The Constitution of Mordovia is not a decree?

We are publishing an article by Vasily Nichik, a lawyer, director of the Department of Public Relations and Religious Freedom of the Western Russian Union of Associations of the Church of Seventh-day Adventist Christians, about the attempt of two Adventist Christians in Mordovia to defend their right to alternative civil service. The court of first instance allowed one of the brothers to pass the ACS, while the other refused. Both decisions were appealed. The court of second instance made both decisions in favor of the military registration and enlistment office

12 September 2014 in accordance with Art. 11 of the Federal Law of July 25, 2002 of the year No. 113-FZ "On alternative civil service” two cousins ​​S.V. and S.D., fifth-year students, students of two different universities in the capital of Mordovia, Saransk, submitted an application to the head department of the military commissariat for Saransk - I. V. Tikhomirov. Young people asked to give them the opportunity to fulfill their civic duty to the Fatherland in accordance with Art. 59 of the Constitution of the Russian Federation, replacing the military service in the alternative civilian service. Since their reprieve from the military service ended on June 30, 2015, then, taking into account the requirements of the current legislation, the brothers filed an application six months before the start of the next, spring call, thus fulfilling the procedural requirements of the law.

29 September 2014 S.V. and S.D. called and invited to come to the military commissariat for an interview October 3, 2014 at 8:30. When the young people came to the appointed time, they were sent to the head of the military commissariat I. V. Tikhomirov, who, after talking a little with each of them, instead of an interview, gave the guys personal files and sent to the medical board, after which he promised on the same day at a meeting of the draft commission to issue decisions on the replacement military service by conscription for alternative civilian service. In addition to the submitted advance statements, testimonials and autobiographies, S.V. and S.D. presented documents to the members of the recruiting committee, confirming that they are members of the Seventh-day Adventist Christian Church. To confirm their convictions, they invited witnesses listed in statement - parents, brothers from the Church, as well as the senior pastor of the Church of Christians Seventh-day Adventists in the Republic of Mordovia N.I. Vlasik. However, draft the commission, having heard the applicants, did not give the floor to the witnesses, ignored the desire and the pastor's willingness to speak in support of the selection of inductees and voted against the replacement of conscripted military service with alternative civilian service. On October 17, 2014, a written refusal and an extract from the protocols were received meetings of the conscription commission of the Regional Military Commission of the Republic of Moldova in Saransk on the replacement of military service by call for alternative civilian service.

S.V. and S.D. filed a complaint with the Proletarsky District Court of Saransk. Interests the applicants were represented by lawyer V.I. Nichik. Complaints were divided between two judges. The case of S.V. considered the court presided over by Judge C.AND. Yurkina, and the case of S.D. was considered under the presidency of Judge L.A. Poluboyarova.

S.V. and S.D., as well as their representatives in the statements given in written and oral the form of the draft board and the court, brought reasons that become insurmountable obstacles to their military service, in connection with which they asked provide an opportunity to perform civic duty in an alternative civil service.

IN As regards the applicants' religious beliefs, the following arguments were submitted.

1. They told the draft board and the court that, according to their religious beliefs cannot take an oath. IN Matthew 5:34-37 says, “But I say to you, swear not at all, neither heaven, because it is the throne of God; nor the earth, because it is the footstool His; nor Jerusalem, because it is the city of the great King; not with your head swear, because you can't make a single hair white or black. But yes your word will be: yes, yes; no no; but what is more than this is from the evil one," therefore they cannot step over their convictions and take the words of an oath. Between topics, according to Art. 40 Federal Law No. 53-FZ "On military duty and military service", "a soldier who is citizen who entered the military service for the first time is brought to the Military oath." It follows that every person called up for military service must take an oath.

2. They informed the draft board and the court that they could not take the oath either. because they keep the law of God in its full exposition, without choosing from there convenient. In the fourth commandment of His law, the Lord says (Exodus 20 ch. 8-11): “Remember the Sabbath day, to keep it holy; work for six days do all your works, but the seventh day is the Sabbath of the Lord your God: do not nothing to do with it." Therefore, on Saturdays they do not work, but study liturgical deeds - they read the Word of God, pray, do deeds of mercy, participate in worship. Therefore, they cannot take an oath that they will unquestioningly carry out all the orders of the commander on the Sabbath day. sacred Scripture in Psalms 14 chapter 4 verse says that “whoever swears, even to an evil one, and does not change,” only that person is a true believer. They reported draft board and the court that they will not be able to obey the order of the commander in Sabbath day to perform any business at the discretion of the commander. Clause 39 of the Charter internal service of the Armed Forces of the Russian Federation says that "the discussion (criticism) of the order is unacceptable, and failure to comply with the order of the commander (chief), given in the prescribed manner, is a crime against military service. The disciplinary charter of the Armed Forces of the Russian Federation in paragraph 9 reads: “The right commander (chief) to give orders and duties to subordinates obey unquestioningly are the basic principles of one-man command. IN case of open disobedience or resistance of a subordinate commander (chief) is obliged, in order to restore order and military discipline, to accept all measures established by the laws of the Russian Federation and general military regulations coercion, up to and including detention.

That's why S.V. and S.D. informed the draft board, and then the court, that the decision to send them into military service immediately makes a criminal out of them, since on the Sabbath day they will not obey the orders of the commander. This is their belief, and for situations when obedience to the order of the commander is contrary to beliefs, the state provides for the possibility perform civic duty in alternative service.

3. S.V. and S.D. informed the draft board, and later also the court, that according to Because of their convictions, they cannot take up arms. There is a sixth in the Law of God commandment that says "Thou shalt not kill." They will not be able to take up arms, not can learn how to use weapons. P. 161 of the Charter of the internal service of the Armed Forces of the Russian Federation: “A soldier (sailor) is obliged to perfect know and have always serviceable, serviced, ready for battle weapons and military technique." Military service is directly related to weapons, and they will not be able to contact them in any way. This is their conviction.

4. S.V. and S.D. informed the draft board, and later also the court, that according to their beliefs have a special diet. They do not eat any unclean food that many people eat today. This is not a whim that can be put aside for a while in aside, but these are scripturally based beliefs. The Lord speaks in Leviticus 17, verses 1-7: “And the Lord said…: These are the animals that can be you shall eat from all the livestock on the earth: every livestock that has cloven hooves and hooves deep incision, and who chews the cud, eat; just don't eat them those who chew the cud and have cloven hooves: a camel because it chews chewing gum, but his hooves are not cloven, he is unclean for you; and jerboa, because that he chews the cud, but his hooves are not cloven, he is unclean for you and the hare, because he chews the cud, but his hooves are not cloven, he is unclean for you; And pig, because her hooves are cloven and the incision is deep on her hooves, but she does not chew gum, it is unclean for you.” Showing respect to the Lord as the Creator in total, S.V. and S.D. expressed their belief that the commands of the Lord are not His temporary whim, and God knows what is useful and permissible for the body. More Moreover, the Lord God, through His prophet Isaiah, speaks to every person (book Isaiah chapter 66 verse 17): “Those who sanctify and cleanse themselves in the groves, one by one others, they eat swine meat and abominations and mice, they will all perish, says the Lord.” Therefore, according to their beliefs, eating a piece of pork is equivalent to the abomination that eat a mouse or a rat, so says the Lord, and they cannot live otherwise, then how in military canteens pork meat is very often served or food is cooked on pig fat.

Representative military draft commission of the urban district of Saransk N.I. Syrnikov, trying mislead the court, argued that the religious beliefs of S.V. and S.D. it became known only in court that only the court first saw the documents confirming their belonging by religion to the Church of Adventist Christians seventh day. But this was a lie: among the documents submitted by the draft commission, along with the application, there was a certificate stating that S.V. and S.D. are members of the Seventh-day Adventist Christian Church, and this fact was authentically known to the draft board.

upholding position of the military-industrial complex of Saransk, Syrnikov argued that the documents provided were not enough, that the applicants had failed to prove their convictions to the commission, and that the Seventh-day Adventist creed does not prohibit young people from serving in the military, take an oath and take up arms. But all these arguments of the military-industrial complex of Saransk were challenged by the defense.

victim the party, relying on the Ruling of the Constitutional Court of the Russian Federation dated October 17, 2006 No. 447-O, stated that the conscript was “required to substantiate the existence beliefs and religions that prevent the passage of military service, then from Article 59 (part 3) of the Constitution of the Russian Federation follows only obligation to present relevant arguments. For this reason, it is unacceptable to carry out the substitution of the concept of "substantiate" for "prove", since, based on the Definition of the Constitutional Court, from the applicant asking for a replacement for military alternative civilian service, it is required to “state the relevant arguments”. The arguments of the applicant, according to another Definition of the Constitutional of the court of the Russian Federation of June 24, 2014 No. 1470-O, must show a serious and insurmountable conflict between the obligation serve in the army and convictions of the person. The applicant is not required to prove loyalty to beliefs. The applicant does not have the task of convincing the recruit commission that she either repent and believe what the complainant believes, or will replace his military service with an alternative one.

Argument of the military draft commission of the city district of Saransk about the insufficiency submitted documents was null and void, since, based on the provisions of Art. 12 FZ "On alternative civil service", the court considered that the military-industrial complex makes a decision on basis:

1) listening to the statements of the applicant and his representatives;

2) examination of the submitted documents;

3) in case of lack of information, requests additional materials.

Federal the law does not provide grounds for a formal approach. This is evidenced by the Definition of the Constitutional Court of the Russian Federation dated October 17, 2006 No. 447-O: “Based on the fact that the right to replacement of military service by alternative civilian service is directly applicable, the federal legislator has no right to limit procedural rules adopted in order to rationalize the activities state bodies, freedom of conscience and religion and related the right to alternative civilian service”. Therefore, even if, according to draft board, the documents do not contain everything that was expected under the procedural norms, this cannot be grounds for restricting freedom of conscience and religion. Since the right to replace the military with an alternative civilian service is directly active, then the draft board finds out the presence insurmountable conflict between bearing military service and convictions or the applicant's religion.

Representative position of the military draft commission of the city district of Saransk regarding the position The Seventh-day Adventist Church on the issue of military service showed that the military-industrial complex of Saransk they are not interested in the beliefs of a person and for them there is nothing sacred, except for the order and conscription plan. This statement of the representative of the draft board about the social position of the Church on the issue of service in the army made it possible for S.V. And S.D. talk about the benefits of being in the Adventist Church. They reported court that "belong to the Church, in which the right of freedom is granted conscience of every person. The Church grants the right to act in accordance with their convictions regarding the choice of where to serve - in the military or alternative service. The church provides the right to choose to take up arms or not. Church does not oblige to either one or the other - and this is the advantage of being a member of the Church of Christians Seventh-day Adventists, in which there is no violence against the will of man, over his rights and freedom."

The representative of the military-industrial complex of Saransk confirmed that it was impossible serve in a military unit without taking an oath, disobeying the orders of the commander, not having a weapon, and the soldier must learn to use this weapon and look after him. Syrnikov also confirmed that on Saturday the applicants would not be able to to engage only in liturgical affairs, and also I will not be able to fully eat in military canteen in accordance with their beliefs.

The injured party relied on Art. 59 Constitution RF, art. 2 of the Law "On Alternative Civil Service", art. 3 of the Law "On freedom of conscience and religious associations”, which unambiguously refers to the importance of personal beliefs and religion of a person. This position of understanding Russian legal framework stressed the Constitutional Court. In the Decree dated November 23, 1999 No. 16-P says: “The right to replace military service alternative civilian service, as follows from article 59 (part 3) of the Constitution of the Russian Federation, is directly applicable, moreover precisely individual right, that is, associated with freedom of religion in its individual and not collective aspect, which means that it must be ensured regardless of whether the citizen is a member of any religious organization or No". All attempts to oblige the conscript when choosing an execution option civic duty to be guided by the teachings of the Church are biased, and vice versa, the teachings of the Church are not yet personal convictions.

IN As a result, on November 17, 2014, two judges rendered two decisions. After listening the same arguments, the same people, representing the position of their trustees and repeating the same arguments (this even made the litigants who were present at both hearings), one court ruled to uphold the complaint the applicant, and the second court ruled to dismiss the complaint.

Reversible readers' attention to some motivational episodes from the court decision, denied the complaint. Of course, the statements were supported there draft board: not enough documents submitted; the applicants were unable prove their convictions to the commission; the creed of the Seventh Day Adventist prohibits young people from serving in the army, taking an oath, and taking up arms. But, surprisingly, the court draws a conclusion based on the characteristics of the applicant. The Court considers that there can be no religious beliefs that give the right to a replacement military service to alternative civilian service, in a person who "possesses leadership qualities", "has established itself as creative personality”, “possesses artistic abilities, takes an active part in all activities carried out institute and faculty, is the organizer and participant" of various activities, "has good physical fitness, which helps him to take participation in the sports life of the institute, enjoys prestige among teachers and fellow students, disciplined, sociable, creative, purposeful”, has positive characteristics, “positive results education in educational institutions and sports.

Is the Proletarsky District the Saransk court of the Republic of Mordovia expected to see a feeble-minded savage, with a bright pronounced signs of rickets and dystrophy, a downtrodden and intimidated "prayer"?! Apparently, only in this case, the young people of Saransk open the way to alternative service!

Before In the New Year, two complaints were received by the appellate court - from the draft commission and from the conscript. Conscript S.D. motivated his complaint by the fact that The Proletarsky District Court of Saransk of the Republic of Mordovia admitted incorrect application of the norms of substantive law, as well as the fact that the conclusions of the court set out in the decision do not correspond the circumstances of the case. Of course, the same arguments were presented again, those the same justification for the illegality of the decision of the draft board, the reasons were also explained an insurmountable conflict between the performance of military service and the convictions of the conscript. In his appeal S.D. pointed out that the court did not take into account the provisions of Art. 18 of the Constitution of the Russian Federation, which reads: “The rights and freedoms of man and citizen are directly active. They determine the meaning, content and application of laws. Court put a directly applicable law that does not require additional theological research, depending on the ability to convince the court and the draft board of the practical theology of the conscript's personal life; if you can convince, the court will agree, that he believes correctly and deserves to replace military service with alternative civil service. If we put this task before each conscript - the applicant about replacing military service with an alternative one, this can only mean one thing: a conscript must express his beliefs and religion in such a way that the draft the commission and the court believed just as he did. Only then the conscript's arguments will found to be justified. But the Constitution guarantees that the right to replace the military service to an alternative is a directly applicable right, and it is necessary only to give significant arguments of the contradiction of beliefs and religion to the military regulations and discipline.

The court ignored Art. 7 FZ "On appeal to the court of actions and decisions that violate the rights and freedoms of citizens, which says that the complained an action (decision) is recognized as illegal if it leads to a violation of the right and freedom of a citizen and creates an obstacle to the exercise by a citizen of his rights and freedoms. The decision of the draft board violated the direct right of S.D. to freedom conscience and religion, creating an obstacle to freely act in accordance with their convictions. The decision of the draft board deprived him direct right to replace military service with alternative civilian and created an obstacle to the fulfillment of civic duty to the Fatherland, taking into account beliefs and religion.

Court Court of Appeal in the case of C.The. was appointed on February 3, 2015, by the case of S.D. - as of February 5, 2015. It seemed to be a bright case, which began with banal violation of the constitutional right to the opportunity in the performance of civic duty to the Fatherland from the military to alternative service, will receive positive ending. But it was not there.

Despite to the fact that the representative of the draft commission to the questions of the representative injured party The.AND. Nichik said that to combine the convictions of conscripts and military service is impossible, the Court of Appeal ruled in both cases in in favor of the military draft commission of the city district of Saransk. "Is it possible to serve in army without taking an oath? - No, you can’t! ”,“ Is it possible to serve in the army without taking hand weapons? - Yes, in the railway troops! ”,“ Is it possible to serve in the army, not obeying the commander's orders? – No, it’s impossible!”, “Will someone to form a special diet for a conscript with a special diet? - No, it will not!". Answers show the impossibility of serving in the army for people with such convictions as S.V and S.D. However, the court ruled to send them to the army. Interesting, who will be worse off from this: a conscript who joins the army will present to the commander of judicial complaints describing his convictions and attach a decision to them court that with all these features of faith he can serve in the army, or commander, who will have to think about what to do with a recruit who refused the oath, from weapons, does not work on Saturdays, and even a hunger strike will announce due to the lack of dishes allowed by his religious beliefs?

By These cases are already preparing a cassation appeal. And the answer to the question “Why Mordovia, unlike the rest of Russia, only for inferior and feeble-minded citizens have the right to exercise the constitutional right to an alternative civil service”, apparently, will be given by the Supreme Court of the Russian Federation.