ALTERNATIVE (NON-MILITARY) SERVICE AS A MECHANISM FOR RECONCILING THE CONSTITUTIONAL DUTY TO DEFEND THE MOTHERLAND AND FREEDOM OF CONSCIENCE: INTERNATIONAL STANDARDS AND UKRAINIAN PRACTICE DURING MARTIAL LAW

Keywords: constitutional duties, defense of the homeland, freedom of conscience, alternative (non-military) service, martial law, mobilization, international standards, protection of the constitutional order, security, defense, state of emergency

Abstract

Introduction. The article provides a comprehensive constitutional-legal analysis of alternative (non-military) service as a mechanism for reconciling the constitutional duty to defend the Motherland (Article 65 of the Constitution of Ukraine) with freedom of conscience (Article 35) during martial law. The normative gap between the constitutional guarantee and its legislative implementation -tied to the abolished conscript service (replaced by basic military service in 2024) -has given rise to a serious legal conflict addressed by the Constitutional Court of Ukraine (2024–2025) and the Venice Commission amicus curiae brief CDL-AD(2025)006 of 18 March 2025.

Summary of main research results. The evolution of international standards is traced at three levels: UN (General Comment No. 22, 1993), Council of Europe (from Grandrath v. Germany, 1966, to Bayatyan v. Armenia, 2011, and subsequent ECtHR jurisprudence including Adyan, Papavasilakis, Kanatlı v. Türkiye, 2024), and EU (Article 10(2) of the Charter; CJEU practice in Shepherd and EZ). The Venice Commission opinion CDL-AD(2025)006 is examined. A comparative analysis covers Germany, Spain, Poland, Estonia and other EU Member States. Ukrainian judicial practice is analyzed, including Supreme Court cases No. 641/1067/23, No. 344/12021/22, No. 601/2491/22, and acquittal decisions in cases No. 511/2216/24 and No. 953/9807/24.

Conclusion. The incompatibility of Part 1 of Article 1 of the Law of Ukraine "On Alternative (Non-military) Service" with Part 4 of Article 35 of the Constitution and international standards is substantiated: following the 2024 abolition of conscript service, the constitutional right became practically unenforceable during martial law. Legislative changes de lege ferenda are proposed to align national law with the Bayatyan standard, the Venice Commission opinion of 2025, and Ukraine's obligations under the ECHR, the EU Charter and the ICCPR.

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Published
2026-05-30
Cited
How to Cite
Voronov, M. (2026). ALTERNATIVE (NON-MILITARY) SERVICE AS A MECHANISM FOR RECONCILING THE CONSTITUTIONAL DUTY TO DEFEND THE MOTHERLAND AND FREEDOM OF CONSCIENCE: INTERNATIONAL STANDARDS AND UKRAINIAN PRACTICE DURING MARTIAL LAW. The Journal of V. N. Karazin Kharkiv National University. Series Law, (41), 128-152. https://doi.org/10.26565/2075-1834-2026-41-11