The analysis of the Law of Ukraine „ introducing changes into the Law of Ukraine „ the freedom of consciousness and religious organizations““
All in all, we appreciate very much the work carried out for the development of the new version of the Law of Ukraine „ the freedom of consciousness and religious organizations“ Basing on the quite liberal ideas, the authors of the draft (the majority of the propositions were presented by the All-Ukrainian council of churches and by other religious organizations) attended much to its concordance with world and European standards.
This Law stipulates the main principles of realizing the personal rights connected with religious convictions. Although Ukraine is not a country, where religion has the great influence on the social life, it is obvious that this influence becomes more and more perceptible, and the consequences of the state interference in this sphere concerns more and more people. On the other hand, the right of people to practice their religion freely is not a present from the state. This is one of human rights, and the existence of this right does not depend on some formal demands.
The presented analysis of the draft is grounded, first of all, on the standards of the Council of Europe, which are mainly stipulated by the European Convention on the protection of human rights and fundamental freedoms of 1950 (the Convention, in what follows). We also took into account the numerous recommendations of the OSCE and the UNO committee of human rights. Besides, we tried to analyze the practices of application of the operating laws basing on the reports of independent organizations and on our own experience.
One should distinguish two aspects of guaranteeing the personal rights connected with religious convictions: the right to believe and the right to practice the religion. The first right is absolute and must be protected without any exceptions. As to the second right, there must be some restrictions. The fundamental element of this right is the access of people to organizational forms of the first level, with the assistance of which the people can practice the religion. Thus, the question of creating the religious organizations of the first level is the most important and must be considered from the standpoint of Article 11 of the Convention (freedom of unions and organizations), which protects the existence of public organizations from the unjustified interference of the state[The case considered by the European court of human rights: Hasan and Chaush vs. Bulgaria]. The importance of obtaining the proper legal status is very important in Ukraine, since only in this way religious organizations may possess religious buildings, publish and distribute literature, invite the representatives of foreign organizations, organize public and charity actions, as well as have the status of non-profit organizations. All this is practically impossible in our country without the registration of the religious organization, without the status of a juridical person.
Moreover, according to the Constitution, the restriction by the state of the right to practice the religion must meet the classical criteria: it must be strictly stipulated by laws, must agree with at least one of legitimate goals (protecting public order, health and morality of population or protecting rights and freedoms of other people) and must be necessary in the democratic society.
If to analyze the Law from this viewpoint, it would turn out that it does not completely agree with the demands of the Convention, the norms of the OSCE and the recommendations of the UNO Committee.
It is also noteworthy that in a democratic society this law should rather assist the realization of the right to practice the religion than control the religious activities.
ON THE TERMINOLOGY OF THE LAW DRAFT
The draft contains a number of contradictory definitions and the definitions that are too restrictive. When a legislator introduces some term, he designates the subject of regulation and restricts the circle of social relations. The definitions that are presented in the law are formulated one-sidedly, thus they do not reflect the diversity of this sphere. This inevitably results in the discrimination of the religions that are not very popular in Ukraine. Yet, the state has the positive duty to protect them.
For instance, the draft reads that „ is a belief in the existence of some supernatural essence, which is the source of everything, the means for contacting this force, for entering its world“ In fact, this definition eliminates all Eastern religions, such, for example, as Hinduism and Buddhism, since these religions are based not on the belief, but on the knowledge. Moreover, these religions are not interested in the origin of things, but in their actual existence and essence. These meditations would seem to be strained, but there exists a consequence of this definition mentioned in item 4 Article 16 of the draft. This norm permits to refuse to register an organization, if the expertise established that the organization is not a religious one. So, any organization practicing any Eastern religion may be refused to be registered for obtaining the status of a religious organization. Since such status, as I wrote above, is extremely important, the violation of the right to practice the religion is obvious.
The proposed definition of the term „“ does not coincide with General remarks No. 22 (1993) of the UNO Committee on the interpretation of Article 18 of the International Pact on civil and political rights of 1996. „ 18 protects theistic, non-theistic and atheistic convictions, as well as the right not to practice any religions or convictions. The terms „“ and „“ must be interpreted widely. The use of Article 18 is not restricted by traditional religions and religious convictions that have institutional characteristics, or cults similar to the traditional religions“
In what follows we propose to state this term in the following form: „ is belief orknowledgeof a person concerning the existence of some supernatural essence, which is the source of everything, the means for contacting this force, for entering its worldor authentication with it“
The same may be also said about the concept „“, which is defined as „ system of certain religious convictions, dogmas and ideas, the distinctive feature of which is the belief in the reality of the supernatural essence“ Maybe, here the last part of the definition is unnecessary too.
The definitions of „ devotions“, „ activities“ and „“ are also one-sided and do not reflect the variety of religious relations.
The next doubtful definition: „ is a member of religious organization, who was conferred with the holy orders and has the corresponding rights to perform the religious cults, devotions and sacraments. Priest is not a hired worker of religious organization by his status. According to the traditions and intrachurch rules, priests may fulfill the administrative functions occupying the corresponding posts (elected or appointed) in the religious organizations, including the volunteer unpaid work“
It is difficult to count, in how many religions the procedure of conferring with the holy orders exists, but it is absent in many religions too, for example, Eastern ones. Now let us consider the contradictory statement that priests are not hired workers. Does it mean that no labor contracts may be concluded with them? No, since Section 5 (on labor relations) of the draft does not include such exceptions. There are no norms in the Ukrainian legislation that permit to work without pay (by the way, this is the essence of the institution of minimal pay). And if the legislators mean that priests may fulfill these functions unofficially, then this must not be regulated legally.
The definition of the term „“ is inconsequent too. From the position of the draft, the church is a structured religious formation having the hierarchic character and the regulated relations inside it, as well as with other religious or temporal organizations. So, church is not a religious organization, but something more. The law does not contain any regulations of the activities of such formations, and it is not clear whether such formations must be registered and what rights and duties follow from this. The definition of a religious organization results in the varied approach to the creation of local religious formations: some of them are created by citizens, and church formations may be created by church itself. This approach means the undisguised discriminative state of this subject comparatively to other religious organizations. It is also incomprehensible who and by what criteria will determine which religions are covered with the term „“ and, correspondingly, who has the right to create religious organizations without the participation of citizens. Besides, then the Law should have another title: „ the freedom of consciousness, church and religious organizations“ The legislators must define this term more precisely and to eliminate the implicitly discriminating provisions.
At the same time, the Law does not define many important terms correlating with Article 35 of the Constitution, such as the „ ceremony“ (the term „ devotions“ is used). The Law contains such terms as „“, „ act“, „ outlook“, „ activities“, „ activities“, „ religious actions“, etc, whereas no definitions are given. The problem is that the majority of these terms are used in the definitions, i.e. the definitions refer to the not-defined terms.
The use of the term „ state of religious organizations“ is not understandable too, since this term obviously disagrees with the terminology of the Law of Ukraine „ property“ and the Civil Code of Ukraine. This concept is absent in the legislation. So we propose to replace this term with another one: „ and non-property rights of religious organizations“
Article 20 of the draft states that religious organizations may found „ institutions“, although such institutions are not envisaged by laws.
All this can cause many questions in the European Court with the account of the obligatory demand to stipulate legally the regulations of the freedom of religion.
THE PROCEDURE OF REGISTERING THE STATUSES OF RELIGIOUS ORGANIZATIONS
The following problems are observed in the connection with the registration procedure.
1) Only citizens of Ukraine have the right for foundation; this norm is discriminating for foreigners and apartides, who permanently reside in Ukraine, since it, in fact, deprives them of the right to practice their religion; proposition: to permit them to be founders. Moreover, taking into account the norm of Article 25: „ have no right to interference into the activities of religious organizations“, one can see that their right to practice religions is completely blocked. The term „“ there is rather vague. However, considering the caseHasan and Chaush vs. Bulgariathe European Court stated: „ participation in the life of the community is a part of religion guaranteed by Article 9 of the Convention „ There is another question about the purpose of such meddling into the life of people and the proportionality of this meddling.
2) The draft increases the number of founders from 10 to 25 citizens. Since church has the right to found the local religious organizations independently (any accurate procedure is also not envisaged), this provision is clearly directed against the not numerous unconventional religions and has no legal grounds. This demand may concern only newly created religious organizations or the organizations of the second level (for example, the unions of religious communities).
It should be noted that all registered religious centers and departments must have the right to create local religious communities. Taking into consideration that the Central organ of executive power has already acknowledged the legitimacy of the unions of religious organizations, it is inexpediently to check all documents again or to carry out expertise. In practice, the registration is always done in this manner. These demands make the religious rights dependent on the local officials and contain the illegal and unreasonable restrictions of the right to practice the religion.
The same question appears when we try to determine the goals of this restriction. How can the number of founders abuse the rights of other persons or public order? Such regulation is absolutely fictitious, if to consider it from the viewpoint of Article 11 of the Convention, which stipulates the freedom of unions and associations. According to the Ukrainian legislation, only three persons are needed for creating a public organization. So, what is the reason of such difference?
3) When religious organizations register their statute, they must present a great number of documents (much more than the organizations of other types), and all these documents are checked in accordance with Article 15 of this draft. That is, in fact, not the statute is registered but the organization itself. In practice, the documents are checked not for their compliance with laws, but the religion is estimated. The decision of the European court in the caseMetropolitan Church of Bessarabia and others vs. Moldova(2001) reads: „ in principle, the right for the freedom of religion in the framework of the Convention excludes the estimation by state of the legitimacy of religious convictions“ Criticizing the degree of freedom, which is permitted to the power organs, the European Court states that the right for the freedom of religion guaranteed by the Convention excludes any actions of the state concerning the estimation of the legitimacy of religious convictions or the ways of expressing these convictions. On this basis the Court came to the conclusion that the demand to get the permission for opening the pray house is legal, according to Article 9, only until the minister is convinced of the availability of formal conditions (the caseManussakis and others vs. Greece).
If to draw an analogy with the laws, which stipulate the obtaining of the status of a juridical person, the only admissible estimation is the estimation of the statutes and other documents of the organizational type by the formal characteristics, but only if the estimation of the religion is not made by the substantial characteristics. The court also stated that obtaining the permission in the case of positive appreciation on the side of the ministers of other church is obviously inadmissible (the caseManussakis and others vs. Greece, items 50-51).
The analysis of the conduction of religious expertise generates even more additional objections. It is clear that such expertise can acknowledge an organization as not religious one, and this will be the reason to refuse the registration. We do not understand why this decision is taken by the local organs of executive power and local self-rule. Are they specialists in religion? What is their function? Usually such commissions check whether the religion is „“ or „“, but not whether it is a religion. At that the direct interference into personal rights is committed, when the officials demand to introduce some changes into the documents and retard the registration. It is known that such commissions are composed of the people, who work with these questions since the Soviet times, or, what is even worse, of representatives of certain religion, who may have the negative or skeptical attitude to the unconventional religions. At the same time, it is evident that the state must ensure itself from the religious swindlers to protect the rights of other people.
So, it should be stipulated unambiguously that such commissions must be composed of the specialists in religion for conducting the expertise, the goal of which is to answer only one question: whether the organization is a religious one.
4) Besides, if a religious organization is subordinate to some foreign organization, the legalized translation of the statute documents of this foreign organization is demanded for the registration, which demand is frequently unrealizable. It is also incomprehensible what the term „ „ means: the subordination in the religious structure or the direct administrative dependence, since before this the draft mentions the confirmation of the canonical and organizational subordination envisaged by the statute. It is difficult to imagine some central institution, for example in Rome, which would send such confirmations throughout Ukraine, but these documents are demanded from all organizations.
5) The Law does not regulate the legal status of the organizations that are registered by way of informing, it also does not contain the list of documents, which must be presented for such informing. We have the general proposition to shift the accent of the regulation from the process of registration to the monitoring of the activities of religious organizations. It is unlikely that somebody will declare the illegal intentions in statute documents, and the greatest number of violations is observed in the activities of the organizations, whose statute documents strictly meet the requirements of law. That is why the monitoring is much more important that the preliminary control, which is based on the reasoning of officials. This thesis can be grounded from the viewpoint of the presumption of innocence: when a person is refused of the registration, this person, in fact, is made responsible not for actions, but for intentions.
PARTICIPATION OF FOREIGNERS
We have already written about the realization of the rights of foreigners, who permanently reside on the territory of Ukraine. The questions concerning the representatives of foreign religious organizations must be considered separately. The project reads: „, religious preachers, preceptor -- representatives of foreign religious organizations, who are foreigners or apartides staying in Ukraine temporarily may conduct the professional predicant or other religious activities only in those religious organizations, by whose invitation they came to Ukraine, and with the agreement of the executive power organ that registered the statute of this religious organization“
In particular, this norm restricts the constitutional right for the freedom of movement. Besides, this is a brutal meddling into the internal affairs of the religious organization. The Principle 16 (4) of the Vienna concluding act (OSCE) states that the religious freedom of organizations includes the right to create the places for public worships; to create the unions according to own hierarchic structure; to elect, assign of replace the personnel according to own demands, as well as to ask for financing. The question on the territorial structure of religious organizations is also regarded as „ affairs“ of these organizations. So, such system makes the organizations dependent on the local officials, meddles into the internal affairs of the organizations and violates the fundamental principles of the OSCE. The mentioned norm also directly violates the demands of Article 9 of the Convention. In the decision on the caseMetropolitan Church of Bessarabia and others vs. Moldova(2001) the European Court pointed out: „ the realization of the right for the freedom of religion or one of its aspects undergoes the impact of the system of the preliminary agreement according to the domestic laws, the participation of the already existing church organs in the procedure of issuing the permissions is contradictory to the demands of part 2 Article 9“ Thus, when the state registers the statute of a religious organization acknowledging in that way its legitimacy, it permits the organization to conduct the actions connected with practicing this religion, in particular, to invite representatives of foreign religious organizations.
We believe that it should be advisable to stipulate only the obligation to inform the organ that registered the organization about the activities of the representatives of foreign religious organizations without the duty of preliminary invitation and with the right of free movement around the country.
We also reckon that the provision must be also introduced stating that the Law must be applied only to the legal relations, which will appear after its adoption. Otherwise, the state organs would get the right to carry out the re-registration of all religious organizations in Ukraine.
Let us sum up.
The considered Law Draft is now in the Supreme Rada Committee in charge of the questions of culture and spirituality. Most probably, it will be adopted in the first reading in the first months of 2003. The public and human rights protecting organizations must take part in the preparation of this document for the second reading, when the comments concerning separate articles will be considered.
We are going to prepare our comments. So, if you or your organization have some propositions as to this Law, you may sent these propositions to us by the e-mail placed in the beginning of this article. (You can obtain the draft of the Law by sending the request to us by the same e-mail address or on Internet page rada.gov.ua/proza.htm.) We will process all data and hand to the Committee the consolidated conclusion with the propositions of human rights protecting organizations.
„“ commentary:We completely agree with the opinion of Mr. Yavorskiy that the draft of the Law of Ukraine „ introducing changes into the Law of Ukraine „ the freedom of consciousness and religious organizations““ contains a number of contradictions and „ definitions“ We agree that the ungrounded restriction in the definition of the term „“ will result in the discrimination of some religions and doctrines unpopular in Ukraine, mainly the Eastern ones.
The draft reads that „ is a belief in the existence of some supernatural essence, which is the source of everything“
Mr. Yavorskiy asserts that this definition will exclude all Eastern religions „, for example, as Hinduism and Buddhism, since these religions are based not on the belief, but on the knowledge“ „“ believes that it is not quite true. We think that such powerful world religious as Hinduism and Buddhism are undoubtedly based on the belief in some supernatural essence, and only the cult ceremonies of these religions are based on knowledge. The problem is that the draft does not take into consideration a number of non-religious doctrines, which are based on the common human values. The example of such doctrines is the Chinese doctrine of Falun Dafa, the adherents of which are persecuted in China and lately by the Ukrainian authorities too, who in this way violate Article 11 of the European Convention on human rights and Article 39 of the Ukrainian Constitution. The same can be said about Krishna followers, who believe in the supernatural essence, but give preference to the life experience and special rules of life, or the widespread groups of the people practicing yoga, who are interested in the healthy way of life and not its religious aspects. There are many other examples.
The project of introducing changes to the Law really restricts the freedom of consciousness, as well as the Law of Ukraine „ the alternative military service“, which stipulates that the right to refuse from military service is rendered only to members of religious organizations. Other convictions – ethical or moral – are ignored. The same drawback we see in the discussed draft. This will essentially narrow the concept „ of consciousness“ and will result in the violations of the right to practice this or that religion. All in all, we agree with the definition of religion given by Yavorskiy, but we propose to place the words „ knowledge“ in the end of his definition and to add the words: „ is grounded on the ethical and moral values of human life“ Then this definition will have the following form: “ is belief of a person concerning the existence of some supernatural essence, which is the source of everything, the means for contacting this force, for entering its worldor authentication with it, or knowledge, which is grounded on the ethical and moral values of human life“ Only in this way it is possible to embrace all interests of all religions and groups.
The norm of the Law draft on the religious expertise, which has the right to determine whether an organization is religious or not with the following refusal in registration, seems to be very dangerous from this viewpoint.
We believe that the registration of religious organizations or groups, which practice some doctrines, must have the form of informing about the creation of such church or group, and the documents must be checked by the corresponding commissions of local power or the Supreme Rada only for establishing the facts of probable violence, cult of personality, physical, psychological or psychic violence and other coercive actions. Other reasons for the refusal are inadmissible. This must be the only function of the so-called religious expertise; else the obscurity of the authorities of this expertise can become a good nutrient medium for the arbitrary actions of local officials.