Source: www.forum18.org
Date: May 5, 2023
https://www.forum18.org/archiv
By Felix Corley, Forum 18
Mykhailo Yavorsky, a 40-year-old Christian from the south-western city of
Ivano-Frankivsk, is preparing an appeal against a one-year jail term handed
down on 6 April for refusing mobilisation on grounds of conscience. If his
appeal fails, he will be taken to prison to begin serving his sentence. He
has vowed to take his case as far as the Supreme Court if necessary.
Ukraine's Defence Ministry insists that even the limited alternative
service allowed in peacetime does not exist during wartime.
"I would not carry weapons and would not put on a uniform, as I can't kill
a person," Yavorsky told Forum 18. "But they offered me no alternative
service. No one asked me what I believe" (see below).
Yavorsky is the second conscientious objector known to have been given a
jail term for refusing mobilisation on grounds of conscience since Russia's
renewed invasion of Ukraine in February 2022.
Within Russian-occupied Ukraine there are severe violations of human rights
such as the freedom of religion or belief, including (as of May 2022) the
illegal conscription of over 3,000 Ukrainians into the Russian armed forces
(see below).
On 23 February 2023, one day before the first anniversary of Russia's
renewed invasion, Ukrainian police in Ivano-Frankivsk took 46-year-old
Christian conscientious objector Vitaly Alekseenko into custody to begin
serving his one-year jail term. His requests to perform an alternative
civilian service were ignored. He is serving his sentence in a prison in
Kolomyia near Ivano-Frankivsk (see below).
Alekseenko has already lodged a further cassation appeal to the Supreme
Court in Kyiv. A hearing has been set for 25 May. The Supreme Court refused
to suspend his sentence while it considered his cassation appeal (see
below).
On 3 February, Protestant Christian Hennady Tomniuk was handed a 3-year
suspended sentence for refusing mobilisation on grounds of conscience. On
27 April, Ivano-Frankivsk Appeal Court rejected the prosecutor's attempt to
have this turned into a prison sentence. At the same time, the Court
rejected Tomniuk's own appeal against his sentence. He said he is not going
to appeal further to the Supreme Court. "I am tired of all this – the
whole process has gone on for a year," he told Forum 18 (see below).
A court in Transcarpathia acquitted a Jehovah's Witness of refusing the
call-up to mobilisation, but the prosecutor is appealing against the
acquittal. No date has yet been set for the appeal to be heard. Four other
Jehovah's Witness young men are currently on trial for refusing
mobilisation and offering to perform an alternative civilian service,
Jehovah's Witnesses told Forum 18 (see below).
All these men were prosecuted 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"). Punishment is a jail term of three to five years.
Since Russia's renewed invasion of Ukraine in February 2022, Ukrainian
courts have given at least five other conscientious objectors suspended
prison terms (see forthcoming F18News article).
Meanwhile, the Ukrainian army has rejected requests by Christian
conscientious objector Andrii Vyshnevetsky to be transferred to an
alternative civilian service. The 34-year-old was mobilised in Odessa in
September 2022 and is currently serving in a military kitchen. The
Recruitment Office in Odessa refused to discuss his case (see forthcoming
F18News article).
"Conscientious objection is a hot issue"
An official from the Defence Ministry Personnel Department – who would
not give his name – told Forum 18 in February
(https://www.forum18.org/archi
civilian service does not exist in wartime and that such individuals are
dealt with through the courts. When Forum 18 asked why Alekseenko and other
conscientious objectors cannot as they have requested be sent to work in
hospitals, for example, the official repeated his answer.
Viktor Yelensky, head of the State Service for Ethnic Policies and Freedom
of Conscience, says he has been pushing to widen access to alternative
civilian service for conscientious objectors. "All my efforts have been
rejected," he told Forum 18 from Kyiv on 3 May. "It is really not easy to
reach this goal when we have such heavy losses in battle."
Yelensky also noted that he has been unable to have the right to
alternative civilian service in peace time to be extended to all
conscientious objectors, rather than just to members of 10 approved
religious communities
(https://www.forum18.org/archi
convince law-makers and military people" (see forthcoming F18News article).
On 3 May, Forum 18 asked Hanna Barabash, the head of the department
handling the right to freedom of religion or belief at the office of the
Parliamentary Human Rights Commissioner (Ombudsperson), about the jailing
of conscientious objector Alekseenko, the jail sentence handed down on
Yavorsky, and the suspended prison terms handed down to other conscientious
objectors. No reply had been received by the middle of the working day in
Kyiv of 5 May (see below).
"Conscientious objection to military service is not a crime, it is a human
right, and this human right should not be denied even in time of war,"
Yurii Sheliazhenko of the Ukrainian Pacifist Movement told Forum 18 in
February (https://www.forum18.org/archi
it is especially precious in times of war and historically emerged exactly
because of that, because challenges of modern militarised economies became
unbearable to the conscience of a growing number of people."
"Conscientious objection is a hot issue," a member of a religious community
who wished to remain anonymous told Forum 18 on 2 May. "Unfortunately
society is very sensitive and does not seem to accept permission for some
people not to perform their state duty. The overwhelming majority will not
accept this, even some judges."
The individual noted that conscientious objectors accept they have
obligations. "It is not a case that they are not willing to perform their
state duty, but to be able to perform it in accord with their conscience.
Believers want to continue to be valuable members of society even during a
war."
The United Nations (UN) Human Rights Committee in its 9 February 2022
Concluding Observations on Ukraine (CCPR/C/UKR/CO/8
(https://undocs.org/CCPR/C/UKR
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 Human Rights Committee's General Comment 22 on Article 18 ("Freedom
of thought, conscience and religion") of the International Covenant on
Civil and Political Rights (ICCPR) notes that "this right is non-derogable
even during times of national emergency
(https://www.quno.org/sites/de
threatening the life of the nation".
Yavorsky: Appeal against jail term
Mykhailo Yosypovych Yavorsky (born 1983), a Christian from the
south-western city of Ivano-Frankivsk, is preparing an appeal to
Ivano-Frankivsk Appeal Court against a one-year jail term handed down on 6
April for refusing mobilisation on grounds of conscience. If his appeal
fails, he will be taken to prison to begin serving his sentence. He vowed
to take his case to the Supreme Court if necessary.
"I adhere to the New Testament," Yavorsky told Forum 18 on 2 May. "Jesus
said you must love God and love your neighbour – this is the most
important thing."
Yavorsky became a Christian in 2003 as he was nearing the end of his
compulsory military service. "I was bad when I was a soldier but my
behaviour improved and I was baptised with full immersion soon after my
military service ended," he said. "I have been a Christian for 20 years."
Yavorsky insists he is ready to perform an alternative civilian service. "I
would not carry weapons and would not put on a uniform, as I can't kill a
person. But they offered me no alternative service. No one asked me what I
believe."
Yavorsky pointed out that he had many opportunities to flee the country
after the Russian invasion, but chose not to. "I stick firmly to my
principles. I could have left but I didn't want to. I wanted to remain in
my country and for my country to become more humane," he told Forum 18. "I
don't hide, I don't bribe judges."
In March 2022, Ivano-Frankivsk Recruitment Office summoned Yavorsky, where
he passed a medical commission. He told them he would not serve in the
armed forces because of his religious beliefs and wrote this on the
Recruitment Office forms. A medical exemption from call-up expired in June
2022.
On 21 July 2022, the Recruitment Office ordered Yavorsky to appear four
days later for mobilisation. He told them again he could not join the army
because of his religious beliefs. Recruitment Office staff explained to him
"the consequences of evading conscription for military service during
mobilisation", according to the court decision seen by Forum 18.
On 15 August 2022, the head of the Recruitment Office wrote to the
Prosecutor's Office that Yavorsky had committed a crime 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 case was handed to Ivano-Frankivsk City Court on 26 September 2022. The
case was finally heard on 6 April 2023, when Judge Olesya Zelenko sentenced
Yavorsky to one year's imprisonment. The court decision notes that Yavorsky
was not a member of any of the 10 religious organisations
(https://www.forum18.org/archi
allow the use of weapons" (and who therefore are eligible for alternative
civilian service in peacetime) and therefore "does not have the right to
alternative service". The court decision notes that Yavorsky and the
Prosecutor had one month to appeal.
Forum 18 asked Hanna Barabash, head of the department handling the right to
freedom of religion or belief at the office of the Parliamentary Human
Rights Commissioner (Ombudsperson) in Kyiv, in writing on 3 May about the
court decision to jail Yavorsky. No reply had been received by the middle
of the working day in Kyiv of 5 May.
Tomniuk: Prosecutor's jailing bid fails
On 27 April, a panel of three judges at Ivano-Frankivsk Appeal Court
rejected the prosecutor's attempt to have the 3-year suspended sentence of
Hennady Viktorovich Tomniuk (born 1984) turned into a prison sentence. The
Court also rejected Tomniuk's own appeal for his sentence to be overturned,
according to the decision seen by Forum 18. Both parties were given three
months to lodge any further appeal to the Supreme Court in Kyiv.
Tomniuk, a Protestant Christian who lives in Ivano-Frankivsk, had
previously conducted military service in Ukraine's armed forces between
2001 and 2003. However, since then he had expressed growing opposition to
war and participating in the military. "War is millions of mutilated souls
and dreams," he wrote on his Facebook page on 20 September 2018. "War is
never a victory. War is only a mistake, only a terrible mistake!"
"I grew up in a believing Christian family and take the words of the Holy
Scriptures very seriously," Tomniuk explained to Yurii Sheliazhenko of the
Ukrainian Pacifist Movement in a 3 March 2023 interview. He cited the
commandment "Thou shalt not kill." (Exodus 20:13), Jesus' words "You have
heard that it was said to the people long ago, 'You shall not murder, and
anyone who murders will be subject to judgment'" (Matthew 5:21) and other
Biblical passages to back his rejection of performing military service.
Tomniuk was co-author of a novel "Black Box", published in 2020, setting
out opposition to war based on Christian principles.
On 6 April 2022, Ivano-Frankivsk Recruitment Office handed Tomniuk a
summons to appear the following day. After queuing there for a long time on
7 April, he was assigned a medical check-up the following day, which he
passed and was declared fit for service. "In conversation with the
military, who were looking at my documents, I asked to be sent to the State
Emergency Service, because according to my worldview, deeply held religious
beliefs, I cannot shoot either an animal or a person," he told
Sheliazhenko. He also brought a written statement.
Officers told Tomniuk they could not recruit for the State Emergency
Service and that he would have to speak to a psychologist about his request
for alternative civilian service. No psychologist was present. He was then
ordered to appear on 15 April 2022 to be mobilised.
On 14 April 2022, Tomniuk submitted a request online to join the State
Emergency Service. The following day, he brought a written statement (seen
by Forum 18) asking on grounds of his religious belief to perform
alternative service instead of being mobilised. A lawyer there told him
Tomniuk would be committing a crime by failing to be mobilised. Police then
took him to the police station.
Prosecutors brought a case against Tomniuk 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").
On 3 February 2023, Judge Ivanna Kovalyuk of Ivano-Frankivsk City Court
found Tomniuk guilty. The judge handed him a suspended 3-year jail term,
despite the Prosecutor's demand for a 3-year actual jail term, according to
the decision seen by Forum 18. During the 3 years, Tomniuk will have to
report regularly and declare any change of address or place of work.
Both Tomniuk and the prosecutor appealed against the decision. On 27 April,
Ivano-Frankivsk Appeal Court rejected the prosecutor's attempt to have
Tomniuk's 3-year suspended sentence turned into a prison sentence. At the
same time, the Court rejected Tomniuk's own appeal against his sentence.
The judges were Volodymyr Povzlo, Bogdan Kukurudz and Oleksandr Vasilev,
the same three who rejected Vitaly Alekseenko's appeal against his jailing
in January (see below).
Tomniuk said he is not going to appeal further to the Supreme Court. "I am
tired of all this – the whole process has gone on for a year," he told
Forum 18 on 3 May.
Tomniuk believes that he will have to report regularly to the police during
his suspended sentence, but says he has not yet been told what provisions
will apply.
Prosecutor challenges Jehovah's Witness acquittal
On 27 April, the prosecutor appealed to Transcarpathia Appeal Court in
Uzhhorod challenging the acquittal by a lower court of a Jehovah's Witness
conscientious objector. The case has been assigned to Judge Ivan Feyer. No
date has yet been set for the appeal hearing, according to court records.
The Jehovah's Witness had performed alternative service from November 2016
to January 2019. In response to mobilisation on 3 March 2022, one week
after Russia began its renewed invasion of Ukraine, he sought alternative
civilian service. He explained that he was unable to join the military
because of his religious beliefs.
Tyachiv District Recruitment Office refused to discuss anything with Forum
18 on 3 May 2023.
Prosecutors brought a case against the Jehovah's Witness 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").
On 20 March 2023, Tyachiv District Court acquitted the Jehovah's Witness.
"He justified his behaviour regarding the impossibility of military service
by his religious beliefs, while indicating that he informed the pre-trial
investigation body about the existence of such circumstances and provided
relevant supporting documents, showing at the same time his desire to
undergo alternative non-military service," the decision seen by Forum 18
notes.
The judge pointed to European Court of Human Rights Decisions which upheld
the right not to perform military service, including the landmark 2011
decision in the case of Armenian Jehovah's Witness former conscientious
objector prisoner Vahan Bayatyan
(https://www.forum18.org/archi
23459/03).
The March 2023 verdict came at the end of the first completed trial of a
Jehovah's Witness accused under Criminal Code Article 336 since Russia
launched its renewed invasion of Ukraine in February 2022.
"Dozens of other individuals are under investigation, but four cases have
reached court in Tyachiv, Ternopil and Poltava," Jehovah's Witnesses told
Forum 18.
Alekseenko: Prison conditions
Vitaly Vasilovich Alekseenko (born 2 December 1976) is at present the only
conscientious objector known to be in prison in Ukraine for refusing
mobilisation since Russia's renewed invasion of the country in February
2022. He told Forum 18 he believes in Jesus Christ and his command to
resist evil without violence and be peacemakers, as outlined in the Sermon
on the Mount.
Ivano-Frankivsk City Recruitment Office summoned Alekseenko on 2 June 2022.
He told them that he could not take up arms because of his religious
beliefs as a Christian. "I told them I was ready to do an alternative
service and wrote such a declaration," he told Forum 18. He also explained
that he had refused military service in Uzbekistan – where he had lived
in the 1990s - on grounds of conscience.
Ivano-Frankivsk City Court found Alekseenko guilty
(https://www.forum18.org/archi
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 decision - seen by Forum
18 - notes that Prosecutor Olga Gazukina, who led the prosecution case in
court, called for a three-year suspended jail term. However, the Judge
ignored the Prosecutor's request and decided to jail Alekseenko for one
year.
Alekseenko appealed to Ivano-Frankivsk Appeal Court. About 200 letters in
support of Alekseenko reached the court from conscientious objectors around
the world. These were added to the case file, Sheliazhenko told Forum 18
The Appeal Court rejected Alekseenko's appeal on 16 January 2023. Police
finally took him into custody
(https://www.forum18.org/archi
his sentence entered into legal force.
Officers first took Alekseenko to a clinic for a medical examination before
taking him on to Ivano-Frankivsk's Investigation Prison. He was later
transferred to Prison No. 41 in Kolomyia near Ivano-Frankivsk to serve his
sentence.
Forum 18 asked Hanna Barabash, the official handling the right to freedom
of religion or belief at the office of the Parliamentary Human Rights
Commissioner (Ombudsperson), about the jailing of Alekseenko. No reply had
been received by the middle of the working day in Kyiv of 5 May
An inspection of Prison No. 41 by the National Preventive Mechanism
attached to the Ombudsperson's Office noted the death of a prisoner,
"excessive use of force on prisoners by staff of the institution, as well
as forcing the convicts to stand during the entire time of the air raid
warning signal". The 7 March report of the visit
(https://www.ombudsman.gov.ua/
also noted "violations of the right to privacy, violations of the
temperature regime, unsanitary conditions, excessive humidity and wear and
tear of bedding".
With Justice Ministry permission, the visiting European Bureau for
Conscientious Objection President Alexia Tsouni visited Alekseenko in the
prison on 14 April. She delivered to him postcards with messages of
solidarity from individuals and organisations in Ukraine and other
countries, as well as photos of a public hearing in the European Parliament
in his support and protest actions at Ukrainian embassies.
"Alekseenko was grateful for the international solidarity and thanked
everyone who supports him," Tsouni told Forum 18 on 4 May.
Tsouni talked to Alekseenko with the support of an interpreter in a room
which was equipped with surveillance cameras and with the presence of a
prison guard throughout their conversation, she told Forum 18. The prison
administration did not allow her to take photographs of Alekseenko or of
the inside or outside of the prison.
Prisoner of conscience Alekseenko's address in prison:
78250, Ivano-Frankivska obl.
Kolomiisky raion
Selo Tovmachik
Vul. Privokzalna bud. 30
Kolomiiska vipravna koloniya No. 41
Ukraine
Alekseenko: Cassation appeal to the Supreme Court
Alekseenko lodged a further cassation appeal to the Supreme Court in Kyiv,
which registered the case on 21 February. The Supreme Court's Criminal
Division assigned the case to a panel of three judges: Vyacheslav Nastavny,
Serhy Slynko and Svitlana Yakovleva, according to court records. The
hearing has been set for 25 May.
"In his appeal, Vitaly asked the Supreme Court to suspend the execution of
the sentence while the cassation appeal is being considered," Sheliazhenko
told Forum 18 in February
(https://www.forum18.org/archi
non-zero chance that the Supreme Court will grant this."
Severe human rights violations in Russian-occupied Ukraine
Serious violations of freedom of religion and belief and other human rights
take place within all the Ukrainian territory Russia has illegally occupied
(https://www.forum18.org/archi
Within the Russian-occupied Ukrainian territory of Crimea
(https://www.forum18.org/archi
imposition of Russian laws and restrictions on exercising human rights,
including freedom of religion or belief; jailing Muslim and Jehovah's
Witness Crimean prisoners of conscience; forcible closure of places of
worship; and fining people for leading meetings for worship without Russian
state permission.
Within the Russian-occupied Ukrainian region of Luhansk these have up to
the renewed 2022 invasion of Ukraine
(https://www.forum18.org/archi
illegal all Protestant and non-Moscow Patriarchate Orthodox communities; a
climate of fear about discussing human rights violations; repeated denials
of permission to a Roman Catholic priest to live in the region; and
increasing numbers of banned allegedly "extremist" books, including an
edition of the Gospel of John published in 1820.
Within Russia in its internationally-recognised boundaries, no legal or
practical provision exists for alternative civilian service during
mobilisation (https://www.forum18.org/archi
the Constitution guaranteeing this right for every citizen.
Russia has within the Ukrainian territories it has illegally occupied since
2014 conscripted men into its armed forces (https://ebco-beoc.org/ukraine
This is a crime under Geneva Convention (IV) relative to the Protection of
Civilian Persons in Time of War
(https://www.ohchr.org/en/inst
which covers the rights of civilians in territories occupied by another
state (described as "protected persons"). Article 51 states: "The Occupying
Power may not compel protected persons to serve in its armed or auxiliary
forces. No pressure or propaganda which aims at securing voluntary
enlistment is permitted."
An 11 May 2022 analytical report (A/HRC/50/43
(https://undocs.org/A/HRC/50/4
Rights notes that OHCHR has documented that Russia has in the
illegally-occupied Ukrainian territory of Crimea seriously violated
international human rights law by conscripting over 3,000 men into the
Russian armed forces. (END)
Reports on freedom of thought, conscience and belief in all Ukraine
(https://www.forum18.org/archi
Full reports on freedom of thought, conscience and belief in
Russian-occupied Ukraine
(https://www.forum18.org/archi
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