login | registration | forgot the password
today 26.09.2016 04:57
(by Kyiv time)

navigation

Kharkiv Human Rights Group Social Networking



6. Freedom of thought, conscience, and religion

[1]

1. Overview

 The situation in this area has not changed a lot, although there have been negative trends toward increased state regulation and limitation of religious freedom. Throughout the year there were a number of dangerous legislative initiatives on the part of pro-government factions of the parliament, but they were not considered. It is a traditionally contentious domain, though there are traditional instruments to tackle such conflicts. All domestic denominations can enjoy sufficient freedom of religion. Even in spite of the outdated and sometimes stringent law on freedom of conscience and religious organizations, its shortcomings are largely made up for by positive administrative practice of the authorities. Nevertheless it is clear that in the absence of clear legal guarantees of religious freedom the situation remains precarious and unpredictable and a lot depends on the government policy.

In the years 2012-2013 there were certain preferences in the actions of the central government connected with the Ukrainian Orthodox Church (Moscow Patriarchate) [UOC (MP)]. This manifested itself in the position of power to lease premises, allocation of funds from the state budget for the restoration of religious buildings that are in use of this church, and other activities to support it.

   According to the Institute for Religious Freedom, in 2013 the Parliament had under consideration about 30 bills related to freedom of religion or of religious organizations in the spiritual, social and other spheres. However, most of the relevant committees wavered in their support for initiatives aimed at expanding the legal right to freedom of religion.

On October 16, 2012 unexpectedly the parliament passed controversial amendments to the law on religious organizations[2]. Numerous non-governmental organizations, human rights activists and religious organizations were against this law. But on November 21 the President signed it all the same, and on December 12, 2012 the law came into force. Moreover, on December 7 he instructed the Ministry of Justice to immediately prepare a bill on amendments to the Law "On Freedom of Conscience and Religious Organizations”.[3] The Ministry of Justice and Ministry of Culture prepared a draft law in May, in June, it was considered by the All-Ukrainian Council of Churches and Religious organizations, and then it was submitted to the Cabinet. However, by the end of 2013, the bill was not placed for consideration of the parliament without obvious reasons.

We sure remember that the amendments strengthened double registration of religious organizations, when the charter of the organization is registered first, and then goes the same organization as a legal entity. Also, the new redaction of article 29 of the Law empowers a wide range of authorities to exercise state control over observance of legislation on freedom of conscience and religious organizations. Though the types and forms of state control in this field are not clearly defined.

However, the preapprehension of the experts proved to be wrong. According to the Institute for Religious Freedom, the practice of the law "On Freedom of Conscience and Religious Organizations" has not changed except for elements of registration procedure. Primarily, this is due to the fact that in the case of regulatory ambiguity the responsible officials resort to the established practice.

The problem of discrimination on religious grounds is very serious, but the majority is willing to accept it when it applies only to the public sphere of social life, especially when there are no effective legal tools to combat discrimination.

As of January 1, 2013 the religious network[4] in Ukraine included 55 denominations combining 36,995 religious organizations, which comprised 87 centers and 295 boards, 35,460 religious communities (31,313 clerics give guidance), 500 monasteries (6,834 monks), 370 missions, 81 brotherhoods, 202 spiritual educational establishments (19,752 students), 13,157 Sunday schools. Alongside the registered religious organizations, there are 1,879 unregistered ones, the majority of which is situated in the AR of Crimea (682) and Vinnytsia Oblast (260).

The number of religious communities is the biggest in the Western oblasts and gradually goes down in SE direction: 8 oblasts of Western Region (Volyn, Zakarpattia, Ivano-Frankivsk, Lviv, Rivne, Ternopil, Khmelnytsk, Chernivtsi) accumulate 39% of religious network, 9 oblasts North-Central Region (Vinnytsia, Zhytomyr, Kyiv, Kirovohrad, Poltava, Sumy, Cherkasy, Chernihiv oblasts and City of Kyiv) 31.0%, 10 oblasts of SE Region (Autonomous Republic of Crimea, Dnipropetrovsk, Donetsk, Zaporizhzhia, Luhansk, Mykolayiv, Odesa, Kharkiv, Kherson oblasts and City of Sevastopol) 30.0%.

The distribution of religious organizations by denomination shows the prevalence of Orthodoxy (UOC (MP), UOC KP, UAOC), which as Jan. 1, 2013 comprised 19,107 religious organizations or 51.6% of all domestic religious communities.

The statistics shows the priority dynamics of UOC (MP) for the decade: the annual number of its communities increases by about 250 organizations. Significantly lower is the growth rate of the UOC KP, i.e. about 70 communities annually. The communities of the UOC (MP) represent over 37% of all religious organizations.

At the same time out of 23,814 religious buildings and premises belonging to all religious organizations 10,561 (44%) belong to the Ukrainian Orthodox Church (Moscow Patriarchate). From 2010 to 2012 the number of premises of the UOC (MP) added more than 300 objects. At the same time, the number of objects of the UOC KP increased by less than a hundred premises and makes 2,939.

2. Freedom to profess religion or belief

2.1. Establishment and operation of religious organizations

There still exist old problems with complicated registration of religious organizations. This procedure contains many violations of European standards; it is very bureaucratic and not clearly defined. However, the religious organizations agree with this, because, by making such registration, they become practically free from further control, except when it is connected with the activity of aliens.

In our previous Reports we dwelt on the problems of legislation on registration of religious organizations. Nothing much has changed during 2013 and our estimate is consistent with the present situation.

Our state does not comply with the decision of the European Court of Human Rights St. Michael Parish vs. Ukraine. This has resulted in a further lack of clear definitions of key concepts: religious organization, religious community, members of the religious community and others. Added to this is the inability of the church to obtain legal status. This creates favorable conditions for despoilment of the places of worship. In some cases a part of the community suddenly decides to adhere to some other church, and sometimes it happens even in a more brutal way when a crowd emerges and declare themselves members of the community and announces the transition to another church. Such conflicts in the country take place at every turn. And in addition to the traditional interest in such conflicts of local authorities, this obviously is due to the unclear legislation.

A typical example is the conflict over the church building in the Town of Mostyska, Lviv Oblast.[5] The building was owned by the religious community of the Ukrainian Autocephalous Orthodox Church. A part of the community decided to change their religious affiliation and decided to move to the UOC KP. According to the statute, the property had to remain in ths ownership of the Ukrainian Autocephalous Orthodox Church. Meanwhile, a part of the community backed by the local authorities registered the amendments to the statute, as if the whole congregation had moved to the UOC KP. The court found illegal the re-registration of the Charter of the religious community “as it had been carried out in the absence of legal grounds and without documented consent of the religious community of the UAOC of the Church of the Protecting Veil of the Mother of God of the Town of Mostyska which had actually changed its religious (denominational) affiliation that in the organizational structure of the Patriarchate of the Ukrainian Autocephalous Orthodox Church in Ukraine led to the violation of rights, freedoms and legitimate interests of religious organizations and the religious community, which is under the Orthodox jurisdiction of the UAOC.” A panel of judges of the appellate court in administrative cases of the Supreme Court of Ukraine by its Order dated November 10, 2009 left the ruling intact. That is the UAOC proved their case in the courts of several instances.

However, in 2010, all of the re-registration procedure was repeated verbatim: on April 8, 2010 the Head of Lviv Regional State Administration instructed (order no. 318/0/5-10) to carry out ​​illegal re-registration of amendments to the articles of the rules of the UAOC community of Mostyska, Lviv Oblast, changing the confessional (religious) affiliation and name of the religious community, i.e. returning to the name of Religious community of the UOC KP Mostyska, Lviv Oblast. In this case, the applicants submitted the registration statement and the minutes of the parish meeting of alleged religious community UAOC with the seal of the religious community of the UOC KP affixed.

In 2013, the conflict continued. On March 12, 2013 the Lviv District Administrative Court[6]  invalidated another persisting decision to register changes in the statute: the ruling of the Head of Lviv Oblast State Administration no. 266/0/5-12 of 26.04.2012 "On the statute of the religious community". The court also ordered the Lviv Oblast State Administration to register the amendments to the Statute of the religious community of the UAOC in Mostyska, Lviv Oblast (the Church of the Protecting Veil of the Mother of God of the Town of Mostyska) registered by the decision of the Executive Committee of the Lviv Oblast Rada on 17.09.1991, no. 495, and approved by the Parish meeting of 01.03.2009. October 16, 2013 the Lviv Administrative Court of Appeal fully supported this decision and dismissed the appeal of the Lviv Oblast State Administration and the UOC KP[7].

However, it seems that even this court's decision will not be enforced because the local authorities are pressing for the decision suitable for them.

Another story that indicates systemic problems covers the conflict that arose around the Saint Volodymyr Church in Novoarkhanhelsk, Kirovohrad Oblast. On March 19, 2013 it got about that the unknown persons seized the St. Volodymyr Church of Kyiv Patriarchate. On April 23 the parishioners tried to drive them out of the church. As a result, there was a fight, the parishioners were beaten by the militiamen which closed and sealed the temple. As it turned out, the congregation was truly surprised to come to know that their community had suddenly moved from the UOC KP to the UOC (MP).[8] The attempts to bring the parish under the jurisdiction of the of UOC (MP) the officials of Kirovohrad Oblast, according to the believers of the Kyiv Patriarchate, made repeatedly over several years in a row. In spring of 2007, they, along with the clergy of the UOC (MP), urged father superior of the parish archpriest Illia Sovych to shift the parish to the Moscow Patriarchate and confront the community with the accomplished fact. In response to pressure from local authorities, on August 2, 2012 the father superior called the parish meeting, at which the believers adopted the new redaction of the Statute. However, it was not registered. Instead, on November 30, 2012 the Kirovohrad Oblast Administration order (no. 729-r) to register the amendments to the charter of the community attesting to the transition to the UOC (MP). The community appealed against the decision juridically. On February 4, 2013 the Kirovograd District Administrative Court rejected the claim and refused to recognize the decision on registration of amendments to the statute unlawful[9]. As it turned out, the changes were submitted by ten individuals who were the founders of the community in 2001. Formally, they are recognized community members. In reality, however, at this time they were not community members, and the parish was managed by other members of the community. In fact, as in the case of St. Michael Parish vs. Ukraine, the dispute arose around the issue of who should be considered members of the community and who has the right to decide on amendments to the statute. The court sided with the UOC (MP), although the legislation was not clear and was quite controversial. On March 14, 2013 the Dnipropetrovsk Administrative Court of Appeal dismissed the appeal[10] and upheld the first instance using the same argument. Paradoxically, the Court in its decision also referred to the practice of ECHR and decision in the case St. Michael Parish vs. Ukraine, but argued quite differently concluding that the authority had no right to refuse registration of amendments to the charter. Thus, it is obvious that the court ignored the other part of this decision and actually on its own filled a gap in the legislation defining who was a member of the community and was entitled to participate in the general meeting of the community. On May 29, 2013 the Supreme Administrative Court initiated the cassational proceedings in this case,[11] but it failed to consider the case by year's end. The community challenged the validity of the state registrar, but this claim was rejected on July 9, 2013 by the Kirovohrad District Administrative Court[12]. Although the community representatives argued that the changes were filed illegally to the state registrar under allegedly forged power of attorney because it had been published before the amendments to the charter of the community were registered. Also, it was found that the changes to the community charter were submitted personally by Volodymyr Demishkan, one of the founders of the religious community of the urban village of Novoarkhanhelsk, people's deputy of Ukraine from the Party of Regions.[13]

Here are more characteristic refusals to register the statutes of religious communities.

For a long time, they groundlessly refused to register the religious communities of Scientologists that actually operated without registration since 2002. In 2009-2011, the court already canceled the refusal to register this community. On June 25, 2011 the KSCA once more refused to register the rules of the religious community “The Kyiv Church of Scientology” in the Dniprovsky District of Kyiv. The community appealed this refusal as well. On February 22, 2012, the District Administrative Court of Kyiv[14] found the refusal to register the community illegal and decided to re-examine the documents submitted for registration. Its decision read: “First of all, neither from the wording of the impugned order of the KSCA, nor from the above conclusion of the State Committee of Ukraine on Nationalities and Religions of July 27, 2011 no. 7/4-13-85, nor other material of the cases permit to conclude which provisions of the statute “Kyiv Church of Scientology” was contrary to the laws of Ukraine. At the hearing the defendant's representatives also failed to point out the specific provisions of the statute. Therefore, the argument of the defendants that the articles of the rules of the religious community “Kyiv Church of Scientology” in the Dniprovsky District of Kyiv submitted for registration contradict the current legislation of Ukraine does not deserve the attention of the court.” On September 27, 2012the decision was upheld by the Kyiv Administrative Court of Appeal[15]. On August 22, 2013 the Supreme Administrative Court of Ukraine dismissed the appeal and left the decision of September 27 in force[16]. Thus, the KSCA had to reconsider the documents submitted for registration. At the end of the year the results of this review remain unknown.

On March 25, 2013, the District Administrative Court of Kyiv pronounced unlawful[17] and overruled the ruling of the Executive Body of Kyiv City Rada (Kyiv City State Administration) of August 1, 2012 no. 1349 "On the refusal to register the statute of the Independent Christian religious community "Resurrection of Christ" in the Obolon District of Kyiv". The court found no evidence that the activity of the community had been against the law. However, on July 9, 2013 the Kyiv Administrative Court of Appeal overturned this and made a new award[18] which totally dismissed the claim. The Court referred to the fact that those who were the founders of this organization belonged to the unregistered Ukrainian Autocephalous Orthodox Church Canonical, as far as it was stated on the website of the church (http://www.soborna.org/). However, the documents submitted for registration had nothing in common with the UAOC-C. This relationship had been established solely on the basis of information from the Internet. Such evidence and grounds for refusal can but set wondering.

On December 5, 2012 the Sumy District Administrative Court accepted the claim[19] against the Main Department of Public Relations of the Sumy Oblast State Administration, Department of Culture and Tourism of the Sumy Oblast State Administration, 3rd party: Department for Religions and Nationalities of the Ministry of Culture, about the acknowledgment of inactivity illegal and recognition of actions unlawful. On April 4, 2012, the citizens filed an application to the chairman of the Sumy Oblast State Administration about the registration of the rules of the religious community "The Truly Independent Orthodox Parish of the Nativity” in Sumy. On April 27 the officers of the Main Department of Public Relations of the Sumy Oblast State Administration directed the package of documents submitted for registration of the statute to the Department for Religions and Nationalities of the Ministry of Culture for expert review of religious aspects, which was also contrary to the requirements of applicable laws, including the Law “On Freedom of Conscience and Religious Organizations” as far as such kind of expert examination of religious matter was outside the jurisdiction of the Ministry. As a result, the ministry returned the said documents to the Main Department and offered to prepare relative information according to the List of questions about religious practices and social activities of a religious organization. However, the authorized body vested the claimant with the function of preparing responses to the List of questions about religious practices and social activities of a religious organization setting the deadline for execution for 25.06.2012. Having obtained the refusal of the claimant to answer these questions, the respondent on 03.07.2012 returned the documents and application without giving his proposals to the Head of the OSA on registration or refusal to register the statute. Obviously, such actions of the government body did not met the requirements of the law: in particular, the authority had no right to send the documents for expert examination and had no right to return the documents to the applicant without providing answers on registration or refusal to register the statute. On March 12, 2013 he Administrative Court of Appeals, Kharkiv,[20] dismissed the appeal of the Department for Information and Communal Services of Sumy Oblast State Administration and upheld the decision of first instance. On May 16, 2013 the SACU turned down the appellate proceedings.

During 2012 the citizens kept trying to register the statute of the religious community "Church of Christ”, Ivano-Frankivsk. However, in response once and again they kept receiving letters demanding to eliminate certain deficiencies in the submitted documents. Thus, the chairman of the meeting was informed in writing on 12.03.2012 by the Ivano-Frankivsk Oblast State Administration, office no. 10984/3/1-11/01-120, that the petition was considered and the relative request was sent to Ivano -Frankivsk City Rada to provide appropriate conclusion; as a result there emerged certain comments on the documents submitted for registration of the religious community. The necessary amendments should be carried out. The package of documents submitted for registration was returned to the chairman of the meeting with a copy of official opinion, though such a procedure was not specified by law. By letter office no. 8195/2/1-12/01-120 dated 14/12/2012 informed the citizens about another review of the request on the statute registration and listed the inadequacies in the statute to be corrected. Again the required documents returned to the chairman of the meeting with the conclusion of the Executive Committee of Ivano-Frankivsk City Rada. The procedure for return of documents was not specified by law. The citizens brought an action before the court and on March 6, 2013 the Ivano-Frankivsk District Administrative Court gave judgment[21] pronouncing illegal the inactivity of Ivano-Frankivsk OSA concerning the non-adoption of relevant decision as a result of consideration of applications about registration of the statute of the local religious organization of the community “Church of Christ, Ivano-Frankivsk. On June 14, 2013 the Lviv Administrative Court of Appeal citing numerous precedents set by the ECtHR dismissed the appeal of OSA and upheld the decision of the local court[22].

On February 8, 2013 the Zakarpattia District Administrative Court recognized unlawful[23] the refusal to register the statute of the Greek Catholic Community Ascension of the Lord in the Village of Bilasovytsia, Volovetsky Region and ordered the Zakarpattia Oblast State Administration to reconsider the documents submitted for registration. The Zakarpattia OSA refused to register the statute of the Religious Greek Catholic community of the Ascension of the Lord in the Village of Bilasovytsia, Volovetsky Region, because the Zakarpattia OSA requested the conclusions of Volovetsky Regional Sate Administration and Executive Committee of Bilasovytska Village Rada, which, in their turn, were negative. The officials also took into account the appeal of the parishioners of the Orthodox community that petitioned not to register the Greek Catholic community. Therefore, the Zakarpattia OSA believed that there was no reason to carry out the registration of the statute of the Greek Catholic community of the Ascension of the Lord of the Village of Bilasovytsia, Volovetsky Region. The OSA indicated that according to the decision of the 18th session of the 6th convocation of Bilasovytska Village Rada no. 214 of 01.11.2012 it considered the appeal of the parishioners of the Orthodox communities of the villages of Bilasovytsia and Latirka and decided to request the Zakarpattia OSA not to register the Greek Catholic community of the Village of Bilasovytsia “in order to prevent strife and conflict on religious basis between the faithful of the said communities.” It is obvious that the legislation contains no such grounds for refusal of registration. Notably, the court in its decision, inter alia referred to the numerous decisions of the ECHR.

An important step in the registration of religious organizations is to provide it with a status of non-profit organization exempt from income tax, in particular, donations, due to which almost all religious organizations may function. Despite the fact that article 18 of the Law “On Freedom of Conscience and Religious Organizations” states that "the financial and property donations and other income of religious organizations are not taxed,” a religious organization cannot use this privilege for it is not possible without a tax authority decision to include it in the Register of non-profit institutions and organizations. Having obtained the status of a legal entity, which needs double registration procedure, the religious organization must submit its statute to the State Tax Administration of Ukraine to obtain non-profit status and be entered in the register of non-profit institutions and organizations. The bodies State Tax Administration of Ukraine formally, often utterly hollow pretext,  refuse to give non-profit status and enter religious organizations in the Register. In practice, religious organizations face the fact that the tax authorities require them to amend statutory documents (i.e., encourage them to once more undergo two stages of registration), without which, they believe, the non-profit status cannot be given to the religious organization. As an example, the tax authorities may be taken up with such wordings in the statutes of religious organizations as “distribution of religious literature”, or “popularization of religious values ​​and literature through advertising” and so on.

2.2. Organization and conduct of peaceful religious meetings

The Law on Freedom of Conscience and Religious Organizations, contrary to article 39 of the Constitution, establishes the authorization-based procedure for conducting peaceful religious meetings. In practice, holding of peaceful religious meetings runs into much more problems.

During 2013 the development of the law on freedom of peaceful assemblies continued. In the fall two more projects were registered in the parliament. The transitional provisions of both projects contained amendments to the law on freedom of conscience and religious organizations intended to abolish the authorization-based procedure for conducting peaceful religious meetings and hold them on general grounds. These amendments might mark a substantial progress in this area, but these projects were not reviewed during the year.

2.3. Rights of foreigners and stateless persons

The legislation continues to substantially restrict freedom of religion for foreigners and stateless persons. This is reflected in the inability to set up religious organizations, or engage in preaching or other religious activities. In addition, these restrictions apply even to people permanently residing in Ukraine. The foreigners are allowed to carry out preaching activities only at the official invitation of a registered religious organization (although registration is not legally binding) and authorization of the government bodies dealing with religious affairs. The lack of permit entails administrative liability for foreigners (fine), and a warning and further possible forced closure for the religious organizations.

We believe that the requirement of the permission from the authorities for foreigners is an unnecessary discriminatory burden. To eliminate potential threats to society it is sufficient that the person could stay in Ukraine at the official invitation of registered religious organization. During the registration the authorities evaluate the religious doctrine and then monitor the activities of religious organization. In this case, if a foreigner come to the country to preach the same religion, such actions may not bear a direct danger to the public interest and such interference cannot be justified in a democratic society.

However, the situation with the concurrence of religious activities is only getting worse, especially in the last three years, as we wrote in the previous Reports on human rights.

For example, the KSCA resorts to highly controversial interpretations of existing legislation on the legal status of foreign citizens. There was a notorious fact, when the Department of KSCA at the request of endorsing the invitation of a U.S. citizen for preaching in Ukraine formally responded that such activities are possible only subject to obtaining a temporary residence permit in Ukraine.[24]

Thus, there are cases when foreign nationals from the countries with which Ukraine established a visa-free regime are forced to obtain visa type "D" followed by the annual registration permit for temporary residence in Ukraine only to stay for a few days in Ukraine with the purpose of religious activities. This interpretation and practical application of current legislation at the level of the KSCA significantly limits the rights of foreign nationals in their religious activities.

To some extent, this is due to the ambiguity of most legislative acts. As an example, part 6 of article 4 of the Law “On Legal Status of Foreigners and Stateless Persons”, which deals with the legality of residence in the territory of Ukraine with a religious purpose in the presence of a temporary residence permit in Ukraine, does not provide for any exceptions or references to other reasons for lawful residence of foreigners in Ukraine, in particular, on the basis of a visa or a visa-free regime.

At the same time it should be noted that the Ministry of Culture as a central body of executive power in matters of religion, as a whole, provides a balanced policy toward granting approvals to foreign nationals in religious activities. The State Migration Service and the Ministry of Foreign Affairs also contribute to this. But not always in these matters the central authorities may influence the practice of administrative divisions for religious affairs in the structure of local state administrations.

In addition, there are cases when the representatives of religious organizations were simply banned from entering the country without providing adequate explanation. In November 2013 the Protestant preacher from Sweden Karl-Gustav Severyn was banned from entering Ukraine. At the airport "Boryspil" he was handed a relevant decision[25] and sent home. As the RISU informed at the press service of the church “New Life” (Donetsk), the reason for the ban was the instruction of an unspecified state authority. The Border Control Service provided no explanations to the religious community. Karl-Gustav Severyn had to tour several cities with sermons, meet with people, carry out divine services. According to the church "New Life", the Swedish preacher is known throughout the world. Since the late 80's he visited Ukraine every year without problems.[26]

2.4. Social and charitable activities of religious organizations

According to the estimates of the Institute for Religious Freedom, the greatest difficulties in social and charitable activities of religious organizations were connected with the change in the order of execution of humanitarian aid, which is imported to Ukraine for distribution among the poor with the help of religious organizations.

In the last months of 2012 the long-term mechanism of execution of documents, customs clearance and import to Ukraine of humanitarian aid significantly changed as a result of administrative reform. The humanitarian activities of churches and other benefactors were most significantly affected by elimination of the Commission on Humanitarian Aid of the Cabinet of Ministers through amendments to the law “On humanitarian aid”.

As a result, on December 2, 2012, when the government the powers of the liquidated Commission were transferred to the Ministry of Social Policy, the social and charitable activities of religious organizations associated with the distribution of humanitarian aid became virtually impossible because of the lack of appropriate legal and regulatory framework, uncertainty and long duration of procedures for the clearance of humanitarian aid.

As an example, just two months later, the Cabinet of Ministers by its resolution dated January 30, 2013 no. 39 approved the new procedure for the registration of beneficiaries of humanitarian aid. According to this document, the religious organizations must go through the procedure of re-inclusion in the Unified Register of Recipients of Humanitarian Aid. Thus the mentioned procedure failed to define specific terms required by the Ministry of Social Policy for final decision on the inclusion of the applicant in the Register.

Moreover, the legislative changes did not determine a specific period during which the Ministry of Social Policy should consider the issue of accepting the declared goods (works, services) as humanitarian aid.

The delay in the recognition of the aid received from abroad as a humanitarian cargo usually led to charging for storage at the customs temporary warehouses and in case of refusal by the Ministry of Social Policy to recognize this cargo a humanitarian aid to the VAT and customs duties surcharge. As a result, during 2013, the recipients of humanitarian aid were forced to abandon humanitarian goods to the state, and foreign donors tended to suspend shipment of humanitarian aid.

The Council of Evangelical Protestant Churches of Ukraine in its address to the President urged him to take measures to eliminate bureaucratic obstacles to the prompt official registration of humanitarian goods for the purpose of their timely delivery to needy citizens.

3. State and religious organizations: the principle of separation and neutrality

The compliance with these principles is one of the biggest problems in the administrative practice of the authorities, which is often based on the support of the dominant religions in the area and the discrimination of religious minorities. This is primarily due to the fact that the authorities fighting for the support of the electorate always show a positive attitude to dominant religions. Obviously, this patronage informally implies that these dominant religious organizations have more rights.

This is clearly shown by the examples of property issues, including the allocation of plots of land for building houses of worship or the return of religious property confiscated by the Soviet regime. In addressing these issues, such favoritism acquires a practical dimension. The positive decisions on these issues, with few exceptions, are made exclusively in favor of the dominant religious organizations. It should be noted that in this context the dominant religious organizations are the most prevalent in a particular area (oblast). Thus in each oblast different religious organizations dominate, usually the UOC (MP) or UOC KP.

 In consequence, some religious organizations can obtain land plots for religious buildings, while others may not. In some topical cases the UOC (MP) just seized the plot of land for the construction of religious buildings, without any title documents. In this case, the authorities looked the other way.

In May 2013 the draft law no. 2993 was registered[27] amending some laws of Ukraine (concerning conditions for the restitution of religious buildings to religious communities). It was submitted by People’s Deputy Yuri Miroshnychenko and five more people’s deputies from the pro-government factions. Yuri Miroshnychenko is the President’s representative in the Parliament, and often advances motions promoted by the Administration of the President. With high probability we can say that this project has been coordinated with the AP. According to the Bill, the Government received the authority to transfer the monuments of national importance to the free use or ownership by religious organizations.

On July 22 People's Deputy Yuri Miroshnychenko put forward the Bill no. 3007 about the revival of the unique symbol of Orthodoxy--the Church of Our Lady (the Church of the Dime) in Kyiv[28]. The project involved the creation of government-led National architectural and historical, spiritual and symbolic complex intended to revive the unique symbol of Orthodoxy--the Church of Our Lady (the Church of the Dime) in Kyiv. It is noteworthy that the conflict around this place has been going on for years. The state has long been ignoring the arbitrarily constructed by the UOC (MP) the Monastery of the Dime on the site of the Church of the Dime in Kyiv[29]. And the authorities make themselves agreeable to the audience and in different ways defend the interests of the Ukrainian Orthodox Church (Moscow Patriarchate) in this question[30].

Thus, on April 9, 2012 the Ministry of Culture created the Dime Church History Museum, which a few months later was headed by appointee P.V. Doroshenko, or hierodeacon Yaroslav, priest of the “Dime Monastery of the Nativity of the Blessed Mother of God” of the UOC (MP) operating illegally on the territory of the National Historical Museum of Ukraine, which caused an open protest of the experts.[31]

Already on September 5, the same people’s deputy together with others put forward the draft bill no. 3194 on amending some laws of Ukraine (concerning management of the public property)[32]. It made provisions for empowering the government to decide on the transfer of religious buildings and property belonging to the cultural heritage to the free use or ownership by religious organizations. At the same time the bill suggested to exclude from the list of objects of the cultural heritage that cannot be privatized the Pochayiv Lavra, specifically the Cathedral of the Assumption, the Cathedral of the Holy Trinity, monastery cells, building of the archiereus, bell tower and gatehouse complex. In fact, it meant the further transfer of these objects to the UOC (MP).

All three bills were not considered, but it is obvious that the government takes a keen interest in their consideration and is only waiting for the opportune moment. In justification of these projects the state authorities refer to the need to fulfill obligations to the Council of Europe to restitute religious buildings to the religious organizations. However, these bills have nothing to do with the requirements of the Council of Europe, which required adopting a bill that would define a common mechanism of restitution, that is the bill would define common principles for the return of such property for all religious organizations. Instead, it turns out that he case in question is the restitution of a part of the property to one denomination only, even in spite of existing dispute concerning this property with other denominations.

Other churches perceived these bills negatively. Thus, the head of the UGCC called directly upon the Chairman of the Verkhovna Rada of Ukraine and people’s deputies not to pass the iconic Christian shrines to one denomination only[33].

 Actually the objects of Kyiv-Pechersk Lavra have been largely transferred to the use of the UOC (MP). Out of 79 buildings transferred to the free use by the Holy Dormition Kyiv-Pechersk Lavra 64 are monuments of architecture of the national and local levels, 15 buildings and structures belong to the background constructions.[34] Not all structures have relevant documentation, while the lack of documentation makes it possible, for example, to modify objects without the required permits, which leads to devaluation of the object.

The non-dominant religions in the region cannot get support from the local authorities. For example, the impasse remains in Sevastopol concerning the return of the kostel[35] to the local Catholic community. 2013 became another year of no-return to the Catholics of the former Catholic Kostel of St. Clement in Sevastopol. For a long time these communal premises housed the children's movie theater “Druzhba”. Today it is vacant and is in disrepair. At a meeting in Sevastopol City State Administration on March 28, which was devoted to the preparation for the celebration of the 1025th Anniversary of Kyivan Rus, the officials informed that after the relevant orders of the President of Ukraine the Sevastopol authorities would soon resolve the issue of the transfer of the kostel to the Roman Catholic Church.[36] However, no further steps were undertaken by the authorities.

The Karaites also cannot get help in the Crimea[37].

This past July Patriarch Filaret took part in the consecration of the first temple of the UOC KP in the Luhansk Oblast--Holy Trinity Church--and the building of the eparchy. In this case, none of the local officials agreed even to meet with him because the local Ukrainian Orthodox Church (Moscow Patriarchate) came out strongly against his visit[38].

4. The right of parents to religious education of children and the principle of the neutrality of the state

According to international standards, the religious education in schools and higher educational establishments may be introduced, but such courses should be standard and based on the principles of objectivity, non-discrimination and impartiality. Such courses cannot include the teachings of only one religion or belief. The state shall respect the right of parents to religious education of their children.[39]

On September 6, 2010 the MES passed its decision to recommend for use in educational organizations the study program “Foundations of Christian Ethics” for grades 1-4 and 7-11.[40] This course contains no religious rites; however, it fails to meet the above international standards. It includes the study of Christian religious sources and actually the Christianity only. It does not contain even a mention of other religions or alternative views on religion. One of the basic forms and methods to encourage pupils during the lessons of Christian ethics is grading. The object of grading is the knowledge obtained by pupils in the classroom. To grade a pupil the teacher uses estimates and per-lesson grading according to the prescribed 12-point system. In schools with optional course of “Christian ethics” they use estimates like “passed a test” and “failed the test”.

Simultaneously the MES conducts experiments at the educational establishments teaching the course “Development of spirituality, national consciousness of an individual based on Christian morality and national values ​​of the Ukrainian people”.

On May 16, 2013 the MES circulated the letter “On the study courses of spiritual and moral guidance in 2013 /2014 academic year”[41]. It significantly altered the focus and directly referred to the study of Christian values​​: “The Ministry pays considerable attention to teaching courses of spiritual and moral guidance, including elective courses on Christian ethics, as their study contributes to education of children in the spirit of Ukraine's traditional Christian values​​: truth, piety, kindness, love, beauty, dignity, duty, honor, and conscience. At present the list of courses on this subject has been expanded, and pupils can study such subjects of their choice: “The Diversity of Religions and Cultures of the World”, “History of Religions”, “History of World Religions and Spiritual Culture”, “History of World Religions”, “Christian Ethics in Ukrainian Culture”, “Fundamentals of Orthodox Culture”, “Christian Ethics”, “Christian Culture”, “Ethics: spiritual principles”, “Fundamentals of Orthodox Culture of Crimea”, “Biblical and Christian Ethics”, “Moral education”, “Principles of Christian Morality and Ethics”, “Psychology of Spiritual Development”, “Orthodox Ethics”, “Philokalia”, “Wells of Spirituality. Bible as text: moral and ethical canon and aesthetic phenomenon”, “Fundamentals of Religion”, “Interesting Bible” and so on.”

The letter also informed that annually the ministry developed and brought to the attention of local education authorities, oblast (municipal) institutes of postgraduate pedagogical education the guidelines regarding the study courses of spiritual and moral guidance in educational establishments. The oblast (municipal in Kyiv and Sevastopol, republican in the Autonomous Republic of Crimea) institutes of postgraduate pedagogical education annually conduct for teachers training courses on spiritual and moral guidance (according to regional data, more than 10,000 teachers were trained). On the regular basis they hold conferences, seminars, round tables dedicated to these subjects; contests, competitions (such as “Young Connoisseurs of the Bible”, “Crystal Owl”) for pupils and competition “Teacher of the Year” for teachers.

The study of Christian ethics began in 1992, the number of educational institutions, where courses of spiritual and moral guidance are taught, is on the rise. In 2004/2005 academic year the subjects of spiritual direction were studied in the Autonomous Republic of Crimea, 17 oblasts of Ukraine, Kyiv and Sevastopol (i.e. 20 out of 27 regions). Currently the courses of spiritual and moral subjects are taught in all 24 oblasts of Ukraine, Autonomous Republic of Crimea, Kyiv, and Sevastopol.

Also, the letter stated that during the next 2013/2014 academic year the course "Ethics" will be taught in grade 6 as an invariant component, and in the 5th grade as a variable component of the standard curricula.

The letter also specified that teaching of the subjects of spiritual and moral guidance in educational establishments is possible only in the case of written parental consent and if the trained teachers are on the staff. According to the Law "On General Secondary Education", only the individuals who have a degree in teaching and a certificate of appropriate training courses can teach the subject "Ethics" and elective courses of moral and ethical character.

Generally, this is consistent with international standards. However, this procedure is not always respected, and in the latter case the local officials are to blame. Here are a few examples.

The conflict of parents with the director of the school no. 25 in Kyiv over thrusting religious component upon their children lasted throughout a year. The school pilot program was implemented based on the educational system of K. Ushynsky that included a religious program. The parents complain that in the presence of a priest and without the permission of parents the children were forced to read prayers, sing hymns, and go to church. Many parents were against such an experiment. So, on December 15, near the school the parents staged a picket requiring to stop this experiment. On the basis of the school the spiritual and educational center of Orthodox culture named after the Equal-to-the-Apostles Princess Olga, which in 2011 with the participation of the Representative of the President in the Parliament, People’s Deputy of Ukraine Yuri Miroshnichenko was inaugurated by the NGO “Orthodox Ukraine” [42] operating under the auspices of the clergy of the UOC (MP).[43] It is obvious that the authorities hushed up such a situation.

On December 12 in Davydivka Settlement, Shakhtarsk Region the first-graders of the school no. 21 were initiated as Kozaks. All 35 first-graders decided to become Kozaks. Senior priest of the Church of the Nativity of the Blessed Mother of God in Oleksievo-Orlivka Settlement Dmytro Solohub ministered the priestly service, the Kozak boys swore an oath to faithfully serve their Motherland and be guardians of the Orthodox faith. The oath was taken by Kozaks of Shakhtarsk Regiment together with their Hetman Mykola Mykolayovych Kovalenko. The Kozak boys have their own uniform and flag. Now, alongside with the secular education the children will receive spiritual and patriotic education. The older Kozaks will come to them and tell them about the basics of the faith, Orthodox holidays, cultivate their love for their Motherland and main Kozak qualities: courage to profess the Orthodox faith and speak openly about their patriotism, courage to defend their own beliefs, respect for parents and elders, readiness to, if necessary, to help and protect their neighbors… Taking the Kozak oath in the settlement school is a long-standing tradition already… This is one of the schools where the Christian ethics is not taught because of the lack of teachers. The Kozak movement helps children not only to gain knowledge of Christian morality, but also to implement it in practice because each Kozak must always act in the spirit of Christianity. It cannot always be achieved only by teaching ethics as one of the subjects of school program.[44]

On November 30, chief priest of Symeiz Church of the Blessed Mother of God Yevhen Halabuzar consecrated the building of Yalta secondary specialized school no. 12. At the request of the administration and school teaching staff Father Yevhen performed the rite of consecration and prayed for the staff and pupils. After the service the priest besprinkled all school premises with holy water. Every teacher asked the students to pray for her/his class, higher intellect and better physical health. After the consecration the teaching staff warmly thanked Father Yevhen for showing pastoral care.[45]

There are too many such examples and much more might be on the list.

The legislative activity of pro-government people’s deputies raise doubts. On June 18, 2013 people’s deputies Yuri Miroshnychenko and H. Herman registered the bill no. 2340 on amending some laws of Ukraine (concerning the partnership relations among the state, school and church)[46]. This project actually identifies the concepts of “morality”, “spirituality” and “religion” and opens the way for the church to step into the domain of general education. In 2013 the project was not considered within the Parliament.

5. Alternative Service

The Law "On alternative (non-military) service” was adopted in 1991 and since then it remained essentially the same. At the time it was quite progressive, but now it needs improvement. Previously, the right to alternative service was not considered in the context of the right to freedom of conscience and religion. Therefore, establishing the possibility of conscientious objection depended on the will of the state and was not conditional on any implementation of international commitments on human rights.

Ever since the national legal systems of the member states of the Council of Europe and at the international level have changed significantly. In 2002-2003 all member states of the Council of Europe practically agreed on the recognition of conscientious objection. The UN Committee on Human Rights concluded that the right to conscientious objection can be derived from article 18 of the International Covenant on Civil and Political Rights.

 In 2009, in the case Bayatyan vs. Armenia, application no. 23459 /03, the European Court of Human Rights changed its court rulings and recognized absence of right to conscientious objection because of belief as violation of article 9 of the European Convention on Human Rights and fundamental freedoms (freedom of thought, conscience and religion). In 2011, the Grand Chamber of the European Court of Human Rights confirmed this decision and it became the precedent for all member states of the Council of Europe. Thus, although article 9 of the Convention expressly provides for the right to conscientious objection to military service, the European Court of Human Rights found that the objection to military service when the motive behind this rejection is a serious and insurmountable conflict between the duty to serve in the army and beliefs of particular person or her/his deep and sincere religious or other opinions, and her/his beliefs or views are so undeniable, serious, consistent and meaningful that it is subject to guarantees of article 9 of the Convention on Human Rights..

Thus, considering the alternative service in the context of freedom of conscience and religion, it is necessary to change the law on alternative service. In particular, it is necessary to expand the right to alternative service not only because of religious but also because of other convictions.

Back in 2005, the PACE directly demanded from Ukraine to make the following changes[47].

In line with the Presidential Decree of October 14, 2013 no. 562 /2013 "On the timing of the next drafts, the next draft of the citizens of Ukraine to the Ministry of Internal Affairs and dismissal in 2014” the number of persons eligible for army draft in Ukraine went significantly down. Moreover, these draftees will go to the units of the Ministry of Internal Affairs only. This makes it necessary to reconsider the general draft policy and bring it to international standards on the basis of respect for human rights.

On November 21 the bill no. 3663 on amendments to the law “On alternative (non-military) service” (in line with the European standards)[48], which aims at tackling this problem, was registered in the Parliament. The project has not yet been considered.

6. Recommendations

1)     It is necessary to bring Ukrainian legislation in line with articles 9 and 11 of the European Convention on Human Rights and Fundamental Freedoms in the light of the judicial practice of the European Court of Human Rights. It is helpful to use in this case the Guidelines for Review of Legislation Pertaining to Religion or Belief adopted by the Parliamentary Assembly of the OSCE and the Venice Commission in 2004.[49]

2)     In order to eliminate discriminatory administrative practices and conflicts among churches it is necessary to adopt clear legal provisions on the grounds, procedure and timing of the restitution of the church property. It is also advisable to draw up a detailed plan for the restitution of religious property with determination of relevant procedures with proper time frames per each object. If the restitution is impossible, a kind of indemnity should be provided for, including financing of new places of worship or allotment of the plots of land.

3)     Turn down the bills nos. 2993, 3007, 3194 and 2340 as contrary to human rights standards and recommendations of the Council of Europe and the OSCE in this field.

4)     Amend the legislation to expand the grounds for alternative (non-military) service, in particular, to provide for such service not only for religious reasons but for requirements of other convictions as well. In this regard, we recommend that the Parliament adopts the Bill no. 3663 of 11.21.2013 amending the Law of Ukraine "On alternative (non-military) service” (to conform to European standards).

5)     Local authorities should review their adopted legal acts that specify discriminatory provisions and additional extralegal restrictions on the right to freedom of religion in the course of peaceful assembly, renting premises, allocation of the plots of land and restitution of religious buildings. The general principles of allocation of the plots of land for construction of places of worship should be clearly outlined.

6)     Cancel the procedure of the official approval by the relevant public authority of the activities of aliens preaching religious beliefs, performing religious rites or other canonical activities (article 24 of the Law of Ukraine "On Freedom of Conscience and Religious Organizations”). The invitation of the legalized religious organization whose doctrine passed the state examination shall be sufficient grounds for such activities of foreigners in Ukraine. It is necessary to annul the two-step approvals of the religious activities of foreigners during issuing registration certificates for temporary residence in Ukraine, but also significantly shorten the coordination of activities of foreigners, because the established procedures contradict the current legislation.

7)     Cabinet of Ministers of Ukraine shall instruct the Ministry of Internal Affairs, Ministry of Foreign Affairs and other central executive authorities together with the representatives of the All-Ukrainian Council of Churches and religious organizations to work out draft amendments to the ruling of the Cabinet of Ministers of Ukraine of 28.03.2012, no. 251, aimed at increasing the possible duration of the temporary permit to stay in Ukraine for foreign religious workers under the terms specified in the invitation, but not more than three years.

8)     State Tax Service of Ukraine with participation of the representatives of the Ukrainian Council of Churches and Religious Organizations shall work out amendments to the Regulation on the Register of nonprofit institutions and organizations approved by the Order of the STAU dated 24.01.2011, no. 37, in order to facilitate granting non-profit status to the registered religious organizations, including automatic entering by tax authorities in the Register of non-profit institutions and organizations and specifying clear grounds for adoption of decisions by the tax authorities about exclusion of religious organizations from this Register.

 

[1] Prepared by Volodymyr Yavorsky, member of the Ukrainian Helsinki Human Rights Union.

[2]  See the full text of the law "On Amendments to Certain Legislative Acts of Ukraine regarding the activities of the Ministry of Justice of Ukraine , Ministry of Culture of Ukraine and other central executive bodies directed and coordinated through the respective Ministers, and State Space Agency of Ukraine », http://zakon2 .rada.gov.ua/laws/show/5461-17.

[3] The president requires to immediately amend the law "On Freedom of Conscience and Religious Organizations" in order to enhance the freedom of religion: www.president.gov.ua.

[4] The religious organizations in Ukraine (as of Jan. 1, 2013 .)// RISU, risu.org.ua; Information Report of the Ministry of Culture of Ukraine "On the State and trends in the development of the religious situation and church-state relations in Ukraine" (summary), mincult.kmu.gov.ua.

[5] For the initial outline of the conflict see: Christian raiding or why the militia need the church in Mostyska? // July 12, 2011, portal.lviv.ua.

[6] For decision see: www.reyestr.court.gov.ua.

[7] For decision see: www.reyestr.court.gov.ua.

[8] For more details see: In Kirovohrad Oblast the governor forcibly forced the transfer of the parish of Kyiv Patriarchate to the Moscow  one--the statement of the UOC KP / / RISU, risu.org.ua; In Kirovohrad Oblast the unknown persons seized the St. Volodymyr Church, - UOC KP / / RISU, risu.org.ua; the UOC KP demands to bring to justice the militia officers who beat the believers in Novoarkhangelsk / / RISU, risu.org.ua.

[9] See: www.reyestr.court.gov.ua.

[10] See: www.reyestr.court.gov.ua.

[11] See: www.reyestr.court.gov.ua.

[12] See: www.reyestr.court.gov.ua.

[13] See also: The Court went on hearing the case: “Father Superior vs. Registrar” // gre4ka.info.

[14] For the court decision see: www.reyestr.court.gov.ua.

[15] For the full text see: www.reyestr.court.gov.ua.

[16] For the decision of the Supreme Administartive Court of Ukraine see: www.reyestr.court.gov.ua and here: www.reyestr.court.gov.ua. Two solutions are available because the cassation applications were filed by two groups of founders and were combined at the stage of preparing the case for trial.

[17] For the full text see: www.reyestr.court.gov.ua.

[18] For the full text see: www.reyestr.court.gov.ua.

[19] For the full text see: pravoscope.com.

[20] See the full text of the decision: pravoscope.com.

[21] See the full text of the decision: www.reyestr.court.gov.ua.

[22] See the full text of the decision: www.reyestr.court.gov.ua.

[23] See the full text of the decision: www.reyestr.court.gov.ua.

[24] According to the Institute for Religious Freedom, www.irs.in.ua.

[25] See the copy of the decision here: risu.org.ua.

[26] The well-known Swedish preacher was banned entry in Ukraine// RISU, November 15, 2013, 12:26, risu.org.ua.

[27] The text of the Bill is here: w1.c1.rada.gov.ua.

[28] The text of the Bill is here: w1.c1.rada.gov.ua.

[29] See, for example, the latest information on the building site: the “tytushky” and seminarians defend the builders on the Desiatynny Lane  / / UP, October 12, 2013, www.pravda.com.ua.

[30] See, for example, the Church of the Dime as a test of the maturity of the Ukrainian people, Yuri Miroshnichenko, People’s Deputy of Ukraine (faction of the Party of Regions), representative of the President of Ukraine in Verkhovna Rada / / "Ukrayinska Pravda", December 17, 2012, www.istpravda.com.ua.

[31] See. The conflict between theresearchers and churchmen in the Dime Church Museum // UP, November 26, 2012 www.istpravda.com.ua.

[32] See the full text of the draft law: w1.c1.rada.gov.ua.

[33] The head of the UGCC called on the Chairman of the Verkhovna Rada of Ukraine and people's deputies not to pass the iconic Christian shrines to one denomination, September 16, 2013, news.ugcc.org.ua.

[34] 81 % of the buildings, which were transferred to the Kyiv-Pechersk Lavra, are monuments of architecture / / UP, 28.08.2013, life.pravda.com.ua.

[35] Catholic church (translator’s note).

[36] The Sevastopol authorities informed the public that they are eager “to tackle the problem with the kostel // RISU, 02-04-2013, risu.org.ua.

[37] See: The Karaites appeal to the Ukrainian authorities to restitute their shrines, 14.08.2013, www.religion.in.ua.

[38] For further details see: Luhansk: Patriarch Filaret Passion. Part one // RISU, July 19, 2013, risu.org.ua; Luhansk: Patriarch Filaret Passion. Part two // RISU, July 22, 2013, risu.org.ua; Luhansk: Patriarch Filaret Passion. Emotions after the fact//RISU, July 25, 2013, risu.org.ua.

[39] For further details see: 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.

[40] The full text of the program is available here: www.irs.in.ua.

[41] Letter of MES no. 1/9-324 dated 16.05.13, osvita.ua.

[42] Read more on this organization and its activities in schools: www.orthodox-fund.org.

[43] Read more: Raiders capture metropolitan school: what has the church to do with it? "Well, to be sure!" / / New channel, www.abzats.novy.tv; Kyiv parents are for the secular education // opium.at.ua; SHOCK! Like spring, like winter crops: they cultivated reason, kindness and eternal in the downtown Kyiv // UP blogs, blogs.pravda.com.ua; Parents and pupils posted pickets near the Kyiv school no. 25  against thrusting of religious education, www.religion.in.ua.

[44] SHAKHTARSK. The first graders of the Davydivka Settlement took the Kozak oath: to love their Motherland and protect the Orthodoxy, pravoslavye.org.ua.

[45] YALTA. Senior priest of Symeiz church sanctified the school building, pravoslavye.org.ua.

[46] Read more: w1.c1.rada.gov.ua.

[47] See paragraph 271 of the Report of the Parliamentary Assembly of the Council of Europe on the implementation by Ukraine of obligations and commitments, including the Resolution of PACE no. 1466 and PACE Recommendation no. 1722 dated October 5, 2005.

[48] Read more: w1.c1.rada.gov.ua.

[49] Freedom of religion and belief in Ukraine in the context of European standards / Ed. by Volodymyr Yavorsky / UHHRU, NGO Centre for Legal and Political Studies "SIM" . Kharkiv: Folio, 2005. Available online at UHHRU: www.helsinki.org.ua