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On exempting priests from mandatory military service

Case no 10/2016

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE PROVISION OF THE REPUBLIC OF LITHUANIA’S LAW ON NATIONAL CONSCRIPTION WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

4 July 2017, no KT9-N7/2017
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė, Gediminas Mesonis, Vytas Milius, Daiva Petrylaitė, Janina Stripeikienė, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s hearing, on 26 June 2017, considered, under written procedure, constitutional justice case no 10/2016 subsequent to the petition (no 1B-15/2016) of the Vilnius Regional Administrative Court (Vilniaus apygardos administracinis teismas), the petitioner, requesting an investigation into whether Item 7 of Article 3 of the Republic of Lithuania’s Law on National Conscription (wording of 23 June 2011), insofar as priests of only the religious communities and associations considered traditional in Lithuania and recognised by the state are exempted from mandatory military service, is in conflict with Article 29 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The arguments of the petitioner

The Vilnius Regional Administrative Court, the petitioner, was considering an administrative case, dealing with a dispute concerning the refusal to exempt from mandatory military service the applicant – a priest (who had been appointed to an office of a deacon) of the religious community that is registered in Lithuania but is not traditional in Lithuania; by its ruling, the petitioner suspended the consideration of this administrative case and applied to the Constitutional Court.

The petition of the Vilnius Regional Administrative Court, the petitioner, is substantiated by the following arguments.

Under Item 7 of Article 3 of the Law on National Conscription (wording of 23 June 2011 with subsequent amendments and supplements; hereinafter referred to as the Law on National Conscription), priests of the religious communities and associations considered traditional in Lithuania and recognised by the state are automatically exempted from the duty consolidated in Article 139 of the Constitution to perform military or alternative national defence service, i.e. from any mandatory military service. Thus, in comparison with other persons, these persons have been granted an exemption. That is essentially positive discrimination, as by forcing to perform mandatory military service, i.e. certain actions linked to preparation for armed defence of the state, the constitutional freedom of thought, religion, and conscience of priests may be restricted.

The impugned provision of the Law on National Conscription granting this exemption is of discriminatory nature, as this exemption is established not for all priests but only those of nine religious communities and associations considered traditional in Lithuania and recognised by the state, which are specified in Article 5 of the Republic of Lithuania’s Law on Religious Communities and Associations. Under the Law on Religious Communities and Associations, other religious communities and associations may not even request to grant such a status determining particular privileges, i.e. under Article 6 of this law, they may only be granted state recognition as being a part of Lithuania’s historical, spiritual, and social heritage, but they may not become traditional in Lithuania. Thus, when compared with the priests of the religious communities and associations considered traditional in Lithuania, the situation of the priests of any other religious communities and associations (both, recognised by the state, as well as not recognised by the state) is not equivalent.

The Law on National Conscription does not specify any legal circumstances under which such unequal treatment of priests of the religious communities and associations registered in Lithuania, i.e. exemption of priests of certain (traditional) religious communities and associations from mandatory military service, would be objectively justifiable.

It is obvious from Paragraph 1 of Article 43 of the Constitution that the state recognises not only traditional but also other religious organisations provided that they have support in society and their teaching and practices are not in conflict with the law and public morals. The recognition by the state demonstrates certain significance of a religious community in society and its importance in the State of Lithuania.

Therefore, such legal regulation that exempts from military service priests only of the religious communities and associations considered traditional in Lithuania is not objectively justified and may be in conflict with the principle of the equality of all persons before the law, which forms the basis of our democratic society and which is consolidated in the Constitution and developed in the official constitutional doctrine.

Account should be taken of Article 9 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), which consolidates everyone’s right to freedom of thought, conscience, and religion, Article 14, under which the enjoyment of the rights and freedoms set forth in this Convention is secured without discrimination on any ground, as well as of the jurisprudence of the European Court of Human Rights (hereinafter also referred to as the ECtHR), which reveals the contents of these provisions of the Convention; under this jurisprudence, the state must respect the beliefs of the representatives of religious minorities, may not treat them as less important and, thus, grant them fewer rights; the state also has a duty to ensure that the criteria for granting such a status of religious groups, which determines their particular privileges, would be impartial and without discrimination (inter alia, judgment of 12 March 2009 in the case Loffelmann v. Austria, application no. 42967/98).

II

The arguments of the representatives of the party concerned

In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from the representatives of the Seimas of the Republic of Lithuania, the party concerned, who were Vitalij Dimitrijev, Head of the Office of the Seimas Committee on National Security and Defence, and Jurgita Meškienė, Head of the Public Law Unit of the Legal Department of the Office of the Seimas, wherein it is maintained that the impugned legal regulation is not in conflict with Article 29 of the Constitution. The position of the representatives of the Seimas, the party concerned, is based on the following arguments.

The institution of mandatory military service is based on the provisions of Paragraph 2 (under which the Nation and each citizen shall have the right to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by force) of Article 3 and Paragraph 1 (the defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania) of Article 139 of the Constitution and is regarded as stemming from them. This is obvious from the preamble to the Law on National Conscription. Thus, also the exemption from mandatory military service, which is a certain privilege (exemption from the duty) and, at the same time, the restriction of the right (to defend the State of Lithuania against a foreign armed attack), is to be considered as an exception and is only possible on the objective ground.

Account should be taken of the fact that, as the Constitutional Court has held on more than one occasion, the constitutional principle of the equality of the rights of persons does not deny a possibility of establishing different (differentiated) legal regulation in respect to certain categories of persons who are in different situations; this principle does not deny the possibility itself to treat persons differently depending on their status.

By establishing, in the impugned Item 7 of Article 3 of the Law on National Conscription, that only priests of the religious communities and associations considered traditional in Lithuania and recognised by the state were exempted from mandatory military service, the legislature followed the special (exclusive) status of traditional churches and religious organisations in Lithuania as provided for under Paragraph 1 of Article 43 of the Constitution, which, under the Constitution, is not possessed by other churches and religious organisations, which, although recognised by the state, are not considered traditional in Lithuania and, under the provisions of official constitutional doctrine formulated in the Constitutional Court’s ruling of 13 June 2000 and its decision of 6 December 2007, may not become such at the will of the legislature.

III

The material received in the case

In the course of the preparation of the case for the hearing of the Constitutional Court, a written opinion was received from Daiva Beliackienė, Chancellor of the Ministry of National Defence of the Republic of Lithuania.

IV

The specialists questioned in the case

In the course of the preparation of the case for the hearing of the Constitutional Court, the following specialists were questioned: Julius Židonis, chief specialist of the Division of Military Conscription and Operational Planning of the Military Conscription and Recruitment Service of the Lithuanian Armed Forces, Jurij Džuplij, senior specialist, captain thereof, and Donatas Glodenis, chief specialist of the Division of Coordination of Legal Activities of the Legal Institutions’ Department of the Ministry of Justice of the Republic of Lithuania.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

In the constitutional justice case at issue, the Vilnius Regional Administrative Court, the petitioner, requests to investigate whether Item 7 of Article 3 of the Law on National Conscription, insofar as the said item provides that only priests of the religious communities and associations that are traditional in Lithuania and are recognised by the state are exempted from mandatory military service is in conflict with the Constitution.

On 22 October 1996, the Seimas adopted the Law on National Conscription. The Law was set out in its new wording by the Republic of Lithuania’s Law Amending the Law on National Conscription, which was adopted by the Seimas on 23 June 2011. The Law on National Conscription establishes the procedure for the fulfilment of military conscription of citizens of the Republic of Lithuania and administration of the said conscription (Article 1).

Article 3 “Exemption from Mandatory Military Service” of the Law on National Conscription, Item 7 whereof is impugned by the petitioner, consolidates the grounds for exempting from mandatory military service:

The following citizens shall be exempted from mandatory military service:

(1) persons, who are, under the established procedure, recognised as incapacitated or having limited capacity;

(2) the disabled;

(3) persons, who, due to their state of health, were recognised as not fitting for mandatory military service by the military medical examination commission <...>;

(4) persons, who have, under the procedure established by laws, been transferred to retirement;

(5) persons, who have not fulfilled initial mandatory military service, when they reach 55 years of age, and those who have acquired higher education in medicine, nursing or midwifery – when they reach 60 years of age;

(6) women, with the exception of those who have declared in writing their willingness to become military conscripts and (or) who have acquired higher education in medicine, nursing or midwifery;

(7) priests of the religious communities and associations considered traditional in Lithuania and recognised by the state.”

Thus, under Items 1–6 of this article, a person is exempted from mandatory military service due to objective circumstances linked to the state of health, as well as on the grounds of gender; under the impugned Item 7 of this article, a person is exempted from this mandatory service due to a certain social status of a person – being a priest of a religious community or association considered traditional in Lithuania and recognised by the state.

In this context, it should be mentioned that Article 5 “Traditional Religious Communities and Associations of Lithuania” of the Law on Religious Communities and Associations, which was adopted by the Seimas on 4 October 1995, specifies that the state recognises nine traditional religious communities and associations existing in Lithuania, which comprise a part of Lithuania’s historical, spiritual and social heritage: Roman Catholic, Greek Catholic, Evangelical Lutheran, Evangelical Reformed, Russian Orthodox, Old Believer, Judaist, Sunni Muslim, and Karaite.

Thus, on the grounds of the impugned legal regulation, the priests of nine traditional religious communities and associations of Lithuania specified in Article 5 of the Law on Religious Communities and Associations are exempted from mandatory military service.

It should be mentioned that the notion of a priest is not defined in the Law on National Conscription, the Law on Religious Communities and Associations, or any other legal acts. The fact that there are nine different traditional religious communities and associations in Lithuania may give rise to different understanding and (or) establishment of who their priests are, i.e., under what specific characteristics the persons are established who, under the impugned legal regulation, are exempted from mandatory military service.

The Law on National Conscription has been amended and supplemented on more than one occasion, but the impugned legal regulation remained the same.

While interpreting the impugned legal regulation, account should be taken of the notion of military conscription, which is consolidated in the Law on National Conscription, and the ways of implementation of this mandatory service.

Article 2 of the Law on National Conscription defines, inter alia, the following main notions used in the law:

military conscription – is a constitutional duty of a citizen of the Republic of Lithuania to fulfil military service or alternative national defence service (Paragraph 8);

military conscript – a citizen of the Republic of Lithuania of full age who is subject to military conscription (Paragraph 9);

call-up of military conscripts – a procedure including the selection of military conscripts and their appointment to mandatory military service, as well as deferment of service or exemption from it (Paragraph 11);

mandatory military service – the initial mandatory military service of a military conscript, service in the reserve, as well as service in the event of mobilisation (Paragraph 18);

initial mandatory military service – preparation of military conscripts for armed defence of the state in one of the ways specified in Paragraph 1 of Article 4 of this law (Paragraph 19)(under Paragraph 1 (with the amending of 16 June 2016) of Article 4 of this law, the initial mandatory military service may be performed in one of the following ways: either by performing the continuous initial mandatory military service or by participating in the trainings for the heads of junior officers);

continuous initial mandatory military service – uninterrupted initial mandatory military service, by performing which a military conscript acquires basic military training and prepares to act as a part of a military unit (Paragraph 14);

alternative national defence service – service for those who cannot serve under arms due to religious or pacifistic beliefs, which replaces mandatory military service (Paragraph 2).

The Law on National Conscription prescribes that the continuous initial mandatory military service, which lasts for 9 months, is performed by military conscripts from 19 to 26 years (inclusive) of age called-up from the unprepared military reserve in military units during the relevant calendar year according to the number of servicemen to perform this service established by the Minister of National Defence with reference to the marginal numbers established by the Seimas (Article 5 (with the amendment of 14 April 2015) and Paragraph 1 (wording of 16 June 2016) of Article 6). Under Paragraph 4 (wording of 3 November 2016) of Article 6 of this law, first of all, military conscripts willing to fulfil the initial continuous military service are called-up, when no such conscripts willing to serve conscripts are left, the list of military conscripts of the calendar year includes the military conscripts who did not express their willingness to fulfil this service. Military conscripts are appointed to perform continuous initial mandatory military service only upon the examination of their health and having established their fitness for performing this service (Paragraph 6 of Article 6).

Under Article 11 of the Law on National Conscription, military conscripts from 18 to 32 years (inclusive) of age, who study at schools of higher education or have finished them (with the exception of the General Jonas Žemaitis Military Academy of Lithuania and other military educational institutions of the Member States of the NATO or the EU) are called-up to participate in the trainings for the heads of junior officers, which last from 160 to 200 days (but no longer than for 3 years, if organised in parts), if they have, in writing, expressed their willingness to participate in them.

Paragraphs 1 and 3 of Article 26 of the Law on National Conscription prescribes that upon the announcement of mobilisation, military conscripts are called-up to perform military service or to military trainings to acquire the basic military preparation after the acquisition of which they are appointed to office in a military unit according to the military and (or) civil speciality they possess.

Thus, under the Law on National Conscription, the citizens of the Republic of Lithuania of full age to 26 years of age (inclusive) (if they do not express their willingness in writing to participate in the trainings for the heads of junior officers), who have not acquired the basic military training, are called-up to perform continuous initial mandatory military service of a duration of 9 months, during which they are prepared to defend the state under arms, i.e. gain the knowledge and skills necessary for a serviceman, and get prepared to act as a part of a military unit; upon the announcement of mobilisation, citizens of full age are called-up to perform military service or to military trainings to acquire the basic military preparation after the acquisition of which they are appointed to office in a military unit.

It should be noted that, under Article 16 (with the amendment of 16 June 2016) of the Law on National Conscription, which establishes the conditions for the completion of alternative national defence service, military conscripts, who may not serve under arms due to their religious or pacifistic beliefs, may, instead of continuous initial mandatory military service and service in the event of mobilisation, perform alternative national defence service in state or municipal institutions or establishments by doing socially useful work, not related to the use of arms, special measures, and coercion, in state or municipal institutions or establishments (Paragraphs 1 and 4); alternative national defence service lasts for 10 months or until demobilisation is announced (Paragraphs 2 and 3).

Under Article 17 (with the amendment of 3 November 2016) and Article 18 of the Law on National Conscription, a military conscript is appointed to perform alternative national defence service, if he is selected for continuous initial mandatory military service or service upon the announcement of mobilisation and, if after the examination of his health under the procedure prescribed by this law, he is established to be fit for performing the service, as well as if, the institution of national defence system administering national conscription, taking account of the recommendations of the special commission, recognises to be justified the request of the conscript to perform alternative national defence service, which is based upon religious and pacifistic beliefs due to which he may not serve under arms and which is submitted until the beginning of the calling-up for continuous initial mandatory military service (or until the deadline for the submission of documents justifying certain circumstances of exemption from mandatory military service or deferment thereof on an individual basis specified in the list of military conscripts of the relevant calendar year) or until the announcement of mobilisation.

In this context, it should be noted that according to Paragraph 6 of Article 16 of the Law on National Conscription, the procedure for fulfilling alternative national defence service is regulated in more detail by the resolution (No 206) of the Government of the Republic of Lithuania of 23 February 2000 on the approval of the description of the procedure for performing alternative national defence service in state and municipal institutions and establishments (wording of 2 February 2012).

Thus, under the Law on National Conscription, when it is recognised, under the procedure established by this law, that a military conscript, who must perform mandatory military service, may not serve under arms due to his religious and pacifistic beliefs, he must be assigned to fulfil alternative national defence service instead of mandatory military service.

It should also be noted that the Law on National Conscription provides for the deferment of mandatory military service and alternative national defence service. Under Article 14 of this law, by an order of the Minister of National Defence, initial mandatory military service is deferred for a period of a calendar year under the common procedure for all military conscripts in the case when the marginal number of servicemen to perform initial mandatory military service established for the relevant calendar year is zero. Mandatory military service and alternative national defence service are also deferred on an individual basis for the military conscripts specified in Article 15 (with the amending of 14 April 2015) and Article 29 of this law.

Article 15 “Deferment of initial mandatory military service on an individual basis” (with the amendment of 14 April 2015) of the Law on National Conscription prescribes:

1. Initial mandatory military service shall be deferred on an individual basis for the following military conscripts:

(1) pupils of secondary schools of general education and vocational training schools who are not older than 21 years of age;

(2) higher education students – once for the period of study in the first cycle (professional bachelor and bachelor) study programme or integrated study programme, in the second cycle or integrated study programme, non-tertiary studies, and doctoral studies;

(3) members of the Government, European Parliament, and municipal councils;

(4) judges;

(5) prosecutors;

(6) officials of the internal service system;

(7) officials of the Department of Prisons under the Ministry of Justice of the Republic of Lithuania or an establishment subordinate to the latter;

(8) officials of the system of the State Security Department;

(9) officials of the Special Investigation Service;

(10) suspected and accused persons in criminal proceedings or serving their sentence, due to which they may not perform initial mandatory military service, as well as persons, who have served the custodial sentence;

(11) persons who alone raise a minor child or they have been granted the childcare leave until the child reaches three years of age;

(12) pregnant women, who have submitted certificates on their pregnancy;

(13) when a person is, under the procedure established by the legal acts, appointed as the only guardian of a disabled person or carer of a person with limited capacity to act;

(14) under the procedure established by the Minister of National Defence – a disproportionately great damage would be caused to the personal interests of a military conscript performing initial mandatory military service or to public interests, which could be avoided if the said military conscript performed initial mandatory military service at other time.

2. Initial mandatory military service is not deferred for the military conscripts specified in Items 2, 4, 5, 6, 7, 8, 9, 11, and 13 of Paragraph 1 of this article if they declared, in writing, their willingness to perform initial mandatory military service.

3. When executing the call-up, initial mandatory military service is deferred for the following military conscripts:

(1) conscripts for whom, upon the examination of their health, it is established that they are not able to perform initial mandatory military service due to temporary health impairment, until the end of this temporary health impairment;

(2) conscripts, who are not called-up to perform initial mandatory military service, when the call-up is finished.”

Article 29 “Deferment of service in the event of mobilisation” of the Law on National Conscription establishes that in the event of mobilisation, service is deferred for the following military conscripts:

(1) the President of the Republic and the members of the Seimas, European Parliament, and the Government;

(2) members of the municipal councils, whose powers have not been suspended by a decision of the Seimas in a state of martial law;

(3) judges and prosecutors;

(4) officials of the internal service system, with the exception of officials serving in those institutions of the internal service system, which are, by laws, attributed to the armed forces in a state of martial law or in the case of armed defence from aggression (war);

(5) officials of the Department of Prisons under the Ministry of Justice of the Republic of Lithuania, with the exception of officials intended to be mobilised under mobilisation plans;

(6) suspected and accused persons in criminal proceedings or serving their sentence, due to which they may not perform service;

(7) conscripts, who are, under the procedure established in the Republic of Lithuania’s Law on Mobilisation and Host Nation Support, included in the Civilian Mobilisation Personnel Reserve and perform the functions attributed to them upon declaration of mobilisation;

(8) conscripts, who are not able to perform service due to the state of their health.”

It should be mentioned that Article 20 “Deferment of alternative national defence service” (with the amendment of 16 June 2016) of the Law on National Conscription establishes that alternative national defence service, which is performed instead of continuous initial mandatory military service or mandatory military service in the event of mobilisation, is deferred on an individual basis for, respectively, military conscripts specified in Paragraphs 1 and 3 of Article 15 and Article 29 of this law, i.e. on the same grounds as initial mandatory military service and service following the declaration of mobilisation.

Therefore, under the above-mentioned legal regulation established in the Law on National Conscription, mandatory military service and alternative national defence service may be deferred for military conscripts due to various circumstances, among other things, due to certain activity they carry out or offices they hold, such as judges, prosecutors, and certain officials of the internal service system and the Department of Prisons under the Ministry of Justice of the Republic of Lithuania.

To sum up the legal regulation impugned in the constitutional justice case at issue, as well as the related legal regulation, in the aspects relevant in this case, it should be noted that, under the Law on National Conscription:

citizens of the Republic of Lithuania of appropriate age are called-up to perform mandatory military service – initial mandatory military service, service in the reserve, and service in the event of mobilisation (Paragraph 18 of Article 2, Paragraph 2 (wording of 14 April 2015) of Article 5, Paragraph 2 of Article 21, and Paragraphs 1 and 3 of Article 26);

military conscripts selected to perform mandatory military service, whose requests to perform alternative national defence service, which are based upon religious and pacifistic beliefs due to which they may not serve under arms are recognised as justified, are appointed to perform alternative military service instead of mandatory military service (Article 16 (with the amendment of 16 June 2016), Article 17 (with the amendment of 3 November 2016), and Article 18);

mandatory military service and alternative national defence service are deferred for military conscripts due to various circumstances, among other things, due to certain activity they carry out or offices they hold (Article 15 (with the amendment of 14 April 2015), Article 20 (with the amendment of 16 June 2016), and Article 29);

it is exempted from military service, i.e. from the constitutional duty of citizens to perform military service (initial mandatory military service or service in the event of mobilisation) or alternative national defence service, due to objective circumstances linked to the state of health or age of the person, as well as on the grounds of gender (Items 1–6 of Article 3), and, according to the impugned legal regulation, due to a certain social status of a person, i.e. being a priest of the religious community or association considered traditional in Lithuania and recognised by the state (Item 7 of Article 3).

In the context of the constitutional justice case at issue, account should be taken of the concept of the right to refuse to perform military service due to convictions under international or European Union law.

The European Court of Human Rights has interpreted that the interpretation of the right to refuse to perform military service due to convictions by ensuring the possibility to perform alternative (civilian) service instead must be assessed according to Article 9 “Freedom of thought, conscience and religion” of the Convention. The ECtHR emphasised that although Article 9 of the Convention does not explicitly consolidate the right to refuse to perform military service due to convictions, the opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 of the Convention (Grand Chamber judgment of 7 July 2011 in the case Bayatyan v. Armenia, application no. 23459/03, para 110).

The ECtHR also noted that also the United Nations Commission on Human Rights had determined the right to refuse to perform military service as the aspect of freedom of thought, conscience and religion while assessing the restriction of this right according to Article 18 of the International Covenant on Civil and Political Rights, which consolidates freedom of thought, conscience and religion. The same concept of this right is presented in various documents of the Council of Europe.

It should also be noted that in Paragraph 2 of Article 10 “Freedom of thought, conscience and religion” of the Charter of Fundamental Rights of the European Union, it is explicitly established that the right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

II

The assessment of the compliance of the provisions of Item 7 of Article 3 of

the Law on National Conscription (wording of 23 June 2011) with the Constitution

The Vilnius Regional Administrative Court, the petitioner, requests to investigate the compliance of Item 7 of Article 3 of the Law on National Conscription, insofar as the said item provides that only priests of the religious communities and associations that are traditional in Lithuania and are recognised by the state are exempted from mandatory military service, with Article 29 of the Constitution.

In view of the fact that the impugned legal regulation established one of the grounds for exempting from military service, it is necessary to reveal the aspects of the content of the constitutional duty of citizens to perform military service or alternative national defence service, which are relevant in this case, and the requirements stemming from the Constitution, which must be followed by the legislature when it regulates the relevant relations of organisation of national defence.

Article 139 of the Constitution prescribes:

The defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania.

The citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law.

The organisation of national defence shall be established by law.”

Thus, under this article of the Constitution, each citizen of the Republic of Lithuania has the right and duty to defend the State of Lithuania against a foreign armed attack, as well as the duty to perform military or alternative national defence service according to the procedure established by law. As it was held in the Constitutional Court’s ruling of 24 September 2009, under the Constitution, only citizens of the Republic of Lithuania have the duty to defend the State of Lithuania against a foreign armed attack (Paragraph 1 of Article 139 of the Constitution) and the duty to perform military or alternative national defence service (Paragraph 2 of Article 139 of the Constitution). It is worth noting that these duties are the only duties of a citizen to the state that are expressis verbis consolidated in the Constitution and arise from the citizenship of the Republic of Lithuania as a special legal interrelationship between the state and its citizens.

In its ruling of 24 September 2009, the Constitutional Court held:

ensuring the implementation of the priority duty of state power and all citizens to protect some of the most important constitutional values – independence of the state, its territorial integrity, and constitutional order – is a guarantee of the security of the state;

in order that the citizens who have the constitutional duty to defend the state against a foreign armed attack could properly implement this duty, they must be well-prepared for that; such preparation is ensured, inter alia, by the military service;

the constitutional duty of citizens to perform military or alternative national defence service, which is consolidated in Paragraph 2 of Article 139 of the Constitution, is not an objective in itself – it is directly related to the duty, which is consolidated in Paragraph 1 of Article 139 of the Constitution, to defend the state against a foreign armed attack, as well as, in a certain aspect, to the right of citizens, which is consolidated in Paragraph 2 of Article 3 of the Constitution, to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the state.

In its rulings of 24 September 2009 and 4 November 2015, when interpreting the provisions of Article 139 of the Constitution, the Constitutional Court also held that the Constitution commissions the legislature to establish the organisation of national defence system; in regulating the relations in connection with the organisation of national defence, the legislature has a rather broad discretion; however, in implementing this discretion, the legislature must heed the norms and principles of the Constitution; laws must establish such a regulation of the organisation of the national defence system, inter alia, that of the organisation of military service, which would ensure the protection of the constitutional values of the utmost importance – the independence, territorial integrity, and constitutional order of the state – and the adequate defence of the state against a foreign armed attack, inter alia, the adequate training of citizens for the defence of the state against a foreign armed attack.

In its ruling of 24 September 2009, the Constitutional Court also noted that the notion of the training of citizens to defend the state is rather broad, including not exclusively the training of citizens to defend the state against a foreign armed attack by means of an arm; the preparedness to defend the state may not be understood only as service for gaining military training; the needs and means of national defence may be very diverse, including not only the expansion of the armed forces and of armaments in order to strengthen the military power of the state, but also the information-technological, industrial, and other means of a similar nature, which are not directly related to armed defence but, from a certain aspect, help to strengthen the military power of the state; this diversity also determines the diversity of the specific ways of training citizens for national defence.

It should be noted that, according to Paragraph 2 of Article 139 of the Constitution, alternative national defence service may be assigned instead of military service. The establishment of the constitutional institution of alternative national defence service is connected, inter alia, with the constitutionally guaranteed freedom of thought, religion, and conscience.

Article 26 of the Constitution prescribes:

Freedom of thought, conscience, and religion shall not be restricted.

Everyone shall have the right to freely choose any religion or belief and, either alone or with others, in private or in public, to profess his religion, to perform religious ceremonies, as well as to practise and teach his belief.

No one may compel another person or be compelled to choose or profess any religion or belief.

The freedom to profess and spread religion or belief may not be limited otherwise than by law and only when this is necessary to guarantee the security of society, public order, the health or morals of people, or other basic rights or freedoms of the person.

Parents and guardians shall, without restrictions, take care of the religious and moral education of their children and wards according to their own convictions.”

In its ruling of 13 June 2000, the Constitutional Court held that constitutional freedom of thought, conscience, and religion is one of fundamental freedoms of individuals, which guarantees an opportunity for people holding various views to live in an open, just, and harmonious civil society; this freedom is not only an intrinsic value of democracy, but also an important guarantee that other constitutional human rights and freedoms would be implemented in a fully fledged manner; as regards its content, freedom of thought, conscience, and religion is a more particular expression of the broader human freedom to have convictions and freely express them, which is consolidated in Article 25 of the Constitution.

Thus, under Paragraph 2 of Article 139 of the Constitution as interpreted in conjunction with Article 26 thereof, which establishes freedom of thought, religion, and conscience, persons who are not able to perform military service due to their religious or other convictions have the right to perform alternative national defence service instead of military service in accordance with the procedure established by law. In regulating the organisation of national defence, the legislature is obliged to provide for the conditions for implementing this constitutional right by citizens, inter alia, the length of alternative national defence service and the procedure for its performance. In doing so, the legislature has wide discretion but must not provide for any such conditions for performing alternative national defence service that would render this service ineffective or inconsistent with its essence; the legislature must also establish such a procedure for assigning citizens to perform alternative national defence service that would allow assessing the requests of citizens to perform this service in terms of their validity; otherwise, the constitutional right and duty to defend the state against a foreign armed attack and to prepare well for such defence by performing military service could be denied.

In this context, it should be pointed out that, in view of its content, Article 26 of the Constitution is linked with Articles 27 and 28 thereof: convictions, practised religion, or belief may not serve as a justification for a crime or failure to observe laws (Article 27) and, while implementing his/her rights and exercising his/her freedoms, everyone must observe the Constitution and laws and must not restrict the rights and freedoms of other people (Article 28). Among other things, this means that, on the grounds of his/her convictions, practised religion, or belief, no one may refuse to fulfil constitutionally established duties, inter alia, the duty of a citizen to perform military or alternative national defence service, or demand the exemption from these duties.

While interpreting Paragraph 2 of Article 139 of the Constitution in its ruling of 24 September 2009, the Constitutional Court held that a law may establish such conditions for exemption from mandatory military service that would be related to objective circumstances due to which the citizens cannot perform this service (age, state of health, etc.).

In the context of the constitutional justice case at issue, it should be noted that, under Paragraph 2 of Article 139 of the Constitution, a law may establish no such conditions for exemption from the constitutional duty of citizens to perform military service or alternative national defence service that would be unrelated to objective circumstances due to which the citizens cannot perform this duty; failure to comply with this requirement could deny the said constitutional duty of citizens and, at the same time, would prevent the creation of preconditions for the proper fulfilment of the constitutional right and duty of each citizen to defend the state against a foreign armed attack.

It should be noted that, under Paragraph 2 of Article 139 of the Constitution, the legislature may provide for the possibility of deferring the fulfilment of the constitutional duty of citizens to perform military or alternative national defence service in cases where the citizen is temporarily unable to perform this service due to the important reasons specified in the law or the important interests of the person, family, or society might be injured, if such service were not deferred at a given time. Once the reasons for deferring service are no longer applicable, the citizen must perform military or alternative national defence service.

It should also be noted that in regulating the relations connected with military or alternative national defence service, inter alia, the assignment of alternative national defence service instead of military service, exemption from the duty to perform military or alternative national defence service, and deferral of the fulfilment of this constitutional duty, the legislature must observe the requirements stemming from the Constitution, inter alia, the constitutional principles of the equality of the rights of persons, proportionality, reasonableness, and justice.

When interpreting the provisions of Article 29 of the Constitution, which consolidates the constitutional principle of the equality of the rights of persons, the Constitutional Court has more than once held that this principle does not allow any discrimination of persons or granting them privileges. The constitutional principle of the equality of the rights of persons would be violated if certain persons or groups of such persons were treated in a different manner, even though there are no differences of such a nature and to such an extent between the said groups of persons so that their uneven treatment could be objectively justified (inter alia, the Constitutional Court’s rulings of 27 February 2012, 20 June 2016, and 25 January 2017). In the context of the constitutional justice case at issue, it is worth mentioning that under Paragraph 2 of Article 29 of the Constitution, human rights may not be restricted and no one may be granted any privileges on the grounds of, among other things, social status and belief.

While deciding whether the impugned Item 7 of Article 3 of the Law on National Conscription is in conflict with the Constitution, it needs to be noted that, as mentioned before, under this item, a person is exempted from the constitutional duty of citizens to perform military service or alternative national defence service due to a certain social status of a person – being a priest of the religious community or association considered traditional in Lithuania and recognised by the state.

As it was noted in the explanations submitted by the representatives of the Seimas, the party concerned, in establishing the impugned legal regulation, the legislature had paid regard to the special (exclusive) status of traditional churches and religious organisations in Lithuania as provided for under Paragraph 1 of Article 43 of the Constitution

In view of this fact, it should be noted that in interpreting the provision of Paragraph 1 of Article 43 of the Constitution that there are churches and religious organisations that are traditional in Lithuania, in its decision of 6 December 2007, the Constitutional Court held that the different status of churches and religious organisations that are traditional in Lithuania and other churches and religious organisations recognised by the state, as well as the powers of the legislature to establish by law such rights to the churches and religious organisations that are traditional in Lithuania, which are not enjoyed by churches and religious organisations that are not traditional in Lithuania stem from the Constitution itself. The Constitutional Court also emphasised that the establishment of such a differentiated legal regulation, with regard to churches and religious organisations that are traditional in Lithuania, as well as with regard to other churches and religious organisations as collective legal entities, may not be interpreted as meaning that, as such, it negates the constitutional right of everyone to freely choose any religion or belief and, alone or with others, in private or in public, to profess his/her religion, to perform religious ceremonies, as well as to practice and teach his/her belief; as such, the said establishment does not mean that some believers are discriminated, while others are granted privileges. In the context of this case, it should also be emphasised that a different constitutional status between the churches and religious organisations that are traditional in Lithuania and other churches and religious organisations as collective legal entities does not deny the prohibition, enshrined in Article 29 of the Constitution, on discriminating against individuals and on granting them privileges, inter alia, on the grounds of religion; thus, under the Constitution, the fact that certain churches and religious organisations are considered traditional does not provide a basis for treating their members, inter alia, priests, differently from other citizens in terms of the fulfilment of their constitutional duties.

The Constitutional Court has held that the constitutional principle of the separateness of state and church is the basis for the secularity of the State of Lithuania, its institutions, and their activities; this principle, together with freedom of convictions, thought, religion, and conscience, which is consolidated in the Constitution, as well as with the constitutional principle of the equality of persons, and other constitutional provisions, determines the neutrality of the state in matters of worldview and religion; the fact that the State of Lithuania and its institutions are neutral as regards the matters of worldview and religion means the separation of the areas of the state and religion, as well as the separation of the mission, functions, and activities of the state from those of churches and religious organisations (the Constitutional Court’s ruling of 13 June 2000).

In the context of the constitutional justice case at issue, it should be noted that the neutrality and secularity of the state also means that, under the Constitution, religion professed by a person does not constitute a basis for exempting the person from the constitutional duties of a citizen to the state, including the duty to perform military or alternative national defence service, consolidated in Paragraph 2 of Article 139 of the Constitution.

As mentioned before, according to Paragraph 2 of Article 139 of the Constitution, a law may establish only such conditions for exemption from the constitutional duty of citizens to perform military service or alternative national defence service that would be related to objective circumstances due to which the citizens cannot perform this duty. In the context of the constitutional justice case at issue, it should be noted that being a priest of a religious community or association (i.e. a certain social status relating to the professed religion) is not related to any such circumstances due to which the citizens would be objectively unable to perform the duty in question and which could constitutionally justify their exemption from this duty, especially in view of the fact that, under the Constitution, persons who are unable to perform military service due to their religious or other convictions have the right to perform alternative national defence service instead of military service, as well as that the fulfilment of the constitutional duty to perform military or alternative national defence service may be deferred due to important reasons.

Consequently, under Paragraph 2 of Article 139 of the Constitution, the status of a priest of a church or religious organisation does not provide a basis for exempting the person from his constitutional duty of a citizen to perform military or alternative national defence service.

Thus, while interpreting Paragraph 1 of Article 43 and Paragraph 2 of Article 139 of the Constitution systemically and taking account, inter alia, of the principle of the equality of the rights of persons under Article 29 of the Constitution and the constitutional principles of the neutrality and secularity of the state, it should be noted that a different constitutional status between the churches and religious organisations that are traditional in Lithuania and other churches and religious organisations as collective legal entities may not serve as a basis for constitutionally justifying the exemption of priests of the churches and religious organisations that are traditional in Lithuania from the constitutional duty held by them as citizens to perform military or alternative national defence service.

It should be held that the legal regulation established in Item 7 of Article 3 of the Law on National Conscription authorising exemption from mandatory military service, i.e. from the constitutional duty of citizens to perform military or alternative national defence service, in the absence of any constitutionally justifiable basis violated the requirement, stemming from Paragraph 2 of Article 139 of the Constitution, that a law may establish only such conditions for exempting citizens from their constitutional duty to perform military or alternative national defence service that are related to objective circumstances due to which the citizens are unable to perform this duty. It should also be held that such a legal regulation led to a constitutionally unjustifiable difference of priests of the religious communities and associations considered traditional in Lithuania from other citizens; therefore, this legal regulation also violated the principle of the equality of the rights of persons, which is consolidated in Article 29 of the Constitution.

The Constitutional Court has held that after it establishes that the impugned legal regulation is unconstitutional from the aspect other than that impugned by the petitioner, the Constitutional Court must state that (the Constitutional Court’s ruling of 22 September 2015); the implementation of constitutional justice implies that a legal act (part thereof) that conflicts with the Constitution must be removed from the legal system (inter alia, the Constitutional Court’s rulings of 29 November 2001, 22 September 2015, and 29 September 2015).

In the light of the foregoing arguments, the conclusion should be drawn that Item 7 of Article 3 of the Law on National Conscription is in conflict with Article 29 and Paragraph 2 of Article 139 of the Constitution.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Item 7 of Article 3 of the Republic of Lithuania’s Law on National Conscription (wording of 23 June 2011; Official Gazette Valstybės žinios, 2011, No. 86-4150) is in conflict with Article 29 and Paragraph 2 of Article 139 of the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court: Elvyra Baltutytė
                                                                      Gintaras Goda
                                                                      Vytautas Greičius
                                                                      Danutė Jočienė
                                                                      Gediminas Mesonis
                                                                      Vytas Milius
                                                                      Daiva Petrylaitė
                                                                      Janina Stripeikienė
                                                                      Dainius Žalimas