The European Court found that the Vilnius government failed to offer to objectors a clear alternative to military service.
by Massimo Introvigne
On June 7, 2022, the European Court of Human Rights (ECHR) ruled in “Teliatnikov v. Lithuania” on a case concerning Jehovah’s Witnesses and conscientious objection. Jehovah’s Witnesses maintain that for Biblical reasons they cannot serve in the military, nor in civil institutions operated by the military administration. Indeed, in many countries of the world Jehovah’s Witnesses had a pioneer role leading to laws allowing for conscientious objection.
The case decided by the ECHR was particularly complicated, in part because of intervening changes in the Lithuanian situation as a consequence of a 2017 decision by the Lithuanian Constitutional Court.
The applicant, one of Jehovah’s Witness named Stanislav Teliatnikov, was conscripted for military service in 2015. He refused for conscientious and Biblical reasons, asking to be allowed to perform civilian service instead. His request was refused, and the refusal was upheld by the Ministry of Defense. He then started court proceedings, claiming that he was entitled to an exemption as a minister of religion of Jehovah’s Witnesses.
At that time, Lithuanian law granted exemptions to religious ministers, but only if they belonged to one of nine “traditional religions” recognized as such, among which the Jehovah’s Witnesses were not included. Teliatnikov claimed that this provision was discriminatory, and in other cases it had already been submitted to the Lithuanian Constitutional Court, which should examine its constitutionality.
The Vilnius Regional Administrative Court suspended the Teliatnikov trial pending the decision of the Constitutional Court. The latter ruled on July 4, 2017, that the exemption granted to the ministers of the nine “traditional religions” was unconstitutional. Rather than extending it to ministers of all religions, however, the Constitutional Court judges abolished the provision altogether, claiming there can be no exceptions to the duty to serve in the military or to perform “alternative national defense service,” which is managed by the military authorities.
After the Constitutional Court’s decision, the Vilnius Regional Administrative Court resumed the trial and, on September 30, 2017, found partially in favor of Teliatnikov and asked the military authorities to reconsider whether he should be allowed to perform alternative civilian service. Rather than complying, the Ministry of Defense appealed to the Supreme Administrative Court, which on April 10, 2019, found in favor of the military authorities and stated that there was no ground to exempt Teliatnikov from his duty to perform military service or alternative national defense service.
Meanwhile, Teliatnikov had been informed that he would not be called for military service because the recruitment quota had been filled by volunteers. The ECHR stated that this did not make his application inadmissible. There were still both actual and potential consequences arising from the fact that Teliatnikov’s right to conscientious objection had not been recognized.
The ECHR observed that the discrimination against ministers of religious communities not part of the “nine traditional religions” has been eliminated by the Lithuanian Constitutional Court, but with results that are somewhat paradoxical. In fact, “although the distinction between ministers of traditional and non-traditional religious organizations and associations has been declared unconstitutional…, the outcome of the Constitutional Court’s finding is the opposite result to that argued for by the applicant. Namely, rather than releasing ministers of all religious denominations, such as the applicant, from the obligation to perform military service, the Constitutional Court ruled that no ministers, irrespective of religious organization or association, can be exempted from the obligation to perform military service.”
The ECHR mentioned the two principles its case law has established on the question of conscientious objection to military service. First, while serving in the military cannot be refused for reasons of mere preference or economic interest, “genuinely held” philosophical or religious beliefs should be respected. Second, the states have the right to impose to conscientious objectors an alternative service, but it should be a “genuine civilian service.”
In the case of Lithuania, the ECHR acknowledged that the country does offer an alternative to active military duty, after having examined whether conscientious objection stems from sincerely held beliefs. However, the Court found that the Lithuanian “alternative national defense service” is not “genuinely civilian.” The Court “acknowledges the fact that the work performed by alternative national defense service workers is of a civilian nature; yet, this is of no consequence.”
This work, in fact, is performed “directly under the supervision and control of the military” and has six features that identify it as inherently military. First, those “performing alternative national defense service are referred to as ‘military conscripts’ and/or ‘military draftees’” in Lithuanian laws and regulations. Second, “the type of work to be performed is assigned by the military.” Third, if no civilian work assignment is available, the law mandates that “the military conscript will be assigned to perform alternative service in the national defense system institutions.” Fourth, the “military conscript” will be “taken to his assigned place of work by the military and given the same ‘provisions (except for living quarters and clothing)’ as ‘military service soldiers.’” Fifth, according to the relevant regulations, “the manager of the institution where the ‘military conscript’ performs his work immediately notifies the military in writing about ‘the [military conscript’s] appointment, specific tasks, conditions and work time,’ and provides the military with a monthly ‘time roster’ for the military conscript.’” Sixth, a “military conscript” performing alternative national defense service “‘cannot be dismissed’ for disciplinary violations by the manager of the institution where he is working, without the approval of the military.”
The ECHR also observed that “under Article 26 of the Law on Conscription, in the event of mobilization, the ‘military conscript’ performing ‘alternative national defense service’ may be ‘summoned to perform military service.’” The Court concluded that the Lithuanian “alternative national defense service is intrinsically linked to military service, and therefore cannot be seen as separate civilian service,” adding that “in 2018 the same position was taken by the United Nations Human Rights Committee, in a report concerning the human rights situation in Lithuania.”
The ECHR concluded that “the system in Lithuania failed to strike a fair balance between the interests of society and those of the applicant who has deeply and genuinely held beliefs. Accordingly, the refusal by the State to respect the applicant’s conscientious objection to military service was not necessary in a democratic society.” Until it will offer a genuine civilian alternative to military service, which the current alternative national defense service is not, Lithuania will not have respected the principles established by the ECHR on religion-based conscientious objection as part of religious liberty.
