Criminal liability for refusal of military service on the grounds of religious and worldview beliefs: conflicts of national legislation and international standards

Based on a systematic interpretation of national legislation and ECHR standards, the article substantiates the legal untenability of the current practice of criminal prosecution of persons refusing military service during mobilization on the grounds of religious and worldview beliefs. It is proven that the situation of a «legislative vacuum,» caused by the legislator’s inaction regarding the implementation of the constitutional guarantee (Part 4 of Art. 35 of the Constitution of Ukraine) into special wartime legislation, cannot serve as a legitimate ground for criminal repression. The key result of the study is the doctrinal refutation of the presence of the elements of a criminal offense, provided for by Article 336 of the Criminal Code of Ukraine, in the acts of conscientious objectors. It is argued that a person’s exercise of a constitutional right of direct effect excludes the mandatory elements of a criminal offense – wrongfulness (illegality) and public danger. Particular attention is paid to the defects of the subjective side (mens rea) of the criminal offense: the absence of direct intent to evade the constitutional duty is proven, since the person’s goal is not to avoid defending the Fatherland, but to fulfill it in a specific, non-military form compatible with the imperatives of conscience (forum internum). A critical analysis of the transformation of judicial doctrine (in particular, the legal position of the Joint Chamber of the Criminal Cassation Court of the Supreme Court dated October 27, 2025) is carried out, which, through the mechanism of «defensive relativism,» legitimized the priority of military expediency over absolute human rights. It is stated that the application of penalties in the form of imprisonment to objectors in the absence of a mechanism for restoring rights creates the effect of «civil death» and leads to a violation of Article 3 of the ECHR due to the cumulative nature of criminal prosecution. An author’s model for resolving the legal conflict is proposed, based on abandoning the discriminatory denominational approach (membership in registered organizations) in favor of an individual «sincerity test.» The necessity of applying the criteria of «reasonability» and consistency of beliefs as the sole condition for access to alternative service is substantiated. It is concluded that a doctrinally sound solution is not the integration of objectors into non-combat units of the Armed Forces, but the creation of an institutionally separate civil service («genuine alternative»), which complies with the principle of nullum crimen sine lege and makes criminal prosecution for a conflict of conscience impossible.