On October 23, 2024, the Second Senate, at the public part of the plenary session, initiated the deliberation of the case upon the constitutional complaint of Dmytro Zelinskyi in the form of written proceedings.
During the plenary session, the Judge-Rapporteur in the case, Viktor Gorodovenko, outlined the content of the constitutional complaint and the applicant's substantiation. In particular, the Judge noted that Dmytro Zelinskyi had appealed to the Constitutional Court of Ukraine to verify the compliance of Article 1.1 of the Law of Ukraine “On Alternative (Non-Military) Service” No. 1975–XII dated December 12, 1991 as amended (hereinafter, the “Law”), according to which “alternative service is a service that is introduced instead of regular military service and is aimed at fulfilling a duty to society” with Article 35.4 of the Constitution of Ukraine.
The content of the constitutional complaint and the file attached to it reveal the following.
Dmytro Zelinskyi, being registered for military service in the district territorial centre of recruitment and social support, received a summons in person at his place of residence with a requirement to report to this state body to be sent for military service in the Armed Forces of Ukraine under conscription during mobilisation, for a special period. However, the applicant did not appear at the specified request and did not inform about the reasons for his absence.
As a result, the pre-trial investigation body drew up an indictment, according to which actions of Dmytro Zelinskyi are qualified under Article 336 of the Criminal Code of Ukraine (hereinafter, the “Code”), which establishes liability, in particular, for evading conscription for military service during mobilisation for a special period. Dmytro Zelinskyi justified his behaviour regarding the impossibility of military service by his religious beliefs, as he has been a member of the “Christian community of the Seventh-day Adventist Church” for over 20 years.
He also stated that he had notified the pre-trial investigation body of such circumstances and provided relevant supporting documents, while expressing his desire to perform alternative non-military service.
The court of first instance found Dmytro Zelinskyi not guilty of the accusation under Article 336 of the Code and acquitted him of the charges due to the absence of a criminal offence.
The court of appeal satisfied the prosecutor’s complaint; the sentence of the court of first instance was reversed and a new one was delivered, which found Dmytro Zelinskyi guilty of committing a criminal offence under Article 336 of the Code and sentenced him to three years’ imprisonment.
The Supreme Court dismissed the cassation appeal of defence of Dmytro Zelinsky and upheld the verdict of the court of appeal. The court of cassation agreed with the conclusions of the court of appeal, noting, in particular, that “the right to profess one’s religion or belief is not absolute and may be restricted under the following conditions: legitimacy; legitimate purpose – the interests of public safety, the need to protect public order, health or morale, as well as the protection of the rights and freedoms of others; proportionality, which outlines the limits of legitimate interference with the right and allows its exercise only to the extent necessary to achieve these legitimate goals”; and “no religious beliefs may be a ground for evading mobilisation of a citizen of Ukraine, who is recognised as suitable for military service, in order to fulfil its constitutional duty to protect the territorial integrity and sovereignty of the state against military aggression by a foreign country”.
Dmytro Zelinskyi, referring, in particular, to Articles 35.1, 35.4 of the Constitution of Ukraine, emphasises that “the constitutional right to freedom of conscience and religion covers the right to alternative (non-military) service. Every citizen of Ukraine whose performance of military duty contradicts his religious beliefs has the right to replace his military duty with alternative (non-military) service. At the same time, the state is obliged to ensure the exercise of this right.”
The author of the petition believes that “the norm of Article 35.4 of the Constitution of Ukraine concerns the performance of military duty in general. That is, alternative (non-military) service should be introduced instead of all types of military service, not just regular military service”; however, “the provisions of the Law provide for the replacement of only regular military service with alternative (non-military) service, which does not exist in Ukraine today, which completely makes it impossible to exercise the constitutional right provided for in Article 35.4 of the Constitution of Ukraine and is inconsistent with the Constitution.”
Dmytro Zelinskyi also states “the Constitution of Ukraine guarantees the exemption from military service under conscription of citizens who, due to their religious beliefs, do not tolerate the use of weapons. Also, the law that, in accordance with Article 64 of the Constitution of Ukraine, would limit the rights of citizens provided for by Article 35 of the Constitution of Ukraine during the period of martial law, was not adopted.”
The subject of right to the constitutional complaint emphasises that “although the procedure for resolving the issue of referral to alternative (non-military) service is regulated by the provisions of the Law, which does not contain legal norms on the conscription of Ukrainian citizens for military service during mobilization for a special period, the Constitution of Ukraine and international treaties have higher legal force (superiority over other domestic legislative acts), and therefore the right of a person to alternative service is absolute and cannot be restricted due to the absence (not regulated by the laws of Ukraine) of a procedure for replacing military service with alternative (non-military) service during martial law.”
After examining the case file in the public part, the Second Senate proceeded to the in-camera part of the plenary session for a decision.
The public part of the plenary session was attended by a representative of the subject of the right to a constitutional complaint, lawyer Oleksandr Khrapach.
The video recording of the public part of the plenary session is available on the official website of the Constitutional Court of Ukraine in the Section “Archive of video broadcasts of the sessions”.
