Deep into its third year of fighting against Russia’s full-scale war, Ukraine is struggling to fill its military ranks. A recent corruption scandal that shook the country involved members of medical examination commissions taking bribes to help men evade military service. Draft evasion and reports of desertion from the frontlines are becoming more widespread.
It is against this backdrop that Ukraine’s courts are considering claims for exemptions based on conscientious objection. Though conscientious objectors represent a relatively small portion of cases related to the draft, with allegations of draft-dodging making up the majority, the subset is particularly significant for human rights. Recently, Ukraine’s Constitutional Court has taken up such a case, prompted by a complaint from a citizen who was denied conscientious objector status and thrown in jail.
Simple Draft-Dodging or a Constitutional Issue?
In November 2023, Dmytro Zelinsky, a Seventh Day Adventist, began serving a term of three years in prison for the crime of evading conscription during mobilization (Article 336 of Ukraine’s Criminal Code). A refugee from the eastern Ukrainian region known as the Donbas, where the fighting is ongoing and part of which is now occupied by Russia, Zelinsky (not related to Ukrainian President Volodymyr Zelenskyy) fled to western Ukraine amid the full-scale Russian invasion in February 2022. Later the same year, being recognized as medically fit, he was called up to commence his service. But Zelinsky failed to comply, and later appealed to the local military authority of the Kremenets district to fulfill his duty with alternative (non-military) service instead, as is provided for in Article 35 the Ukrainian Constitution: “No one shall be exempt from his/her duties to the State or refuse to abide by laws on religious grounds. 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 military authority of the Kremenets district refused the request for alternative service based on the argument that no such service is envisaged in wartime.
Zelinsky’s case illustrates the complexity of weighing the constitutional guarantee to conscientious objection against the obligation of protecting the State during war. First tasked with reviewing the case, the Kremenets District Court acquitted Zelinsky, citing the constitutional guarantee. But the Ternopil Appellate Court supported the prosecutor’s appeal and revoked the acquittal, sentencing Zelinsky to three years in prison. The credibility of his religious belief is not in question – his personal beliefs, his membership in the Seventh Day Adventist Church, and his two decade-long record of activities within that church have been largely substantiated during the proceedings, including with court testimony by a deputy pastor of a local congregation.
In June 2024, Ukraine’s Supreme Court, the highest court of general jurisdiction, confirmed the legal force of the verdict by the Ternopil Appellate Court. Not questioning the content of Zelinsky’s personal beliefs, the justices stressed the constitutional duty of protecting the Ukrainian state in wartime (Article 65 of Ukraine’s Constitution). The justices wrote: “No religious beliefs can be the basis for evading military service by a citizen of Ukraine recognized as fit for military service in order to fulfill his constitutional duty to protect the territorial integrity and sovereignty of the State from military aggression by a foreign country.” Moreover, the Supreme Court justices said that, potentially, Zelinsky could have joined the armed forces for other, non-combat duties (e.g., construction work supporting the frontline etc.).
Finally, the Supreme Court found that Ukraine’s 1991 Alternative Service Act does not provide an option of non-military alternative service during wartime and that the provision (Article 1 of the Alternative Service Act) only applies to the regular, non-wartime draft of conscripts aged 18-25 for term-based service in the military. It is exactly this point by the Supreme Court that is at stake in Zelinsky’s complaint to the Constitutional Court.
The Complaint
In autumn 2024, Zelinsky asked the Constitutional Court to review the constitutionality of Article 1 of the 1991 Alternative Service Act in relation to the Article 35 guarantee of conscientious objection. On Oct. 23, the Constitutional Court’s Second Senate, a panel of six justices, held the first deliberations in the case.
Article 35 of the Constitution does not define different scopes of application of the provision or say that the content of “military duty” differs in peacetime vs. wartime. The essence of Zelinsky’s complaint is that the alternative service guarantee should apply in wartime. Before Russia’s full-scale invasion, conscripts could choose non-military alternative service instead of serving in the armed forces, even after Russia’s initial invasion of Ukraine in 2014 in which it captured Crimea and a significant swath of the Donbas. Ukraine’s 1991 Alternative Service Act outlined the procedure for choosing alternative service.
Effectively, Ukraine’s 2022 Laws enacting martial law and the nationwide call to arms ended the possibility of choosing alternative service because there is no draft of males to regular, term-based military service anymore. While Ukraine’s 1991 Alternative Service Act remains in force, the mobilization of conscripts into the active armed forces is a subject of a different piece of legislation – the 2022 nationwide call to arms.
Crucially, Ukraine’s Constitution does not indicate the possibility of derogation from Article 35. Article 64 of the Constitution specifies rights and freedoms that can be limited under the conditions of martial law or a state of emergency, and the conscientious objection guarantee established by Article 35 is not one of them.
Moreover, the issue of human rights conventions recognized by Ukraine is irrelevant here. In the Zelinsky case, the Supreme Court stated that freedom of thought, conscience, or religion established in Article 9 of the European Convention on Human Rights (ECHR) can be limited in times of war. The Supreme Court justices also referred to existing case law by the European Court of Human Rights on the matter (Bayatyan v. Armenia, Papavasilakis v. Greece, Kanatli v. Turkiye). Up until April 2024, Ukraine had indeed derogated from Article 9 of the European Convention, among others, with notification to the Council of Europe in 2022. But Ukraine withdrew a number of derogations, including for Article 9, in April 2024. In any case, Ukraine’s membership in the Council of Europe — and thus its status as subject to the Convention — is actually irrelevant in this case, as the conscientious objection guarantee stems from Ukraine’s own constitutional framework that does not foresee derogation even in times of war.
A key tension for Ukraine, a country aspiring to provide rule of law and human rights protections, is in balancing its commitment to liberal constitutionalism with the existential threat posed by Russia’s onslaught. Equally, while arguments for and against allowing conscientious objection have been made in moral philosophy scholarship and international human rights law, the theoretical arguments do not usually provide practical soulutions for dealing with this right in wartime.
Among international comparatives, the South Korean experience may be the most relevant for Ukraine. Until recently, the Republic of Korea punished conscientious objectors, as it has labored to confront the threat from North Korea. In 2018, however, Korea’s Constitutional Court softened the country’s decades-long approach and required Korean lawmakers to provide alternative service options for conscripts. Any Ukrainian decision on the matter should be similarly home-grown, embeded in the context of the country’s military and legal structures.
What Will the Constitutional Court Decide?
Any ruling by Ukraine’s Constitutional Court is likely to have a profound effect on the understanding of the freedom of belief and conscience in wartime. It will also be a test for Constitutional Court justices of how serious they are about their pledge to constitutionalism –in a recent decision from July 2024 concerning the rights of persons in custody, the justices were unequivocal in their support of the supremacy of the constitutional norm and did not bend to any consideration of practical convenience when protecting a person’s right to fair trial. The Zelinsky case is paradigmatically similar to that July 2024 case — the disputed right similarly stems from the constitutional guarantee. In a similar manner, the Constitution does not foresee a possibility of derogation from this guarantee (thus, probably offering even higher protection than required by Ukraine’s obligations under the ECHR). The difference between the two cases is the greater sensitivity of the Zelinsky case. The July 2024 decision concerned the right to a fair trial, which is a straightforward “textbook” matter of constitutional law. The conscientious objection guarantee is a type of a counter-majoritarian guarantee that meant to protect dissidents from the encroachments by, foremost, the State and also from prevalent opinion in society.
On such a sensitive matter, the Court is likely to strategically calculate the risks of the fallout of a decision in favor of the complainant. Constitutional Court justices might be concerned that such a decision could inadvertently encourage a legal form of draft-dodging. Thus, the Court is likely to take a restrictive, conservative approach to the understanding of military duty in wartime. It may say that proper recruitment of the armed forces necessitates a limit on the application of the conscientious objection guarantee. It could further substantiate that the term “military duty” in the Constitution envisions only regular draft in peacetime and that, when there is a war, the alternative forms of executing this duty do not apply.
The Court could further ask Parliament to tailor the term “military duty” accordingly in ordinary legislation (e.g. the Alternative Service Act or the 1992 Act on General Military Duty and Military Service). This would, at least, lessen the tension between Article 35 of the Constitution and this legislation. This restrictive approach also is the most practically convenient in times when Ukraine faces a severe shortage of troops.
The alternatives to the restrictive approach are worse. Were the Constitutional Court justices to agree with the argumentation of the Supreme Court in the Zelinsky case, they might say that, since a conscript is not always assigned to combat infantry units — and so as long as there is such a possibility, at least theoretically — there is no need for a conscientious objector to pick up arms. Such an argument, however, would be weak and disingenuous.
There is no deadline for the Court to issue a decision. Some constitutional law experts suspect foot-dragging by the justices – the Court previously has deferred some decisions for years (mostly when politically partisan legislation was at stake). Approaching the Zelinsky case with the same kind of reticence would deliver a blow to the saliency and credibility of constitutional review in Ukraine.