 35 of the Constitution of Ukraine as a constitutional legal provision in accordance with part 3 of Article 8 of the Basic Law is a provision with direct effect. However, this constitutional provision only provides for a constitutional guarantee to replace military service with alternative non-military service if there is a circumstance such as the incompatibility of military service with a 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 context of the armed aggression of the Russian Federation against Ukraine, when the lives, health and safety of other citizens and the very existence of the state are at risk, there is an urgent need to properly staff the Armed Forces of Ukraine to repel the aggression and a high risk of unscrupulous behaviour by conscripts aimed at evading the constitutional duty to defend the Motherland. In the context of exceptional circumstances, achieving a fair balance between the human right enshrined in 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 necessitates the implementation of an objective verification process to substantiate a person's claims that their religious beliefs are incompatible with military service, and the corroboration of such beliefs through evidence. This does not mean that the possibility of exercising the right to conscientious objection is limited to membership of registered religious organisations whose doctrine unconditionally prohibits such service and the carrying and use of arms.

The right to freedom of religion has both external and internal aspects, and association with other people in religious organisations as social structures is only one of the alternative forms of its external expression. However, if a person refuses to serve in the armed forces on grounds of conscience, he or she must demonstrate the existence of relevant deep, sincere and consistent religious beliefs on the basis of certain data, in addition to his or her own words and the statements of those close to him or her.

In this case, the Supreme Court took into account the fact that the convicted person did not belong to any religious organisation and had served in the armed forces, including for five months after the formation of his declared 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 these beliefs and his military duty.

In view of the above, the Court found that the criminal classification of the person's actions as evasion of mobilisation under Article 336 of the Criminal Code of Ukraine was correct.

The Resolution of the Criminal Cassation Court of the Supreme Court in case No. 344/12021/22 (proceedings No. 51-90км24) - https://reyestr.court.gov.ua.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.