UKRAINE: The war, religious beliefs and conscientious objection: the case of Jehovah’s Witnesses (1)
HRWF study of the judicial practice of Ukraine regarding the cases of criminal cases of persons who, within 28 months after the beginning of Russia’s full-scale military invasion of Ukraine, refused to be mobilized for their religious beliefs or declared to have pacifist views
HRWF (24.06.2024) – Since Russia launched a full-scale invasion of Ukraine on 24 February 2022 until the publication of this report on 24 June 2024, it has been known that 21 conscientious objectors of all faiths have been prosecuted for refusing to be mobilized while expressing their willingness to perform alternative civilian service.
Of the total number of verdicts in the 21 cases, there were 4 acquittals and 17 convictions. These figures correspond to the results of the consideration of those cases by courts of first instance. However, it should be borne in mind that many decisions of courts of first instance are appealed at a higher court where there can be a different verdict. Thus, as a result of the review of one of the above-mentioned acquittals, the court of appeal had a different opinion and released a guilty verdict.
Among the convictions by a court of first instance, 7 provided for punishment in the form of imprisonment, but later, on appeal, 2 convicts got a milder verdict and were released from actually serving a sentence with a probation period. Thus, the number of convictions providing for the release from punishment in the form of imprisonment with a probation period was 12. Prosecutors appealed 3 acquittal decisions. Currently, 6 criminal cases are being conducted in courts. However, the number of cases may increase, including through the filing of applications for review by higher courts of previously issued sentences.
The legislation of Ukraine protects the right to conscientious objection to military service of citizens for ten categories of religious associations:
- Reformed Adventists
- Seventh-day Adventists
- Evangelical Christians
- Evangelical Christian Baptists
- Pokutniki (stemming from the Uniate Church in the mid-1990s)
- Jehovah’s Witnesses
- Charismatic Christian Churches (and similar Churches according to the registered statutes)
- Christians of the Evangelical Faith (and similar Churches according to the registered statutes)
- Christians of the Evangelical Faith
- Society for Kṛiṣhṇa Consciousness.
Noteworthy is that alternative (non-military) service is introduced only in place of regular military service, which is not subject to conscription during martial law (Article 1(1) of Law No. 1975; Article 181(1) of Law No. 2232).
The U.N. Human Rights Committee, which reviews the implementation of the International Covenant on Civil and Political Rights, has interpreted the right to freedom of thought, conscience and religion and its application in relation to conscientious objection to military service. In its general comment No. 22 (1993), it stated:
The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief (para. 11).
This research by a consultant of Human Rights Without Frontiers in the database of court decisions in Ukraine will cover the implementation of the national legislation for a number of religious groups.
Ukrainian normative framework
According to Article 35 of the Constitution of Ukraine,
“Everyone has the right to freedom of thought and religion. This right includes the freedom to profess any religion or not to profess any, to freely perform worshipping and ritual ceremonies, individually or collectively, and to conduct religious activities.
The exercise of this right may be restricted by law, only in the interests of protecting public order, health and morality of the population or protecting the rights and freedoms of others.
Churches and religious organizations in Ukraine are separated from the state, and schools from the Church. No religion may be recognized by the state as obligatory.
No one may be released from his or her duties to the state or refuse to comply with the law on the grounds of religious beliefs. If the performance of military duty contradicts the religious beliefs of a citizen, the implementation of this duty must be replaced by alternative (non-military) service.”
Those who refuse mobilisation on grounds of conscience face prosecution under Criminal Code Article 336 (“Refusing call-up for military service during mobilisation or in a special period, and for military service during call-up of reservists in a special period”). The punishment is a jail term of three to five years.
According to the Regulation on the Procedure for Alternative (Non-Military) Service, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 2066 of November 10, 1999, the grounds for refusing to send a citizen to an alternative service or to exempt him from military conscription are:
- the untimely submission of an application for referral to alternative service or exemption from conscription
- the lack of confirmation of the authenticity of the religious beliefs
- the non-appearance of a citizen without valid reasons to the relevant subdivision of the local state administration
According to the Law of Ukraine “On Alternative (Non-Military) Service”, such a service is available instead of the military service and is aimed at fulfilling a duty to society.
Citizens of Ukraine have the right to alternative service if the fulfillment of the military duty contradicts their religious beliefs and these citizens belong to religious organizations operating in accordance with the legislation of Ukraine, the doctrine of which does not allow the use of weapons (Article 2).
In the conditions of martial law or a state of emergency, certain restrictions on the right of citizens to perform alternative service may be established, indicating the duration of these restrictions.
The Decree of the Cabinet of Ministers of Ukraine of November 10, 1999 No. 2066 “On Approval of Normative Legal Acts on the Application of the Law of Ukraine On Alternative (Non-Military) Service” listed the religious organizations that operate in accordance with the legislation of Ukraine and whose doctrine does not allow the use of weapons.
The source of the cases hereafter is the Unified State Register of Court Decisions of Ukraine on the judicial practice of considering criminal proceedings for the period starting with Russia’s full-scale invasion of Ukraine (from 24.02.2022 to 10.06.2024) regarding kickbacks for reasons of conscience. According to the current legislation of Ukraine, the names of the defendants are not subject to disclosure.
Judicial practice concerning (alleged) Jehovah’s Witnesses
Since Russia’s full-scale military invasion of Ukraine until the publication of this report on 24 June 2024, there have been seven cases of criminal prosecution of persons who called themselves Jehovah’s Witnesses. However, only four of these people were able to confirm their valid membership in the Religious Association of Jehovah’s Witnesses in Ukraine. In three other cases, the religious organization, when asked by the law enforcement authorities, reported that the defendants were not its members.
20.03.2023 – Case No. 307/1184/22 – Tyachiv, Tyachiv District Court of Zakarpattia Oblast – Acquittal. An unnamed Jehovah’s was found not guilty of the charge brought against him under Art. 336 of the Criminal Code of Ukraine and acquitted due to the absence of corpus delicti in the acts.
The defendant conscientious objection to military service for reasons of religious belief. His attitude to military service was not caused by the fact of war, he had previously performed alternative service. He has been one of Jehovah’s Witnesses since 2016.
After the acquittal was pronounced, the prosecutor filed an appeal, which was accepted for consideration by the Zakarpattia Court of Appeal (Uzhhorod) on 01.05.2023
24.05.2023 – Case No. 307/961/22 – Tyachiv, Tyachiv District Court of Zakarpattia Oblast – Acquittal – An unnamed Jehovah’s Witness was found not guilty of committing a criminal offense under Art. 336 of the Criminal Code of Ukraine (evasion of conscription during mobilization) and acquitted due to the absence of corpus delicti in his actions.
The defendant has been a Jehovah’s Witness since 2009. His religious beliefs concerning military service and war were formed long before the start of Russia’s war on Ukraine. He noted that he had a clear understanding that his conscience did not allow him to take up arms. In his application, he asked for the opportunity to perform alternative service.
After the acquittal was pronounced, the prosecutor filed an appeal which was accepted for consideration by the Zakarpattia Court of Appeal (Uzhhorod) on 30.06.2023
12.01.2024 – Case No. 359/6608/23 – Boryspil, Boryspil City District Court of Kyiv Oblast. Acquittal. An unnamed Jehovah’ Witness was found not guilty of the charge brought against him under Art. 336 of the Criminal Code of Ukraine and acquitted due to the absence of corpus delicti in the act
At the hearing, the defendant explained that since the end of 1998 he had been a dedicated baptized minister of the Religious Association of Jehovah’s Witnesses in Ukraine. His religious personal beliefs as a Jehovah’s Witness do not permit the use of weapons or participation in war and military exercises. In view of this, as well as the fact that military duty is contrary to his religious beliefs, he wished to exercise his constitutional right, as a citizen of Ukraine, for non-military service provided for in Art. 35 of the Constitution of Ukraine. In this regard, he appealed to the Boryspil territorial community with relevant applications for the replacement of military service by conscription with alternative civilian/non-military service. At the same time, he provided a certificate from the Church confirming the relevant circumstances and asked to be exempted from conscription for military service during mobilization or sent to alternative (non-military) service.
The acquittal was not appealed.
28.03.2024 – Case No. 573/406/24 – Bilopillia, Bilopillia District Court of Sumy Oblast – Guilty verdict . Punishment in the form of imprisonment for a term of 3 years.
The defendant declared that he had been studying the Orthodox Bible since his time at school but at the end of 2020 he began to read the Bible of Jehovah’s Witnesses and he was baptized as a Jehovah’s Witness. No evidence was however provided that he was.
As the defense did not provide evidence to confirm that the accused was baptized in connection with his new religious beliefs, the court considered that he used baptism to evade mobilization.
The defendant’s lawyer filed an appeal, which was accepted for consideration by the Sumy Court of Appeal on 07.05.2024.
The hearing of the case on appeal is scheduled for 13.11.2024 at 14:30