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Content updated: 25-08-2017 08:51

The provision of the Law on National Conscription declared unconstitutional

04-07-2017

By its ruling passed today, the Constitutional Court has recognised that Item 7 of Article 3 of the Law on National Conscription, which provides that 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 Article 29 and Paragraph 2 of Article 139 of the Constitution.

The Constitution is an act establishing the equality of citizens, but not their privileges. Therefore, all citizens, irrespective of their faith, their belonging to a church, or their place in it, have the same constitutional duty to perform military service or alternative national defence service.

As stated in the ruling, Article 139 of the Constitution provides that the defence of the State of Lithuania against a foreign armed attack is the right and duty of each citizen of the Republic of Lithuania, and that the citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law. These are the only duties of a citizen to the state that are directly consolidated in the text of the Constitution and that arise from the citizenship of the Republic of Lithuania as a special legal relation between the state and its citizens.

In this ruling, it is 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 in lieu of military service in accordance with the procedure established by law. Thus, as well as other citizens, the priests of any churches in Lithuania have the right to choose alternative national defence service if military service contradicts their convictions.

The Constitutional Court has previously held that the principle of the separateness of state and 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 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 Constitution establishes the recognition of traditional churches and religious organisations as collective entities (Article 43), but not the special rights of persons belonging to these churches. The Constitutional Court has also emphasised that the different constitutional status of the churches that are traditional in Lithuania and other churches and religious organisations as subjects of collective rights does not deny the prohibition, enshrined in Article 29 of the Constitution, on discriminating against individuals and on granting them privileges by virtue of religion, convictions, or a social status. In other words, under the Constitution, the fact that certain churches and religious organisations are deemed traditional may not be regarded as a basis for treating the constitutional duties of their members, including those of priests, differently from those of other citizens.

In its ruling passed as far back as on 24 September 2009, the Constitutional Court emphasised that, 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. Worldview (religion, convictions), as well as being a priest of a church or religious organisation, is not such an objective circumstance that would justify exemption from the constitutional duty to perform military service or alternative national defence service.

It should be mentioned that the effective Constitution of 1992 does not contain any provisions, which can be found in the inter-war Constitutions of Lithuania, on the possibility of exempting priests from military service.

This ruling of the Constitutional Court means that, like other citizens of the Republic of Lithuania, the individual who is the claimant in the case before the Vilnius Regional Administrative Court, which is the petitioner in the constitutional justice case at issue, will have to perform military service or, should he refuse to bear arms by reason of his religious or other convictions, he will have to perform alternative national defence service.

In this ruling, the Constitutional Court has also reviewed the legal regulation laid down in the Law on National Conscription, according to which certain persons may be deferred from military service or alternative national defence service on an individual basis for important reasons, which include the activities or duties performed by such persons. As noted by the Constitutional Court, under Paragraph 2 of Article 139 of the Constitution, the legislature may provide for the possibility of deferring the constitutional duty of citizens to perform military service or alternative national defence service if, due to the important reasons specified in the law, the citizen is temporarily unable to perform this service or, provided such service were not deferred at a given time, the important interests of the person, family, or society might be injured. In the context of the case at issue, it should be mentioned that the Law on National Conscription provides for the possibility of deferring compulsory initial military service on the basis of important public interests.

In this case, Justices Gintaras Goda and Danutė Jočienė have issued a separate opinion.