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Human rights in Ukraine 2009 – 2010. 6. Freedom of thought, conscience and religion

   

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1. Overview

Churches and religious organizations enjoy public confidence (70-80 %) in the society, despite the fact that one third of the population does not confess any religion. This confidence is manifested in many consequences. The church and religious organizations have always played significant role in the social and political life; that’s why politicians tackle this issue with caution, which explains the stability in church-state relations over the last 20 years.

On the other hand, different confessions and religious organizations traditionally coexist in this country, competing between themselves and preventing any single religion or church from monopolizing influential position in the country and society. This rivalry, in its turn, results in situation, when consensus between various religions on major issues cannot be achieved. Due to the lack of consensus many legal issues, e.g. restitution of church property, adoption of new law on religious organizations, principles of relations between the state and religious organizations, remain unresolved.

With this background in mind, Ukraine looks much better than other post-Soviet countries, providing basic religious freedom for its citizens. Although the law on freedom of conscience and religious organizations is rigid and obsolete, in practice its faults are counterbalanced with predominantly liberal administrative governance exercised by the authorities. However, in the absence of clearly defined legal guarantees for religious freedom, the situation remains unstable and unpredictable, depending largely on the state policy in every given moment.

In general, legislation adequately defends this freedom and establishes many guarantees for safeguarding it. There are no provisions regarding compulsory support for religious organizations, forced membership in organizations or obstacles placed in the way of changing one’s religion. There are provisions enabling people not to work on religious festivals, etc.

There is no state religion or provision of traditional and nontraditional religions, but also permitted the existence of religious communities without state registration, and even without statement on existence.

That’s why it seems absolutely logical that over the years 2009-2010 the theory and practices concerning freedom of thought, conscience and religion had undergone no significant changes, although such changes were anticipated due to the open partiality manifested by President Yanukovich and new government with regard to the Russian Orthodox Church. The religious relations, however, were not in the focus of their activity during the first year, but for the public funding of several Ukrainian Orthodox churches under the auspices of Moscow Patriarchate. Thus, all-Ukrainian Council of churches and religious organizations – an advisory body under the President – hasn’t convened even once, although last year it carried out 5 meetings. And the new head of the State Committee for Nationalities and Religions was appointed only on July 5, 2010, although all the other officials were rotated immediately after new government started its operation in March-April.

Ukraine has done virtually nothing to implement the judgment handed down by the European Court of Human Rights in the Case of Svyato-Mykhaylivska Parafiya v. Ukraine2. It should be noted that the Supreve Court passed the case for new court proceeding. In this case the Court found a number of specific failings in Ukrainian legislation and administrative practice; infringements by the State of the principle of neutrality; violations of the right to religious association; unpredictability, inconsistency and lack of clarity of legislative acts, etc. No action to eliminate the causes of rights violations, which pointed to the European Court was made, although national courts were regarded with greater caution in such cases, citing the decision.

The working group under Ministry of Justice kept working on draft laws on freedom of conscience and religious organizations and on restitution of religious property. This work has been going on for years, and still is not accomplished. President Yanukovich ordered to complete this work by December 1, 2010, which caused a protest from all-Ukrainian Council of churches and religious organizations.

„The confessional leaders stressed that Parliament should consider the amendments to the acting Law of Ukraine “ On freedom of conscience and religious organizations” only if all the subjects of law-making process come to a fundamental consensus on the importance of religious freedom in Ukraine as one of the major achievements of our state in ensuring human rights and freedoms”– reads the Council declaration. – “it is important to involve the representatives from the all-Ukrainian Council of churches and religious organizations at all stages of the process, as the stakeholders whose opinion should be taken into account”.3

Over the last two years several legislative initiatives, aimed at restricting religious freedom, were voiced in Parliament; however, they were not supported even at the level of the parliamentary committees.4

As of January 1, 2010 religious network is represented by 55 confessions, 35 184 churches and religious organizations (719 more than in the last year), including 33 773 congregations, 85 centers, 265 departments, 439 convents, 347 missions, 76 fraternities, 199 religious schools, 12 758 Sunday schools. 30 516 members of clergy govern religious affairs in Ukraine. The publications of religious printed media are growing in number, presently reaching 377 titles. The religious organizations use 22 787 temples or houses of worship. The research on the rate of growth in number of churches and religious institutions shows that between the years 2000 and 2005 the spreading of religious network has become stable, constituting 4, 1-4, 7 % a year. The results of the last three years show a decrease in this indicator: in 2007 it amounted to 2, 3 %, in 2008 - to 1, 8% , in 2009 – to 2, 04 %.5 The largest number of religious organizations is to be found in the Western part of the country and the smallest – in the Eastern part.

However according to figures from the State Committee of Statistics in the Single State Register of Enterprises, Organizations and Institutions there is information about 22, 343 religious organizations on 1 Janiary 2010 .

This difference is very easy to explain. From when double register was introduced for religious organizations several years ago organizations which were at that time already registered had to go through additional registration with the State Registrar and receive a certificate of State registration. These statistics show that 12, 841 religious organizations have still not gone through this double registration.

 

2.  Freedom of thought, conscience and religion: the right to believe

There is just one fundamental area where this freedom could potentially encounter unwarranted interference. This is in connection with alternative military service where the following infringements of international standards are observed:

-  This right is granted only on the basis of religious views and not where a person is guided by moral or political convictions, for example, pacifist views;

-  The right is granted only by members of officially registered religious organizations, although the Law does not oblige religious organizations to register;

-  The right is granted solely to members of religious organizations stipulated in the Cabinet of Ministers Resolution which is of an overtly discriminatory nature;

-  During the procedure required to establish this right, a person must provide documents certifying that he belongs to a particular religious organization (involving the need to provide evidence of ones religious convictions and the possibility of these convictions being «checked»);

-  The period for alternative service is twice as long as the usual period for military service which is also overtly discriminatory.

There is also a problem with choice of places for doing alternative service which is much too limited if one considers the positive experience of other European countries.

 

3. Freedom to practise ones religion or beliefs

3.1. Formation and activities of religious organizations

Any collective practice of religious beliefs in Ukraine without the creation of a legal entity (religious organization) is extremely difficult. This is required for virtually any «religious activities», for leasing premises, for holding public services or inviting representatives of foreign religious figures; printing or circulating literature. At the same time, in order to do alternative military service, a person must demonstrate that he belongs to a registered organization included in the list of «organizations whose teachings do not permit the use of arms»

Although the legislators allowed for religious communities to exist without registration and without legal entity status, in practice registration is needed for any group of believers who wish to publicly exercise their faith in any way. Unregistered communities enjoy virtually no rights.

According to international standards, the right to create a religious organization is an inalienable part of the general right of association, and therefore a different system for registering civic and religious organizations, as is in place at present, can hardly be deemed necessary in a democratic society

The following infringements to freedom of religion are to be noted when registering religious organizations

1) Legislation sets out an exhaustive list of legal forms for religious organizations with a system of management established by law in advance.

This is a clear violation both of the rights of individuals to determine their own form of religious associations, as well as of the right to autonomy of the religious group itself, with the opportunity to independently determine its structure and run it being intrinsically linked with this right. Ukrainian legislation, for example, effectively prevents the formation of charismatic religious organizations since according to the law the highest body of any religious organization is the general assembly of believers, with this running counter to the view of many religions and faiths. The Church can also not be registered as a legal entity, but only as the executive body of an association of religious communities.

2) Double registration: the first involves a meticulous check of the faith’s compliance with legislation (the articles of association of the religious organization), and the second – gaining legal entity status in the general procedure for all enterprises, institutions and organizations.

3) The time frame for registration is discriminatory with relation to other associations and clearly unwarranted. The law states that this is one month and in some cases can be extended to three months. However, in practice, the average period required for registration is, at best, 3-9 months.

4) Legislation does not set down clear grounds for turning down registration or liquidating a religious organization. It also fails to stipulate how detailed a refusal must be, although there should be clear indication of what the infringement is. Nor does legislation state how admissible inconsistencies between the articles of association of the religious organization and Ukrainian legislation are, whether they are simply textual discrepancies, or whether there is a significant inconsistency in the aims and activities of the organization which in practice will lead to infringements of legislation.

5) Legislation does not permit foreign nationals, even where they are permanently resident in the country, to found religious organizations. This is a particularly pertinent issue for national minorities.

Overall, as noted by the European Court of Human Rights in the case of Svyato-Mykhaylivska Parafiya v. Ukraine mentioned above, the law on freedom of conscience and religious organizations lacks consistency and foreseeability6. In this judgment, the Court also pointed out the first and fourth of the problems we have outlined here.

In 2009 the State Committee for Nationalities and Religions received 90 petitions for the registration of religious organizations’ statutes, or introducing changes and amendments into them. 44 statutes and 44 amendments and additions to the existing statutes of religious organizations were registered.7 Official data on refusal of registration for religious organizations usually is not publicized, although such cases are known.

The leaders of organizations, to which registration is refused, usually get no explanation on the grounds for refusal, while the authorized body only refers to the respective law, which does not give the slightest idea as to the real cause of refusal. In fact, this procedure is contrary to the law, but that’s the actual practice. Rather often refusals are not justified at all, being based only on personal perceptions of the officials and not on the law. Besides, the authorities regularly go beyond the time-limits for the consideration of registration applications.

The circuit administrative court of the Autonomous Republic of Crimea on June 11, 2010 classified the refusal of ARC Committee on religion to register the statutory documents of an independent Muslim religious community “Salachyk” as illegal. After considering the submitted documents for a prolonged period of time, the government body ordered to introduce some changes into the statute, although it was not required by the law. Finally, it refused the registration, because, allegedly, “The statute of the Muslim religious community “Salachyk” does not comply with the Law of Ukraine “On freedom of conscience and religious organizations”; namely, the statute does not contain the information on community denomination – a trend or a religious belief”. The Court ruled that statutory language, specifying that the community professes “Islam in accordance with Qur’an and Sunnah” is sufficient to define its religious affiliation. It looks, like it was nothing but formal grounds for rejection.

A lot of problems related to registration of the new religious organizations or amendments to the existing statutes arise in Kiev, where city state administration has repeatedly neglected time-limits envisaged for the consideration of the submitted documents, and also, in many instances, groundlessly refused registration.

For many years the Church of Scientology is refused registration in Kiev. The most recent petition was submitted on May 28, 2009 by the residents of Dnipro district in Kiev. Instead of either registering or refusing to register the organization, Kiev city state administration on August 3 issued a letter, stating that there is no cause to consider the submitted documents, as on September 23, 2004, a KCSA Ordinance No 1774 with the refusal to register this organization, was issued. This response is not in line with the law, but this fact never stopped KCSA. On the appeal of the organization founders the circuit administrative court of Kiev classified KCSA actions as unlawful and ordered to consider the documents submitted for the registration of the religious organization8. In response, KCSA demanded that the organization founders submit all the documents anew. Obviously the actions of KCSA, due to which the community has not been able to register for over 17 months, have no legal justification. It looks like the authorities are trying to prevent the organization from registering at any cost due to some unofficial ban.

Here is another typical example.

In December 2009 the circuit administrative court of Kiev ordered KCSA to consider the application and relevant documents, submitted on March 27 2009 by the founders of a religious community “Holy Spirit Association for the Unification of World Christianity” and to pass due decision in accordance with terms and procedures established by the Law of Ukraine “On freedom of conscience and religious organizations”. Earlier, in 2007 believers wanted to register a similar community in Obolon’ district, city of Kiev, but were refused. The decision read that the operation of the said community is not in line with the requirements of articles 3 and 4 of the Law of Ukraine”On freedom of conscience and religious organizations”. The specific reason for rejection, however, was not given, which is contrary to the law in force. Proceeding from this old decision, the Chief Directorate on nationalities and religions under the executive body of Kiev city council KCSA of April 30, 2009, informed the community founders that the documents they submitted on February 24, 2009 would not be considered.

 

3.2. The State’s positive duties with regard to protecting the peaceful practice of religion from incursions by others and protection of religious minorities

The state has the obligation of not only non-interference into the freedom of conscience without good reason, but also certain duties to guarantee this freedom. The state should implement legal and administrative measures to restrain representatives of other religions from incursion or other ways of interfering with peaceful exercising of one’s religion or beliefs.

Inadequate actions of law enforcement bodies concerning the protection of cult property are especially crucial in this context. Specifically, the acts of vandalism are gaining momentum. Churches, synagogues, cemeteries and memorials have been vandalized more than once.

A Kharkiv case is of special interest, as the vandalism was sanctioned by the local court:

On November 16, 2010 in Kharkiv a memorial plaque was dismantled from the building of former transit jail of Kharkiv (“Jail Castle”, at the address: Kharkiv, Malinovsky str.5. Presently militia department is located there), where arch-pastor and martyr of blessed memory Patriarch of Ukrainian Greek-Catholic Church Yosyp Slipy, who spent 18 years in jail, was held, before being sent in 1961 to exile in Mordovian camps. The plaque was dismantled by members of “Velika Rus” NGO. Allegedly they were carrying out the order of Dzerzhinsky district court, where this organization filed a complaint on illegality of placement of the plaque. However, the organization, which put the plaque there in 2005, insists that all the required permits were in order. Dismantling was performed despite the protest from the members of Ukrainian Greek-Catholic Church. On December, 14 Lviv City council informed that it would cover the costs of re-establishing the plaque. This agreement was achieved between the Head of Kharkiv Oblast’ State Administration and Lviv Mayor.9 The NGO representatives, however, went unpunished. Clearly, they had no right to destroy the plaque on their own, even in line with the court’s decision, as it was the prerogative of the executive body. These and similar actions doubtless stir up interreligious animosity.

Absence of official legislative or administrative actions mechanisms aimed at mitigating intolerant and untruthful media publications on religious minorities and at counteracting the rousing of interreligious animosity also aggravates the situation.

 

3.3. The organization and holding of religious peaceful gatherings

The Law on Freedom of Conscience and Religious Organizations runs counter to Article 39 of the Ukrainian Constitution in imposing a permission-based procedure for holding religious peaceful gatherings. In practice, holding public religious peaceful events is fraught with an even greater number of problems based on discrimination, intolerance and arbitrary interpretation of legislation.

In May-July 2010 Parliament considered the draft law on peaceful gatherings (№ 2450). For unclear reasons the draft authors excluded the peaceful gatherings held out by religious organizations from the law. This led to protest from human rights’ activists and all-Ukrainian Council of churches and religious organizations10. Finally the consideration was continued till the fall of 2010, so that recommendations of the Council of Europe Venetian Commission could be taken into account before the second reading.

 

3.4. The rights of foreign nationals and stateless persons

Ukrainian legislation continues to substantially restrict freedom of worship for foreign nationals and stateless persons. This is reflected in their not being able to found religious organizations, or engage in preaching work or other religious activities. These restrictions even apply in the case of people permanently resident in Ukraine. Furthermore foreign nationals may engage in preaching activities only at the official invitation of a registered religious organization (although their registration is not compulsory) and permission from the State authorities on religious affairs.

The lack of a permit entails administrative liability for foreign nationals (a fine), and for religious organizations – a warning, then in future possible forced closure.

8070 foreigners came to Ukraine in 2009 on religious visa, which were 225 persons more than in 2008. The State Committee on Nationalities and Religions officially approved religious and canonical activity for 3607 foreign nationals. Structural branches of oblast’ and city state administrations issued respective permits for 4464 foreigners, including 2542 Americans, 1705 Israelites, 935 Poles, 403 natives of Asian countries, 292 natives of African countries, 298 Germans, 155 Turks, 1055 – other countries’ nationals. There is no available official information on the number of refusals. 7 violations of the law on freedom of conscience committed by foreign nationals during their stay in Ukraine were registered (4 in Vinnitsa oblastVinnytsa and 3 in Lviv oblast’).11

 

4.  The State and religious organizations: the principle of inviolability and impartiality

The constitutional principle of separation is based on the principle of pluralism of thought and entails the impossibility of merging the State and religion12.

The principle of neutrality demands that the State show no bias towards existing religions or faiths. This principle is closely linked with the above principle and follows from the separation of State and religious organizations. One of the key approaches when assessing the actions of the authorities from this point of view is adherence to the principles of non-discriminatory, unbiased and equal attitudes to all religious organizations.

State support for certain churches is not a violation of these principles unless it establishes universal rules binding all to provide such support or look favourably on these religious organizations.

Adherence to these principles is one of the greatest problems in the authorities’ administrative practice.

This is in the first instance linked with the fact that the authorities, fighting for the support of the electorate, always show a favourable attitude to the dominant religion. Clearly this patronage gives the informal message that these dominant religious organizations have more rights.

This is graphically reflected in situations involving property issues, for example, allocation of sites of land to construct places of worship or the return of religious property confiscated under Soviet rule. In such situations, this favourable attitude assumes a practical dimension. Positive decisions on these issues, with few exceptions, are received only by the dominant religious organizations. It should be noted that in this context it is religious organizations which are most widespread in a given area (region) that are dominant. Different religious organizations, usually the Ukrainian Orthodox Church under the Moscow Patriarchate or under the Kyiv Patriarchate (UOC KP), are dominant in different areas

According to the data, collected by the State Committee on Nationalities and Religions, between 1992 and 2009 5672 houses of worship were built with the help of local executive power, local self-governments and by attracting off-budget funds. 251, i.e. 4.4% of those were built in 2009. Principal religious organizations respectively constructed:

Ukrainian Orthodox Church under Moscow Patriarchate - 127,

Ukrainian Greek-Catholic Church – 63,

Ukrainian Orthodox Church under Kiev Patriarchate– 54,

Union of Evangelical Christian-Baptists – 8,

Union of Pentecostal Churches – 10,

Ukrainian Autocephalous Orthodox Church – 3,

Roman Catholic Church – 2 church premises. 2398 premises are still under construction. 13 Apart from the fact that this financial support seems dubious in view of the legislation in force, it is obvious that all the support is given to the religious organizations prevalent in the given areas.

For example, in early December, 2010 Kiev city council members allocated 11 million UAH for the construction of the Holy Ascension cathedral (Ukrainian Orthodox Church under Moscow Patriarchate). The building, 22 thousand square meters big, will house not only cathedral for 5 thousand parishioners, but also a metropolitan’s residence, numerous offices, school, spiritual/educational center, pilgrims’ hotel, TV studio, conference hall with one thousand seats, fitness center and underground parking garage for 126 cars. Earlier the Ukrainian Orthodox Church speakers declared that it would be the highest cathedral in Europe 120 m high.14

Meanwhile, on September 8, 2010 the Cabinet of Ministers passed an ordinance under which the budget funds in total of 13 million 400 thousand UAH are allocated for archeological digs and “musefication” of the ruins of Tithe Church fundaments”. "When archeological team leaders tried to figure out what ”museficiation” stands for, they found out that it meant laying down the foundations for a Moscow patriarchate church: concrete pillars and a concrete platform on them” – stated the archeologists’ task force.15 In fact the money was allocated for the construction of the temple belonging to Ukrainian Orthodox Church under Moscow Patriarchate at the historic site, which meant ultimate ruination of this latter.

Before that the Cabinet of Ministers of Ukraine by its Decree of June, 14, 2010, allocated 1.4 million UAH from the stabilization fund for the completion of Saint Andrew Cathedral in Nova Kakhovka parish (Ukrainian Orthodox Church under Moscow Patriarchate) and 3 million UAH for the construction of Mother of God’s Cathedral (Ukrainian Orthodox Church ) in the town of Kurakhovo, Donetsk oblast’ The journalists’ investigation, however, proved that this latter was built and consecrated as long ago as 2005.16

Here are some examples of allotting land plots for the construction of religious premises or resolving the property issues:

  • Sumy city council in December 2009 refused a permit to develop a plot of land for construction of a Ukrainian Greek-Catholic Church building. According to the draft decision, 1.19 ha of land in Krasnozvezdinsky st. (KRZ park). However, only five council members voted “for” the decision. According to UGCC information department, the issue of land allotment for Greek-Catholic believers could not be resolved for a number of years. In the meantime, two other churches in Sumy were granted permanent use of land on which they are standing. The statement also contains the information on Evangelical Christian-Baptists Church “The Evangelic Light”, which received 0.23 ha in Pokrovska st.5, and on Saint Trinity parish of Sumy eparchy(Ukrainian Orthodox Church under Moscow Patriarchate) – 0.60 ha for Saint Trinity cathedral.17

  • At the meeting on September, 23 2010 the members of Simferopol city council passed a decision refusing to allot a land plot for the construction of a cathedral (Ukrainian Orthodox Church under Kiev Patriarchate). Earlier the church members approached city council asking for a 0.49 ha land plot in Kievska street, close to the Ukrainian high school. In the course of negotiations the deputies from Yanukovich’s and Natalia Vitrenko’s blocks insisted on refusing this request, arguing that “Kiev patriarchate is culpable of supporting Banderivtsy and disseminating dissent in the Orthodoxy”. Before the voting, city mayor addressed the deputies with the following words: “If a church, a mosque, a cathedral or a temple are functioning, it means that there are people who come there to worship. We have the Seventh day Adventists, the Mormons and other denominations as well. Even those banned in other countries, were granted land plots to build their premises. Let’s decide by voting”. The mayor himself, however, did not participate in it. At the same meeting the deputies rejected a request from the congregation of the Apostolic Christian Church of Ukraine “Word of Life” concerning construction of religious premises in Peremoha prospect, based on the earlier decision in this case.18

  • Dispute arose around potential construction of Ukrainian Greek-Catholic Church premises in Odessa. The local congregation has been struggling to get it built for many years. After a number of refusals and red-tape the authorities requested that public hearings on the town-planning substantiation of the church construction in Staroportofrankivska street (Prokhorivsky park) in Odessa be held. The public hearing was set up for September, 4. However, on the request of Odessa and Crimea Ukrainian Greek-Catholic Church Exarchate, the public hearing was continued indefinitely. The town-planning substantiation for the church construction was devised following relevant decision of Odessa city council of June 24, 2009. The document was approved by land resources department, environmental protection, fire department and sanitary/epidemiological inspection. On July 22, 2010 positive expert opinion, prepared by architecture and town-planning department of Odessa oblast’ state administration, was issued. There is no need, under the law, to hold a public hearing in the matter of church construction. So, on the request of Odessa and Ismail Metropolitan Agafangel (Savin) representing Ukrainian Orthodox Church under Moscow Patriarchate, the executive committee of Odessa city council issued a construction permit to build a church in the center of the city without any public hearings. In its turn, the new Saint Lukas church 12х12 m is to be built at the territory of the city hospital № 3, in Lidersovsky boulevard, 11. And on August30, 2010 on the motion, filed by Odessa and Ismail Metropolitan Agafangel, who represents Party of Regions as a member of the Odessa oblast’ council, the board meeting of Odessa oblast’ council passed a decision, granting the ownership of a number of buildings in Academician Vorobyov’s street, 2 to Odessa eparchy of Ukrainian Orthodox Church under Moscow Patriarchate, which plans to build there a church dedicated to the holy righteous Ioann of Kronshtadt.19 Odessa eparchy of Ukrainian Orthodox Church under Moscow Patriarchate on September, 1 published an opinion on possible construction of a Greek-Catholic church in Odessa. “Odessa, where predominant number of residents belong to the Ukrainian Orthodox Church, has such insignificant Greek-Catholic congregation, that there is no need to build not only a church but even a prayer house for the Uniate Church-goers”, - stated Odessa and Ismail Metropolitan Agafangel (Savin). The declaration stressed that the Metropolitan and Odessa eparchy clergy regard the building of a Uniate house of worship inexpedient and very dangerous “for the capital of our region”.

  • The congregation of Ukrainian Greek-Catholic Church in Yalta for 18 years has been trying in vain to get a plot of land for the construction of their church, despite the fact that all the required papers are in order.

  • The Roman-Catholic parishioners of Saint Joseph Church in Dnipropetrovs’k won the right to have their own place of worship only by court’s ruling. On October 12, 2010 the congregation finally received the title of ownership and technical passport for the church premises. It marked the end of 12-years’ long struggle for the church, built by their predecessors in the second half of the 19th century. In 1998 Dnipropetrovs’k oblast’ council passed a decision giving Saint Joseph Church into private hands. The «Dugsbery, Inc. » corporation had its claims to the property since 2006. In the meantime, according to the parishioners and mass media, it was systematically destroying the building. Only in November 2009 the decision of high administrative court of Ukraine confirmed the congregation property rights, with its coming in force one year later due to various legal obstacles.20

The list of examples is endless. In fact, due to existing practices, non-orthodox believers stand no chance of obtaining a plot of land to build their temples in the areas with orthodox confessions’ predominance.

Another set of problems arises when local state administration starts to take sides in religious conflict. These conflicts often come into being when a congregation switches from one church to another. In some cases, the parishioners make the decision themselves, and sometimes it is initiated by spiritual leaders, rejected by their congregation for idleness, to give just one example. Then they would try to switch the congregation to another Church to retain their power. The situation is usually aggravated if the congregation has its own religious building. The official bodies’ stand is very important here, as it is up to them to register or reject the registration of statutory amendments and changes in the church leadership. They are also the ones that issue the title of ownership for the church. Here is a typical example:

On April 6, 2010 Kiev Court of Appeals classified decision of Cherkassy oblast’ administration as illegal. The decision concerned the cancellation of registration for the congregation of God’s Ascension in Kanev (Kostyanets) and transfer of the church premises, built by Ukrainian Autocephalous Orthodox Church, into the ownership of newly created parish of Ukrainian Orthodox Church under Kiev Patriarchate. The litigation lasted for two years. The conflict around the premises started when the parishioners fired their prior Father Volodymyr Tsyanets for his idleness and financial abuse. In response the priest organized the registration of alternative parish of Ukrainian Orthodox Church under Kiev Patriarchate and seizure of the building. At that time he was accepted to the body of clergy in Cherkassy eparchy of Ukrainian Orthodox Church under Kiev Patriarchate. The officials of Kharkiv-Poltava eparchy of Ukrainian Autocephalous Orthodox Church maintained that the congregation statute was re-registered in early 2008 by the head of Cherkassy oblast’ department for nationalities and religions Yevhen Savis’ko, who earlier held the office of the Bishop’s secretary in Ukrainian Orthodox Church under Kiev Patriarchate. Soon after that the court reinstated the Ukrainian Autocephalous Orthodox Church congregation in its rights to the premises’ ownership.21

The impartial position of the authorities is also very important when sharing of the religious premises is set up. However, the conflicts related to such arrangements are less and less frequent.

The problem of restitution of religious property, nationalized by the soviet power, still remains unresolved.

 

5. Parents’ right to religious education of their children and state objectivity principle.

Over the last two years the introduction of Christian religion lessons in the public secondary schools has been gaining momentum. It’s being done ad hoc and with no legal support. The actions taken are justified by the necessity of spiritual and ethics-related education of young generation.

According to international standards, religious education in schools and higher educational institutions can be introduced however such courses should be the same and based on the principles of objectivity, non-discrimination and impartiality. They cannot therefore include only the views of one religion or faith. The State must respect the right of parents to determine their children’s religious upbringing22.

In various regions of the country courses of "Christian ethics ", "Basic Christian Ethics, " Principles of Islamic culture, "Ethics: The Spiritual Principles", "Christian Ethics in Ukrainian culture " and other subjects of a moral and religious direction are being introduced with varying degrees of interest from parents, students and the public, depth and quality of teaching and preparation of teachers.

At present these subjects are optional and studied at the wish of parents, which is in keeping with international standards. However this is not the case in all cities.

In the West of the country there is a clear trend towards compulsory studies of only Christian denominations. Virtually all textbooks in this are one-sided and do not comply with the principle of impartiality. Furthermore, throughout virtually the entire country there is a shortage of teachers of this subject.

It should be noted that the President’s Decree from 2005 on introducing into the State school curriculum a course on «Ethics of faith» did not have any significant result.

In 2008 a Public Council for Cooperation with the Churches and Religious Organizations attached to the Ministry of Education and Science was created23. In У 2009 the Public Council initiated introduction of subjects, addressing spirituality and ethics, into the agenda of competitions and contests. Namely, a contest “Teacher of the Year” for the teachers of Christian ethics and competition “Young Bible Scholars” were carried out.24 And on February 24, 2010 the Public Council approved the curriculum for spiritual and ethical education for preschool children, which will be offered with parents’ consent.

The Public Council in 2010 also considered the possibility of broader introduction of spiritual and ethics-related subjects, i.e. “Introduction to Christian Ethics”, supported by oblast’ and city education departments. The meeting participants noted, that presently this subject is taught only in 30% of all Ukrainian schools. The lowest indicators were registered in Luhansk, Kharkiv, Poltava, Sumy and some other oblast’s.25

Since 2005, the Committee developing the concept for the optional courses in the ethics of faith, religion studies and other spiritual and ethics-related courses, has been operating under the Ministry of Education and Science. On September 6, 2010 the Ministry of Education and Science of Ukraine decided to recommend the curriculum on “Introduction to Christian Ethics” for the use in grades 1-4 and 7-11 of secondary schools.26 This course does not contain the details of religious rituals, but neither does it meet the international standards. It teaches nothing, but the sources of Christianity and Christianity exclusively. It fails to mention other religions or alternative opinions concerning religion. One of the main incentives for the students in these lessons is evaluation, i.e. facts and knowledge, mastered by the students during the lesson, are evaluated. The descriptive evaluation, as well as points (based on 12-points’ system), are used. In other schools, where the subject of Christian Ethics is optional for the students, they are evaluated in terms of “passed” or “failed”.

At the same time the Ministry of Education and Science set up an experiment on “Teaching spirituality and national awareness on the principles of Christianity and national Ukrainian values” in the educational institutions.

For example, the experiment has been carried out between the years 2006 and 2008 in Rohatyn Volodymyr the Great high school (Ivano-Frankivs’k oblast’). Within the experiment framework the students’ handbook was devised. It contains, among other things, the following topics:

  • “Prayers before and after school”;
  • A Thanksgiving prayer;
  • Prescription from sin;
  • How to say “No” to temptation;
  • Seven ways to attract other people…

Besides, within the experiment framework the teachers went on pilgrimage to Univ Lavra of Holy Dormition, the students published a newspaper “Study yourself through Christian values” etc.

The main teaching methods, used for the experiment, included readings from the Holy Scripture, listening to the spiritual music; singing, painting, poetry writing; contests; quizzes, cross-words, debates, familiarizing students with iconography basics and school competitions.

Despite potential positive impacts of such experiments, it is obvious that they are not well coordinated with human rights’ standards. Respect of human rights and fundamental freedoms should become an underlying principle for such experiments.

According to sociological survey carried out in 2010 public supports the introduction of the “Basics of [Russian] Orthodox culture and other religions” in educational establishments. 67% of respondents supported the idea of teaching the course at school, 16.4% were against it. Almost the same number provided no answer.27

 

6. Recommendations

1)  Ukrainian legislation should be brought into conformity with the demands of Articles 9 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the light of the court case law of the European Court of Human Rights, in particular, as regards ensuring the neutrality of the State, the possibility for a religious community to receive legal entity status and to freely practice their religion.. For this it would be desirable to apply the «Guidelines for Review of Legislation Pertaining to Religion or Belief» prepared by the OSCE / ODIHR and the Venice Commission in 200428.

In drawing up amendments to legislation the following changes are needed:

-  the focus should be moved away from checking out organizations at registration stage to monitoring their activity: accordingly shortening and simplifying the registration of religious organizations, making the procedure at least analogous with the registration of civic associations;

-  discrimination must be eliminated when registering the articles of association of religious communities and the grounds clearly defined for refusing to register or for cancelling the registration of such articles of association;

-  norms must be removed from legislation which impose a structure and system of management on religious organizations. These issues must be regulated exclusively by the articles of association of the organization;.

-  the permission-based procedure for holding religious peaceful gatherings must be abolished;

-  restrictions on the religious activities of foreign nationals and stateless persons must be abolished, including allowing such people who are permanently resident in Ukraine to found religious organizations;

2) State bodies should not interfere in internal Church affairs, and should clearly observe the principle of neutrality, in particular, as regards the creation of a single Local Orthodox Church., nor should they defend one of the sides in internal Church conflicts;

3) Effective mechanisms are needed for avoiding discrimination on religious grounds, particularly in the penal system, the social sphere and in the area of labour relations. It is also vital to make adjustments to legislation on taxation of religious organizations in order to remove discrimination against non-Christian organizations (for example, on taxing VAT, defining the term «religious services», etc);

4) Law enforcement agencies must continue to react swiftly and appropriately to cases of incitement to religious hostility and vandalism;

5) In order to eliminate discriminatory administrative practice and conflict between churches, clear legal norms should be passed stipulating the grounds, procedure and time periods for returning church property. It would also be expedient to draw up a detailed plan for returning religious property with these procedures and the time taken for each object defined. Where it is impossible to return such property, provision of some compensation should be stipulated, in particular, for the construction of new buildings of worship or allocation of land sites;

 6) Local authorities should review legislative acts they have passed which establish discriminatory provisions, and also additional limitations, not foreseen by the law, on freedom of religion when holding peaceful gatherings, renting premises, allocating land and returning religious buildings. General principles should also be clearly outlined for the allocation of sites for building places of worship

7) Religious education in schools and higher education institutions may be introduced however the courses must be the same and built on the principles of objectivity, non-discrimination and impartiality. Such courses must not therefore only include the teachings of one religion or faith. The introduction of such education should meet OSCE and Council of Europe standards, and the judgments of the European Court of Human Rights.

 

==========

1 Prepared by Volodymyr Yavorsky, UHHRU Executive Director.

2 Judgment of the European Court of Human Rights in the Case of Svyato-Mykhaylivska Parafiya v. Ukraine from 14 September 2007 In this case the Kyiv City State Administration had refused to register amendments to the articles of association of the Svyato-Mykhaylivska Parafiya which envisaged changing canonical subordination from the Moscow Patriarchate to the Kyiv Patriarchate. We should also add that the Head of this Parafiya in parallel stated that unlawful actions against him by the authorities had been started again, cf. “The Head of the Parafiya Council which won its case in the European Court is being persecuted by the Kyiv Tax Police // Religious Information Service of Ukraine www.risu.org.ua.

3 See more on Institute for religious freedom site: http://www.irs.in.ua/index.php?option=com_content&view=article&id=740%3A1&catid=34%3Aua&Itemid=61&lang=uk.

4 See e.g. draft law prepared by members of parliament Ihor Rybakov ( non- factional) and Vladyslav Lukyanov (Party of the Regions) “On Introducing changes and amendments to the Law of Ukraine “On freedom of conscience and religious organizations” re banning the totalitarian religious sects ( register No 5473 of December, 24 2009), which a month later was rejected by the authors after criticism. Later a new draft law on banning religious sects was proposed ( (№6493 of June 7, 2010, member of parliament L.Biryuk (BYUT faction); more on this draft can be found on

http://www.irs.in.ua/index.php?option=com_content&view=article&id=676%3A1&catid=34%3Aua&Itemid=61&lang=uk.

5 Information report of the State Committee on Nationalities and religions “on status and tendencies in religious situation and state-confessional relations in Ukraine (Short version), March, 24 2010,   Committee press service http://www.scnm.gov.ua/control/.

6 See paragraphs 130-131 of the judgment of the European Court of Human Rights in the case of Svyato-Mykhaylivska Parafiya v. Ukraine from 14 September 2007.

7 Information report of the State Committee on Nationalities and religions “on status and tendencies in religious situation and state-confessional relations in Ukraine (Short version), March, 24 2010,   Committee press service http://www.scnm.gov.ua/control/

8 See decision here: http://www.reyestr.court.gov.ua/Review/8029123.

9 See more: Vandalism in Kharkiv http://kharkiv.dyvy.info/reports/814-2010-11-16-11-17-53; Kharkiv court supports the vandals, http://www.glavnoe.ua/news/n62802; Sadovy and Dobkin agreed upon re-establishing of the plaque in memory of Y.Slipy /n64811.

10 See more here: http://risu.org.ua/ua/index/all_news/confessional/auccro/36227/.

11 Information report of the State Committee on Nationalities and religions “on status and tendencies in religious situation and state-confessional relations in Ukraine (Short version), March, 24 2010,   Committee press service, http://www.scnm.gov.ua/control/

12 More on this can be found, for example, in “Court defence of human rights: Case law of the European Court of Human Rights in the context of western legal tradition” – Kyiv: Referat, 2006, pp. 392-393.

13 Information report of the State Committee on Nationalities and religions “on status and tendencies in religious situation and state-confessional relations in Ukraine (Short version), March, 24 2010,   Committee press service, http://www.scnm.gov.ua/control/

14 See more: http://risu.org.ua/ua/index/all_news/state/church_state_relations/39461/  and http://www.ukrvideo.com/ukraine/n/kiyivska_vlada_vidilila_11_mln_grn_na_budivnitstvo_hramu/.

15 See archeologists’ statement here: http://risu.org.ua/ua/index/all_news/community/protests/38919/.

16 See Cabinet of Ministers Decree of June 14, 2010 here: http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=472-2010-%EF&p=1292343051628427, also on journalists investigation: http://risu.org.ua/ua/index/all_news/state/church_state_relations/37654/.

17 See. http://www.ugcc.org.ua/news_single.0.html?&tx_ttnews[pS]=1255249199&tx_ttnews[tt_news]=1970&tx_ttnews[backPid]=1&cHash=ff9c3e9852

18 RISU information: http://risu.org.ua/article_blog_code.php?id=38057&name=land_and_property_problems&_lang=ua&.

19 See here: http://risu.org.ua/ua/index/all_news/state/church_state_relations/37722/.

20 See more details here: http://catholic-dp.org.ua.

21 Capital Court of Appeals confirmed the legality of church return to the UAOC in Kanev, April 9, 2010, RISU http://risu.org.ua/article_blog_code.php?id=35156&name=temples_church_property&_lang=ua&.

22 More detail can be found in the Toledo guiding principles on teaching about religions and beliefs in public schools, prepared by the ODIHR advisory council of experts on freedom of religion or belief, OSCE 2007.

23 Ministry of Eduction Order of October 20, 2008 No. 941

24 See more on Public Council here: http://risu.org.ua/article_blog_code.php?id=33417&name=church_and_school&_lang=ua&.

25 See more re this meeting: http://risu.org.ua/article_blog_code.php?id=34541&name=church_and_school&_lang=ua&.

26 Complete curriculum is here : http://www.irs.in.ua/index.php?option=com_content&view=article&id=713%3A1&catid=38%3Apub&Itemid=65&lang=uk.

27 Survey was held on April 13 to 22, 2010 by individual interviews in 24 oblast’s of Ukraine and ARC. Respondents were selected by quota sampling, representative of adult population by place of residence ( oblast’), gender and age. The survey covered 2076 persons. Anticipated mean error constitutes 2, 2%. Lessons “Introduction to Russian Orthodox culture” are now implemented experimentally in Russian schools. http://risu.org.ua/article_blog_code.php?id=36029&name=social_questioning&_lang=ua&.

28 In English: www.osce.org In Ukrainian: Freedom of Religious and Worship in Ukraine within the context of compliance with European standards / Edited by Volodymyr Yavorsky / Ukrainian Helsinki Human Rights Union and the Centre for Legal and Political Studies “SIM”. Kharkiv: Folio, 2005. Available on the UHHRU website at: www.helsinki.org.ua.

 

 

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