A Brussels-based NGO writes to the Constitutional Court
| 12 May 2025 To the Acting Headof the Constitutional Court of Ukraine Petryshyn Oleksandr Volodymyrovych Dear Oleksandr Volodymyrovych, The international human rights organization “Human Rights Without Frontiers,” in cooperation with several European religious organizations, is closely following the proceedings regarding the constitutional complaint submitted by Ukrainian citizen Dmytro Zelinskyi. This matter is of fundamental importance to all conscientious objectors in Ukraine, especially those whose religious beliefs do not allow them to bear arms or perform other forms of military work. Dmytro Zelinskyi was sentenced under Article 336 of the Criminal Code of Ukraine to three years of imprisonment for evading military conscription during mobilization in a special period. He justified his inability to serve in the military on the basis of his religious beliefs, as he has been a member of the “Christian community of the Seventh-day Adventist Church” for over 20 years. He expressed his willingness to perform alternative non-military service, but such a right was denied due to the absence of relevant legal provisions allowing for alternative (non-military) service during mobilization in a special period. Dmytro Zelinskyi filed a complaint with the Constitutional Court of Ukraine requesting a review of the conformity of Part 1 of Article 1 of the Law of Ukraine “On Alternative (Non-Military) Service” with Part 4 of Article 35 of the Constitution of Ukraine. In his complaint, he states that “Part 4 of Article 35 of the Constitution of Ukraine pertains to the fulfillment of military duty in general. Therefore, alternative (non-military) service should be introduced in place of all forms of military service, not only compuls service”; “however, the provisions of the Law allow alternative (non-military) service to substitute only for compulsory military service, which does not exist during martial law. This entirely nullifies the realization of the constitutional right provided by Part 4 of Article 35 of the Constitution of Ukraine and is thus unconstitutional.” Zelinskyi points out that “the Constitution of Ukraine guarantees exemption from military service for citizens whose religious beliefs do not allow them to bear arms. Moreover, no law has been adopted in accordance with Article 64 of the Constitution of Ukraine that would restrict the rights granted by Article 35 during martial law.” Therefore, he believes the current provisions of the Law contradict the Constitution, and the right to alternative (non-military) service must be guaranteed at all times. On 18 March 2025, the Venice Commission published an opinion prepared at the request of the Constitutional Court of Ukraine. In this opinion, the Venice Commission thoroughly analyzes the issues raised in Zelinskyi’s constitutional complaint in light of international human rights standards. The Venice Commission clearly stated that: – Article 9 of the European Convention on Human Rights and Article 18 of the International Covenant on Civil and Political Rights, which concern freedom of thought, conscience, and religion, guarantee the right to conscientious objection to military service; – According to the European Convention on Human Rights, states must establish a system of alternative service that is separate from the military structure, is not punitive in nature, and remains within reasonable time limits. Access to alternative service must be non-discriminatory and subject to fair and transparent mechanisms; – The very nature of conscientious objection implies that it cannot be entirely excluded during wartime; – The state cannot invoke national security as the sole justification for restricting the right of individuals or groups to practice their religion; – Any restrictions on the right to conscientious objection must be clearly prescribed by law, pursue a legitimate aim, be strictly limited to what is evidently necessary to achieve that aim, and be proportionate to that aim. The Commission also emphasizes that “under no circumstances can a conscientious objector be forced to carry or use weapons, even for self-defense.” We are deeply concerned by the fact that dozens of believers who refused military service during martial law solely for religious reasons are currently serving sentences in prison. Other believers who refuse mobilization on religious grounds are being criminally prosecuted under Article 336 of the Criminal Code of Ukraine. They were not provided with the right to alternative (non-military) service guaranteed by the Constitution of Ukraine and international human rights standards. This represents a serious human rights violation that requires urgent constitutional response. The Constitutional Court is now essentially tasked with ensuring that Ukrainian believers are able to exercise their constitutional rights and fulfill their duty to Ukraine in a way that does not involve imprisonment. We are gravely troubled by the fact that the case of Dmytro Zelinskyi has not yet been resolved, even though the six-month period provided by law has already expired. We call for a transparent, fair, and timely review of this case, which is of vital importance to many believers in Ukraine who wish to exercise their constitutional rights according to their conscience. In view of the above, we kindly request information regarding the scheduled date for consideration of this case by the Constitutional Court. Respectfully, Willy Fautré Director and Co-Founder “Human Rights Without Frontiers International” |
