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On exempting priests from mandatory military service

The ruling of the Constitutional Court of the Republic of Lithuania of 4 July 2017

ON EXEMPTING PRIESTS FROM MANDATORY MILITARY SERVICE

Summary

By this ruling, having considered the case subsequent to the petition of the Vilnius Regional Administrative Court, the Constitutional Court declared Item 7 of Article 3 of the Law on National Conscription (wording of 23 June 2011), insofar as priests of the religious communities and associations considered traditional in Lithuania and recognised by the state were exempted from mandatory military service, to have been in conflict with Article 29 and Paragraph 2 of Article 139 of the Constitution.

The Constitutional Court noted that, under Article 139 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 and must perform military or alternative national defence service according to the procedure established by law. 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. The constitutional duty of citizens, which is consolidated in Paragraph 2 of Article 139 of the Constitution, to perform military or alternative national defence service is not an objective in itself – it is directly related to the duty, consolidated in Paragraph 1 of the same article, to defend the state against a foreign armed attack and, in a certain respect, it is also related to the right of citizens, 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 order that 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 military service.

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 with the constitutionally guaranteed freedom of thought, religion, and conscience. In this ruling, the Constitutional Court noted that, 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, including 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.

In this context, the Constitutional Court pointed out that, in view of its content, Article 26 of the Constitution is linked with Articles 27 and 28: 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 present ruling, the Constitutional Court added 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 establishment of preconditions for the proper fulfilment of the constitutional right and duty of each citizen to defend the state against a foreign armed attack.

The Constitutional Court also 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.

In regulating the relations connected with military or alternative national defence service, including the assignment of alternative national defence service instead of military service, exemption from the duty to perform military or alternative national defence service, and the deferral of the fulfilment of this constitutional duty, the legislature must observe the requirements stemming from the Constitution, among other things, the constitutional principles of the equality of the rights of persons, proportionality, reasonableness, and justice.

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 this respect, the Constitutional Court 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, among other things, 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, including priests, differently from other citizens in terms of the fulfilment of their constitutional duties.

The Constitutional Court has held in its previous jurisprudence that the principle of the separateness of the state and the church, which is entrenched in the Constitution, is the basis for the secularity of the State of Lithuania, its institutions, and their activities; this principle, together with the constitutionally consolidated freedom of convictions, thought, religion, and conscience, as well as the constitutional principle of the equality of the rights 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. It was noted in the ruling 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.

Assessing the impugned legal regulation, under which exemption from the constitutional duty of a citizen to perform military or alternative national defence service is granted by virtue of a certain social status of the person – being a priest of a religious community or association that is considered traditional in Lithuania and is recognised by the state, the Constitutional Court noted that the fact that a person is a priest of a church or religious organisation (i.e. holds 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, interpreting Paragraph 1 of Article 43 and Paragraph 2 of Article 139 of the Constitution systemically and taking account 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, the Constitutional Court noted in this ruling 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.

According to the Constitutional Court, the legal regulation 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; in addition, 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 under Article 29 of the Constitution.