Is there a right not to participate in war?

Dmytro Zelinsky

In the Anno Domini 2024, according to the legal system of the states, such a right is not contemplated. On the other hand, there is the military crime of desertion and the impossibility for an individual to opt out of participating in the war event, which, as is known, causes death and destruction. For this reason, Ukrainian citizen Dmytro Zelinsky - a faithful member of the Seventh-day Adventist Church which prohibits the use of weapons - was sentenced to three years in prison. His refusal to participate in the war event is not covered by a person's rights. As explained in the following article by Willy Fautré, director of Human Rights Without Frontiers, the Ukrainian court ruled that the dictates of the Seventh-day Adventist Church, in this case the ban on bearing arms, can be fulfilled by performing duties within the army that do not involve the use of weapons. The fact that the army makes the use of weapons its defining characteristic as well as its raison d'être, especially during a war, does not matter. Added to the stupidity of war itself is the stupidity of laws that ignore the will of individuals, forcing them to perform actions that are abhorrent to them. And in the Anno Domini 2024, it would be time to understand this.

UKRAINE – The war, religion and conscientious objection: 3 years in prison for an Adventist

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.

By Willy Fautré, director of Human Rights Without Frontiers, with a Ukrainian lawyer, HRWF (03.07.2024) - In its 13 June 2024 ruling made public on 28 June, the Supreme Court confirmed that Seventh-day Adventist conscientious objector Dmytro Bronislavovich Zelinsky will have go on serving a three-year jail term 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").

Zelinsky is a native of Shchastya, Zhovtne district, Luhansk region. He was baptized as an Adventist in 2002. Unlike Jehovah’s Witnesses who are total conscientious objectors refusing to serve in any way under military command, including in the alternative civilian service, Adventists just refuse to take up and use weapons.

On 5 June 2023, Kremenets District Court of the Ternopil Region acquitted Zelinsky. However, the prosecutor appealed against the acquittal to Ternopil Appeal Court. On 28 August 2023, a panel of three Judges at Ternopil Appeal Court overturned the acquittal and handed down a three-year jail term.

Zelinsky lodged a cassational appeal to the Criminal Division of the Supreme Court in Kyiv in November 2023. The Court accepted the case on 10 November 2023.

The Supreme Court by the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation considered in an open court session the cassation appeal of Dmytro Zelinsky against the verdict of the Ternopil Court of Appeal dated 28 August 2023 in criminal proceedings No. 12022211010000400 about the charge of committing a criminal offense provided for in Art. 336 of the Criminal Code of Ukraine.

The decision of the Kremenets District Court of the Ternopil Region

At the court hearing of the Kremenets District Court of the Ternopil Region, the accused explained that he had been a member of the Christian community of the 7th Day Adventist Church for more than 20 years.

He declared that in 2002, he received water baptism in the city of Lysychansk, Lugansk region, which was confirmed by a baptismal certificate. Before his conversion, he worked in the Donetsk Transport Police but due to his religious beliefs forbidding him to take up and use weapons, he left his job.

In the case file there is a certificate No. 3 dated 29.01.2023, issued by the pastor of the Seventh-day Adventist Church, stating that the defendant is indeed a member of the Church (Statute, registered by the order of the head of the regional state administration dated 22.02.2010, No. 3-76/0/3-10) from 27.07.2002. From January 2021 to April 2022, he was volunteering in the community of Kryvyi Rih.

On 5 June 2023, the Kremenets District Court found Zelinsky not guilty of the said criminal offense.

The decision of the Ternopil Court of Appeal

On 28 August 2023, the Ternopil Court of Appeal reviewed the verdict of the local court based on the prosecutor's appeal, overturned the previous decision and passed a new verdict : imprisonment for 3 years.

The Court of Appeal considered that the previous court had made an incorrect assessment of the evidence in the case, decided to quash the acquittal and passed a guilty verdict on the following grounds:

  1. The defendant is liable for military service and served from 26.11.1996 to 29.06.1998 with the military specialty of a driver;
  2. After military service from 1999 to 2002, he worked in the Donetsk transport police;
  3. He is registered as an internally displaced person and is on the military register;
  4. He is fit for military service for health reasons;
  5. He personally received a mobilization summons with a requirement to report at a specified place on 11.09.2022 to serve in the Armed Forces of Ukraine, in the military specialty of driver (No. 790037);
  6. Without valid reasons, he did not arrive on the day and time specified in the summons at the specified point, for military service, thereby committing a criminal act under Art. 336 of the Criminal Code of Ukraine.

As for the accused's arguments about his belonging to the Christian community of the "Adventist Church of the 7th Day", whose religious beliefs do not allow the use of weapons, in connection with which he asked to be exempted from military conscription during the mobilization or to be sent to an alternative (non-military) service, are unfounded in view of the following:

  1. The accused stated that on 27.07.2002 he was baptized and joined the religious organization of the Seventh-day Adventist Church in Lysychansk, Luhansk region, but he did not provide the court with any proper and admissible evidence that he had been a member of this religious organization since 27.07.2002.
  2. The references of the defense to the certificates issued on 29.01.2023 No. 3 and dated 31.01.2023 No. 011-01 relate to the religious communities of the Seventh-day Adventist Church in Kryvyi Rih, Dnipropetrovsk region, and Kramatorsk, Donetsk region, in which, according to the accused, he did not receive baptism and of which he is not a member.
  3. Witnesses recruited from the religious organization of the Seventh-day Adventist Church of Christians testified that the accused has been attending services since May 2022. They consider him a permanent member of the Seventh-day Adventist Church, but they do not know whether the accused was baptized in 2002 in Lysychansk and whether his alleged membership of such a religious organization had been checked.

The appellate court established that Zelinsky was a conscript person suitable for military service and was in the conditions to be mobilized according to Art. 23 of the Law of Ukraine dated October 21, 1993 No. 3543-XII "On Mobilization Training and Mobilization."

On 9 September 2022, he personally received a summons at his place of residence with the requirement to report on 11 September to the mobilization office in order to join the Armed Forces of Ukraine.

As he failed to show up on the said date, the the Ternopil Court of Appeal considered on 28 August 2023, that Zelinsky had evaded conscription for military service during mobilization and was to be sentenced to 3 years in prison.

The viewpoint of Dmytro Zelinsky in cassation

In the cassation appeal filed with the Supreme Court, the defense attorney of Zelinsky asked to annul the verdict of the appellate court and appoint a new trial.

In order to justify his demands, he gave the following arguments:

  • Zelinsky rightfully refused military service, which is incompatible with his religious beliefs, which cannot be evaluated as a manifestation of evasion of the draft for mobilization and be a basis for criminal liability;
  • the right of Zelinsky to such a refusal is absolute and is not subject to any restrictions or concessions by the state under any circumstances, including under martial law, in accordance with Articles 8, 9, 24, 35, 64 of the Constitution of Ukraine, Part 2 Art. 4 and parts 1, 2 of Art. 18 of the International Covenant on Civil and Political Rights, Art. 9 of the Convention on the Protection of Human Rights and Fundamental Freedoms;
  • provisions of Part 4 of Art. 35 of the Constitution of Ukraine regarding the right of a person to replace military service with an alternative (non-military) one, if the performance of military duty contradicts his religious beliefs, is subject to application in the situation in the case as a rule of direct action;
  • in the conditions of martial law in Ukraine, on the basis and in the manner provided by the Constitution of Ukraine, the law does not limit a person's right to replace military service with alternative (non-military) service;
  • religious beliefs incompatible with military service constitute an internal aspect of the human right to freedom of outlook and religion, the realization of which cannot be made dependent on belonging to religious organizations, because this is only one of the ways of collective exercise of the right under Article 9 of the Convention, Art. 35 of the Constitution of Ukraine; the state has no right to impose on a person the obligation to prove the existence of relevant beliefs otherwise than by expressing them.

In view of this, the defense attorney believed that the judgment of the appeals court did not meet the requirements of Articles 370, 374 and 420 of the Criminal Code and was illegal.

Motives of the decision of the Supreme Court of Cassation

Referring to the provisions of Art. 1 of the Law of Ukraine dated 12.12.1991 No. 1975-XII "On alternative (non-military) service", the panel of judges considered that the right to alternative civilian service is not applicable in emergency periods and wartime.

In addition, the judges also considered that

  • Zelinsky could be affected to tasks not involving the use of arms
  • He could be involved in repairing equipment, building fortifications, evacuating the wounded, transporting cargo, and performing other functions not related to the use of weapons
  • The Adventist pastor, when interrogated at the trial in the court of first instance on 9 March 2023, had declared that his religious organization calls on its believers not to evade the draft for mobilization, but to obey God's commandments and not take up weapons (vol. 1, a. k. p. 54-56).

Consequently, the Supreme Court decided to dismiss the cassation appeal of Zelinski and to leave the verdict of the Ternopil Court of Appeals dated 28 August 2023 unchanged.

The decision is final and cannot be appealed.

Source: HRWF

Photo of Dmytro Zelinsky: © Iryna Zhukova [CC BY-NC-ND 4.0]