Source: www.forum18.org
Date: April 6, 2023
The government revoked the 10-year-old agreement for the Ukrainian Orthodox
Church (affiliated with the Moscow Patriarchate) to rent the state-owned
Kyiv Pechersk Lavra (Monastery of the Caves), claiming some constructions
had been built on the site illegally. The UOC did not fully comply with the
29 March deadline to leave. The Lavra's UOC abbot faces a criminal case and
a court placed him under house arrest. The government backs a rival
Orthodox jurisdiction. "In Ukraine, there will be only the Orthodox Church
of Ukraine," a presidential aide declared.
UKRAINE: Kyiv Pechersk Lavra conflict, draft law, impact on freedom of
religion or belief
https://www.forum18.org/archiv
By Dmytro Vovk, @VovkDmytro
On 10 March, the government notified the Ukrainian Orthodox Church (UOC)
that the ten-year-old agreement for it to rent the state-owned Kyiv
Pechersk Lavra (Monastery of the Caves) was to be terminated with effect
from 29 March. The government claimed the UOC had illegally built 36
buildings on the Lavra, including administrative buildings, storage spaces,
and monuments, although some of these pre-date the 2013 rental agreement.
The UOC has not fully complied with the de facto expulsion.
The UOC brought a case to Kyiv Economic Court demanding that it find the
government's decision invalid. The court hearing is due to start on 24
April. The UOC also asked the Court to suspend the government decision
until the court resolves the dispute, but the Court refused this (see
below).
The Lavra has been the location since the 1990s of Kyiv Theological Academy
and Seminary, a UOC male monastery, and the UOC central eparchy and
administrative departments. In 2013, the Government made a decision to rent
the UOC a set of Lavra properties for an indefinite time period, and made a
rental agreement stating this (see below).
On 1 April, the Security Service of Ukraine (SBU) searched the residences
of the Lavra's abbot, Metropolitan Pavlo (Lebid), as it suspects him of
"violation of citizens' equality based on their race, nationality or
religious preferences" and "justification, or denial of the Russian
Federation's military aggression against Ukraine, or glorification of its
participants", both criminal charges. The SBU published some of his
intercepted communications and extracts from speeches to back up its claims
(see below).
On 1 April, a Kyiv court placed Metropolitan Pavlo under house arrest for
60 days, to be spent in his house in a village about 50 kilometres (30
miles) from the Lavra (see below).
Metropolitan Epifany, head of the rival Orthodox Church of Ukraine (OCU),
stated in a January interview that his Church would eventually gain
exclusive use of the Lavra. The government has already given the OCU the
right to conduct services at the Lavra's Assumption Cathedral, and
registered the OCU's own monastery at the Lavra (see below).
The advisor to the head of President Volodymyr Zelensky's office, Mykhaylo
Podolyak, stated in a 30 March interview that the UOC will definitely not
use the Lavra premises, and that the government "must finalise the work on
the establishment of the local Orthodox Church". "In Ukraine, there will be
only the Orthodox Church of Ukraine," he added (see below).
The conflict over the Lavra came amid continuing inter-Orthodox rivalries
over churches. Young men in balaclavas used tear gas to force the UOC out
of a church in Ivano-Frankivsk. In Khmelnitsky, a group of local people
voted to transfer the cathedral from the UOC to the OCU. Two days later,
Khmelnitsky regional council prohibited the UOC's operation in the region
(see below).
The conflict also came as a Parliamentary committee backed a
government-sponsored draft law prohibiting the operation of religious
organisations affiliated with "centres of influence of religious
organisations or associations with ruling centres" in Russia. The full
Parliament has not yet considered the draft law (see below).
However, the state should not use its power in order to intervene in
inter-Orthodox competition and conflicts and to compel or force the Lavra
monks to join the OCU under the threat of the expulsion from the monastery,
or in order to replace one Orthodox community with another based on the
government's preferences.
An earlier judgment of the European Court of Human Rights in Strasbourg
states that "the Court does not consider that, in democratic societies, the
State needs to take measures to ensure that religious communities remain or
are brought under a unified leadership" (see below).
The state has a legitimate interest in the protection of national security,
which is especially important in times of war. However, the UN Human Rights
Committee's General Comment 22 on Article 18 ("Freedom of thought,
conscience and religion") of the International Covenant on Civil and
Political Rights notes that national security is not a permissible reason
to limit freedom of religion or belief, and that "this right is
non-derogable even during times of national emergency threatening the life
of the nation" (see below).
Steadily worsening relationship
The Ukrainian state and society's relationship with the Ukrainian Orthodox
Church (UOC), which is historically and ecclesiastically affiliated with
the Moscow Patriarchate, has been steadily worsening since Russia renewed
its invasion of Ukraine in February 2022.
From May 2019, when President Volodymyr Zelensky took office, and during
the first months of Russia's February 2022 full-scale invasion, he did not
develop a religious policy
(https://www.forum18.org/archi
in autumn 2022, apparently under the pressure of claims – some proven in
court – of collaboration by some UOC clerics with the Russian military,
and growing support among the Ukrainian public for punishments against the
UOC.
In October – December 2022, the Security Service of Ukraine (SBU)
searched UOC properties
(https://www.forum18.org/archi
clerics across the country. The SBU reportedly found Russian propaganda
material, evidence of Russian citizenship obtained by several UOC clerics,
as well as Russian army-issued food.
The Office of the United Nations High Commissioner for Human Rights
(OHCHR), in its Report on the human rights situation in Ukraine, 1 August
2022 to 31 January 2023
(https://www.ohchr.org/sites/d
noted SBU searches of OCU institutions and questioning of those present. It
expressed concern "that the State's activities targeting the UOC could be
discriminatory. OHCHR also recalls the need to ensure that all those facing
criminal charges enjoy the full spectrum of applicable fair trial rights."
In response, the Ukrainian Foreign Ministry stressed that "Ukraine remains
a democratic country where religious freedom is guaranteed" and urged the
OHCHR "to avoid unbalanced political speculations and build its reports
upon facts".
Russian-occupied Ukraine
Within Russian-occupied Ukraine, the occupation authorities have committed
severe violations of freedom of religion or belief
(https://www.forum18.org/archi
to January 2023 Russia had destroyed, damaged or looted up to 500 religious
properties (https://irf.in.ua/p/105) belonging to Orthodox, Protestant,
Catholic, Jewish, and Islamic religious communities. The Kyiv-based
Institute of Religious Freedom estimates that around a third of these
belong to the UOC.
Russia in 2023 appears to be following a coordinated approach to impose the
full range of Russian restrictions on the exercise of freedom of religion
or belief (https://www.forum18.org/archi
Russian-occupied areas of Ukraine
(https://www.forum18.org/archi
Ukrainian government draft law
In January 2023, the Ukrainian government submitted a draft law
(https://www.forum18.org/archi
prohibiting the operation of religious organisations affiliated with
"centres of influence of religious organisations or associations with
ruling centres" in Russia, but imposing an obligation on the state to prove
any affiliation in court. The draft law in its present form raises freedom
of religion or belief concerns. If adopted and implemented, it may
significantly change the UOC.
In February 2023, the parliamentary Committee on Humanitarian and
Information Policy, responsible for the draft law, recommended it to be
approved (https://itd.rada.gov.ua/billI
first reading. Fedir Venyslavskyi, a member of the Servant of the People
parliamentary faction, foresaw the adoption of the draft law
(https://www.5.ua/kultura/mosk
"by the end of winter". However, Parliament has not yet considered the
draft law.
Forcible takeover of UOC church in Ivano-Frankivsk, conflict in Khmelnitsky
On 28 March, a group of clergy and others from the UOC's main rival in
inter-Orthodox competition – the Orthodox Church of Ukraine (OCU) - and
supported by the local authorities forcibly expelled UOC clergy
(https://www.kyivpost.com/post
Christ in Ivano-Frankivsk. (The OCU was established with strong support
(https://talkabout.iclrs.org/2
from President Petro Poroshenko, who ruled from 2014 to 2019.)
The UOC stated that young men in balaclavas gassed priests and believers,
and the Kyiv Post reported that "with the tear gas cleared, [OCU] priests
were able to hold a service for peace in Ukraine". Ivano-Frankivsk Mayor
Ruslan Martsinkiv was reported as saying that "This was the last church in
Ivano-Frankivsk that belonged to the UOC," adding that "from now on, this
temple is officially the property of the OCU".
A group of OCU and UOC priests and believers condemned the forcible seizure
of the church
(https://www.facebook.com/grou
inappropriate way of resolving intra-confessional conflicts.
On 2 April, media reported
(https://24tv.ua/pobittya-viys
that an UOC priest in concert with church members beat a Ukrainian soldier
who entered the UOC Cathedral in Khmelnitsky
(https://24tv.ua/pobittya-viys
and started asking: "How many Ukrainians must die for you to stop attending
Moscow Patriarchate churches?"
Later, a group of local people gathered near the cathedral voted to
transfer it to the OCU. Two days later, Khmelnitsky regional council
prohibited the UOC's operation
(https://fakty.com.ua/ua/ukrai
in the region. UOC speakers called the incident
(https://fakty.com.ua/ua/ukrai
"a provocation".
On 4 April, Lviv's mayor, Andriy Sadovyi, announced that UOC "illegal"
constructions will be demolished
(https://zaxid.net/mer_lvova_p
while other properties will be turned into public assets with an exception
for the property of UOC communities which join the OCU.
What the Ukrainian Government did in relation to the Kyiv Pechersk Lavra
Since December 2022, when President Zelensky announced a goal "to protect
Ukraine's spiritual independence", the government has refused to renew the
rental agreement with the UOC for two churches located on the territory of
the Kyiv Pechersk Lavra (Monastery of the Caves). This is an 11th century
state-owned Christian Orthodox Monastery complex recognised as a UNESCO
World Heritage Site. In March 2023 the government decided to expel all UOC
institutions from the Lavra.
The Lavra has been the location since the 1990s of Kyiv Theological Academy
and Seminary, a UOC male monastery, and the UOC central eparchy and
administrative departments. In 2013, the Government made a decision to rent
the UOC a set of Lavra properties for an indefinite time period, and made a
rental agreement stating this. On 10 March 2023, the government notified
the UOC that the rental agreement was to be terminated with effect from 29
March.
The government said it was terminating the rental agreement due to the
UOC's illegal construction of 36 buildings
(https://zn.ua/ukr/anticorrupt
on the Lavra, including administrative buildings, storage spaces, and
monuments.
On 11 March, the Culture and Information Policy Minister, Oleksandr
Tkachenko, emphasised that the government would not use force
(https://risu.ua/tkachenko-naz
to expel the monks. However, he implied that if they want to stay, they
must join the UOC's main rival, the Orthodox Church of Ukraine
(https://www.forum18.org/archi
terms," Tkachenko said.
On 30 March, Tkachenko announced on Facebook that the Ukrainian government
had cancelled its 2013 decision renting Lavra properties to the UOC.
The Rule of Law and the Lavra case
One rule of law requirement is legal certainty. In its 2011 study on the
concept of the rule of law (CDL-AD(2011)003rev
(https://rm.coe.int/1680700a61
points out that "legal certainty requires that legal rules are clear and
precise, and aim at ensuring that situations and legal relationships remain
foreseeable". The application of legal rules must also be fair,
predictable, and non-discriminatory.
The government insists that the UOC violated construction rules, thus
violating the rental agreement. However, at least some of these allegedly
illegal buildings and other structures were built before the rental
agreement was made in 2013. One example is the Cyril and Methodius monument
erected in 2008. None of these pre-2013 structures stopped the government
making a rental agreement with the UOC, and if the government now in 2023
thinks the agreement is wrongful or illegitimate, the reasons for this
change of mind must be openly explained.
UOC reaction
The UOC brought a case to Kyiv Economic Court demanding that the court find
the government's decision invalid. The court hearing is due to start on 24
April 2023. The UOC also asked the Court to suspend the government decision
until the court resolves the dispute, but the Court refused this
(https://reyestr.court.gov.ua/
Many of the UOC institutions left the Lavra by the government's deadline of
29 March. One that did not was the male monastery. The Lavra's abbot,
Metropolitan Pavlo (Lebid), stated that the monks would not leave the Lavra
(https://spzh.news/ua/news/727
until the court's final decision. Metropolitan Pavlo also stated that the
monastery had asked the government for permission to stay at the Lavra at
least until Easter (16 April), but he said the government had not replied
to this request.
UOC head Metropolitan Onufry (Berezovskyy) and the UOC Holy Synod tried to
arrange a meeting with President Zelensky, but he refused to meet them.
Metropolitan Pavlo reacted to this refusal by describing
(https://glavcom.ua/country/so
Culture and Information Policy Minister Tkachenko as "possessed with evil
and outrage", and claimed that President Zelensky and his family "won't be
forgiven by God".
Since 30 March, a government commission has been trying to regain control
of UOC-occupied buildings on the Lavra, but has not been able to gain
access to some buildings
(https://suspilne.media/429969
as UOC monks and others stopped the commission from entering them. The
Culture and Information Policy Ministry then complained to the police.
Since the government announced on 10 March that it was ending the UOC's
rental agreement for Lavra buildings on 29 March, UOC priests and others
have been holding open-air prayer meetings and protests against the
decision. On 2 April, three days after the rental agreement ended, UOC
Metropolitan Onufry conducted a service in one of the Lavra's churches.
Charges against Lavra abbot Pavlo
On 1 April, the SBU searched Metropolitan Pavlo's residences, as he is
suspected of "violation of citizens' equality based on their race,
nationality or religious preferences" (Criminal Code Article 161) and
"justification, or denial of the Russian Federation's military aggression
against Ukraine, or glorification of its participants" (Article 436-2). He
had earlier, on 24 January, been subjected to a range of financial
sanctions (https://www.president.gov.ua/
penalties, including bans on travel.
The SBU referred to an "expert examination" of Metropolitan Pavlo's
speeches which, the SBU insists, proves that he "frequently diminished the
religious feelings of Ukrainians, offended the convictions of followers of
other religions and attempted to provoke enmity against them, and justified
or denied" Russian aggression.
On 1 April, the SBU also published a compilation of Metropolitan Pavlo's
tapped phone calls
(https://ssu.gov.ua/novyny/sbu
where he claimed that "[local] people are happy" with Russia's occupation
of Kherson, and claimed Russia's renewed invasion of Ukraine was a "war
between America and Russia until the last Ukrainian dies". Metropolitan
Pavlo also repeated Russian propaganda disinformation about alleged (and
non-existent) "US biolabs" in Ukraine
(https://euvsdisinfo.eu/weapon
invasion.
The SBU also refers to one of Metropolitan Pavlo's public speeches where he
called the rival OCU "the so-called 'church' that is ruining spirituality
and the sacredness of life" and condemned Ecumenical Patriarch Bartholomew
who "behaved outrageously in many countries of the world". The SBU also
published images of Metropolitan Pavlo's residence to illustrate a claimed
luxurious lifestyle with a doorknob engraved with the Russian Empire's
national emblem.
If the published SBU material is all that the government can produce in
court, it is unclear what legal charges prosecutors can credibly bring
against Metropolitan Pavlo.
On 1 April, Kyiv's Shevchenko District Court placed Metropolitan Pavlo
under house arrest for 60 days. He is under arrest in his house in the
village of Voronkiv, located in Borispil District about 50 kilometres (30
miles) from the Lavra.
Religious hatred
Religious hatred is clearly a serious threat to freedom of religion or
belief and other human rights. The state must protect individuals,
especially those belonging to minorities and vulnerable groups, from being
targeted or attacked based on their religion or beliefs. However, the state
still has the obligation to prove that Metropolitan Pavlo's statements are
an incitement to religious hatred.
The UN OHCHR's Rabat Plan of Action
(https://www.ohchr.org/sites/d
proposes a six-part threshold test for expressions considered as criminal
offences: (a) context; (b) speaker; (c) intent; (d) content and form; (e)
extent of the speech act; (f) likelihood (probability that the speech would
succeed in inciting actual action against the target group).
Metropolitan Pavlo has made a very critical and rude assessment of the OCU,
including the claim that the UOC is superior as a "more spiritual" church.
However, it is crucial to demonstrate in law that his speeches cross the
Rabat Plan of Action's threshold test and had a legally-provable harmful
impact on concrete actions. It would also be important for the state to
legally demonstrate that his claims are significantly worse in their impact
than other statements made by representatives from both the UOC and the
OCU, as persons from both churches have periodically made aggressive and
even insulting claims of one church's superiority over the other.
The OCU and the Lavra
Since its establishment in 2018, the OCU under Metropolitan Epifany
(Dumenko) has declared that it wants to be present in and perform services
at the Kyiv Pechersk Lavra. Between December 2022 and January 2023, the OCU
obtained from the government the right to conduct services at the Lavra's
Assumption Cathedral, and registered its own monastery at the Lavra. The
OCU also asked the government to transfer some Lavra buildings to the OCU
for these purposes.
OCU head Metropolitan Epifany stated during a TV interview on 16 January
(https://www.ukrinform.ua/rubr
that the OCU will eventually gain the exclusive use of the Lavra.
After the government announced on 10 March that it was ending the Lavra
rental contract with the UOC on 29 March, Metropolitan Epifany encouraged
UOC monks to join the OCU
(https://www.unian.ua/society/
in order to stay at the monastery.
On 29 March, the OCU announced that it had appointed
(https://www.pomisna.info/uk/v
Archpriest Avraamiy (Lotysh) as the acting abbot of all of the Lavra, not
just for the new OCU Lavra monastery. Avraamiy is a former UOC Lavra monk
who joined the OCU, and has called on other UOC monks to follow suit. In a
video statement, Avraamiy called Metropolitan Pavlo "the former abbot" and
insisted that Pavlo's curses on President Zelensky will "return to the
former abbot himself".
In its published 1 April compilation of Metropolitan Pavlo's speeches, the
SBU also identifies Pavlo
(https://ssu.gov.ua/novyny/sbu
as "the former abbot". This might be a public signal that the government
intends to transfer all of the Lavra to the OCU.
The advisor to the head of President Zelensky's office, Mykhaylo Podolyak,
stated in a 30 March interview for the 24 Channel
(https://www.youtube.com/watch
will definitely not use the Lavra premises, and that the government "must
finalise the work on the establishment of the local Orthodox Church". "In
Ukraine, there will be only the Orthodox Church of Ukraine [OCU]," Podolyak
added.
In the light of the serious rule of law questions about whether the 2013
rental agreement with the UOC was - as the government now claims -
illegitimate, Presidential adviser Podolyak's comments, and Culture and
Information Policy Minister Tkachenko's comment that UOC monks should join
the OCU (see above), indicate that the illegal construction argument could
well be a pretext to expel UOC institutions from the Lavra and force the
monks to either leave or join the OCU.
Freedom of religion or belief and the Lavra case
The Kyiv Pechersk Lavra is an important historical site, a crucial part of
Ukraine's spiritual heritage. The importance of the Lavra and its ownership
by the state presupposes that the Ukrainian state enjoys broad powers to
preserve the site. For example, the state might have a legitimate interest
in providing the different Ukrainian Orthodox churches with access to the
Lavra, to protect freedom of religion or belief for all.
However, the state should not use its power in order to intervene in
inter-Orthodox competition and conflicts and to compel or force the Lavra
monks to join the OCU under the threat of the expulsion from the monastery,
or in order to replace one Orthodox community with another based on the
government's preferences.
The Serif v. Greece judgment of the European Court of Human Rights (ECtHR)
in Strasbourg (Application no. 38178/97
(https://hudoc.echr.coe.int/en
not consider that, in democratic societies, the State needs to take
measures to ensure that religious communities remain or are brought under a
unified leadership".
The state also has a legitimate interest in the protection of national
security, which is especially important in times of war. However, the UN
Human Rights Committee's General Comment 22
(https://undocs.org/CCPR/C/21/
thought, conscience and religion") of the International Covenant on Civil
and Political Rights (ICCPR) notes that national security is not a
permissible reason to limit freedom of religion or belief, and that "this
right is non-derogable even during times of national emergency threatening
the life of the nation".
Freedom of religion or belief cannot be used as an excuse for illegal
activities, such as collaborating with the Russian army and secret
services. The state can take legally permissible action
(https://www.forum18.org/archi
security, and Ukraine's existing criminal and other public law already
allows the prosecution of any individual and entity involved in such
illegal activities.
However, the state's response must focus on concrete individuals and
communities involved in illegal activities. As the Organisation for
Security and Co-operation in Europe (OSCE)'s Freedom of Religion or Belief
and Security: Policy Guidance
(https://www.osce.org/files/f/
wrongdoings on the part of individuals should, therefore, be addressed
through criminal, administrative or civil proceedings against that person,
rather than directed at the religious or belief community as a whole."
The OSCE Policy Guidance also recommend that, to ensure security, "Where
individual believers or groups of believers are involved in criminal or
illegal activities, participating States should not attribute blame to the
community as a whole and should sanction only the individuals concerned."
It is not obvious that expelling Lavra monks who do not want to join the
OCU, and others from the UOC such as students of the Theological Academy,
will strengthen Ukraine's national security. Ejecting them from the Lavra
can disproportionately limit their human rights, which as the ICCPR
(https://www.ohchr.org/en/inst
notes are "the foundation of freedom, justice and peace in the world", and
so undermine Ukraine's security as a democratic state resting on the rule
of law.
A perfect storm
The Lavra episode is a new wave of the ongoing perfect storm the UOC has
found itself in in recent months. The church has done too little in the
view of most of Ukrainian society to separate itself from the Russian
Orthodox Church and its leaders
(https://www.forum18.org/archi
enthusiastically bless Russia's war on Ukraine
(https://www.forum18.org/archi
So too did most UOC leaders, who have failed to clearly and loudly condemn
the cases of UOC clerics being involved in spying for Russia
(https://risu.ua/en/clergymen-
justifying Russian aggression
(https://www.pravda.com.ua/new
the incitement of religious hatred and collaboration with Russian forces
(https://suspilne.media/286994
in the occupied territories.
This has led to not only harsh public criticism of the church from
politicians, civil society, media, and academia, but has also led to
government responses such as the proposed draft law
(https://www.forum18.org/archi
the termination of the Lavra rental agreement.
On 29 March, President Zelensky stated in an address to the nation
(https://www.president.gov.ua/
that "Ukraine is the territory of the greatest religious freedom in our
part of Europe. This has been the case since 1991. It will always be so."
The preservation of this accomplishment, however, requires state policies
to be based on international human rights law, rather than on the consensus
rejecting the UOC that much of Ukrainian society seems to have reached.
- Dmytro Vovk (https://twitter.com/VovkDmytr
the Benjamin N. Cardozo School of Law. He also runs the Center for the Rule
of Law and Religion Studies at Yaroslav Mudryi National Law University in
Ukraine and teaches law at Ukrainian Catholic University. He is grateful to
Elizabeth A. Clark (https://twitter.com/ProfEACla
of the International Center for Law and Religion Studies, for her help with
this article.
(END)
Full reports on freedom of thought, conscience and belief in
Russian-occupied Ukraine
(https://www.forum18.org/archi
Reports on freedom of thought, conscience and belief in all Ukraine
(https://www.forum18.org/archi
Forum 18's compilation of Organisation for Security and Co-operation in
Europe (OSCE) freedom of religion or belief commitments
(https://www.forum18.org/archi
Follow us on Twitter @Forum_18 (https://twitter.com/forum_18)
Follow us on Facebook @Forum18NewsService
(https://www.facebook.com/Foru
Follow us on Telegram @Forum18NewsService
(https://t.me/s/forum18newsser
All Forum 18 text may be referred to, quoted from, or republished in full,
if Forum 18 is credited as the source.
All photographs that are not Forum 18's copyright are attributed to the
copyright owner. If you reuse any photographs from Forum 18's website, you
must seek permission for any reuse from the copyright owner or abide by the
copyright terms the copyright owner has chosen.
© Forum 18 News Service. All rights reserved. ISSN 1504-2855.