On July 5th, during the interactive dialogue on the situation in Ukraine at the 50th session of the UN Human Rights Council, IFOR took the floor in the plenary to report on conscientious objectors sentenced in Ukraine for refusing to bear arms and called on UN Member States to contribute to a peaceful setting of the ongoing armed conflict.
Human Rights Council, 50th session
Geneva, 5th July 2022
Item 10: Interactive dialogue on the oral update of the High Commissioner on Ukraine Oral statement delivered by the International Fellowship of Reconciliation.
Mr. President,
International Fellowship of Reconciliation (IFOR) thanks the High Commissioner and her office for the oral presentation on Ukraine.
We stand in solidarity with the people of Ukraine and mourn with them at this dramatic time of armed conflict. We stand in solidarity with all war resisters and conscientious objectors to military service in Ukraine as well as in Russia and Belarus and call on the international community to provide them asylum; for instance IFOR sponsored a joint appeal to European Institutions on this matter1.
Freedom of thought, conscience and religion is a non-derogable right and, as is freedom of expression, it continues to apply in situations of armed conflict. The right to conscientious objection to military service should be absolutely protected and cannot be restricted as highlighted by the quadrennial analytical thematic report by OHCHR presented at this session2.
IFOR is concerned about the violations of this right in Ukraine where general mobilization to the army is enforced without any exceptions for conscientious objectors3. Evasion of conscription during mobilization is criminally punishable by imprisonment from 3 to 5 years4. The pacifist Andrii Kucher and the evangelical Christian, [member of the church "Source of Life"] Dmytro Kucherov were sentenced by Ukrainian courts for their refusal to bear arms with no respect to their freedom of conscience5.
IFOR is also concerned by the forced mobilization of conscripts in Ukrainian territory controlled by Russian affiliated armed groups6.
As previously stated7, war should be abolished because it is never a conflict resolution, neither in Ukraine nor in other countries. UN Member States should urgently pursue a diplomatic way to peace negotiations and facilitate such a path which is within the United Nations purposes.
Thank you.
Insights on the current warfare in Ukraine.
According to a recent report of UN HRMMU: "OHCHR is concerned that some conscripts forcibly mobilised in territory controlled by Russian affiliated armed groups are being prosecuted by Ukrainian authorities without due regard for applicable combatant immunity"
If someone hides a Russian deserter in Ukraine (even Ukrainian-born one), that person could be charged by Ukrainian police in collaboration with the aggressor state.
Handing out calls for military mobilization at churches. If you failed to appear on call, you could be sentenced for evasion.
Insights on the individual cases reported in IFOR's statement
Sentence for Kucher Andrii Volodymyrovych
https://reyestr.court.gov.ua/Review/104351558
Case category No.303/2482/22: Criminal cases (from 01.01.2019); Criminal offenses in the
sphere of protection of state secrets, inviolability of state borders, provision of conscription
and mobilization; Evasion of conscription for military service during mobilization, for a
special period, for military service upon conscription of reservists in a special period.
Sent by the court:05/18/2022.
Registered:19.05.2022.
Published:05/20/2022.
Date of entry into force:06/20/2022
Number of court proceedings:1-kp/303/124/22
Number of criminal proceedings in the EDPR:12022071040000275
May 18, 2022, Mukachevo
Mukachevo City and District Court of Zakarpattia Oblast
- in the commission of a criminal offense (crime), provided for in Article 336 of the Criminal Code of Ukraine,
established:
The accused XX on March 13, 2022, being conscripted, arrived at the Mukachevo District Territorial Center for Recruitment and Social Support of the Ministry of Defense of Ukraine, in connection with the announcement by the Decree of the President of Ukraine No. 69-2022 of February 24, 2022 of general mobilization and conscription for military service in the Armed Forces of Ukraine. On the same day, 13/03/2022, XX, being in the premises of the Mukachevo District Territorial Center for Equipment and Social Support of the Ministry of Defense of Ukraine at the address of the city of Mukachevo, str. Dukhnovycha, 89, having been duly notified by the employees of the above-mentioned center about the draft for military service during the general mobilization, as well as about the consequences of refusing to be drafted and undergo military service during the mobilization announced by the Decree of the President of Ukraine No. 69-2022 of 24.02. 2022, the latter reliably knowing that in accordance with the Decree of the President of Ukraine No.
64-2022 dated 24.02.2022 “On the introduction of martial law on the territory of Ukraine”, in connection with the military aggression of the Russian Federation against Ukraine, with the aim of evading the draft for mobilization, without valid reasons, acting deliberately, in violation of the requirements of Article 65 of the Constitution of Ukraine, Article 1, 39 3 of the Law of Ukraine “On Military Duty and Military Service of Ukraine of March 25, 1992 No. 2232-ХІ, Article 22 of the Law of Ukraine “On mobilization training and mobilization”; dated October 21, 1993 No. 3543-ХІ, and Decree of the President of Ukraine “On general mobilization”; dated February 24, 2022 No. 69-2022, being applicable to military service, refused to receive a summons/call to send to the army and undergo military service - under such circumstances, evaded conscription for military service during mobilization in a special period.
Thus, XX committed a criminal offense (crime) provided for in Art. 336 of the Criminal Code of Ukraine- evasion of conscription for military service during mobilization in a special period.
Accused XX, his guilt in committing the criminal offense (crime) charged against him, provided for in Art. 336 of the Criminal Code of Ukraine fully admitted and showed that he really acted deliberately, aware of the illegal nature of his actions and their punishment, under the circumstances described in the indictment, evaded
conscription for military service during mobilization in a special period in connection with the fact that pacifist views and does not want to take up arms. He does not repent of what he has done, because it would contradict his views. At the same time, he asks not to punish him strictly and to postpone the execution of the sentence for one year, because he has something to do.
Recognizing that it is inexpedient to investigate other evidence regarding the factual circumstances of the case, which are not contested by anyone in the manner provided for in Art. 349 of the Criminal Procedure Code of Ukraine, to which the participants of the trial did not object, while clarifying the circumstances regarding the correct understanding of the content of these circumstances by the accused and other participants of the trial, in the absence of doubts about the voluntariness and truthfulness of their positions, explaining to them that in such a case they will be deprived of the right to challenge these factual circumstances of the case in the appeal
procedure, the court limited itself only to the questioning of the accused and the study of such materials of the case that characterize the person of the accused.
Evaluating the evidence collected in the case as a whole, the court comes to the conclusion that the actions of the accused are correctly classified as Art. 336 of the Criminal Code of Ukraine, i.e. evasion of conscription for military service during mobilization in a special period, and his guilt has been proven and fully recognized by him.
When choosing the type and degree of punishment for the accused, the court takes into account the nature and degree of social danger of the criminal offense (crime) committed by him, all the circumstances of the case in their totality, data about the identity of the culprit, guided by the law.
Yes, XX is conscripted, fit for military service due to his state of health, not previously convicted, according to the pre-trial report of the authorized probation body, XX has been registered as an internally displaced person since March 11, 2022 in connection with the introduction of martial law in of Ukraine, he is not registered with a narcologist, psychiatrist or phisiologist, the risk of him committing a repeated criminal offense is “medium”, the risk of danger to society is “medium”.
Circumstances mitigating the punishment of the accused have not been established by the court.
Circumstances aggravating the punishment of the accused have not been established by the court.
Taking into account the above, guided by the principles of humanity, necessity and sufficiency of the punishment to correct the accused and prevent new criminal offenses, the court comes to the conclusion that the correction of the accused is possible without isolation from society and serving the sentence, since such cases under the given circumstances would be excessively severe punishment, and the
accused XX should be punished within the sanction of Art. 336 of the Criminal Code of Ukraine with the application of the probationary period (Article Ukraine) and imposing on him the obligations provided for in clauses 1, 2, part 1 of Article 76 of the Criminal Code of Ukraine.
No civil action has been filed in the case.
There are no material evidence and procedural costs.
Guided by: Art.368-374,376 of the Criminal Procedure Code of Ukraine, the court -
DECIDED:
XX, to be found guilty of committing a criminal offense (crime) provided for in Art. 336 of the Criminal Code of Ukraine, imposing a penalty of imprisonment for 4 (four) years.
On the basis of Art. 75 of the Criminal Code of Ukraine to release the convicted XX from serving the sentence of probation imposed by this sentence, if he does not commit a new crime within 3 (three) years of the probationary period and fulfills the duties assigned to him, provided for in clauses 1, 2, part 1 of Article 76 of
the Criminal Code of Ukraine, 1) periodically appear for registration with the authorized body on probation; 2) notify the authorized probation authority about a change of place of residence and work.
Preventive measure against XX was not applied.
An appeal against the verdict may be filed with the Zakarpattia Court of Appeals through this court within thirty days from the day of its announcement.
The judgment of the court becomes legally binding after the expiry of the period for filing an appeal, if such an appeal has not been filed. In the event of an appeal, the court’s verdict, if it has not been annulled, becomes legally binding after the decision of the appellate court.
Participants in court proceedings have the right to receive a copy of the verdict in court. A copy of the verdict is delivered to the accused and the prosecutor immediately after its pronouncement.
Sentence for Kucherov Dmytro Mykolayovych
https://reyestr.court.gov.ua/Review/104846891
Case category No.398/1551/22: Criminal cases (from 01.01.2019); Criminal offenses in the sphere of protection of state secrets, inviolability of state borders, provision of conscription and mobilization; Evasion of conscription for military service during mobilization, for a special period, for military service upon conscription of reservists in a special period.
Sent by the court:06/21/2022.Registered:06/21/2022.Published:06/22/2022.
Number of court proceedings:1-kp/398/187/22
Number of criminal proceedings in the EDPR:12022121060000535
Case No: 398/1551/22
proceedings No: 1-kp/398/187/22
VERDICT
behalf of Ukraine
21 June 2022. the city of Oleksandria, the Oleksandria City and District Court of the Kirovohrad region,
XX , being conscripted, on April 29, 2022 at about 900:00, arrived at the Oleksandriysky District Territorial Center of Manpower and Social Support of the Ministry of Defense of Ukraine at the address: st. Shevchenko, 85, Oleksandria, Kirovohrad Oblast to undergo a medical examination and clarify their credentials.
The employees of the above-mentioned center XX was informed about the conscription for military service during the general mobilization, as well as the consequences of refusing to be called up and undergo military service during the general mobilization, announced by the Decree of the President of Ukraine “On General Mobilization” No. 69-2022 dated 24.02.2022 .
XX, reliably knowing about the general mobilization announced by the Presidential Decree No. 69-2022 of 24.02.2022 “On the introduction of martial law on the territory of Ukraine”, in connection with the military aggression of the Russian Federation against Ukraine, with the aim of evading the draft for mobilization, acting
deliberately, being aware of his actions, not having the right to postponement, in violation of the requirements of Article 65 of the Constitution of Ukraine, Articles 1, 39 of the Law of Ukraine “On Military Duty and Military Service of Ukraine of March 25, 1992 No. 2232-XII”, Art.1, Art.22 of the Law of Ukraine “On Mobilization Training and Mobilization” dated October 21, 1993 No. 3543-XII, and Decree of the President of Ukraine “On General Mobilization” No. 69-2022 dated February 24, 2022, being recognized as fit for military service in the presence of the employees of the Oleksandriysk District Territorial and a summons to be sent to the army for military service under general mobilization to order command No. : evasion of the draft for mobilization for a special period.
At the court session, XX fully admitted his guilt in committing the specified criminal offense, explained, as indicated above, added that he is a Christian, a member of the Church of God of Ukrpaina “Source of Life”, therefore he refused to be drafted, because he does not want to fight with weapons in his hands.
The testimony of the accused corresponds to the factual circumstances of the case and the charges brought against him, the parties to the criminal proceedings do not dispute them, and therefore, in accordance with part 3 of Art.349 of the Criminal Code of Ukraine, the study of other evidence in the case was deemed inappropriate at the court hearing.
Thus, the court finds XX guilty of evading the call for mobilization for a special period, and qualifies his actions under Article 336 of the Criminal Code of Ukraine.
The court imposes a punishment within the limits established in the sanction of the article of the Special Part of the Criminal Code of Ukraine, which provides for responsibility for the committed criminal offense, taking into account its degree of severity, the identity of the culprit and the circumstances mitigating and aggravating
the punishment. At the same time, a person who has committed a criminal offense must be given a punishment that is necessary and sufficient for his correction and prevention of new crimes.
Circumstances that in accordance with Art.67 of the Criminal Code of Ukraine aggravates the punishment of the accused XX has not been established.
Circumstances mitigating the punishment of the accused, in accordance with Part 1 Of Art. 66 of the Criminal Code of Ukraine, there is sincere remorse and active assistance in solving the crime.
Studying the identity information of the accused XX, the court found that he is being held criminally liable for the first time, he is not registered with a narcologist or a psychiatrist; according to the place of actual residence is characterized positively; according to the information of the Oleksandriysk RV No. 1 of the branch of the
Probation Center of State Administration in the Kirovohrad region, it was established that XX, INFORMATION_1, is not registered in the Oleksandriysk RV No. 1 of the branch of the State Administration of Probation “Center of Probation” in the Kirovohrad region.
From the pre-trial report on the accused XX, drawn up by the Oleksandriyskiy RV No. 1 branch of the State institution “Probation Center” in the Kirovohrad region, it was established that the probation authority assessed the risk of the accused committing a repeated criminal offense as medium, the risk of danger to society, including for individuals persons also as an average. In the opinion of the probation body, correction of XX in the community is possible under the condition of imposing on him the obligations provided for in Clause 1, Clause 2, Part 1 of Art. 76 of the Criminal Code of Ukraine.
When sentencing the accused, the court is guided by the general principles of sentencing provided for in Art. 65 of the Criminal Code of Ukraine and takes into account the degree of gravity of the criminal offense committed by him, data on the identity of the culprit and the circumstances affecting his punishment.
According to Art. Code of Ukraine, a criminal offense provided for in Art. 336 of the Criminal Code of Ukraine is not a serious crime.
Taking into account the data on the identity of the accused, the circumstances that mitigate his punishment, taking into account the sincere remorse of XX and the desire to change his behaviour, preventing further violations of the law, the court came to the conclusion that the given circumstances testify to the possibility of
correction of the accused without isolation from society and serving the sentence, and hence the application to the accused of the provisions of Art. 75 of the Criminal Code of Ukraine, however, with the supervision of him by the authorized probation authority at the place of residence during the probationary period, with the imposition of duties provided for in clauses 1, 2, part 1, part 2, part 3 of Art. .76 of the Criminal Code of Ukraine.
Such a punishment is fair and sufficient to achieve the goals of punishment defined in Article 50 of the Criminal Code of Ukraine.
The accused was not given a preventive measure during the trial.
No civil action has been filed.
The fate of physical evidence should be decided in accordance with Art. 100 CCP of Ukraine.
There are no procedural costs in criminal proceedings.
On the basis of the above, guided by Art. Art.349,368-371,373-376 of the Criminal Procedure Code of Ukraine, the court
RESOLVED:
to find XX guilty of the criminal offense provided for in Art. 336 of the Criminal Code of Ukraine and sentence him to 3 (three) years of imprisonment.
On the basis of Art.75, clauses 1, 2, part 1, clause 2, part 3 of Art.76 of the Criminal Code of Ukraine to release XX from serving the prescribed sentence, if he does not commit a new criminal offense during the probationary period of 1 (one) year and fulfills the duties assigned to him: periodically appear for registration with the authorized body on probation issues, notify the authorized body on probation issues about changing the place of residence and work, not to leave the borders of Ukraine without the consent of the authorized body on probation issues.
Material evidence: a copy of the journal of the delivery of mobilization orders to conscripts assigned to the team of the Oleksandriy RTCC and SP, an act of refusal to receive a mobilization order, a mobilization order, a summons, an examination card and a medical examination, which are attached to the materials of the criminal
proceedings (resolution on the recognition of physical evidence from 05/25/2022) to be left in the court file.
The court’s verdict can be appealed on the grounds provided for in Article 394 of the Criminal Code of Ukraine to the Kropyvnytskyi Court of Appeal within 30 days from the day of its pronouncement.
In the case of an appeal, the verdict, if it has not been cancelled, becomes legally binding after the decision of the appellate court.