A conscientious objector jail terms

 UKRAINE 

A conscientious objector jail terms

30 April 2024

In late March a Sumy Region court handed a Jehovah's Witness . He is due to go to prison if their appeals fail. The one known prisoner, Dmytro Zelinsky, awaits a Supreme Court appeal on 13 June.

Jehovah's Witnesses note that the March sentence is the first prison term handed down to any Jehovah's Witness for refusing mobilisation on grounds of conscience. They point out that this case was initiated and the first-instance court handed down a sentence within about five weeks, while many of their other cases have taken more than a year.

No alternative civilian service in wartime despite Constitutional guarantees

After Russia's renewed invasion of Ukraine began in February 2022, Ukraine declared a state of martial law. All men between the ages of 18 and 60 were deemed eligible for call-up in a general mobilisation and were banned from leaving the country. Ukraine's Defence Ministry insists that even the limited alternative service allowed in peacetime does not exist during wartime.

Article 35 of Ukraine's Constitution includes the provision: "If the performance of military duty contradicts the religious beliefs of a citizen, the performance of this duty shall 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.

On the morning of 30 April, Forum 18 asked Viktor Yelensky, head of the State Service for Ethnic Policy and Freedom of Conscience:

- why jail terms and trials continue for those who cannot serve in the military on grounds of conscience and who have expressed willingness to perform alternative civilian service;

- and what progress there has been on introducing an alternative civilian service where individuals can, for example, work in a hospital.

Forum 18 had received no response by the end of the working day in Kyiv of 30 April.

On the morning of 30 April, Forum 18 asked the office of the Parliamentary Human Rights Commissioner (Ombudsperson) Dmytro Lubinets:

- what the Commissioner has done or is doing to protect the rights of conscientious objectors who are subject to criminal prosecution;

- and what the Commissioner has done or is doing to help introduce an alternative civilian service during martial law in line with Article 35 of the Constitution.

Forum 18 had received no response by the end of the working day in Kyiv of 30 April.

Conscientious objection "a non-derogable right"

The United Nations (UN) Human Rights Committee in its 9 February 2022 Concluding Observations on Ukraine (CCPR/C/UKR/CO/8) stressed that "alternatives to military service should be available to all conscientious objectors without discrimination as to the nature of their beliefs justifying the objection (be they religious beliefs or non-religious beliefs grounded in conscience)".

The UN Office of the High Commissioner for Human Rights (OHCHR) has noted that conscientious objection to military service comes under ICCPR Article 18 ("Freedom of thought, conscience and religion") and has recognised "the right of everyone to have conscientious objection to military service as a legitimate exercise of the right to freedom of thought, conscience and religion".

The OHCHR has also noted in its Conscientious Objection to Military Service guide that Article 18 is "a non-derogable right .. even during times of a public emergency threatening the life of the nation".

In 2022 the UN Working Group on Arbitrary Detention stated (WGAD-HRC50) that "the right to conscientious objection to military service is part of the absolutely protected right to hold a belief under article 18 (1) of the Covenant, which cannot be restricted by States". The Working Group also stated that "States should refrain from imprisoning individuals solely on the basis of their conscientious objection to military service, and should release those that have been so imprisoned."

First Jehovah's Witness conviction and 3-year jail term

Jehovah's Witness conscientious objector S.I. is due to go to prison for three years if his appeal to Sumy Appeal Court fails. On 22 February, police initiated proceedings against him under Criminal Code Article 336. On 1 March, prosecutors handed the case to Bilopillya District Court, with Prosecutor Ruslan Tyutchenko leading the case at trial. On 28 March, Judge Anna Zamchenko convicted him and handed down a 3-year jail term, according to the verdict seen by Forum 18.

Officials at Bilopillya Prosecutor's Office did not answer the phone on 30 April.

The decision enters legal force only after any appeal has been heard and S.I. has not been taken into custody. His lawyer has filed an appeal. No hearing at Sumy Appeal Court has yet been scheduled, Jehovah's Witnesses told Forum 18.

The Recruitment Office summoned S.I. on 6 February. A medical commission found him fit for service. On 14 February, the Recruitment Office ordered him to appear on 24 February to be sent to a military unit. On 14 February, he wrote to the head of the Recruitment Office explaining that he could not perform military service on grounds of conscience and asking to be assigned to an alternative civilian service, according to the verdict.

The individual was "warned of criminal liability for evading military service and it was explained to him that the current legislation does not provide for alternative service during mobilisation," the verdict cites a Recruitment Office official as having told S.I. "In addition, the witness added that the fact that the accused became a member of a religious organisation after the introduction of martial law in Ukraine suggests that he did it on purpose."

S.I. began studying with Jehovah's Witnesses in 2020 and was baptised in November 2023.

Jehovah's Witnesses note that this is the first prison term handed down to any Jehovah's Witness for refusing mobilisation on grounds of conscience. They point out that this case was initiated and the first-instance court handed down a sentence within about five weeks, while many of their other cases have taken more than a year.

Jehovah's Witnesses stress that their young men are prepared to perform an alternative civilian service. They also note that Jehovah's Witnesses in neighbouring Russia (where the community has been banned as "extremist") do not participate on grounds of conscience in Russia's war against Ukraine.

Prosecutors appeal against 3 acquittals

On 4 March 2022, police initiated proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector V.S. On 20 March 2023, Tyachiv District Court acquitted him. The prosecutor filed an appeal. Transcarpathia Appeal Court is due to hold the next hearing on 20 May 2024.

On 4 March 2022, police initiated proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector P.R. On 24 May 2023, Tyachiv District Court acquitted him. The prosecutor filed an appeal. Transcarpathia Appeal Court is due to hold the next hearing on 24 July 2024.

An official from the Prosecutor's Office – who did not give his name – refused to discuss with Forum 18 in November 2023 why it had appealed against the acquittals. Prosecutor Yaroslav Nitka – who lodged one of the appeals - likewise refused to say. "The court is going to make the decision and I cannot discuss the case," he told Forum 18.

On 14 June 2023, police in Boryspil in Kyiv Region initiated proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector S.T. On 10 January 2024, Judge Serhy Voznyuk of Boryspil Town and District Court acquitted him, according to the verdict seen by Forum 18.

S.T. had argued that Article 35 of the Constitution protected his right to apply for alternative civilian service and that Jehovah's Witnesses are among the 10 communities recognised as being a pacifist community whose members were allowed to apply for alternative civilian service.

The prosecutor has filed an appeal. Kyiv Region Appeal Court is due to hold the next hearing on 8 May 2024, Jehovah's Witnesses told Forum 18.

S.T. had performed military service between 1993 and 1994, but became a baptised Jehovah's Witness in 1998. He told the Recruitment Office that he was ready to perform an alternative civilian service.

Six trials of Jehovah's Witnesses underway

On 13 December 2022, police in Poltava initiated criminal proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector A.N. The trial is in progress with the next hearing scheduled for 27 June 2024.

On 5 April 2023, police in Chuhuiv in Kharkiv Region initiated criminal proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector V.P. The trial is in progress with the next hearing scheduled for 26 June 2024.

On 13 April 2023, police in Chortkiv initiated criminal proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector V.M. The trial is in progress with the next hearing scheduled for 27 June 2024.

On July 25, 2023, the police in Boryspil in Kyiv Region initiated criminal proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector I.S. The trial is in progress with the next hearing scheduled for 14 May 2024.

On 5 January 2024, the police in Ivanitsi initiated criminal proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector O.T. The trial is in progress with the next hearing scheduled for 2 May 2024.

On 9 February 2024, the court in Synelnykove in Dnipropetrovsk Region started criminal proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector D.Sh. The next hearing is scheduled for 31 July 2024.

No criminal case has yet been launched against Borodin, a Baptist told Forum 18 from Zaporizhzhia on 26 April.

Case dropped, exemption on medical grounds

On 2 September 2022, police in Ternopil initiated proceedings under Criminal Code Article 336 against Jehovah's Witness conscientious objector P.A. On 14 September 2022, the investigative judge imposed house arrest (from 10 pm till 6 am) as a measure of restraint, Jehovah's Witnesses told Forum 18.

On 12 January 2023, the administrative court upheld P.A.'s complaint against the Recruitment Office for drafting him despite his being medically unfit. The Recruitment Office appealed against this decision. On 19 July 2023, the Administrative Court of Appeal reaffirmed it was unlawful to register P.A. for military service because he was medically unfit. In view of the decision, the prosecutor dropped the criminal charges.

On 21 December 2023, Ternopil City and District Court supported the prosecutor's decision and closed the criminal case. The ruling has entered into force.

https://www.forum18.org/archive.php?article_id=2906