Source: www.forum18.org
Date: February 2, 2023
The Ukrainian government has produced a draft law 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
Ukrainian Orthodox Church, which is historically and ecclesiastically
linked to the Moscow Patriarchate.
UKRAINE: Draft law better than others, freedom of religion or belief
concerns remain
https://www.forum18.org/archiv
By Dmytro Vovk, @VovkDmytro
The Russia-Ukraine war, starting with the annexation in 2014 of Crimea and
the military conflict in Eastern Ukraine, and continuing with Russia's
February 2022 full-scale invasion, has had a tremendous impact on freedom
of religion or belief and other related human rights in the region.
Murders, tortures, forced detention, and forced displacement of religious
leaders and believers of many faiths, serious freedom of religion or belief
and other human rights violations inspired and directed by Russian proxies,
as well as expropriations of religious properties have become the reality
in Ukrainian territories occupied by Russia since 2014.
Since Russia's renewed February 2022 full-scale invasion of Ukraine, Russia
has up to January 2023 also destroyed or damaged up to 400 religious
properties (https://blog.liga.net/user/rk
to Orthodox, Protestant, Catholic, Jewish, and Islamic religious
communities. Around half of these have been estimated by Ruslan Khalikov of
the Religion on Fire Project to belong to the Ukrainian Orthodox Church
(UOC), which is historically and ecclesiastically linked to the Moscow
Patriarchate.
Freedom of religion or belief violations in the Ukrainian territories
Russia has occupied since 2014 have not followed one pattern. In occupied
Crimea the Russian government has forcibly imposed Russian laws and
restrictions (https://www.forum18.org/archi
exercising human rights, including freedom of religion or belief. In
occupied eastern Ukraine serious violations of freedom of religion and
belief (https://www.forum18.org/archi
place, which have included violence by Russian military and paramilitary
groups (https://irf.in.ua/p/28).
Russia in 2023 is now following a more 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
The Ukrainian Orthodox Church and the Ukrainian government
On the territories under the Ukrainian government's control, Russia's 2014
attack on Ukraine significantly changed the government's relationship with
the Ukrainian Orthodox Church (UOC). Under President Petro Poroshenko (who
ruled from 2014 to 2019), the Ukrainian government made a crucial
contribution to the establishment
(https://talkabout.iclrs.org/2
of the UOC's main rival in inter-Orthodox competition – the Orthodox
Church of Ukraine (OCU). This included government diplomatic support for
the OCU's ecclesiastical recognition by the Ecumenical Patriarchate in
2019.
Later in 2019, the Ukrainian parliament adopted two laws primarily
affecting the UOC. The first law sets up a decision-making process for
religious communities aiming to change their religious jurisdiction. The
law requires that the decision of transition to a different jurisdiction
shall be made solely by members of the religious organisation. This aims to
prevent a practice common for both the UOC and the OCU when any changes to
Orthodox parishes' charters must be approved by the respective ruling
bishops.
Despite the fact that this law is formally generally applicable, the first
law's authors and supporters did not conceal the fact that they passed the
law to support the OCU
(https://risu.ua/rpc-v-ukrajin
and that the law's prime goal is to simplify and encourage the transition
of UOC communities to the OCU.
The second law forces religious organisations and associations with "ruling
centres" in Russia to change their names in order to explicitly identify
their links with Moscow. The law also prohibits these organisations from
sending their chaplains to the Ukrainian Army. The second law was brought
before the Ukrainian Constitutional Court, and in December 2022 the court
declared the law constitutional, which allowed the forced renaming of
religious communities.
Shift in Zelensky's attitude towards religious policy and the UOC
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://talkabout.iclrs.org/2
In April 2022, members of Zelensky's parliamentary party insisted that
Parliament would not consider a proposed ban on the UOC
(https://www.ukrinform.ua/rubr
until the war was over, in order not to provoke divisions within Ukrainian
society.
Zelensky's attitude changed 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 sanctions against the UOC.
In October – December 2022, the Security Service of Ukraine (SBU)
searched UOC properties and the homes of UOC clerics
(https://www.reuters.com/world
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.
In December 2022, based on a decision of the National Security and Defence
Council, President Zelensky asked the Cabinet of Ministers to draft a law
banning religious organisations affiliated with Moscow. At the same time he
emphasised that this law must comply with international standards of
freedom of religion or belief (FoRB) and Ukraine's obligations to the
Council of Europe.
In his decree, the President also requires the State Service for Ethnic
Policies and Freedom of Conscience (SEPFP) to conduct a "religious expert
examination" of the UOC Charter's ecclesiastical links with the Moscow
Patriarchate.
The Cabinet of Ministers also dismissed SEPFP head Olena Bogdan (regarded
as being basically neutral about religious policy). It replaced her with
Viktor Yelensky, who was a long-term public critic of the UOC
(https://www.bbc.com/ukrainian
appointment.
The Government's draft law
The Cabinet of Ministers submitted its draft law to Parliament
(https://itd.rada.gov.ua/billI
According to the head of the Parliamentary Committee on Humanitarian and
Information Policy, Mykyta Poturayev, the law is expected to be adopted in
March
(https://ukranews.com/ua/news/
Draft laws targeting the UOC were submitted by opposition parliamentary
deputies in March and November 2022. The March draft law imposed an
automatic legislative ban on religious organisations affiliated with
Russia. The November draft went even further and proposed, in addition to a
full ban, a ban on any organisations except the Orthodox Church of Ukraine
(OCU) and organisations approved by the OCU from using the word "Orthodox"
in their title.
The government's draft law takes a different approach. It prohibits the
operation of religious organisations (associations) affiliated with
"centres of influence of religious organisations or associations with
ruling centres" in Russia, but imposes on the state the obligation to prove
any such affiliation in court. In such cases the SEPFP is required to
conduct a religious expert examination identifying the affiliation with
Moscow. Either the SEPFP or a prosecutor must bring a case to a court,
which would have the power to make a final decision on whether to ban a
religious organisation.
Freedom of religion or belief concerns
While being more moderate than the two earlier draft laws submitted by
opposition parliamentary deputies, the government's draft law still raises
at least three concerns from the FoRB perspective.
- What is "affiliation with centres of influence"?
First, the concept of "affiliation with centres of influence" in Russia is
quite vague.
If it could be legally proven that the Russian Orthodox Church (ROC) or the
Russian government had used the ROC to guide or compel UOC parishes, clergy
or believers to conduct illegal activities - for example to collaborate
with the Russian army and secret services - this can already lead to the
state taking legally permissible action to defend national security. This
requires no special legislation such as the government's draft law. The
existing criminal and other public law already allows the prosecution of
any individual and entity involved in such 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."
If affiliation means historical, symbolic or ecclesiastical links of a
religious community to Russia without any illegal activities conducted by
communities, clerics or believers, the affiliation can be publicly
criticised. But such an affiliation is not in international law a
sufficient reason to impose legal bans on these communities.
- Banning or deregistering
This leads us to the second concern. As the OSCE / Council of Europe Venice
Commission Guidelines on the Legal Personality of Religious or Belief
Communities (https://www.osce.org/files/f/
international standards and good practice demand that: "Considering the
wide-ranging and significant consequences that withdrawing the legal
personality status of a religious or belief organisation will have on its
status, funding and activities, any decision to do so should be a matter of
last resort."
Similarly, "denial of legal personality or de-registration of a religious
or belief community should not be based on alleged threats to security, but
be clearly based on evidence of illegal acts by the religious or belief
community in question," as the OSCE's Freedom of Religion or Belief and
Security: Policy Guidance
(https://www.osce.org/files/f/
this "can only be contemplated in cases of
grave and repeated violations of endangering public order and if lighter
sanctions, such as a warning, a fine or withdrawal of tax benefits, cannot
be applied effectively".
So stripping a religious community of legal status can happen only when
less restrictive measures cannot adequately address security concerns. This
could mean that deregistration of a religious community can only legally
happen when the entire leadership or the majority of members – not just
individual leaders or members - are directly involved in illegal
activities. "The fact that some individuals engage in such [illegal] acts
is not an indication that an entire religious or belief community shares
these views or condones these activities," as the OSCE Freedom of Religion
or Belief and Security: Policy Guidance
(https://www.osce.org/files/f/
The ROC and its leadership has actively supported Vladimir Putin's
aggression against Ukraine
(https://www.forum18.org/archi
government has pressured other Russian religious leaders to support Putin's
aggression (https://www.forum18.org/archi
Ukraine. Ukraine's SBU has reported many cases of UOC clerics justifying
Russian aggression against Ukraine
(https://www.pravda.com.ua/new
religious hatred, and collaboration with Russian occupation forces
(https://suspilne.media/286994
In December 2022, UOC priest Fr Andriy Pavlenko (who had been convicted by
a Ukrainian court of spying for Russia) was exchanged with Russia
(https://risu.ua/en/clergymen-
in a prisoner exchange.
However, the UOC officially consists of about 11,000 communities, and they
are all separate legal entities connected with each other ecclesiastically
but often not legally. To ban or deregister the UOC, the state would have
to prove in court that the leadership or the majority of parishioners of
each of the 11,000 parishes are involved in illegal activities.
- "Expert examination"
Finally, the concept of a religious "expert examination" is also vague and
legally questionable. Across the post-Soviet region, including in Belarus
(https://www.forum18.org/archi
(https://www.forum18.org/archi
states such as Kazakhstan
(https://www.forum18.org/archi
are often used to justify freedom of religion or belief and other human
rights violations, including jailing prisoners of conscience.
The examination President Zelensky's December 2022 decree requires the
SEPFP to undertake is potentially problematic in international law, for as
the OSCE / Council of Europe Venice Commission Guidelines on the Legal
Personality of Religious or Belief Communities
(https://www.osce.org/files/f/
should refrain from a substantive as opposed to a formal review of the
statute and character of a religious organisation".
The SEPFP's examination of links between the UOC and the ROC started
quickly. The UOC has challenged the impartiality of several engaged experts
(https://news.church.ua/2023/0
claiming that they belong to the OCU and are biased towards the UOC.
On 1 February 2023, the SEPFP published the opinion of its group of experts
(https://dess.gov.ua/vysnovok-
about the UOC's affiliation with the ROC. The experts point out that the
Moscow Patriarchate does not recognise the UOC as fully independent, and
that there is no evidence that UOC leader Metropolitan Onufry (Berezovskyy)
has left the ROC's Synod. In addition, they emphasise that no other
Orthodox churches recognise the UOC as an independent (autocephalous)
church, and that the UOC has not sought this. The experts conclude that the
UOC remains a part of the ROC.
How is the government going to identify the "affiliation"?
The government's draft law contains no definition of "affiliation with
centres of influence". However, the 1991 Ukrainian Law on Freedom of
Conscience and Religious Organisations already defines "affiliation with
ruling centres" in Russia for the purposes of regulating the name of
religious organisations.
Article 12 of the Law stipulates that religious organisations
(associations) affiliated with a ruling centre in Russia must identify this
affiliation in their charter. In order to be recognised as affiliated with
the Russian ruling centre, the Ukrainian religious organisation
(association) must meet one of the following three criteria:
1. Its charter contains a provision regarding its incorporation in the
religious organisation (association) with the ruling centre in Russia; or
2. The charter of the Russian organisation (association) contains a
provision recognising the Ukrainian organisation (association) as a part of
its structure, and the right of the Russian organisation (association) to
adopt binding decisions regarding the Ukrainian organisation (association);
or
3. The charter of the Ukrainian organisation (association) contains
provisions regarding the mandatory participation of its leaders or
representatives in ruling bodies of a Russian organisation (association)
with the right of vote.
In May 2022, the UOC tried to address this issue. It declared its full
independence from the ROC, and moved to eliminate from its charter all
provisions regarding its subordination to the ROC and its Patriarch, as
well as participation of UOC representatives in ROC ruling bodies
(https://spzh.news/ru/news/704
Yet the UOC's status in relation to the ROC remains ambiguous
(https://carnegieendowment.org
The UOC also meets the second Ukrainian legal criterion for affiliation, as
the ROC Charter (https://www.patriarchia.ru/db
identifies the UOC as part of the Moscow Patriarchate. This effectively
prevents the UOC from becoming "unaffiliated" in the eyes of the Ukrainian
state and in terms of Ukrainian law.
In order to become "unaffiliated", the UOC must persuade the Moscow
Patriarchate to change the ROC charter to remove all UOC-related
provisions. This is highly unlikely and up to now the UOC has done little
to start this process. It is more likely that the ROC will keep insisting
that the UOC is a part of the Moscow Patriarchate.
Indeed, in January 2023 at a United Nations Security Council meeting, a
high-ranking ROC cleric along with the Russian government representative
attacked (https://press.un.org/en/2023/
Patriarchate representative described as "prohibiting the activities of
churches with ties to the Russian Orthodox Church" and "mass political
repression" of Orthodox believers. The UOC publicly disassociated itself
(https://news.church.ua/2023/0
from these claims.
What's next?
It is likely, given President Zelensky's recent actions and statements,
that the draft law banning religious organisations affiliated with centres
of influence with Russia will be adopted.
It is not known that the Ukrainian government has requested assistance from
international human rights or rule of law organisations such as the OSCE
Office of Democratic Institutions and Human Rights
(https://www.osce.org/odihr/fr
the Council of Europe's Venice Commission
(https://www.venice.coe.int/We
involvement might, even at this stage, help the government to address the
human rights concerns raised by the draft law.
As the SEPFP religious expert opinion concludes that the UOC is affiliated
with Moscow, if the draft law is adopted with its present text, the
government will gain the power to ban the Church. It remains unclear how
the government might exercise this power.
As each of the UOC's parishes is a separate legal entity, legal and
organisational obstacles would probably prevent all of the parishes being
deregistered. It still though remains possible that some UOC parishes and
other entities might be deregistered.
The draft law would also affect several small Orthodox religious
communities with ecclesiastical ties with Russia, including communities
affiliated with the Russian Orthodox Church Outside Russia. Some of these
communities – such as the Bila Krynytsya Old Believers
(https://suspilne.media/346580
– have cut their ties with Moscow, while others at present preserve such
ties.
Whatever happens, the adoption and implementation of the draft law in its
present form would significantly change the UOC, and also possibly affect
the entire state of religious community - state relations in Ukraine.
- 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)
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