Military Services and Alternative Service

Particular attention needs to be paid to protection of human rights in areas where human rights are curtailed more than in regular situations. One of such areas is the area of national defence, especially the compulsory service in Defence Forces.

The need for improved observance of human rights in the Defence Forces has been emphasised by the Chancellor of Justice, who made inspection visits to the Single Guard Battalion of the Infantry Training Centre as well as the Kuperjanov Infantry Battalion in 2008 and discovered several deficiencies in the guarantee of basic rights and freedoms to conscripts. The Chancellor of Justice has made a total of four inspection visits to various institutions of the Defence Forces in 2009 (Signal Battalion, Tapa Artillery Battalion, Marine Base and the Logistics Battalion), but at the time of release of this report the findings of these visits bear the marking AK (“ametkondlikuks kasutuseks” – for departmental use), and are therefore unavailable to the public. During the course of the inspection visit in 2008 the Chancellor of Justice found fault with:

  • Medical attendance to the conscripts: in order to see a doctor the conscripts had to divulge delicate personal data during a health check-up or to persons who lacked the legal right as well as legitimate need to handle this personal data;
  • Living conditions: the conscripts could not use the lecture halls outside of study hours and had to study standing up in the hallway for lack of room, the conscripts were not allowed to use washing machines for doing their laundry, and since the commissary only accepted cash, the conscripts did not have the opportunity to use their subsidies;
  • Use of physical exhaustion as a form of punishment (including collective punishment) and arbitrary refusal to issue town passes.

It is clear from the above that in order to ensure protection of human rights in Defence Forces control over this needs to be increased. The lawfulness of limitations to human rights, their proportionality and the legitimacy of the purpose of limitations must be checked and ensured.

Acts regulating service in the Defence Forces lack provisions which would prohibit LGBT persons[1] from entering into the service. There have been no known cases in the Estonian Defence Forces, at least no cases that have been made public, in which a person has not been recruited for service in the Defence Forces or has been released before due time because of their sexual orientation. Then again there is no statistics available as to how many LGBT persons serve in the Defence Forces.

Alternative service as an alternative to service in the Defence Forces

At the outset, it ought to be mentioned that unlike many other European states Estonia has decided to opt for compulsory service in the Defence Forces, for male citizens, and apparently does not have any plans to switch to professional Defence Forces. Even though compulsory service aimed at men breaches the principle of equal treatment of men and women, the area of planning of state defence is one where discrimination is allowed according to the norms of international human rights.[2] Then again, in a situation, where most European states have replaced the obligatory service in Defence Forces by professional Defence Forces, this standpoint may change.

The compulsory nature of the service in the Defence Forces stems from §124 of the Constitution of Republic of Estonia, according to which taking part in national defence is obligatory for Estonian citizens.[3] The Defence Forces Service Act specifies the conscript service obligation in §3 and states that the conscript service obligation lies on Estonian male citizens from ages of 16 to 60.[4] Since this obligation temporarily restricts anyone’s right to freely choose an area of activity and employment (Constitution §29),[5] this exception to that specific right has been written into the constitution as well as Article 4 of the European Convention on Human Rights (ECHR), that prohibits forced labour.

In addition to prohibition of forced labour the conscript service obligation may also potentially restrict a person’s right to freedom of thought, conscience and religion (ECHR, Art 9, Estonian Constitution §40). The Estonian Constitution entails an exclusion clause in the conscript service obligation and allows persons to go through alternative service in lieu of the conscript service on religious or moral grounds (§124 section 2). It is, however, unclear whether a state is obliged to have an alternative service to the conscript service according to international human rights norms or not. The European Court of Human Rights has only recently stated that it is not a duty of the state, whereas the UN Human Rights Committee has opted for the opposite position.[6] The Constitution of the Republic of Estonia prescribes in §124 the possibility of alternative service for those who refuse to undergo conscript service on religious or moral grounds.

Several important changes were made to the Defence Forces Service Act in 2008 and 2009: those changes were to do with alternative service. According to the explanatory memorandum to the draft legislation those changes stemmed from the need to update its regulation.[7]

Overview of the alternative service

Alternative service is, according to the Defence Forces Service Act, an alternative to persons eligible to be drafted who “have refused to serve in the Defense Forces for religious or moral reasons” (§4). Stemming from that the person performing an alternative service may not be forced to “handle weapons or other means of warfare…, or handle other means and substances which are intended for the extermination or injury of persons (§76(1)). Questions pertaining to alternative service are within the competence of the Ministry of Defence institution Defence Resources Department, where the person eligible to be drafted needs to file an application justifying his wish to perform alternative service instead of conscription service in the Defence Forces (§72).

According to the change that came to effect in 2009 the person will be notified about the alternative service at least one month before the commencement of the service (§39 section 9). Previously, the period of notification was one year, as is the case with conscription service. The change also introduced a trilateral alternative service contract, which is concluded between the person serving, the institution where the service takes place and the Defence Resources Department (§752). The list of places where alternative service may be served has also been extended and now the person serving the alternative service can serve with either a rescue institution within the governance of the Ministry of Internal Affairs, a social services institution of the state or the local government, or in a special needs study institution (§73). An important change is also that the person in alternative service will be paid a monthly grant, the amount of which has been set by the government, whereas the remuneration of the person used to depend on the wage level of the particular institution (§76(21)).

The duration of alternative service is 16 months, whereas the conscript service lasts 9 months (11 months in some cases).[8]

Alternative service in the light of human rights

The regulation of alternative service in Estonia is problematic from several aspects in the human rights standpoint. These problems stem partly from an earlier time, but some problems arose due to recent changes. The main problems are the duty to prove one’s convictions, unreasonably short notice of the commencement of alternative service and the longer duration of alternative service in comparison to conscription service. There are  extremely few persons performing the alternative service in comparison to other states, which makes it likely that many people are serving in the conscription service instead of an alternative service against their religious or moral convictions for one reason or another. We shall now analyse the specific problem areas.

It is still required by law to prove one’s religious or moral convictions and insufficient evidence may result in the person’s application to perform an alternative service being denied. In addition to the obligation to justify one’s wish to opt for the alternative service, the Defence Resources Department will also question the person himself as well as persons close to him, his peers and his religious organisation (§72). The fact itself that the person needs to prove deeply personal beliefs may contradict the principles of freedom of conscience and religion. It is also possible that the person’s personal beliefs may not be confirmed. According to the Act, the Department has to make enquiries with the religious organisation, which makes the deduction possible that pacifistic convictions may only stem from a religion, which in term contradicts the wording of the constitution. These facts and dangers were pointed out even before the changes were made.[9] The research of State Chancellery from 2008 confirms that several European states that still have obligatory conscription service and alternative service (for example Finland, Denmark, Germany) have waived the justification obligation.[10]

The second problem of regulating alternative service has to do with the shortening the notification of commencement of the alternative service from one year (equal to the case with conscription service) to just one month (Defence Forces Service Act, §39 section 9). It is necessary, according to the explanatory memorandum to the draft legislation, since the nature of the alternative service requires the places to be filled immediately and “the possible service institutions have neither the interest nor the ability to wait one year until the person starts the alternative service”.[11] However, such regulation does not take into account the interests of the person eligible for service. He needs to make arrangements in his life in order to go through the alternative service that lasts a year and a half and one month is a disproportionally short time for that. In order for the restriction to human rights to be lawful the person’s and state’s interests need to be balanced. It is important that the specific restricting measure fulfils the purpose stemming from the state’s interest but also burdens human rights as little as possible. In this case Estonian law does not meet these conditions.

The biggest problem with the alternative service in Estonia is its length in comparison to the conscription service. The excessive length of the alternative service has been pointed out by the UN High Commissioner for Human Rights in his report about alternative service all over the world, as well as by the Human Rights Committee in its closing comments about Estonia.

The practice of the European Court of Human Rights has so far been somewhat different. The former Human Rights Commission has stated in their cases, that considering the less burdening nature of the alternative service and the danger that people may take advantage of the option given to them, it is reasonable that it is compensated by a longer duration in comparison to conscription service.[12] Releasing the person from the duty of proving their convictions, they are placed under another duty, which must guarantee that the alternative service is not taken advantage of. In Estonia the person goes through a stage that proves his convictions, and then goes through the considerably lengthier alternative service, which in other states fulfils the objective that in Estonia has already been achieved during the application stage. The length of the alternative service has been criticised not only outside of Estonia but also in Estonia.[13] Alternative service should not have a punitive effect,[14] but this, in fact, is the case in Estonia at the moment.

Alternative service is relatively unheard of in Estonia. An extremely small portion of persons eligible to be drafted have opted for this opportunity: as of December 31, 2009 only 20 men had gone through the alternative service.[15] This figure has gone up during the last year: 28 men started alternative service in 2009 and applications for conscript service to be replaced by alternative service were made on 20 occasions in 2009. That is still a very small number in comparison to, for example the statistics from Germany, where the number of people in alternative service is twice that of men in conscript service. The small number of people in the alternative service is particularly surprising in the face of the statistics from the Ministry of Defence regarding the attitude of the Estonian population towards alternative service. According to that nearly 80% of the people favour alternative service and that percentage has steadily continued to rise.[16]

There is some room for improvement in bringing alternative service into conformity with the requirements of human rights. The requirement for proving one’s convictions should be abolished, the period of notice of commencement of alternative service should be prolonged and its duration should be made shorter so that it loses its punitive effect. Persons eligible to be drafted should also be notified of the option of going through an alternative service on religious and/or moral grounds and the cause of small number of persons opting for alternative service should be investigated.

 


[1] LGBT – Lesbians, Gays, Bisexuals and Transsexuals.

[2] A similar opinion is also shared by the Chancellor of Justice and the and the Gender Equality and Equal Treatment Officer. – see Inimõiguste keskus [Human Rights Centre], Inimõigused Eestis 2007 [Human Rights in Estonia 2007], Tallinn 2008, p 19.

[3] Eesti Vabariigi Põhiseadus [The Constitution of Republic of Estonia] (RT [State Gazette] I 1992, 26, 349; RT I 2007, 33, 210), §42 and 44. Also see Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 1950, entry into force 1953, entry into force for Estonia 1996, art 9.

[4] Kaitseväeteenistuse seadus [Defence Forces Service Act], RT I 2000, 28, 167; RT I RT I 2010, 7, 29.

[5] European Convention of Human Rights, art 9.

[6] Respectively, Bayatyan v Armenia (27 October 2009), para 63; and UN Human Rights Committee, General Comment no 22: The right to freedom of thought, conscience and religion (Art 18), UN doc. no. CCPR/C/21/Rev.1/Add.4 (30 July 1993), para 11; and UN Human Rights Committee, Concluding observations of the Human Rights Committee: Estonia, UN doc. no CCPR/CO/77/EST (15 April 2003), para 15.

[7] Government of the Republic, Explanatory memorandum to the draft Amending Conscript Service Act , Health Insurance Act and Social Tax Act (Draft Act 289 III), p 1.

[8] Government Regulation no 241 of 25 July 2000 “Ajateenistuse ja asendusteenistuse kestuse määramine” [Determining duration of the conscript and the alternative service], according to §3 and §-s 1 and 2.

[9] Rain Liivoja, Annika Talmar, Varro Vooglaid and Martens Society, Essee: Teenistus riigi hüvanguks: kuidas ja kellele? [Essay: Service for the good of state: how and for whom?], Eesti Ekspress, 26.10.2006.

[10] Riho Kangur, Asendusteenistus Eestis, Leedus, Saksamaal, Soomes ja Taanis. Riigikogu kantselei majandus- ja sotsiaalinfoosakond [Alternative service in Estonia, Lithuania, Germany, Finland and Denmark. Economic and Social Council of Chancellery of the Parliament], no 15-3/044 (10 March 2008).

[11] Explanatory memorandum to the draft Act (reference 51), p 2.

[12] European Commission of Human Rights, N.C. van Buiten v the Netherlands (2 March 1987) and European Commission of Human Rights, Autio v Finland (6 December 1991).

[13] Liivoja et al (reference 52); Kaidi Toomsalu, Asendusteenistus kui Eesti kaitseväeteenistuse alternatiiv: olulisus ja rakendatavus, bakalaureusetöö [Alternative service as alternative to Estonian conscription service: necessity and applicability. Bachelor’s thesis], Tallinn University 2008.

[14] Human Rights Committee (reference 50), para 15.

[15] Lilian Tukk (Adviser to Alternative Service,Defence Resources Agency), Letter 11.02.2010 no 9-5/1776.

[16] Ministry of Defence, Avalik arvamus ja riigikaitse [Public opinion and state defence] (compiled by Turu-uuringute AS), January 2010, p 54.

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