Source: www.forum18.org
Date: July 21, 2023
https://www.forum18.org/archiv
By Victoria Arnold, Forum 18
Russian soldiers who seek to avoid fighting in Ukraine on grounds of
conscience encounter difficulties at all levels. Since President Vladimir
Putin announced the "partial mobilisation" in September 2022, regular
contract troops have been unable to resign. A legal loophole means that
mobilised men who request alternative civilian service are typically
refused. Individuals who refuse outright to go to Ukraine can be criminally
prosecuted and imprisoned for failing to obey orders.
In Russia's Far East, Pentecostal Christian Andrey Kapatsyna, who was
called up in Magadan in September 2022 on the first day of mobilisation,
twice refused to fight in Ukraine. On 29 June 2023, a Vladivostok court
sentenced him to 2 years and 10 months' imprisonment under new legislation
aimed at punishing the non-fulfilment of orders in a period of combat
operations (see below).
Kapatsyna was convicted under Criminal Code Article 332, Part 2.1
("Non-fulfilment by a subordinate of an order of a superior given in
accordance with the established procedure, during a period of martial law,
in wartime or in conditions of armed conflict or combat operations, as well
as refusal to participate in military or combat operations"). This was
introduced in September 2022 (see below).
Kapatsyna had twice told his commanders that "in accordance with his
religious beliefs, he could not take up arms and use them against other
people", according to the written verdict seen by Forum 18. He has lodged
an appeal, but no date has yet been set. In the meantime, he remains at his
unit's base in Vladivostok (see below).
Forum 18 asked Magadan Region Military Commissariat and the Military
Prosecutor's Office of the Pacific Fleet and Vladivostok Garrison why
Kapatsyna had not been permitted either to do alternative civilian service
or take up an unarmed role in the army, given that military service was
contrary to his beliefs (see below).
Assistant military prosecutor Andrey Voronkin directed Forum 18 to the
website of the Vladivostok Garrison Military Court and noted that the law
makes no provision for the exchange of mobilised military service for
alternative civilian service. The Military Commissariat did not respond
(see below).
A military court in the northern Murmansk Region sentenced Dmitry Vasilets,
a regular army officer who adopted Buddhism, to 2 years and 2 months'
imprisonment under the same law (Criminal Code Article 332, Part 2.1). He
had refused on grounds of his new faith to return to Ukraine after five
months on the frontlines (see below).
"We are putting a person on trial who consciously took on military service
and who is now forced either to go to prison or to break himself – our
legislative system does not allow people in such a situation to stand up
for their beliefs, to stand up for the possibility of being a human being",
Vasilets' lawyer Elvira Tarasova told the appeal hearing (see below).
Zaozersk Garrison Military Prosecutor's Office did not respond to Forum
18's questions as to why, as he had submitted his request to leave the army
before mobilisation was announced, Vasilets was not permitted to resign,
and why he had not been allowed to take on an unarmed role, given that
military service went against his religious beliefs (see below).
Vitaly Veselov, a reservist from Vladimir Region, east of Moscow, sought a
transfer to alternative civilian service on grounds of his Christian
beliefs, but his unit commander rejected his request. Veselov has
challenged this in court, but has so far been unsuccessful (see below).
Forum 18 asked Vladimir Garrison Military Court why it had not upheld
Veselov's constitutional right to alternative civilian service. Judge
Aleksandr Kondratyev – who had rejected his suit - simply directed Forum
18 to the text of his decision (see below).
Vladimir Region Military Commissariat did not respond to Forum 18's
questions as to why Veselov was not permitted to undertake alternative
civilian service, and whether he would now be allowed to serve in a
non-combat role (see below).
Despite the constitutional right of all Russians to carry out alternative
civilian service instead of military service if the latter goes against
their beliefs, the mobilisation order of 21 September 2022 and associated
legislative changes make no mention of provision for reservists who are
conscientious objectors (see below).
In the absence of any clear legal mechanism for requesting alternative
civilian service (ACS) under conditions of mobilisation, the fate of men
who object to using weapons or serving in the armed forces depends on
individual military recruitment offices or on the courts (see below).
Although recruitment offices now appear to be drafting far fewer men than
in the early months of mobilisation, President Putin has still not signed a
decree formally ending the process, which means that the call-up could be
accelerated again at any time.
Gap in the law: No alternative service for reservists during mobilisation
The right of those with conscientious objections not to be forced to take
part in military structures or activity
(https://www.quno.org/sites/de
derives from Article 18 ("Freedom of thought, conscience and religion") of
the International Covenant on Civil and Political Rights, which enshrines
"Freedom of thought, conscience and religion". "No derogation" from the
rights enshrined in Article 18 may be made even in a "time of public
emergency which threatens the life of the nation and the existence of which
is officially proclaimed".
Lawyers and human rights advocates agree that Russian federal legislation
does not provide for alternative civilian service for reservists during
mobilisation. They insist, however, that the Constitution guarantees the
right to ACS in any case, and that men who object to fighting on religious
or other conscientious grounds should therefore lodge applications for ACS
and go to court when they are refused.
The gap in the law has led to military recruitment offices turning down
conscientious objectors' requests for alternative civilian service
(https://www.forum18.org/archi
there is no provision for ACS during mobilisation and/or that ACS is only
for conscripts, despite this being contrary to the Constitution.
It appears, however, that applying for alternative service, even though
there is no mechanism for it to be carried out, can sometimes be an
effective way for conscientious objectors to avoid mobilisation
(https://www.forum18.org/archi
absence of any regulations, this depends on military recruitment offices
themselves.
In March 2023, Leningrad Regional Court upheld Pavel Mushumansky's request
to have his mobilisation order cancelled
(https://www.forum18.org/archi
application for alternative service that based on his Christian beliefs he
could not "carry out orders aimed at the destruction and utter defeat of
living people".
Contract soldiers have never had an option to transfer to any kind of
alternative service. Before 21 September 2022, they could leave the army at
the end of their contract periods, and had the right to seek early
discharge for family reasons, and for other personal reasons if a military
commission deemed them valid. Upon the announcement of mobilisation,
however, all contracts were made indefinite, and a soldier may now leave
the army only for health reasons or if he reaches the upper age limit.
Criminal punishments increased
In late September 2022, after President Putin issued his decree on "partial
mobilisation", legislators made a number of amendments to the Criminal
Code's Chapter 33 on "Crimes against military service", adding new and
harsher punishments for existing offences if committed "during a period of
mobilisation or martial law, in wartime or in conditions of armed conflict
or combat operations". These offences included desertion, opposing a
superior, and going absent without leave. A new crime of "voluntary
surrender" was also added.
A study by independent Russian media outlet Mediazona found
(https://en.zona.media/article
months of mobilisation, most soldiers who did not wish to fight in Ukraine
(629 out of 708 cases found) simply abandoned their units (Criminal Code
Article 337, "Unauthorised abandonment of unit or place of service").
There are also, however, soldiers who directly refuse to be deployed to
Ukraine, including on grounds of conscience, and who do not abscond. They
are prosecuted under Criminal Code Article 332's new Part 2.1, adopted on
24 September 2022. This punishes "Non-fulfilment by a subordinate of an
order of a superior given in accordance with the established procedure,
during a period of martial law, in wartime or in conditions of armed
conflict or combat operations, as well as refusal to participate in
military or combat operations" with 2 to 3 years' imprisonment.
Vladivostok: Criminal prosecution for refusing to go to fight on grounds of
conscience
On 29 June 2023, Vladivostok Garrison Military Court found Andrey
Andreyevich Kapatsyna (born 17 January 1995) guilty of refusing to carry
out orders to go and fight in Ukraine, and sentenced him to 2 years and 10
months in a prison colony-settlement (koloniya-poseleniye) under Criminal
Code Article 332, Part 2.1 ("Non-fulfilment by a subordinate of an order of
a superior given in accordance with the established procedure, during a
period of martial law, in wartime or in conditions of armed conflict or
combat operations, as well as refusal to participate in military or combat
operations").
Kapatsyna, a Pentecostal Christian who had been called up in his home city
of Magadan in Russia's Far East in September 2022 on the day after
mobilisation was announced, had twice told his commanders that "in
accordance with his religious beliefs, he could not take up arms and use
them against other people", according to the written verdict seen by Forum
18.
Kapatsyna lodged an appeal on 11 July 2023 in an attempt to have his
sentence reduced in length, an individual close to the case told Forum 18
on 12 July. This will be heard at the Pacific Fleet Military Court, which
has not yet listed any hearings.
In the meantime, Kapatsyna remains at his unit's base in Vladivostok (he
has not been kept in custody either before or after the trial, but
according to the court verdict, has been under an obligation to appear when
summoned by investigators or prosecutors).
Forum 18 wrote to Magadan Region Military Commissariat and the Military
Prosecutor's Office of the Pacific Fleet and Vladivostok Garrison before
the start of the working day of 18 July, asking why Kapatsyna had not been
permitted either to do alternative civilian service or take up an unarmed
role in the army, given that military service was contrary to his beliefs.
Assistant military prosecutor Andrey Voronkin replied on 21 July, directing
Forum 18 to the website of the Vladivostok Garrison Military Court and
noting that the law makes no provision for the exchange of mobilised
military service for ACS.
Forum 18 had received no response from the Military Commissariat by the end
of the Magadan working day of 21 July.
Kapatsyna worked in air traffic control in Magadan. According to the
individual close to the case, he had completed military service as a
conscript before meeting his wife and joining a Pentecostal church. As
airport staff, he expected to be exempt from mobilisation, but received
call-up papers at his workplace on 22 September 2022 before any such
exemption was issued, Sibir Realii noted on 29 June
(https://www.sibreal.org/a/kap
was sent to join Military Unit 30926 in Vladivostok (2,250 kms (1,400
miles) away) with the rank of junior sergeant.
According to the court verdict, seen by Forum 18, political officer Captain
A.V. Sviridenko issued Kapatsyna with orders to deploy to Ukraine on the
parade ground on 20 October – Kapatsyna "openly refused to fulfil [them]"
and "explained his refusal by [reference to] his religious beliefs". On 1
November 2022 in the unit's office, Captain Sviridenko again gave him the
commander's deployment order, offering him "the opportunity to read it for
himself": "However, Kapatsyna again refused to go to the zone of the
special military operation for reasons of faith."
Military prosecutors charged Kapatsyna under Article 332, Part 2.1
("Non-fulfilment by a subordinate of an order of a superior given in
accordance with the established procedure, during a period of martial law,
in wartime or in conditions of armed conflict or combat operations, as well
as refusal to participate in military or combat operations"), specifically
– as they later clarified in court – with a refusal to participate in
combat operations.
In court, Kapatsyna pleaded guilty, stating again that "in accordance with
his religious beliefs, he could not take up arms and use them against other
people". Judge Gennady Yemelyanov deemed this argument to be "without
validity", as the replacement of military service with alternative civilian
service on grounds of conscience is possible only for conscripts, not
reservists who have been mobilised.
As mitigating circumstances, the judge noted the fact that it was
Kapatsyna's first offence, his guilty plea, his positive character
references, and the existence of his young child (as well as a voluntary
donation he made to a charitable fund "for the needs of the special
military operation"). The fact that he "committed the offence during a
period of mobilisation" was taken as an exacerbating factor.
When Kapatsyna's conviction enters legal force, he will be expected to make
his own way to the colony-settlement – his sentence will be calculated
from the date of his arrival, minus days spent travelling.
(Colony-settlements house first-time offenders convicted of minor and some
medium-severity crimes and crimes of negligence, as well as inmates
transferred with good references from general-regime and strict-regime
prison camps. They have the lightest regime of all Federal Penitentiary
Service (FSIN) institutions – prisoners are allowed to wear civilian
clothes, use money, go home for weekends (subject to official approval),
and find jobs outside the settlement, and communication with and visits
from relatives are unlimited. Living conditions nevertheless vary widely
between settlements.)
Murmansk Region: Criminal prosecution after attempt to leave army on
grounds of conscience refused
The first person in Russia to be charged under Criminal Code Article 332,
Part 2.1 ("Non-fulfilment by a subordinate of an order of a superior given
in accordance with the established procedure, during a period of martial
law, in wartime or in conditions of armed conflict or combat operations, as
well as refusal to participate in military or combat operations") was
Dmitry Vitalyevich Vasilets (born 2 July 1995), a contract soldier with the
rank of senior lieutenant based in the northern Murmansk Region.
After five months' service as a political officer in Ukraine, Vasilets
attempted to resign from the army, but the announcement of mobilisation
shortly afterwards meant that his request went unfulfilled. When ordered to
return to the frontlines, he refused, citing the Buddhist beliefs he had
developed when visiting a dead comrade's family in Buryatiya.
"I realised that it makes no sense to kill people. It will not help, but
only increase suffering [and] destruction, only aggravate the situation",
Vasilets said in comments to independent Russian media outlet Novaya.media
on 26 December 2022. "We must fight not with the enemy, but with the anger
within ourselves .. I realised that there is light in every person, and I
cannot afford to take the life of another person – this is a line, a red
line that I cannot cross."
Judge Vladimir Boldyrev of Zaozersk Garrison Military Court sentenced
Vasilets to 2 years and 5 months' imprisonment in a colony-settlement on 7
April 2023. The Northern Fleet Military Court upheld his conviction on 1
June 2023, but appeal Judge Boris Yuvchenko reduced his sentence to 2 years
and 2 months to take into account psychological trauma and the fact that
Vasilets had been orphaned at a young age.
On 13 June 2023, the Russian human rights organisation Memorial recognised
Vasilets as a political prisoner
(https://memopzk.org/news/my-s
It noted that he had refused to return to Ukraine because his beliefs had
changed, and that his prosecution "violates his rights to freedom of
conscience and a fair trial".
Forum 18 wrote to the Zaozersk Garrison Military Prosecutor's Office before
the start of the working day of 19 July, asking why, as he had submitted
his request to leave the army before mobilisation was announced, Vasilets
had not been permitted to resign, and why he had not been allowed to take
on an unarmed role, given that military service went against his religious
beliefs. Forum 18 had received no reply by the middle of the working day in
Zaozersk of 21 July.
From February 2022 – when his superiors said he would be participating in
"training manoeuvres" – to July of that year, Vasilets served at a
Russian army headquarters in the Kharkiv Region of Ukraine. While the base
was often shelled, he did not fire a shot, as he insisted in comments to
Novaya.media
(https://novaya.media/articles
on 26 December 2022.
"I couldn't drop everything and leave – my comrades remained there,"
Vasilets told Novaya.media. "But of course, I understand: that on our side,
on the other side, people are dying .. For about three months, there is
fear, you are worried. And then the darkness builds up inside."
"After three months, I hoped that I would be replaced. But the fourth month
went by, then the fifth .. Life in such moments loses its value. I just
stopped wearing body armour." (Defence Ministry rules state that a soldier
must be rotated out of the combat zone after 30 days.)
After eventually getting two weeks' leave, Vasilets went to the Republic of
Buryatiya to visit the families of fellow soldiers who had died in Ukraine.
"The parents of a deceased friend gave me some Buddhist prayer beads. [In
Buryatiya] I looked at Buddhism in a new way. I was interested in it before
.. I was baptised, but Orthodoxy did not take with me. I began to read
books and immerse myself in the philosophy of Buddhism. It teaches us to be
calm, that we should not hate other people and should live in the here and
now."
Vasilets lodged a request to terminate his contract in August 2022. This is
a lengthy and complicated process and must be approved by a military
commission. After President Putin signed the "partial mobilisation" decree
in September 2022, all such processes were suspended and fixed-term army
contracts became indefinite.
Ordered to return to the front again in September 2022, Vasilets submitted
another written refusal on 28 September. "In his very first report in
August 2022, Dmitry wrote 'personal reasons', without disclosing them", an
individual close to the case told Forum 18 on 17 July.
"Subsequently, in September, October, and January 2023 [when deployment
orders were repeatedly issued], he pointed in his reports to the right to
freedom of conscience and religion, giving detailed accounts in his
explanations and testimony of his adoption of the philosophy of Buddhism,
under the influence of which he came to pacifism" the individual added.
"I made a conscious decision based on my principles and the philosophy of
Buddhism. I said to myself: 'You alone are responsible for your soul',"
Vasilets told Novaya.media on 26 December 2022. "I sat down and wrote an
explanation that I am not only a soldier, but also a human being. Because,
first of all, we are people. And there are my rights as a person, and the
state must protect them."
On 19 October 2022, military investigators opened a criminal case against
him. "I knew they would," Vasilets commented. "I had a choice and I made
it." He lodged a lawsuit against his commander, arguing that the order to
send him back to the combat zone without a medical examination was unlawful
– this was unsuccessful.
"After the deployment, Vasilets became completely different. The deployment
greatly affected him and his worldview, his moral and mental state",
Novaya.media reported a witness in the criminal case as saying.
"It is better to go to prison than to betray yourself and your own
humanity," Vasilets himself concluded. "I wouldn't be able to say to myself
later: 'I was ordered to do this' – that wouldn't be an excuse. My soul
is in my hands."
"We are putting a person on trial who consciously took on military service
and who is now forced either to go to prison or to break himself – our
legislative system does not allow people in such a situation to stand up
for their beliefs, to stand up for the possibility of being a human being",
lawyer Elvira Tarasova said during the appeal hearing, according to a 2
June report by independent newspaper Novaya Gazeta
(https://novayagazeta.ru/artic
"It turns out that this is a sentence for beliefs."
At his appeal, Vasilets added: "As a human being, I want to be heard. My
decision is not a sign of weakness. This is an indicator of strength. I'm
in the right. I do not break the law. I do not humiliate the freedom of
other people. I do not do illegal things. I have followed these principles
and will continue to do so. I don't plead guilty."
Vladimir Region: Alternative civilian service denied
On 12 May 2023, Judge Aleksandr Kondratyev of Vladimir Garrison Military
Court declined to uphold Vitaly Veselov's lawsuit against the Acting Deputy
Commander of his military unit, ruling that his refusal of Veselov's
request to do alternative civilian service was lawful. Veselov had asked to
do ACS because of his Christian beliefs.
Forum 18 asked Vladimir Garrison Military Court why it had not upheld
Veselov's constitutional right to alternative civilian service. Judge
Kondratyev responded on 20 July in his capacity as acting chair of the
court, directing Forum 18 to the text of the decision on the court website.
Vitaly Sergeyevich Veselov had been called up in the city of Vladimir on 22
September 2022, the day after President Putin signed his decree on "partial
mobilisation". Between 13 October 2022 and 1 February 2023, his unit served
in Ukraine, before returning to a military base in Kovrov (Vladimir
Region).
According to the court decision, seen by Forum 18, "Wishing to exercise the
right to replace military service with alternative civilian service, on 16
February 2023, Veselov made a request for transfer to alternative service
to the military prosecutor of the Vladimir garrison". The military
prosecutor passed his request to the commanders of Military Unit 30616, and
on 13 April, the Acting Deputy Commander for Military-Political Work issued
a refusal, stating that Veselov did not have the right to ACS.
Forum 18 wrote to the Vladimir Region Military Commissariat before the
start of the working day of 18 July, asking why Veselov was not permitted
to undertake alternative civilian service, and whether he would now be
allowed to serve in a non-combat role. Forum 18 had received no reply by
the middle of the working day in Vladimir of 21 July.
Veselov lodged an administrative suit against the Acting Deputy Commander
on 21 April 2023 (having withdrawn an earlier suit against the unit
itself). He asked the court to recognise the refusal of alternative
civilian service as unlawful, to oblige his unit to release him from
mobilised military service, and to change his military service to ACS.
Neither Veselov nor his commanders attended the administrative hearing.
According to his lawsuit, outlined in the written court decision, Veselov
"has beliefs that contradict military service. He cannot serve with
weapons, he cannot kill people or be trained in this. Even training
sessions are contrary to his conscience. Veselov believes that his
participation in the special military operation may lead to violation of
the Christian commandments, which is unacceptable to him. In addition, for
reasons of conscience, he cannot fulfil everything that is listed in the
[military] oath."
Judge Kondratyev did not uphold Veselov's suit on the grounds that,
firstly, Veselov did not provide substantive evidence of his beliefs upon
initial registration for military service (ie. as a teenager, before being
called up for conscript service), when he was mobilised, in his request of
16 February 2023, or in the lawsuit; and secondly, that mobilised men are
considered to be contract soldiers and there is no provision in law for
them to be allowed to do ACS.
The judge acknowledged that citizens have the right under the Constitution
to replace military service with ACS, but also refused Veselov's petition
to file a request to the Constitutional Court to examine the constitutional
compliance of the legislation governing mobilisation.
The 2nd Western District Military Court registered Veselov's appeal against
Judge Kondratyev's decision on 12 July, and has listed a hearing on 24
August. (END)
Full reports on freedom of thought, conscience and belief in Russia
(https://www.forum18.org/archi
For more background see Forum 18's survey of the general state of freedom
of religion and belief in Russia
(https://www.forum18.org/archi
18's survey of the dramatic decline in this freedom related to Russia's
Extremism Law (https://www.forum18.org/archi
A personal commentary by the Director of the SOVA Center for Information
and Analysis (https://www.sova-center.ru), Alexander Verkhovsky, about the
systemic problems of Russian "anti-extremism" laws
(https://www.forum18.org/archi
Forum 18's compilation of Organisation for Security and Co-operation in
Europe (OSCE) freedom of religion or belief commitments
(https://www.forum18.org/archi
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