A gap in the law
According to the Constitution of the Republic of Poland, people who argue military service for spiritual or moral reasons can choose a replacement service. The Home defence Act defines it as an alternate to the military, but the current government does not let for a change of kind of service in the event of a change of religion.
That's where the main problem comes in. 1 man changed his religion and became 1 of Jehovah’s Witnesses. He refused military service, but was denied replacement service. The Ombudsman was curious in the matter. He asked the Minister of National Defence to change the rules. They are to be modified in specified a way as to warrant the freedom of conscience and religion of soldiers in passive reserve. The stakes are advanced due to the fact that the existing legal gap can consequence in criminal liability for avoiding military exercises.
Deputy Head of the Defence Ministry Paweł Bejda replied to the request of the RPO that:
The hotel sees the request to amend the rules on extending the catalogue of persons entitled to apply for a replacement service and besides to allocate reserve soldiers to it, whose spiritual beliefs and the planet view do not let active military service, regardless of whether they have already served in military service.
He besides announced that proposals for possible legal changes would be prepared.
Another case, a akin problem
The ultimate Administrative Court examined a year ago the case of a man who refused to execute individual benefits imposed on him under the universal work to defend the Polish Republic. They were obliged to immediately appear at a circumstantial location in the event of mobilization or war to evacuate the population. The man, citing his conscience and moral principles as 1 of Jehovah’s Witnesses, found the governor’s decision contrary to his beliefs. He challenged her to the Provincial Administrative Court in Szczecin, but the court did not take into account his arguments. Eventually, the case went to the NSA, which dismissed the complaint by issuing a final judgment.
The ultimate Administrative Court stated that a man cannot be released from his duty, even if he is contrary to his conscience and moral principles, including spiritual ones. It was stressed that the case concerns a conflict between a statutory and constitutional work and beliefs and consciences which are besides protected by national and global rules.
Both courts considered that the law on the universal work of defence of the Polish Republic does not supply for dismissal from the performance of the task in case of a call for opposition to conscience. The NSA recalled that global standards let the exercise of the right to object to conscience within the national legal order.
The NSA has referred to the constitutional rule of proportionality, which allows the resolution of conflicts of values protected by the law of the highest rank. This rule makes it possible to measure whether the interference of the legislator in 1 value infringes unduly another. Freedom of conscience and religion, as the court has pointed out, is not unlimited and does not cover any conflict of convictions with legal obligations. In the present case, there were no indications that the dispute threatened the identity and integrity of the complainant.
The rule of proportionality, according to the NSA, is crucial in the regulation of law, peculiarly erstwhile restrictions on freedom are essential to defend national security. specified objectives are implemented by the Polish Defence Act, imposing certain obligations on citizens and authorities.
Where is the protection of life in all this?
It is amazing in the full military service case that for decades the rules have excluded people with circumstantial views from this obligation. More specifically, you gotta follow a religion to get fired from the exercise. This seems unfair and discriminatory due to the fact that Polish past knows cases of dismissal of Jehovah’s Witnesses or members of the global Krishna Awareness Society.
However, being a Catholic or atheist with pacifist views is not decently respected by our state at all. However, it seems that all citizen should have a choice in this matter, especially as his life is at stake.
Another issue is sex discrimination, as seen during peace and war, even in Ukraine. It is men who are obliged to hazard their lives without asking for permission. Speaking of Ukraine, we should take into account the situation of many deserters, about whom various portals have late written. From a legal point of view, they are likely criminals, possibly even to many traitors of the homeland. But they are primarily people who want to live.
