29 September 2022
by Vladimir Ryakhovsky, attorney at law, member of the Presidential Council for Civil Society and Human Rights
Source: Moscow Helsinki Group
Federal Law No. 113-FZ of 25 July 2002, ‘On Alternative Civilian Service’ regulates the exercise by citizens of the Russian Federation (hereinafter referred to as citizens) of their constitutional right to alternative civilian service in place of compulsory military service.
The organisation and performance of alternative civilian service during mobilisation, martial law and wartime are determined by federal constitutional laws, other federal laws and other regulatory acts adopted in accordance therewith (Article 9 of Federal Law No. 113-FZ of 25 July 2002).
Military service through mobilisation, along with military service by call-up and call-up for additional military training, is one of the types of military service.
No federal law on alternative civilian service during mobilisation has been adopted in the Russian Federation.
Article 28 of the Constitution of the Russian Federation guarantees everyone freedom of conscience, freedom of religious beliefs, including the right to profess individually or collectively any religion or not to profess any, to freely choose, have and disseminate religious and other beliefs and to act in accordance with them.
In accordance with Article 59, Part 3, of the Russian Constitution, citizens of the Russian Federation have the right to perform alternative civilian service instead of military service if their convictions or religious beliefs conflict with the performance of military service and in other cases established by federal law.
The Russian Constitution shall have supreme legal force, direct effect and shall be applied throughout the territory of the Russian Federation (Article 15 of the Russian Constitution). Human and civil rights and freedoms are directly applicable (Article 18 of the Russian Constitution).
Based on the above norms of the Russian Constitution, the absence of a federal law regulating the procedure for replacing military service through mobilisation by alternative civilian service and its performance cannot be grounds for limiting the directly applicable constitutional right of a citizen.
A similar legal position is given in the Ruling of the Constitutional Court of the Russian Federation of 22 May 1996, No 63-O:
‘At the same time, the right of citizens, which is literally established in the above constitutional norm and does not need to be specified, whose beliefs or religion run counter to military service, to perform instead alternative civilian service, is directly applicable (Article 18 of the Russian Constitution) and must be upheld irrespective of whether a corresponding federal law has been passed or not. A citizen’s aspiration to exercise their constitutional right by means not prohibited by law cannot in any case serve as the basis for their criminal or other prosecution.
It should be noted that from 1993 (adoption of the Russian Constitution) till 2022 (adoption of the Federal Law ‘On Alternative Civilian Service’) the court practice in cases dealing with appeals against decisions of conscription committees that refused to allow citizens to perform alternative civilian service on account of the absence of a relevant federal law was based on the constitutional principle of direct effect of the Constitution.
Conclusion
Until the adoption of a Federal Law regulating the organisation and performance of alternative civilian service during mobilisation, the right of citizens whose convictions or religious beliefs conflict with military service to perform alternative civilian service instead, like all other human and civil rights and freedoms, is directly applicable (Article 18 of the Constitution of the Russian Federation) and must be ensured regardless of whether or not a corresponding federal law has been adopted.
Translated by Rights in Russia
