The Synodal Legal Department of the Ukrainian Orthodox Church provided a commentary concerning four bills in the area of religion and freedom of conscience (No. 7403, 8012, 8221, 8262)* introduced to Verkhovna Rada of Ukraine on 9 December 2022 by the Committee on Humanitarian and Information Policy. The Information and Education Department of the UOC informs about it with reference to the website law.church.ua.
The Synodal Department called those bills such that ‘violate the rights and freedoms of the faithful of the Ukrainian Orthodox Church and are aimed at restricting the rights of and closing down religious organisations belonging to the UOC’.
It is said in the commentary that ‘the Committee supported those bills and recommended them to the Verkhovna Rada of Ukraine for adoption. It should be noted that in the bills there is no mention of the fact that it is the Ukrainian Orthodox Church that comes within the purview and is subject to the restrictions of these bills. However, it can be inferred from the content of some of those bills and of explanatory notes thereto that the law-making initiatives are first and foremost intended to be applied in relation to religious organisations of the UOC. The public attitude of the authors of the bills attests it convincingly as well.’
Through these bills, it is planned first to deprive religious organisations belonging to the Ukrainian Orthodox Church of the non-profit status (No 7403); then so-called ‘transitions’, which are, in fact, illegal takeovers of UOC parishes by the ‘Orthodox Church of Ukraine’ are facilitated; moreover, the possibility of changing the subordination of religious administrations (dioceses), monasteries, religious brotherhoods, missions is provided for, which creates additional prerequisites for their illegal takeover (to this day, not a single diocese or monastery expressed the desire to change its subordination and become subordinate to the ’OCU’) (No 8262); the next step includes taking away from the UOC the Pochayiv and Kyiv-Pechersk Lavras and giving them to the ‘OCU’ (No 8012); and finally, bill No 8221 provides for, in fact, the ban of the Ukrainian Orthodox Church.
‘For instance, in the bill (reg. No 7403) it is suggested to deprive religious organisations which belong to the structure of religious organisation the guiding centre of which is located in the state that has committed military aggression against Ukraine and/or temporarily occupied part of the territory of Ukraine of the status of non-profit organisations. It is not entirely clear from the bill itself what exactly religious organisations would be subject to such restrictions, but in the explanatory note the author calls the Ukrainian Orthodox Church «The Russian Orthodox Church in Ukraine (earlier – the Ukrainian Orthodox Church of the Moscow Patriarchate), the guiding centre of which is located on the territory of the occupant state». It is not clear how the Law will be applied in practice, but it is absolutely obvious that its purpose is to deprive religious organisations of the Ukrainian Orthodox Church of the non-profit status, which is undoubtedly a violation of the principle of equality of religious organisations’, explain the lawyers in the commentary.
In the bill ‘On Amendments to Certain Legislative Acts of Ukraine for Improving the Legal Regulation of the Activity of Religious Organisations’ (reg. No 8262), it is suggested to make mutually agreed amendments to the laws of Ukraine ‘On Freedom of Conscience and Religious Organisations’; ‘On State Registration of Legal Entities, Individual Entrepreneurs and Public Organisations’; ‘On Lease of State and Municipal Property’.
Legal advocates of the UOC are convinced that bill No 8262 is aimed at significantly facilitating the procedure of changing subordination, under which illegal seizures and re-registrations, disguised as transitions, of UOC religious communities have been taking place throughout four years.
It is explained in the commentary that ‘in particular, the following novellas of the legislation are suggested in the bill (reg. No 8262): the decision to change subordination shall be adopted by at least two-thirds of the members of the general meeting of the religious community present at the meeting, not two-thirds of the composition of the general meeting of the religious community, which infringes the rights of other members of the religious community, for the number of members of the religious community present during the voting can be much less than the composition of the religious community.
The possibility of changing the subordination of religious directorates (dioceses), monasteries, religious brotherhoods, missions is also stipulated, which creates additional prerequisites for their illegal takeover. For to this day not a single diocese or monastery expressed the desire to change its subordination and become subordinate to the “OCU”.
The mandatory notarial certification of the authenticity of a signature at the protocol is cancelled. Apart from that, the requirement to provide an additional document on the right of ownership or use of the premises or written consent of the owner of the premises to provide an address at the location of the religious organisation indicated in the charter (regulations) of the religious community is also abolished. Furthermore, the requirement to provide the original or duly registered copy of the charter (regulations) of the religious community that was in force at the date of submission of documents and that is to be amended, with a note of state registration, and the original of the certificate issued by the registration authority are cancelled, which would legalise illegal takeovers of UOC religious communities currently taking place.
Cancelling the rule on appealing in courts of civil jurisdiction against exceeding the period established by the law for decisions on registration of charters (regulations) of religious organisations is also set forth. Which virtually makes impossible applying to court in case of non-registration of the statute of a religious organisation.
At the same time, it is prohibited to transfer state or municipal property for lease, free use or loan to a religious organisation that, whether directly or as a part of another religious organisation (association), belongs to the structure (is a part) of religious organisation (association) the guiding centre (directorate) of which is located outside Ukraine, in the state recognised by law as having committed military aggression against Ukraine and/or temporarily occupied part of the territory of Ukraine.
Thus, it can be concluded that the bill (reg. No 8262) legalises the scheme of illegal takeovers of UOC religious communities, under which they are illegally seized these days, and creates legislative prerequisites for illegal takeovers of dioceses, monasteries, religious brotherhoods and missions of the UOC.’
It is said further that ‘a similar method of depriving of the right of use, which takes place during illegal re-registration of UOC religious communities, is introduced in the bill (reg. No 8012), under which the legislative body of state authority interferes with the activity of the executive body of state authority, demanding it to illegally deprive the Ukrainian Orthodox Church of the right of lawful use of the Pochayiv and Kyiv-Pechersk Lavras and to transfer them to another religious organisation.
The author of the bill suggests in the explanatory note to apply the provisions of art. 17, p. 3 of the Law of Ukraine “On Freedom of Conscience and Religious Organisations”, under which “a religious building and property owned by the State may be transferred for alternate use to two or more religious communities upon their mutual consent. In the absence of such consent, the state authority shall determine the procedure for using the religious building and property by concluding a separate agreement with each community.” But in this case, that provision cannot be applied because the Pochayiv and Kyiv-Pechersk Lavras have been in the lawful possession of the Ukrainian Orthodox Church for decades. And depriving of such rights only on demand of the Verkhovna Rada of Ukraine and transferring the property to another religious organisation is against the law. At the same time, newly established religious organisations of the “OCU”, having received the status of legal entities no earlier than at the beginning of 2019, cannot put forward claims for church property that had appeared before the beginning of their existence. Especially, they cannot put forward claims for property of religious organisations without confirming the lawful fact of legal succession. At the same time, the “OCU” is not a legal successor of church property — neither of property owned by UOC religious communities nor of property nationalised at the period of the Soviet Union.’
With that, representatives of the Legal Department called attention to the fact that expressions borrowed from laws of the times of Petro Poroshenko are used in many bills. Through those laws, there were attempts to illegally rename the UOC and create legislative grounds for illegal seizures of UOC churches through changes in the procedure of the registration of religious organisations.
‘As concerns the bill (reg. No 8221), it introduces a monopoly on using the word “Orthodox” in the name not only of a religious organisation, but also of any organisation, unless such an organisation is subordinate to the “OCU” or has received permission from it to use the word “Orthodox” in its name. Organisations not conforming to those requirements must exclude the word “Orthodox” from their names and, hence, re-register their statutes. If a religious organisation continues to use the word “Orthodox” in its name, registration acts related to it cease to be performed, which means that it will be impossible to change the head (the father superior or the priest superior), or information in the register, the statute, the name.
Apart from that, there is a ban on the activity of foreign religious organisations, to which, according to the bill, belongs the Russian Orthodox Church and any religious organisation (association) that, whether directly or as a part of another religious organisation (association), belongs to the structure (is a part) of religious organisation (association) the guiding centre of which is located outside Ukraine, in the state recognised by law as having committed military aggression against Ukraine and/or temporarily occupied part of the territory of Ukraine, as well as the activity of religious centres (directorates) which are part of the Russian Orthodox Church or recognise (declare) in any form the subordination in canonical, organisational and other issues to it. At the same time, it remains uncertain how, who and under what criteria will determine the belonging to foreign religious organisations. Such legal uncertainty makes it possible to apply that rule arbitrarily and at one’s own discretion, which will result in the violation of the right to freedom of religion.
The National Security Council will take restrictive measures —sanctions — against such foreign religious organisations. Relations of any other religious organisations or legal entities with foreign religious organisations are prohibited unless they take place under individual approval of the central executive authority that implements the state policy in the field of religion, presently that is the State Service for Ethnical Policy and Freedom of Conscience.
Apart from that, it is suggested in this bill to make amendments to the Law of Ukraine “On Freedom of Conscience and Religious Organisations”, which are as follows: — this law will not cover religious organisations in case of the loss of the status of religious organisations by them (article 7), — the State shall recognise the right of a religious community to be subordinated in canonical and organisational matters to any religious centres (directorates) operating in Ukraine and abroad except for foreign religious organisations the activity of which is prohibited on the territory of Ukraine according to the Law (article 8), — in cases specified by law, the activity of a religious organisation is terminated from the moment of the entry into force of the relevant law (article 16), — Religious buildings and property owned by the State will not be able to be used by or transferred for use to religious organisations the activity of which, including in the matter of the use of names of religious organisations, contradicts the Law (article 17), — international relations and contacts of religious organisations with foreign religious organisations the activity of which is prohibited on the territory of Ukraine according to the Law are allowed on condition of an individual approval of the central executive authority that implements the state policy in the field of religion and are subject to supervision in the manner prescribed by law (article 24).
As the author of the bill pointed out, the purpose of its adoption is to prevent threats to the national security of Ukraine and to ensure order, particularly in the field of freedom of conscience and the activity of religious organisations. At the same time, it should be borne in mind that matters of national security are not regulated by the laws in the field of freedom of conscience and religious organisations.
Apart from that, Ukraine is a secular state, and, according to art. 35 of the Constitution of Ukraine, the Church and religious organisations in Ukraine shall be separated from the State, and the school shall be separated from the Church. No religion shall be recognised by the State as mandatory. All religions, faiths and religious organisations shall be equal before the law. Any advantages or restrictions for one religion, faith or religious organisation compared to others shall not be allowed.
At the same time, according to the European Convention on Human Rights, to the Constitution of Ukraine, the right to freedom of religion is fundamental and is guaranteed by the state, but the exercise of this right may be restricted by law only to protect the public order, health and morality of the population, or to protect the rights and freedoms of other persons. With regard thereto, attention should be paid to the fact that the list of grounds for the restriction is exhaustive and protection of national security is not in it, so adopting a bill which groundlessly restricts the right to freedom of religion solely due to considerations of national security is unlawful.
It should also be noted that the national legislation of Ukraine has a whole range of legal instruments for the protection of national security and provides for the possibility of bringing a person to justice for actions aimed at violating national interests, the territorial integrity, state security and sovereignty of Ukraine while remaining within the lawful bounds of the state’s legal interference into the field of the activity of religious organisations.
The text of the bill lacks clarity, comprehensibility and unambiguity, and the law-maker suggests forbidding the activity of religious organisations by putting them into the category of foreign religious organisations under unclear criteria, which contradicts the practice and the laws currently in force, under which the termination of a religious organisation takes place by court decision. At the same time, bringing some members of a religious organisation to justice for crimes may not be a ground for terminating the whole religious organisation because the rights of other members of the religious community are thus violated’, inform the lawyers.
Members of the Synodal Legal Department summarise: ‘With regard to the fact that the bills have substantial flaws and do not comply with the rules of international law and the Constitution of Ukraine, as well as with the standards of law-making techniques, and some of the bills have disapproving conclusions of the Scientific and Expert Department of the Verkhovna Rada of Ukraine, the above bills are to be excluded from the agenda and are not to be brought up for voting in Parliament.’
*- Bill ‘On Amendments to the Tax Code of Ukraine Concerning the Restriction of Granting the Status of Non-Profit Organisations Exempt from Taxation to Religious Organisations Which Belong to the Structure (Are Part) of Religious Organisation the Guiding Centre of Which is Located outside Ukraine, in the State that Has Committed Military Aggression against Ukraine and/or Temporarily Occupied Part of the Territory of Ukraine’ (reg. No 7403) of 24.05.2022, authors — People’s Deputy I.R. Sovsun et al. The bill provides for amending subparagraph 133.4.6 of paragraph 133.4 of article 144 of the Tax Code of Ukraine.
Draft Resolution ‘On the Address from the Verkhovna Rada of Ukraine to the Cabinet of Ministers of Ukraine Concerning the Transfer of the Group of Buildings of the Pochayiv Dormition Lavra and the Kyiv-Pechersk Lavra for Free Use to the Orthodox Church of Ukraine’ (reg. No 8012) of 08.09.2022, author — People’s Deputy A.V. Bohdanets.
This bill provides for the adoption by the Verkhovna Rada of Ukraine of a resolution on requesting the Cabinet of Ministers of Ukraine to resolve the issue of transferring the group of buildings of the Pochayiv Dormition Lavra and the Kyiv-Pechersk Lavra for free use to the Orthodox Church of Ukraine.
Bill ‘On Ensuring the Enhancement of National Security in the Field of Freedom of Conscience and the Activity of Religious Organisations’ (reg. No 8221) of 23.11.2022, authors — People’s Deputy M.L. Kniazhytskyi et al.
The bill provides for adopting the Law ‘On Ensuring the Enhancement of National Security in the Field of Freedom of Conscience and the Activity of Religious Organisations’ and amending the Law of Ukraine ‘On Freedom of Conscience and Religious Organisations’.
It determines the peculiarities of the activity of foreign religious organisations on the territory of Ukraine for preventing threats to the national security of Ukraine and ensuring order, including by prohibiting the activity of certain religious organisations, as well as the peculiarities of naming Orthodox religious organisations with regard to the Patriarchal and Synodal Tomos granted to the Orthodox Church of Ukraine and to the Ukrainian state.
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