Source: www.forum18.org
Date: June 2, 2023
https://www.forum18.org/archiv
By Felix Corley, Forum 18
On 25 May, Ukraine's Supreme Court overturned the conviction of Christian
conscientious objector Vitaly Alekseenko and ordered his release from
prison. He was freed the same day and returned to his home in the
south-western city of Ivano-Frankivsk. However, the Supreme Court ordered a
retrial in the original court over his refusal to be mobilised. His
requests to perform an alternative civilian service have been ignored.
Alekseenko told Forum 18 on 2 June that he has not yet been told when
Ivano-Frankivsk City Court will hear the new case against him 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") (see below).
Alekseenko was the first person known to have been jailed for refusing
mobilisation on grounds of conscience since Russia began its renewed
invasion of Ukraine in February 2022. Ukraine's Defence Ministry insists
that even the limited alternative service allowed in peacetime does not
exist during wartime (see below).
The 46-year-old Alekseenko was taken into custody on 23 February and had
been serving his one-year sentence in a prison in Kolomyia near
Ivano-Frankivsk (see below).
The second person known to have been sentenced to a jail term for refusing
mobilisation on grounds of conscience since Russia began its renewed
invasion of Ukraine, Mykhailo Yavorsky, is awaiting an appeal at
Ivano-Frankivsk Appeal Court on the morning of 12 June. If his appeal
fails, he will be taken to prison to begin serving his one-year sentence.
He has vowed to take his case as far as the Supreme Court if necessary (see
below).
Three Jehovah's Witness men are on trial after recruitment offices refused
their requests to perform an alternative civilian service. The trials are
underway in Ternopil, in Chortkiv in Ternopil Region, and in Poltava.
Questioning of witnesses in each of the trials has begun (see below).
On 24 May, Tyachiv District Court in Transcarpathia Region acquitted a
second Jehovah's Witness for refusing mobilisation on grounds of
conscience. The same court acquitted another Jehovah's Witness in March,
though the prosecutor is appealing against the acquittal (see below).
Six other conscientious objectors are known to be serving suspended
sentences of three or four years (see below).
Of the 13 known conscientious objector cases to reach court, 5 have been in
Transcarpathia Region and 4 in Ivano-Frankivsk Region, both in Ukraine's
south-west and some distance from the frontline. It is unclear why most
prosecutions of conscientious objectors have taken place in Transcarpathia
Region and Ivano-Frankivsk Region, and the regional Prosecutor's Offices
have not yet replied to Forum 18's questions about this (see below).
Meanwhile, the first hearing took place at the Supreme Court in Kyiv on 22
May in a case lodged by Christian conscientious objector Andrii
Vyshnevetsky. He has been forcibly held in the army, despite expressing his
opposition to serving in the military and requesting to perform alternative
civilian service on grounds of conscience. He is currently serving in a
kitchen in his military unit (see below).
Vyshnevetsky is asking the president to enact a procedure for those already
in the army who have conscientious objections to military service to be
released from service. President Volodymyr Zelensky's representative Sergiy
Savvin sent a 5-page written submission to the court calling for the suit
to be dismissed. Vyshnevetsky told Forum 18 that one of his goals is to
help bring Ukraine's approach to conscientious objection to military
service into line with international human rights law (see below).
A colleague of Savvin – who did not give his name – refused to put
Forum 18 through to him. Asked why the government will not introduce a
procedure for those in the army to be transferred to alternative civilian
service if they have conscientious objections to military service, he
refused to comment. "I'm sorry, you have your position and we have ours"
(see below).
Two jail terms (one overturned), six suspended sentences, two acquittals,
three trials
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 (https://www.forum18.org/archi
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.
In criminal cases since February 2022, courts are known to have handed down
two jail terms:
- 15 September 2022, Vitaly Alekseenko, Ivano-Frankivsk, one-year jail term
(overturned by Supreme Court and sent for new trial – see below);
- 6 April 2023, Mykhailo Yavorsky, Ivano-Frankivsk, one-year jail term
(appeal due on 12 June – see below).
Courts are known to have handed six conscientious objectors suspended
prison sentences (https://www.forum18.org/archi
terms of probation:
- 18 May 2022, Andrii Kucher, Mukachevo, suspended 4-year jail term;
- 21 June 2022, Dmytro Kucherov, Oleksandriia (Kirovohrad Region),
suspended 3-year jail term;
- 17 August 2022, Oleksandr Korobko, Mukachevo, suspended 3-year jail term;
- 22 August 2022, Maryan Kapats, Mukachevo, suspended 3-year jail term;
- 2 December 2022, Andrii Martiniuk, Snyatin (Ivano-Frankivsk Region),
suspended 3-year jail term;
- 3 February 2023, Hennady Tomniuk, Ivano-Frankivsk, suspended 3-year jail
term (which the prosecutor failed to turn into a prison sentence on
appeal).
Courts are known to have handed down two acquittals:
- 20 March 2023, Jehovah's Witness, Tyachiv (which the prosecutor is
appealing against);
- 24 May 2023, Jehovah's Witness, Tyachiv (see below).
Courts are known to be hearing three cases:
- Ternopil, Jehovah's Witness;
- Chortkiv (Ternopil Region), Jehovah's Witness;
- Poltava, Jehovah's Witness.
Investigators are considering criminal cases against other Jehovah's
Witness men.
Why are most cases in two south-western Regions?
Of the 13 known conscientious objector cases to reach court, 5 have been in
Transcarpathia Region and 4 in Ivano-Frankivsk Region, both in Ukraine's
south-west and some distance from the frontline.
Yurii Sheliazhenko of the Ukrainian Pacifist Movement says it is unclear
why most prosecutions of conscientious objectors have taken place in
Transcarpathia Region and Ivano-Frankivsk Region. "It is possible it is
because these regions have many displaced people from other parts of
Ukraine, or because there were more people who declared religious reasons
for asking for alternative service and were refused," he told Forum 18 on 1
June. "But we don't know."
Sheliazhenko explained that Recruitment Offices hand cases of those
refusing mobilisation on any grounds to the police. If the police choose
not to bring a criminal case, Recruitment Offices can challenge this in
court, as happened in the case of a Jehovah's Witness. Police then
investigate a case under supervision of the Prosecutor's Office, but "with
a high level of autonomy." Prosecutors then take a case to court.
"The Prosecutor's Office chooses whether to prosecute an individual and
decides what kind of punishment to seek in court," Sheliazhenko added.
The press officer at Transcarpathia Region Prosecutor's Office told Forum
18 on 2 June she could not answer immediately why:
- local prosecutors had launched these cases to punish conscientious
objectors who had offered to perform an alternative civilian service;
- and why the Region had more known cases than in any other Region.
Forum 18 also sent the questions in writing, but has not yet received a
reply.
Ivano-Frankivsk Region Prosecutor's Office's press office did not answer
its phones on 2 June, so Forum 18 also sent them similar written questions.
Forum 18 has received no reply.
Alekseenko: Supreme Court orders release, sends case for new trial
On 25 May, Ukraine's Supreme Court in Kyiv heard the cassational appeal of
Christian conscientious objector Vitaly Vasilovich Alekseenko (born 2
December 1976) against his one-year jail term for refusing mobilisation on
grounds of conscience. His requests to perform an alternative civilian
service have been ignored.
Just before the hearing, the prison authorities transferred Alekseenko from
the prison in Kolomyia to a prison in Ivano-Frankivsk, from where he joined
the hearing online. "On the eve of my release, I was escorted to
Ivano-Frankivsk, but they did not have time to take me to court in Kyiv,"
he noted on 26 May. Several local and international observers attended the
Supreme Court hearing.
Alekseenko had lodged the case to the Supreme Court on 18 February
(https://www.forum18.org/archi
was taken to prison. However, the Supreme Court refused to suspend his
sentence while it considered his cassation appeal.
Alekseenko was the first person known to have been jailed for refusing
mobilisation on grounds of conscience
(https://www.forum18.org/archi
its renewed invasion of Ukraine in February 2022. The 46-year-old
Alekseenko was taken into custody on 23 February
(https://www.forum18.org/archi
his one-year sentence in a prison in Kolomyia near Ivano-Frankivsk
At the 25 May hearing, the panel of three judges at the Supreme Court –
headed by Judge Vyacheslav Nastavny - overturned Alekseenko's conviction
and ordered his release from prison. He was freed and returned to his home
in the south-western city of Ivano-Frankivsk the same day. However, the
Supreme Court ordered a retrial in the original court, Ivano-Frankivsk City
Court, over his refusal to be mobilised, according to the decision seen by
Forum 18.
At the hearing, Prosecutor Andri Neskorodyany of the Department for
Managing Public Prosecutions of the General Prosecutor's Office urged the
court to leave the earlier court decisions unchanged. The General
Prosecutor's Office in Kyiv refused to put Forum 18 through to Prosecutor
Neskorodyany on 1 June, saying that prosecutors cannot discuss individual
cases.
Alekseenko: "We are concerned that retrial was ordered instead of
acquittal"
"We are concerned that retrial was ordered instead of acquittal," Yurii
Sheliazhenko of the Ukrainian Pacifist Movement – who was present at the
Supreme Court - noted after the hearing.
Sheliazhenko welcomed some parts of the Supreme Court decision that
individuals can have different motives for seeking conscientious objection
to mobilisation or military service in general. "The Supreme Court held
that the first instance court should establish all the factors of the case,
taking into account the Constitutional guarantees under Article 35, as well
as Ukraine's international treaties."
However, Sheliazhenko observed that the Supreme Court had ignored arguments
from the defence that provisions of Article 2 of the Alternative Service
(Non-Military) Law restricting applications for alternative service to men
who are members of recognised religious communities are unconstitutional.
Article 2 of the 1992 Alternative Service (Non-Military) Law states:
"Citizens of Ukraine have the right to alternative service if the
performance of military duty is contrary to their religious beliefs and
these citizens belong to religious organizations operating in accordance
with the legislation of Ukraine, whose creed does not allow the use of
weapons." A 1999 Cabinet of Ministers Decree limited such applications to
members of 10 religious communities
(https://www.forum18.org/archi
"There is a lot of work ahead to uphold the right to refuse to kill for all
those whose the right to conscientious objection was violated; but today
freedom for Vitaly Alekseenko, at last, is secured following a series of
calls of international civil society and peace movements. This is an
achievement of all thousands of people, some of them very far from Ukraine,
who cared, prayed, took action and expressed their support and solidarity
in different ways."
Alekseenko told Forum 18 on 2 June that he has not yet been told when
Ivano-Frankivsk City Court will hear the new case against him 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").
Alekseenko says that at any new trial he will again ask to be acquitted.
Alekseenko: Released
On 25 May, after the end of the Supreme Court hearing, the prison in
Ivano-Frankivsk released Vitaly Alekseenko. "When I was released from
prison, I wanted to shout ‘Hallelujah!' - after all, the Lord God is
there and does not abandon his children," he noted the following day. "When
releasing, they returned my stuff. I didn't have any money, so I had to
walk to my hostel."
Alekseenko added that on the way home he met a pensioner he knew, also a
displaced person from eastern Ukraine, who helped him. "I am grateful to
her for her care, parcels and visits in prison."
Alekseenko said that he would consider how he could promote an end to war.
"People should live in peace, not conflicting and not shedding blood," he
said. "I would like to do something so that the war will end sooner and
there will be a just peace for all, so that no one dies, suffers, sits in
jail or spends sleepless nights during air raids because of this cruel and
senseless war against all God's commandments. But I don't know how to do it
yet."
Alekseenko said that he would like to attend court hearings in cases of
other conscientious objectors and support them, in particular the appeal
hearing in the case of Mykhailo Yavorsky (see below). "And in general, I
would like to help the objectors, and if someone is imprisoned, to visit
them, to take gifts."
Yavorsky: Will appeal court send him to prison?
Mykhailo Yosypovych Yavorsky (born 3 June 1983), a Christian from
Ivano-Frankivsk, is at home awaiting his appeal against his one-year jail
term (https://www.forum18.org/archi
mobilisation on grounds of conscience. On 6 April Ivano-Frankivsk City
Court handed down the sentence 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").
Yavorsky lodged an appeal on 8 May
(https://www.forum18.org/archi
term. The prosecutor has also appealed, seeking to have the one-year jail
term increased to three years. Ivano-Frankivsk Appeal Court is due to hold
the appeal hearing on the morning of 12 June, Yavorsky told Forum 18 on 2
June.
If his appeal fails, Yavorsky 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.
"I would not carry weapons and would not put on a uniform, as I can't kill
a person," Yavorsky told Forum 18
(https://www.forum18.org/archi
no alternative service. No one asked me what I believe."
Vitaly Alekseenko told Forum 18 he is in contact with Yavorsky and is
planning to attend his 12 June appeal hearing to give him his support.
Second Jehovah's Witness acquittal
On 24 May, Tyachiv District Court in Transcarpathia acquitted another
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") of
refusing the call-up to mobilisation, Jehovah's Witnesses told Forum 18 on
31 May.
In March, Tyachiv District Court acquitted a Jehovah's Witness of refusing
the call-up to mobilisation, but the prosecutor is appealing against the
acquittal. Transcarpathia Appeal Court is due to hear the appeal on 5
September.
Three Jehovah's Witnesses on trial
Three Jehovah's Witness men are on trial 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"). Recruitment offices had refused their requests to perform an
alternative civilian service.
The trials are underway in Ternopil, in Chortkiv in Ternopil Region, and in
Poltava. Questioning of witnesses in each of the trials has begun,
Jehovah's Witnesses told Forum 18 on 31 May.
Supreme Court hearings on failure to release conscientious objectors from
army
The Supreme Court in Kyiv is hearing a case lodged by Christian
conscientious objector Andrii Anatoliyovych Vyshnevetsky (born 22 May
1989).
Military officials located him on the street in Odessa
(https://www.forum18.org/archi
attend the city's Suvorov Territorial Recruitment Office on 14 September
2022. Officials there rejected his request to perform an alternative
civilian service on grounds of conscience and mobilised him into the army.
He has since been forcibly held in the army
(https://www.forum18.org/archi
serving in a kitchen in his military unit.
Vyshnevetsky lodged a suit against President Volodymyr Zelensky to the
Supreme Court, arguing that the President's failure to determine a
procedure for dismissal from military service
(https://www.forum18.org/archi
conscientious objection is illegal.
Vyshnevetsky asks the Supreme Court to order the President to determine
such a procedure to allow individuals to exercise the right to
conscientious objection to military service in line with Article 35
("Freedom of beliefs and religion") of the Constitution, Article 18
(https://www.refworld.org/doci
Conscience or Religion") of the International Covenant on Civil and
Political Rights (ICCPR), and Article 9
(https://www.echr.coe.int/docu
thought, conscience and religion") of the European Convention on Human
Rights.
The Constitution's Article 35 states in part: "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."
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
"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
(https://www.ohchr.org/en/cons
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 guide to Conscientious Objection to
Military Service
(https://www.ohchr.org/en/publ
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
(https://www.ohchr.org/sites/d
"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."
Within Russian-occupied Ukraine there are severe violations of human rights
(https://www.forum18.org/archi
of religion or belief, including (as of May 2022) the illegal conscription
of over 3,000 Ukrainians into the Russian armed forces.
Vyshnevetsky told Forum 18
(https://www.forum18.org/archi
is to help bring Ukraine's approach to conscientious objection to military
service into line with international human rights law.
Viktor Yelensky, head of the State Service for Ethnic Policy and Freedom of
Conscience, told Forum 18 on 3 May 2023
(https://www.forum18.org/archi
pushing for all conscientious objectors to be allowed to do alternative
civilian service. "All my efforts have been rejected. It is really not easy
to reach this goal when we have such heavy losses in battle."
On 2 June, Yelensky told Forum 18 that the government is considering
amendments to the 1992 Alternative Service (Non-Military) Law possibly to
allow individuals to apply to replace military service during mobilisation
"with a special period of alternative (non-military) service". He said his
State Service for Ethnic Policy and Freedom of Conscience as well as the
Human Rights Ombudsperson have already sent their comments to parliament
and the Cabinet of Ministers. No details of the proposed amendments have
been made public.
President Zelensky's representative Sergiy Savvin sent a 5-page written
submission (seen by Forum 18) to the Supreme Court before the hearing,
calling for Vyshnevetsky's suit to be dismissed. In the first hearing on 22
May another presidential representative, Oleksandr Movile, similarly called
for the suit to be dismissed.
Savvin works in the presidential office's Legal Policy Directorate, and is
described as "Chief Consultant of the Main Directorate of the
Representation of the Interests of the President in Courts".
A colleague of Savvin – who did not give his name – refused to put
Forum 18 through to him on 2 June. He also refused to explain to Forum 18
why the government will not introduce a procedure for those in the army to
be transferred to alternative civilian service if they conscientiously
object to military service. "I'm sorry, you have your position and we have
ours," he told Forum 18.
The Supreme Court allowed the Ukrainian Pacifist Movement to join
Vyshnevetsky's case as a third party on the side of the plaintiff. The
first hearing under a panel of five judges chaired by Olena Gubska took
place on 22 May. The next hearing is due on the morning of 26 June. (END)
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