АКТУАЛЬНІ ПРОБЛЕМИ РЕАЛІЗАЦІЇ В УКРАЇНІ ЧЛЕНАМИ ПРОТЕСТАНТСЬКИХ ЦЕРКОВ ПРАВА НА АЛЬТЕРНАТИВНУ (НЕВІЙСЬКОВУ) СЛУЖБУ В ПЕРІОД МОБІЛІЗАЦІЇ ТА ШЛЯХИ ЇХ ВИРІШЕННЯ

Abstract

The right to alternative (non-military) service is the right of citizens whose military duty contradicts their religious beliefs to replace military service with another civilian service intended to fulfill their duty to society. For 2014‒2016 years, during the period of partial mobilization, there had been a negative tendency to restrict the right to alternative (non-military) service towards members of the Protestant churches by the military commissariats and local state administrations. The believing citizens of Ukraine who profess the Protestant doctrine actively defended their right to pass alternative (non-military) service during the mobilization period by appealing to court. In the claims to local state administrations and military commissariats, this category of citizens of Ukraine demanded to declare actions of such authorities illegal and to oblige the latter to provide the plaintiffs with alternative (non-military) service. In most cases of public law disputes over the claims of members of the Protestant churches as well as in the criminal proceedings, where the mentioned citizens of Ukraine had the status of "defendants", both courts of general jurisdiction and district administrative courts took the position of such believers. In deciding in favor of the aforementioned persons, the courts justified the right of the believing citizens of Ukraine to alternative (non-military) service in the period of mobilization by the provisions of Part 5 of Art. 35 of the Constitution of Ukraine, Art. 9 of the European Convention on Human Rights and the case-law of the European Court of Human Rights. It is worth noting that the case-law not of all courts of Ukraine goes in line with ensuring the right of the person to alternative (non-military) service. Thus, the Volodymyretsky District Court and the Appeal Court of Rivne region, considering the criminal proceedings under Article 335 of the Criminal Code of Ukraine “Evasion from mobilization call” against a member of the Church of the Christians of the Evangelical Faith who gave up military service because of the religious beliefs, pointed out that "the defendant failed to provide the court with evidence that a member of the HVE Church cannot take up arms and protect the Motherland’. The reasons for violating the rights of the believers to alternative (non-military) service are the incorrect application of the legislation by the authorized bodies and the absence of a specific rule in the Law of Ukraine “On Alternative (Non-Military) Service” regarding the extension of the provisions of the said legislative act to cases of military service during a special period. In order to eliminate the gaps in the Law, it is necessary to re-register in the Supreme Rada of Ukraine the Draft Law “On Amendments to the Law of Ukraine” On Alternative (Non-Military) Service No. 4485 (concerning the terms of filing an application), which contains a provision for extending its scope to all cases of passing a citizen of military service, not limited to the state of emergency.