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Human rights in Ukraine – 2004. VII. FREEDOM OF THOUGHT, CONSCIENCE, AND RELIGION

   

1. Overview of legislation

In comparison with many European countries, Ukraine’s legislation is fairly liberal however the administrative practice of State executive bodies and bodies of local self-government places a lot of unwarranted obstacles before individuals trying to enjoy their right to freedom of conscience and religion. Moreover, certain provisions of the law do not comply with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In Soviet times, the State effectively did not recognize the human right to freedom of religion, and actively persecuted citizens for expressing their religious convictions. Therefore, at the beginning of the 1990s, the State authorities found themselves confronted with a new problly impress its young political system.

Hannah Arendt, in her analysis of the features of any organic revolution, once stated that genuine revolutions always widen the framework of people’s representation. That is, the social basis of State management with every new revolution becomes wider, more democratic. The exact opposite of this can be observed as a result of the constitutional reform, since the direct influence of the people on Ukrainian politics is actually decreased. Although citizens of Ukraine will continue to elect Presidents, and the mass media will function, hopefully, without censorship and «temnyki[2]», this will not significantly influence the political course of the country. It is for this reason that the legal consequences of the constitutional reform may be regarded as legislative devolution.

After all, the President with post-reform powers could be elected in Parliament, and only the subordination of the local state administrations to him still allows us to see his post as a balanced counter to the legislative branch of power in the State. If, in future, the heads of the local state administrations start being elected, the national election of a President will lose any sense.

One should also take into account that after the election of Viktor Yushchenko President, Ukraine has gained the opportunity not only to become a democracy, but also a country, which (like the Baltic states) maintains a positive separation from post-Soviet republics. However it is precisely Russia’s presence on the long Ukrainian border that serves as sufficient evidence of the need for Ukrainian presidential republicanism. The key point here is the possibility for a swift presidential reaction to Russian challenges to foreign policy which Ukraine will not lack in the future.

As far as the European and Atlantic political world is concerned, it is not very important whether Ukraine becomes a parliamentarian or a presidential republic. However, the situation is quite opposite from the point of view of Ukraine’s political relations with its Eastern neighbours. It is precisely in this context that it is worth paying more attention to the organizational disarray of Ukrainian political forces, to the factional self-centredness of their interests, and tem of regulating the fulfilment of this right. In 1991 the Law of Ukraine «On freedom of conscience and religious organizations» was passed. It is on the basis of this legislative act that State policy in this sphere has been carried out over the last thirteen years.

It is important to note that the State focused on legal regulation primarily in the sphere of collective religious expression carried out by religious organizations. However, the sphere of the private religious life of individuals (freedom of conscience) and protection from unwanted interference in this are virtually not regulated and remain without proper legal guarantees. For example, the issue of an individual’s worship in a public place is not regulated in legislation at all, which can raise a number of practical questions.

Since the law was passed, there have been many fundamental changes in the legal system: the new Constitution of Ukraine has been adopted and Ukraine has become a signatory to many international agreements connected with the implementation of this right, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms. Yet legislation with regard to religious organizations has remained virtually unchanged since that time. We would note that some of its provisions do not comply with international standards, and it also does not meet the contemporary demands for the development of social relations connected with ensuring religious freedom.

As a consequence of inflexible and imperfect legislation, situations arise where the human right to freedom of conscience and religion is exercised on the basis of established customs of administrative practice, or at the arbitrary will of officials of State executive bodies or bodies of local self-government. For example, despite the lack of any significant alterations to legislation, the procedure for registering religious organizations is constantly becoming more complication.

The right to freedom of religion is guaranteed by Article 35 of the Constitution of Ukraine (1996), which virtually repeats Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Article states:

«Everyone has the right to freedom of personal philosophy and religion. This right includes the freedom to proo the ever present demagogy found in national parliamentary debates.

The paradox of the constitutional reform is seen in the way that, while continuing to dilute responsibility in a mixed parliamentary environment for strategic decisions in the country, the reforms demonstrate a sharply increased level of political demands with regard to tactical parliamentarian manoeuvres and operations. On the one hand, the Cabinet of Ministers of Ukraine and the Verkhovna Rada of Ukraine will in parallel be responsible for the current home and strategic foreign (principle-defining) policy of Ukraine. On the other hand, in order to carry out this role in a proper fashion, an unprecedented degree of factional disciple will be introduced into parliament.

Thus, if in accordance with Article 81 of the acting Constitution of Ukraine, a decision about pre-term cessation of the authorities of a State Deputy of Ukraine following his or her resignation, or due to withdrawal of citizenship or the person’s departure abroad for permanent residence, is taken by the Verkhovna Rada of Ukraine, in accordance with the reform… «if a State Deputy of Ukraine, elected from a political party (electoral bloc of political parties), does not belong to the faction of Deputies of this political party (electoral bloc of political parties) or if the Deputy of Ukraine leaves this faction, his or her authorities shall be cancelled pre-term on the basis of law at the decision of the higher leadership body of the relevant political party (electoral bloc of political parties) from the date of the decision».

Moreover, this new procedure for removing a State Deputy’s authorities demonstrates not only the introduction of tough factional discipline into the Verkhovna Rada, but also the diminished importance of the individual in the Ukrainian political process. From the outside, it is reminiscent of the consolidation of political allies around their ideological leaders, familiar in Ukraine from communist days.

The reform also stipulates that a State Deputy’s parliamentary mandate is incompatible with other kinds of activity prohibited by the Constitution. In turn, non-compliance with the rules regarding incompatibility shall be grounds for the compulsory removal of a deputy’s mandate.

In this way, the constitutional reform is reinstating an imperative (party-corporative) mandate which was already half forgotten in Ukraine. A Deputy is again regarded here as a party pawn, a rank-and-file cardholder for electronic voting. It looks as though the elections to the Verkhovna Rada of Ukraine risk becoming a link in the mechanism for introducing not so much electoral, as party priorities. It is unlikely that the personal psychological qualities of a parliamentarian, his or her individual experience, intellect, and also geographical link with a certain region will be used here. In general, as open preliminary calculations show, the implementation of a purely proportional system of representations runs the risk of creating a situation where 85–90% of Deputies will be citizens of Ukraine’s capital Kyiv.

It looks as though the constitutional reform will transform parliament from a place of open public discussion into an arena for battles of factional gladiators. This is to be regretted, since in the context of constitutional changes, one cannot so far speak of the renewal of the stimuli of political action which Vaclav Havel believes to be: moral instinct, sense of taste, ancient political wisdom, and analytic delicacy of feelings. On the contrary, one can observe that as far as the renewal of the status of State Deputies is concerned, the constitutional reform has applied philosophical reduction, legal-logic simplification, and the denigration of constitutional material to the requirements of crude legislative tactics.

Besides, combining voting for the constitutional reform with amendments to current electoral legislation was also ethically questionable. When the faction «Our Ukraine» (leader Viktor Yushchenko) demanded the resignation of the government and the Central Election Commission, and also the immediate amendment to the Law on Presidential elections, this was not a question of gaining political benefits for the opposition, but about the intrinsic right of the Ukrainian people to vote for the fulfilment of their sovereign will. This will was not subordinate to, but above the participants in the Ukrainian negotiation process.

Since the political right to elect and to be elected precedes all bodies of power, their branches and sub-divisions – from Parliament and President to Cabinet of Ministers and Central Electoral Commission included, the electoral rights of Ukrainian citizens, their scope and procedure for being implemented must not be the object of profit-seeking agreements.

This meant the impossibility in principle of improving the Ukrainian electoral legislation under the guarantees of a parliamentary vote for constitutional reform, or for any other vote at all. The will of the people in a material and procedural sense is sovereign, and cannot therefore be subject to the whims of the participants in any negotiation process. It is a priori higher, inherently superior to any leaders and political elite of the country as a whole.

That is why the decision whether the second round of presidential elections should be fair and transparent could not and should not depend on deals reached from above, but which remained in essence private. The values directly involved were incomparably higher than interests of any parliamentarian factions or presidential contenders. Moreover, the issue of constitutional reform is generally too important to be «pushed through» under the pressure of a fess or not to profess any religion, to perform alone or collectively and without constraint religious rites and ceremonial rituals, and to conduct religious activity.

The exercise of this right may be restricted by law only in the interests of protecting public order, the health and morality of the population, or protecting the rights and freedoms of other persons.

The Church and religious organisations in Ukraine are separated from the State, and the school – from the Church. No religion shall be recognised by the State as mandatory.

No one shall be relieved of his or her duties before the State or refuse to perform the laws for reasons of religious beliefs. In the event that the performance of military duty is contrary to the religious beliefs of a citizen, the performance of this duty shall be replaced by alternative (non-military) service».

Some provisions of the law on freedom of conscience and religious organizations run counter to the Constitution, yet they continue to be applied. For example, in accordance with Article 39 of the Constitution everyone has the right to freedom of assembly, upon notifying in advance the relevant executive bodies. Yet in Article 21 of the above-mentioned law, an approval procedure is defined for the holding of any mass religious events by religious organizations, according to which such activities are carried out only with the consent of local authorities (a body of local government or local State executive body), which in its turn puts obstacles in the way of holding gatherings of religious communities of a religion not dominant in the given area.

There have been frequent attempts by State executive bodies to strengthen State control of this sphere and to introduce more restrictions on the enjoyment of this right. However draft laws tabled in parliament have met with opposition from the community and have not been supported by State Deputies.

Sociological research carried out by the Razumkov Centre for Economic and Social Research[1] is interesting:

Assessment of the degree of observance of the right to freedom of conscience*

% of those surveyed

Total number of those asked

Believers

Those wavering between believing and not believing

Non-believers

Agree

Disagree

No opinion

Agree

Disagree

No opinion

Agree

Disagree

No opinion

Agree

Disagree

No opinion

In Ukraine there is full freedom of conscience and equality of religions before the law

62,6

21,7

15,7

67,5

18,6

13,9

62,2

24,2

13,6

45,1

32,9

22

Freedom of conscience and equality of religions are declared in Ukraine but are not honoured

33,9

40,8

25,3

31,5

44,9

23,6

39,3

34,1

26,6

35,2

35,2

29,6

Religious organizations and churches misuse the rights and freedoms granted to them

31,5

38,9

29,6

28,6

45,3

26,1

35,6

32

32,4

38,1

27,9

24

* «Agree» (the sum of those who answered either that they «agree» or «probably agree»); «Disagree» (the sum of those who answered that they «disagree» and «probably disagree»)

1.1. State Policy

State policy has still to be defined. Many attempts to draw up a concept of State policy in this sphere have been unsuccessful. In February last year a «Concept for the relations between State and Religion in Ukraine», drawn up by a working group of representatives of different religions and the Razumkov Centre, was completed.[2] It was then discussed and approved on 19 March and 24 June by a specialist Committee of the Verkhovna Rada of Ukraine on cultural and spiritual issues. It is expected to receive parliamentary consideration in the near future.

Unfortunately, the main shortcoming of this Draft remains the fact that it is a protectionist document for the Church which is often aimed at limiting the rights of religious minorities. This is short-term crisis. The Constitution is the ultimate regulator of domestic and foreign political life of Ukraine, and in no way should it be a hostage to political manoeuvring.

In one way or another, Ukraine’s domestic policy has became for the future a prerogative of the parliament – a political institution the course of which in the conditions of Ukraine can be outwardly corrected. As is well-known, direct democracy is important because it is physically impossible to corrupt all the people. This well known statement of Thomas Jefferson has repeatedly been confirmed in practice. This is why it remains imperative that the authority and effectiveness of the post of President and also his dependence on the direct will of the Ukrainian people are retained.

In addition, the post of the President is an important counterbalance to possible foreign economic pressure on Ukraine. This argument is strengthened by the fact that Ukraine is at the level of development where its financial-economic strength and public policy are virtually inseparable. Under these conditions, a special role in the political system of Ukraine can be played by a nationally elected leader.

For these reasons, the reduction of the presidential status to representative functions and functions of foreign policy introduced by the reforms is, in our opinion, dangerous even from the point of view of ensuring the interests of state sovereignty. One can predict that corporatism in the political system of Ukraine after implementation of the reform will increase, and the influence of financial-economic groups on parliament will become systemic.

One should also stress that the main lobbyists of constitutional reform were political supporters of the former President L. Kuchma, and also representatives of parliamentary factions which during the elections gained no more than 5–6% of votes of the Ukrainian electorate. It does not appear justified, therefore, that the constitutional ideas of Ukrainian political outsiders should have to be implemented by their opponent Viktor Yushchenko.

However, the implementation of constitutional reform with radical transformations of Presidential authorities between the first and the second rounds of the presidential elections even defied common sense. Neither from the point of view of law, noseen in the provision, that «the State has the right to establish administrative restrictions on fulfilling the right to freedom of conscience and activity of the Church, which are dictated by … the preservation of the traditional religious culture of society». The identification of the clearly different concepts – Church and religious organizations – is also a negative feature. Questions must be raised also by the desire to limit the activities of new religious movements from the point of view of equality before the law regardless of religion. One could mention many other conceptual discrepancies which, to varying extents, limit human rights and fundamental freedoms.

Five drafts of a new edition of the Law on religious organizations, drawn up by the State Committee for Religious Affairs, have reduced the scope of existing rights and freedoms and have encountered waves of protest from religious organizations. In other words, they are absolutely not supported by society, yet State executive bodies have continued to try to impose unpopular policy. The expediency of such actions raises serious doubts.

The activity of the special body – the State Committee for Religious Affairs– is neither consistent nor substantial. It is sometimes difficult to understand at all what this State body does. For example, in response to a formal request from the Council of Ukrainian Human Rights Organizations and Centre for Legal and Political Research «SIM» for information about infringements of the human right to freedom of conscience and religion, and also the possibility of working together with human rights activists, the State Committee stated that it «does not carry out monitoring of the observance of Ukrainian legislation on freedom of conscience and religious organizations», and added that «the resolution of these issues, as well as the appropriate response to cases of violation of the right to freedom of religion are, according to current legislation, the responsibility of local State executive bodies and bodies of local self-government within the framework of their authority».

Yet in February the number of employees of the State Committee for Religious Affairs was increased, and in April 2004, the Ministry of Justice yet again confirmed the strategic tasks of the activity of State Committee for Religiour with a view to efficient politics, could it reasonably happen that the citizens of Ukraine in the first round of the elections voted for a President with one constitutional status and in the second – for a President with a manifestly different status.

Hundreds of thousands of people stood on Independence Square in Kyiv in December’s freezing temperatures in order to elect a strong leader. Consciously and subconsciously they counted on the power of his constitutional post. In general, the strength of spirit and mind of the people on the square were significantly higher than the ideological tone of the Ukrainian constitutional reform. Unprecedented in its scale in the modern history of Ukraine, the permanent Orange Demonstration stood up not for a change in formal-legal institutions, but for a change in the actual corrupt live government.

During the days of the Revolution, Ukrainian citizens protested not against imperfect judicial frameworks, but against specific individuals. The passing-bell which rang for half a month on the capital’s square was convincing proof that the last remnants of Ukrainian post-communism could be buried. It was there and at that time that Ukrainian citizens freed themselves of their old political fears, and at the same time – their sense of dependence and slavery.

3. Recommendations

In our opinion, Draft № 4180 on amending the Constitution (now the Law of Ukraine «On amending the Constitution of Ukraine» № 2222-IV dated December 8, 2004) requires review by the Constitutional Court as well as a re-vote with a constitutional majority in parliament. After all, the draft was significantly amended after its presentation to the Constitutional Court but before the vote on it in parliament on December 8, 2004. It is highly likely that in the new post-revolutionary situation, it will be rejected by the parliament as not meeting current Ukrainian needs.

On the whole, taking into account the abovementioned specific features of the Ukrainian political situation, we suggest redrafting the Law on amending the Constitution of Ukraine in the direction of fundamentally different issues. We have in mind the following:

1. The Verkhovna Rada (Parliament) must effectively control the activities of the Government, and of the executive branches of power as a whole through permanent and temporary parliamentary committees and commissions. In order to achieve this aim, the supervisory functions of parliament and of the public (individual citizens and non-governmental organizations) must at a judicial level be significantly strengthened.

This can be achieved by passing relevant legislation: on access to information; on the government; on public control over the activities of the state executive; on political opposition. It would be useful in this case to also prepare and pass a special law on impeachment, as well as on parliamentary temporary, investigative and other commissions.

2.. Ukrainian procedural legislation on the Constitutional Court must be significantly improved. Up to now the Constitutional Court of Ukraine, as is well-known, has worked as an arbiter or go-between in disputes between the President and the Verkhovna Rada of Ukraine. Furthermore, the Constitutional Court’s function of providing constitutional defence of rights and freedoms was never seriously carried out. We therefore believe that in the future the list of possible complaints which can be taken to the Constitutional Court must be broadened.

3. It is also necessary to prepare and pass a separate law on constitutional court procedure, since without detailed regulation of procedural questions at the judicial level, it will remain impossible to consider the Constitutional Court of Ukraine as a court with constitutional jurisdiction in the full understanding of this concept.

4. A strengthening of guarantees of independence of the judiciary and of access to legal justice needs to be allowed for in the Constitution.

5. The constitutional status of the prosecutor should be changed, leaving only the function of representing the state in court: support for State prosecutions in criminal cases and the representation of the State in civil cases should be the function of a Department of the Ministry of Justice.

6. The Constitution should allow for the creation of an Investigative Committee which would absorb the investigative departments of the Ministry of Internal Affairs, Security Service of Ukraine and the Prosecutor.

7. The State committee for television and radio should be disbanded, and its functions according to the Constitution should be carried out by a National Council for television and radio.



[1] The government is the Cabinet of Ministers, with the Prime Minister being appointed by the President, although the choice must be supported by half or more of the members of the Verkhovna Rada (Parliament) (translator’s note)

[2] «temnyki» – were the ‘instructions’ given to journalists etc as to ‘safe’ subjects and how to cover them, and subjects to be avoided entirely. (translator’s note)

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