CESNUR - Jehovah's Witnesses in Latvia

"On 25 August, 1999 the Court of Vidzeme’s Municipality of Riga, consisting of the chairman V. Maximov, the secretary K. Tempelmanis, in presence of prosecutor I. O_iòa and lawyer E. Endzelis, heard in open trial in Antonijas Street 6, Riga, civil action brought by Roman Nemiro against the unlawful action of the governmental institutions, and established the fact that:

The plaintiff brought to the court of law an action against unlawful action of governmental institutions, and supplemented it by pointing out that on January 14, 1999 the Head of the Military Conscription Centre passed a decision to conscript R. Nemiro into standing army. R. Nemiro appealed against this decision to the Control Commission of the Military Conscription Office; the Commission, however, ruled on January 29, 1999 that the decision of the Head of the Military Conscription Centre remains valid. There is an opinion that this decision has not been well-grounded for it has ignored the fact that the plaintiff’s conscience prevents him to perform any kind of military service, because he has been a member of the Jehovah’s Witnesses congregation since March 1996 and his conviction is based on divine laws that forbid to kill, and condemn violence. It has been requested to reverse the decision of the Control Commission of the Military Conscription Office and exempt R. Nemiro from compulsory military service.

The plaintiff did not withdraw his action from the court and explained that paragraph 13 of the Law of the Republic of Latvia "On International Treaties of the Republic of Latvia" provides that if the norms of an international treaty ratified by Saeima differ from the norms of the legislative acts of the Republic of Latvia, the norms of international treaty are to be observed.

Paragraph 18 of the "International Covenant on Civil and Political Rights" provides that every person have freedom of thought, conscience and religion. The Human Rights Committee of the United Nations has declared that every person is entitled to conscientious objection to military service; this right is provided by paragraph 18 of the "Declaration on Human Rights" and paragraph 18 of the "International Covenant On the Civil and Political Rights". Since the Law of the Republic of Latvia "On Compulsory Military Service" contradicts the norms of international treaties, the latter are to be observed. It has been requested to reverse the decision of January 14, 1999, and exempt R. Nemiro from the compulsory military service.

A representative of the Control Commission of the Military Conscription Office of the Latvian Republic Ministry of Defense did not accept the action brought to the court by R. Nemiro and explained that conscription of R. Nemiro into the military service was in accordance with law and paragraph 19 of the Law "On Compulsory Military Service".

Indeed, part 1 of paragraph 18 of the "International Covenant On Civil and Political Rights" provides that every person has the freedom of thought, conscience and religion; however, part 3 of the same paragraph provides that the only restrictions of the freedom to pursue a religion or a conviction are those that are mentioned in law and are necessary to protect public security, order, health and moral, as well as the basic rights and freedoms of other persons.

Paragraph 21 of the Law of the Republic of Latvia "On Compulsory Military Service" clearly indicates what persons are not subject to service in the standing army, and paragraph 22 indicates what persons might be exempt from military service. These paragraphs do not provide that exemption from military service applies to the persons whose religious conviction prevents them to perform military service.

The Court dismisses that there is a contradiction between the restriction on pursuing one’s religion or conviction as the Law of the Republic of Latvia "On Compulsory Military Service" provides and the "International Covenant On Civil and Political Rights", because this restriction has been set by law and is necessary to protect public security, order, health and moral, as well as the basic rights and freedoms of other persons; the evidence for this is necessity to involve the citizens of Latvia in the protection of the state which is the main purpose of the Law of the Republic of Latvia "On Compulsory Military Service".

Taking this into consideration the Court concludes that the decision of the Head of the Military Conscription Centre on January 14, 1999 about R. Nemiro’s conscription into compulsory military service is not unlawful, because it has been based on the Law of the Republic of Latvia "On Compulsory Military Service" which does not contradict the norms of international treaties, ratified by Saeima of the Republic of Latvia.

The Court of Vidzeme’s Municipality of Riga established on August 25, 1999 that V. Gamayunov held that the decision of the Control Commission of the Military Conscription Office on March 5, 1999 - not to reverse the 16th February, 1999 decision of the Military Conscription Centre to conscript him to service in standing army  "is ungrounded because it has not been taken into consideration that the plaintiff is an ordained cleric of the Jehovah’s Witnesses congregation. [V. Gamayunov] requests that the decision of the Control Commission of the Military Conscription Office be reversed and the Military Conscription Centre be required to exempt him, as an ordained cleric, from compulsory military service. [..] Since item 8 of the paragraph 21 of the Law of the Republic of Latvia "On Compulsory Military Service" which provides that only those ordained clerics are exempt from the military service who belong to confessions that are represented in military chaplaincy, contradicts international norms, the norms of international treaties are to be observed. It has been requested to reverse the decision of February 16, 1999 and exempt him from compulsory military service.

A representative of the Control Commission of the Military Conscription Office of the Latvian Republic Ministry of Defense did not acknowledge the action brought to the court by Vladimir Gamayunov and explained that V. Gamayunov was conscripted into the military service in accordance with law and paragraph 19 of the Law "On Compulsory Military Service".

The Court acknowledges that the restriction on pursuing one’s religion or conviction set by the Law of the Republic of Latvia "On Compulsory Military Service", namely, that only those clerics are exempt from compulsory military service who belong to confessions represented in military chaplaincy and among whom the Jehovah’s Witnesses congregation has not been mentioned, does not contradict the "International Covenant On Civil and Political Rights" because this restriction has been provided by law and necessary to protect public security, order, health and moral, as well as the basic rights and freedoms of other persons; the evidence for this necessity to involve the citizens of Latvia in the protection of the state which is the main purpose of the Law of the Republic of Latvia "On Compulsory Military Service".

Taking this into consideration the Court concludes that the decision of the Head of the Military Conscription Centre on January 14, 1999 about V. Gamayunov’s conscription into compulsory military service is not unlawful, because it has been based on the Law of the Republic of Latvia "On Compulsory Military Service" which does not contradict the norms of international treaties, ratified by Saeima of the Republic of Latvia.

"To the Regional Court of Riga. In reference to the action brought by the plaintiff: Roman Nemiro, residing in Hipokrata Street 13, flat 54, Riga, against the defendant: the Control Commission of the Military Conscription Office, Hospitâïu Street 55, LV-1013. APPEAL against the decision of the Court of Vidzeme’s Municipality of Riga on August 25, 1999 on the case No. 2-2927/5 1999.

The decision of the Court of Vidzeme’s Municipality of Riga on August 25, 1999, dismissed my action brought against the decision of the Control Commission of the Military Conscription Office to conscript me into military service. I regard the whole court decision as incorrect and contradicting the norms of both ??material rights and legal procedure. For the reasons mentioned above it is necessary to pass a new decision which would comply my claim.

The Court has not observed the provision of part 4, paragraph 193 of the Law On the Civil Process, that the descriptive part of the decision should indicate the plaintiff’s claim and the essence of the explanations given by the parties of the process. The Court has ignored a considerable part of the plaintiff’s explanations. It has completely omitted the plaintiff’s argumentation that the right to refuse to perform military service on the grounds of conscience is guaranteed by Satversme of the Republic of Latvia. The Court has also omitted the argumentation that the freedom of conscience is guaranteed by the European Convention On Protection of Human Rights and Freedoms that is binding on the Republic of Latvia. The Court has wholly omitted argumentation that in the particular case the restriction of the freedom of conscience must not be tolerated because there is no necessity to do so.

The Court has not observed the requirements of part 5, paragraph 193 of the Law On the Civil Process, which provide that in the motivational part of the decision the facts established about the case, the evidences, on which the conclusions of the court are based, arguments against one or another evidence be indicated. The Court has given no juridical assessment of the arguments mentioned above.

The Court has made an unsubstantiated reference to part 3, paragraph 18 of the International Covenant On Civil and Political Rights that allows for restriction of the freedom of conscience if it is necessary in order to protect public security, order, health or moral, or the basic rights and freedoms of other persons. The Court points out the purpose of the Law On Compulsory Military Service - to involve the citizens of Latvia in the protection of the state - as the proof of necessity to restrict the freedom of consciousness. The Court had no grounds to refer to the necessity to protect the state because an evidence had been submitted to the Court, the reply of 06/05/1999 from the Minister of Defence to the Jehovah’s Witnesses congregation, in which it was pointed out that "currently the exemption of the Jehovah’s Witnesses (not provided for by existing laws) from the compulsory military service would not make up considerable losses on the armed forces of Latvia, and alternative provisions could be allowed for in the legislation". If the Jehovah’s Witnesses’ refusal to perform the military service does not make up a considerable losses on the armed forces of Latvia, then the Court has no reason to refer to part 3, paragraph 18 of the International Covenent On the Civil and Political Rights, because there is no necessity to restrict the freedom of conscience. However, the Court has mentioned this essential argument neither in the descriptive nor in the motivational part.

The Court has neither mentioned nor assessed the Conclusion of the National Human Rights Office that has been submitted and in which an opinion has been expressed that paragraph 99 of Satversme includes the right to refuse to perform military service if the individual’s conscience and religious conviction does indeed contradict the military service and that the violation of a person’s right can be avoided by exempting the members of the congregation from the service.

In its decision the Court has not disputed the fact that the International Pact on Citizens’ and Political Rights, as well as the European Convention for the Protection of Human Rights and fundamental Freedoms guarantees the right to refuse to perform military service on the grounds of conscience. The Court has refered to no argument which would refute the plaintiff’s opinion that Satversme of the Republic of Latvia guarantees such right. As it has been mentioned before, there is no necessity to restrict the freedom of consciousness. The Court has not questioned the fact that the decision of the Control Commission of the Military Conscription Office to conscript the plaintiff into military service forces him to act contrary to his conscience. Taking into consideration that Satversme is superior to the laws, and that paragraph 13 of the Law "On International Treaties of the Republic of Latvia" provides that an international treaty ratified by the Republic of Latvia is superior to laws, the Court had to observe the norms of Satversme and international treaties which provide that a person be entitled to make a conscientious objection to military service. Therefore the request to reverse the decision about conscription passed by the Control Commission of the Military Conscription Office is well-grounded, lawful and has to be satisfied.

Taking into consideration all this and paragraphs 413, 190, 193 of the Law On the Civil Process; paragraph 11 of the transition norms; paragraph 239.^1-3of the Civil Process Code of Latvia; part 2, paragraph 20 of the Law On Compulsory Military Service; paragraph 99 of Satversme of the Republic of Latvia; paragraph 18 of the International Pact On Citizens’ and Political Rights; paragraph 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; paragraph 13 of the Law "On International Treaties of the Republic of Latvia"

to hear the appeal against the decision passed on 25/08/1999 by the Court of Vidzeme's Municipality of Riga on the case No. 2-2927/5 1999;

to reverse the 17th August 1999 decision of the Control Commission of the Military Conscription Office by which the decision of the Head of the Military Conscription Centre remains valid and I have to be assigned to perform compulsory service in standing army;

to place the Military Conscription Centre under the obligation to exempt me, as an ordained cleric, from compulsory military service.

I will quote the text of the appeal made by V. Gamayunov, residing in Antonijas Street 20, flat 43, to the Riga Regional Court, where it differs from the appeal made by R. Nemiro; the differences are due to the character of the action brought by V. Gamayunov to the Court of Vidzeme’s Municipality of Riga.

He stressed that "the Court has not mentioned the plaintiff’s argumentation that clerics’ classification by their confession should not be tolerated - paragraph 91 of Satversme and paragraph 4 of the Law On Religious Organizations [..]. Also the State Bureau of Human Rights has concluded that the restrictive norm of item 8, paragraph 21 of the Law On Compulsory Military Service (that only the clerics belonging to confessions represented in the military chaplaincy are to be exempt) is discriminatory and contradicts paragraph 91 of Satversme, as well as paragraph 9 of the European Convention On Human Rights."

In his appeal, Gamayunov also pointed out that: "The Court has given no reason why the Jehovah’s Witnesses clerics are to be discriminated, for by the same the rights guaranteed by the Constitution are restricted. As has been mentioned before, there is no necessity to restrict the freedom of consciousness and religious freedom. The Court has not questioned the fact that the decision of the Control Commission of the Military Conscription Office to conscript the plaintiff into military service forces him to act contrary to his conscience. Taking into consideration that Satversme is superior to laws, and that paragraph 13 of the Law "On International Treaties of the Republic of Latvia" provides that an international treaty ratified by the Republic of Latvia is superior to laws, the Court had to observe the norms of Satversme and international treaties, which provide that a person be entitled to make a conscientious objection to military service, as well as forbids to discriminate persons according to their religious affiliation. Therefore the request to reverse the decision about conscription passed by the Control Commission of the Military Conscription Office is well-grounded, lawful and has to be satisfied."

In his conclusion V. Gamayunov wrote: "Taking into consideration all this and paragraphs 413, 190, 193 of the Law On the Civil Process; paragraph 11 of the transition norms; paragraph 239.^1-3of the Civil Process Code of Latvia; part 2, paragraph 20 of the Law On Compulsory Military Service; paragraph 99 of Satversme of the Republic of Latvia; paragraph 18 of the International Pact On Citizens’ and Political Rights; paragraph 9 of the European Conventions for the Protection of Human Rights and Fundamental Freedoms; paragraph 13 of the Law "On International Treaties of the Republic of Latvia"

This amendment was proposed by the Council of Ministers, on the initiative of the Ministry of Defence. The annotation added to the Law states that "religious organizations (for instance, the Jehovah’s Riga congregation) are being registered with the Ministry of Justice. There is a necessity now not to recruit into compulsory service the ordained clerics of these organizations".

The draft of the amendment, however, does not refer to any alternatives for those persons who are not clerics but who have conscientious objection to the military service. Therefore on September 21, 1999, the Jehovah’s Witnesses Riga Centre congregation submitted to the Saeima Commission on Human Rights and Public Affairs the following request:

"Taking into consideration all the reasons mentioned above, we request your proposals concerning the amendment of the Law On Compulsory Military Service, providing that there be opportunities to perform an alternative service in those cases when a person has conscientious objection to military service.