Belarus: Alternative Service Law withdrawn as prisoner awaits trial

By Felix Corley, Forum 18 News Service

As a religious conscientious objector detained for over a month nears trial
in the capital Minsk, Belarus looks no nearer to providing an alternative
to compulsory military service, Forum 18 News Service notes. Ivan
Mikhailov's month in prison insisting on his right to alternative civilian
service is "the price he is paying for his choice", Mikhail Pashkevich of
the campaign For Alternative Civilian Service told Forum 18 from Minsk on
15 January.

No family members have been allowed to visit Mikhailov, a Messianic Jew,
since his arrest at work on 15 December. In a cell with five others at an
investigation prison in Zhodino (Minsk Region), he nevertheless remains
optimistic, his brother-in-law Mikhail Suboch told Forum 18 from Minsk on
16 January: "His health and mood are both good - he's not complaining."
Mikhailov's lawyer, Svetlana Gorbatok, was permitted to attend his
interrogation and hold an individual meeting with him on 14 January, said
Suboch. Her application for him to be freed in the run-up to the trial if
he signed a pledge not to leave Minsk was rejected on 14 January, however.

Mikhailov's trial at Minsk District Court is due to begin on the morning of
29 January under Judge Aleksei Minich, the court's chancellery told Forum
18 on 15 January. Under Article 435, Part 1 of the Criminal Code, the
21-year-old faces a fine or up to two years' imprisonment if found guilty
of refusing compulsory military service.

Mikhailov is a member of New Testament, a Minsk-based Messianic Jewish
congregation whose founder, a foreign citizen, was forced to leave Belarus
after being denied permission to continue religious work. Both Mikhailov
and his family have repeatedly told the Minsk District call-up commission
that he is unable to do military service because of his religious beliefs,
Suboch told Forum 18. Mikhailov asked instead to be assigned to civilian
alternative service, in line with Article 57 of Belarus' Constitution.
Article 36 of the Law on Military Obligation and Military Service also
requires call-up commissions to offer alternative service, but there is no
legal mechanism for providing it.

Alternative Service Law dropped

A Law on Alternative Service was initially included in the 2010 Legislative
Programme. However, it was removed "for some reason" at the last minute
before the Programme was approved by presidential decree on 4 January, an
official from the Department of Legislation on National Security and
Law-Enforcement Activity at the National Centre for Legislation and Legal
Research told Forum 18 on 18 January. "The President signed the decree
without this," the official - who declined to be named - commented. Asked
why it had been removed, the official responded: "Ask the Presidential
Administration."

The telephone of the Presidential Administration Press Office went
unanswered on 18 January.

Colonel Sergei Puzakov of the Defence Ministry General Staff had claimed to
the tut.by news agency on 15 January that a draft Alternative Service Law
was under consideration by Parliament. However, the National Security
Commission, the Human Rights Commission and the Labour and Social
Protection Commission of the House of Representatives, the lower chamber of
Parliament, all denied to Forum 18 on 18 January that any such draft Law is
being considered or has been considered in recent years.

A previous attempt to adopt an Alternative Service Law was rejected by
Parliament in 2004.

"Urgent" change ordered in 2000

The failure to introduce an alternative to military service comes despite a
Constitutional Court ruling nearly ten years ago that the Law should be
changed. The May 2000 Constitutional Court ruling called for the "urgent"
adoption of an Alternative Service Law or an amendment to the Law on
Military Obligation and Military Service (see F18News 20 October 2009
).

"I agree this ruling has not been fulfilled, but each ruling is carried out
in its own way," Sergei Latushkin, the Constitutional Court's official in
charge of supervising the enactment of its rulings, told Forum 18 from
Minsk on 18 January. "Some take months, others take years. It depends on
state bodies, Parliament, the legislative programme and other
circumstances."

Prosecutions mounting

Meanwhile, prosecutions of conscientious objectors are mounting. A
Jehovah's Witness, Dmitry Smyk, became the first such case in nine years in
late 2009. On 6 November the Central District Court of the south-eastern
city of Gomel [Homyel] fined him 3,500,000 Belarusian Roubles (7,230
Norwegian Kroner, 862 Euros or 1,290 US Dollars) under Article 435, Part 1
of the Criminal Code. He was also banned from leaving Belarus, banned from
travelling within the country without notifying the authorities and
required to maintain "good conduct" (see F18News 11 November 2009
).

Smyk appealed, but on 9 December a three-judge panel at Gomel Regional
Court upheld his conviction, he told Forum 18 from Gomel on 13 January.
Later in December he lodged a supervisory appeal to the Chair of the
Regional Court, Lyudmila Mikhalkova, whose decision is expected by 23
January. "If that is negative, I will take my case to the Supreme Court,"
Smyk told Forum 18. Although the verdict against him is now in force, he is
refusing to pay the fine.

Pashkevich of For Alternative Civilian Service notes two other current
cases of Gomel residents facing punishment for refusing military service on
grounds of conscience: Andrei Tenyuta and opposition Christian Democrat
Yevgeny Yakovenko. According to Smyk, several more Jehovah's Witnesses may
similarly be prosecuted.

Second Constitutional Court ruling unimplemented

Smyk's fellow Jehovah's Witnesses in Gomel are also finding the law
powerless to defend their right to protest unjust treatment by the state.
In July 2009 the community was raided by some ten police officers and
heavily fined. A written "final warning" from Aleksandr Prusov of the
Religious Affairs Department of Gomel Regional Executive Committee followed
on 22 September.

The community tried to challenge Prusov's warning in Gomel Regional Court.
In its 26 October decision seen by Forum 18, however, Judge Zinaida
Kamalyeva rejected their application on the grounds that the 2002 Religion
Law does not envisage legal challenges to written warnings.

The Gomel Jehovah's Witnesses tried to appeal this verdict citing a
relevant 2007 Constitutional Court decision, but a panel of three judges at
the Supreme Court in Minsk on 3 December again rejected their right to
challenge the written warning. The ruling, seen by Forum 18, records the
community's reference to the 2007 Constitutional Court decision, but
repeats that the Law does not envisage challenges by religious communities
to written warnings.

"We were surprised by the court ruling," Jehovah's Witnesses told Forum 18
on 13 January. "All other organisations have the right to challenge such
decisions in court - except religious organisations. They have no right to
defend themselves."

In its decision R-199 of 5 April 2007, the Constitutional Court highlighted
the inadequacy of the Law in failing to give religious organisations the
right to challenge in court written warnings issued to them by Religious
Affairs officials. The detailed ruling points out that these written
warnings have "consequences": Article 37 of the Religion Law declares that
if a religious organisation fails to remove the "violation" that led to the
warning within six months or repeats the "violation" within a year, the
registering organ can halt its activity and seek its liquidation in court.

Latushkin of the Constitutional Court admitted to Forum 18 that the 2007
ruling has not been implemented. He insisted to Forum 18 that both it and
the Court's ruling on alternative service would be fulfilled, "but I'm not
the Lord God to be able to look into the future to say when and how this
will happen."

(...)