A few reflections on the “religious” paragraph of the “Agreement of formation of democratic forces in the Parliament of Ukraine of the 6th convocation”

Hennadii DRUZENKO, member of the Scholarly-Expert Council attached to the Parliamentary Committee on Matters of European Integration, member of the working group to prepare the new wording of the law of Ukraine "On freedom of worship and religious organizations"

RISU’s Ukrainian-language site posted this text on 29 October 2007.

There probably remain not many people in Ukraine who attentively read program documents of political forces, and even less people who trust them. Nevertheless, one can see in the semi-officially published “Agreement of formation of the coalition of democratic forces in the Parliament of Ukraine of the 6th convocation” item 1.4, grandiosely titled “Cultural development of society.” One paragraph in that item deals with church-state relations. Not to mention the fact that it literally repeats an analogical passage written more than a year ago in “Agreement of formation of the coalition of democratic forces in the Parliament of Ukraine of the 5th convocation.” We will return to that fact later. Well, according to that paragraph, the goal of the potential coalition (if it is to be formed this time) in the realm of freedom of religious expression will be “development of partner relations between the state and religious organizations.” Let us briefly analyze the three priorities of the “development” defined in the agreement.

1. The first, “to introduce effective legal mechanisms to regulate socio-religious and church-state- relations,” appears openly unnecessary if not harmful. First, “effective legal mechanisms” are, in any way, legislative acts, specified in more detail in the next two priorities. Secondly, the fewer such acts there are, the better for the church/ religious organizations. For in the light of the fundamental principles of human rights, the state should not so much “regulate state-religious and socio-religious relations” as guarantee the freedom of religious expression and ensure simple, unambiguous and available mechanisms for its realization.

2. The second priority, namely, to develop and approve the new wording of the law of Ukraine “On freedom of worship and religious organizations” provokes no objections or doubts as to its urgency as such. We were reminded of the need for serious change of the obsolete profile law in the area of freedom of religious expression in 2005 by the Council of Europe. Recently, in July of this year, the European Court on Human Rights (ECHR) directly explained in the matter “St. Michael’s parish versus Ukraine” (won by Ukraine) that the Ukrainian law on freedom of religious expression lacks ”consistency and predictability” (p. 152) and that that legislative shortcoming became an open obstacle in the way to passing lawful decisions by Ukrainian courts. In particular, the ECHR specifically stressed the incompliance of articles 7 and 8 of the Ukrainian law with the requirements of “The European Convention on protection of human rights and basic freedoms.” Therefore, as I said, there is no doubt as to the urgency of the second “religious” priority of the potential coalition.

One should note here that that objective was specified word for word in the agreement of the formation of the coalition of democratic forces of 2006. It was written simultaneously with its implementation, because, at that time, a specially-established team worked to prepare the respective bill on the instruction of the president and under the patronage of the Ministry of Justice headed by then-Orange S. Holovatyi. Moreover, at the time of publication of the 2006 agreement, the bill was actually finished , and soon after, the minister of justice sent it to the Venice Commission for expert examination. The document received quite an approving response in Venice, and the work team managed to take into account fair remarks sent by the most authoritative European forum of authorities in the area of constitutional law. However, after the protest of Patriarch Filaret [Denysenko, head of the Ukrainian Orthodox Church-Kyivan Patriarchate (UOC-KP)] (who is convinced that granting churches as associations of religious organizations the status of a legal person will result in the seizing by court action of the real estate of the Kyivan Patriarchate on a massive scale, even though neither the head of the UOC KP nor other spokesmen of that denomination have produced any rational and convincing arguments in favor of that “thesis”), the bill has rested on a shelf on Bankova Street.

Neither [Speaker of Parliament Volodymyr] Moroz nor [Prime Minister Viktor] Yanukovych nor the Anti-Crisis Coalition as a whole hindered the head of the state from showing himself to be a consistent pro-European politician and bringing, within his capacities, to a logical end the process, initiated by his decree of 20 January 2006, by introducing a draft new wording of the law of Ukraine “On freedom of worship and religious organizations” in Parliament. But Bankova Street decided to act differently.

Therefore, the well-grounded question arises as to how the potential coalition members are going to fulfill their public promise. How to prepare a new project which will satisfy the Kyivan Patriarchate? But will the other churches be happy about such satisfaction for one denomination? For among religious organizations, there is also no agreement on a number of key questions, particularly as to whether the churches as associations of religious organizations should be granted the status of a legal person. And how compatible will the satisfaction of the requirements of Pushkin Street [the UOC-KP has an office on Pushkin Street – RISU editor] be with satisfaction of the requirements of Strasbourg [where the Council of Europe is located]. Or, maybe, the potential coalition is going to remind the president that his constitutional duty is to be the guarantor of “the rights and freedoms of the person and citizen” and not an “external bishop of the church” or patron of individual denominations and to bring in an already-prepared bill for the consideration of Parliament on behalf of the government and, in the event of the reluctance of the guarantor to reach agreement at the stage of the promulgation of the law, to overcome his veto by means of a situational alliance with the [Party of] Regions (especially as Yulia Volodymyrivna [Tymoshenko] has such experience.) In other words, the questions are many and there are no answers. Of course, if we take the promises of the politicians seriously…

3. And, finally, the third priority: “to improve the regulations on restitution of church property to religious organizations.” One should note that there are no such regulations in Ukraine now. At least because no legislative act defines what “church property” is. And how it differs (if at all) from “religious” property. Someone can fairly object and say that the restitution of church property to religious organizations is currently going on, even though it is not a smooth process. This is true. But this is going on not thanks to the law, but in spite of the law! For all “restitutional” decrees of the president and government regulations on the basis of which property is returned to churches are openly illegitimate: they are all passed with open abuse of authority, because the legal order of ownership is established exclusively by the laws of Ukraine according to article 92 of the Constitution of Ukraine. And there is still no law in this area in Ukraine, for one cannot consider “restitutional” article 17 of the effective law “On freedom of worship,” which leaves to the municipal authority full discretion to return or not to return something. and if so, to ownership or free use, and, most importantly, to whom exactly to return “religious” property. One cannot call this article the “regulations on restitution of church property” to religious organizations.

So, as we can see, the potential coalition members have quite ambitious plans in the area of church-state relations. However, it is still not clear whether the leaders of BYT [the Yulia Tymoshenko Bloc] and OUSD [Our Ukraine Self-Defense] soberly realize the problems and challenges regarding the fulfillment of the declared obligations. But one should at least wait for the “coalition of democratic forces” to become a political and legal reality before starting to look for the answer to that question…