Human rights in Ukraine – 2007. 6. Freedom of thought, conscience and religion
There was little significant change with freedom of conscience and religion during 2007. This section provides a general outline of the range of existing problems in safeguarding this freedom. To a considerable extent, most of the problems have been discussed in our previous annual reports. Since the situation remains virtually unchanged at the legislative level, and changes in administrative practice are also not major, the material from 2004-2006 can confidently still be used.
The most significant event during the year was the Judgment against Ukraine from the European Court of Human Rights in the case of Svyato-Mykhaylivska Parafiya v. Ukraine from 14 September 2007. In its examination of this case, the Court used previous years’ Human Rights in Ukraine reports; pointed to 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.
II Freedom of thought, conscience and religion: the right to believe
According to international standards, the right to believe is by its very nature not subject to any restrictions. This inner freedom of thought is inalienable, and the State has no right to interfere under any circumstances. In practical terms this means the absence of direct (physical force, punishment, etc) or indirect forms of compulsion which go against the personal position of the individual where he or she is confronted with the choice of whether or not to betray his or her own convictions under certain external compulsion.
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 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.
Another problem is the choice of places for doing alternative service which is much too limited if one considers the positive experience of other European countries.
However given the intention declared by the authorities to abolish military conscription and introduce a contract system, this problem may disappear.
There is also potential for problems over the right to reject an identification number on the grounds of religious conviction. During the year, law suits continued en masse against the tax bodies refusing to put notes in people’s passports entitling a person to not use an identification number. The tax bodies in their turn argued with logic that they have no right to put notes in people’s passports by themselves and that this is within the jurisdiction of the Ministry of Internal Affairs. There were a particularly large number of suits from people who had rejected identification numbers previously allocated. In all these cases, the tax bodies lost and were ordered by the courts to add the relevant note to the passports.
III. Freedom to practise ones religion or beliefs
1) The 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 worship, 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.
Clearly such restrictions limit religious freedom since the right to organize religious services, to study and teach ones religion or convictions, to propagate ones beliefs and a great deal more, directly express a person’s right to religious freedom and should not depend on the legal status of the organization. It should be stressed that for some religious groups, it is vital to be able to exist without official recognition since the lack of any contact with the State authorities is a part of their faith.
We would also note that in accordance with 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 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. It is also not permitted to register the Church as a legal entity. It is registered 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 foreseeability In this judgment, the Court also pointed out the first and fourth of the problems we have outlined here.
The following provides a recent case involving infringement of freedom of worship.
A panel of judges of the Higher Administrative Court on 27 June 2007 upheld the rulings of the appellate and local courts refusing to register the articles of association of the religious community “Parafiya of Andriy Pervozvany [the First Called] of the Ukrainian Soborna [Assembly] Orthodox Church. In passing its decision on refusing registration, the court established that the articles of association of the religious community set down its canonical and organizational subordination to the Kyiv Eparchy of the Ukrainian (Soborna) Orthodox Church. However according to information from the State Committee on Religious Affairs, a Resolution from 31.01.03 No. 1/3 had refused to register the articles of association of the Ukrainian )Soborna) Orthodox Church. The court thus established that the religious community had set down canonical and organizational subordination to a non-existent religious organization, this being an infringement of Article 8 § 2 and Article 9 § 1 of the Law on Freedom of Conscience and Religious Organizations. On the one hand this ruling is in accordance with the letter of the law, on the other hand, however, it is direct interference by the State in the determining of the internal structure of its religious organization which is in violation of international standards. This religious organization has already unsuccessfully tried to receive legal entity status over many years and has been turned down under various pretexts.
2 The State’s positive duties with regard to protecting the peaceful practice of religion from incursions by others and protection of religious minorities
Pursuant to Article 9 of the European Convention on the Protection of Human Rights, and numerous norms of international law on the protection of national minorities, the State has a positive duty to safeguard the peaceful worship of all people, especially of religious minorities. The State must protect individual worshipers, collective public actions and church property. These standards require governments to introduce legislative and administrative measures to deter members of other religions from attacks or other obstacles to the peaceful exercising of ones religion or faith.
However these positive duties do not envisage the State providing help in practising religion, for example, via financial assistance, allocation of premises or other property, land sites etc. The government carries the latter tasks out at its own discretion however international standards require particular attention to be paid by the government to the rights of national minorities and for this to be carried out on a non-discriminatory principle.
The failure to fulfil these positive duties is one of the problems in the administrative practice of the authorities. Defending minorities is often an unpopular step in society. In many cases, therefore, the authorities avoid fulfilling this duty due to their own discriminatory views or under the influence of dominant religious organizations.
A particular problem is presented by the inadequate behaviour of the law enforcement agencies in protecting property linked with a religion. Vandal attacks on cemeteries are widespread. One should note the sudden high percentage (especially against the virtual lack of activity in this area by the law enforcement agencies in previous years) of uncovered crimes linked with vandalism. We would mention in particular the conviction of Odessa vandals.
On 18 February, using a stencil, vandals daubed swastikas on 302 gravestones at the Third Jewish Cemetery in Odessa. The anti-Semites also targeted the memorial plaque marking the home of the doctor, publicist and civic figure Leon Pinsker in the centre of the city and the Memorial to the Victims of Nazis, leaving the words “Welcome to the Holocaust”. On 12 March three men were detained on suspicion of committing the crime: two 25-year-old unemployed men from Odessa and a 20-year-old student of one of the Odessa technical colleges. They claim that “they simply wanted to see the public’s reaction.” On 10 August the Malynivsky District Court in Odessa found all three guilty of desecrating the graves, however excluded the article on inciting inter-ethnic enmity. Two of the men were sentenced to two years imprisonment, while the third received the same term, but with a suspended sentence (with a deferment of execution of the sentence for a year). The men were also ordered to pay the cost of carrying out the expert assessment – 15, 169 UAH.
On 24 December 2007 the leaders and authorized representatives of the Member Churches of the Council of Evangelical Protestant Churches of Ukraine sent a letter to President Yushchenko asking him to take under his personal control the investigation into the criminal behaviour of police officers, and ensure the right of believers of the Evangelical Protestant Churches to freedom of faith, life and health, honour and dignity, inviolability and security. The joint appeal was said to have been prompted by the fact that cases of officials’ abuse of their authority and flagrant violations of the rights of believers of Evangelical Protestant Churches by police officers had taken on the appearance of a certain trend. The appeal specifically mentions an “attack” on 1 August 2007 by armed officers of the crime police and a special force “Berkut” unit during a religious service on the House of Worship of the Church of Christians of the Evangelical Faith “Living Water” in Yevpatoriya. Also cited is a case where a threat to kill was made using armed weapons by police officers on 8 November 2007 during the forced eviction of the orphanage “Drop of God’s Blessing” [“Word of Life”] from municipal premises from the Darnytsa district in Kyiv.
This problem is exacerbated at the local level where discrimination and intolerance can be clearly seen in the decisions of the bodies of local self-government. The Ukrainian Association for Religious Freedom on 27 January issued an open appeal to the President, the Speaker of the Verkhovna Rada and the Prime Minister regarding “ever more frequent calls, in particular from certain bodies of local self-government, to ban the activities of this or that religious organization, as well as cases where the activities of religious organizations were unlawfully prohibited or restricted.”.
Another problem lies in the lack of legislative and administrative measures from the authorities to reduce intolerant and inaccurate publications in the mass media regarding religious minorities and combating efforts to incite religious enmity.
In December Ukrainian Association for Religious Freedom issued an appeal to the media regarding frequent occasions of exceeding biased coverage of religious life in the Ukrainian media..
1) The organization and holding of religious peaceful gatherings
The Law on Freedom of Religion 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.
2) 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 (a fine) for foreign nationals, and for religious organizations – a warning, then in future possible forced closure.
This situation became more difficult during 2007. The local Departments on Religious Affairs became strict in demanding that foreign preachers have a special religious visa. Although Ukraine has a visa-free system for nationals of many countries, the local Departments did not issue permits for holding religious peaceful gatherings with the involvement of foreign nationals unless the latter had special visas, and also refused to give permits for their preaching activities. An analysis of such cases suggests that these refusals more likely served as a formal pretext for the authorities to ban the activities of religious organizations that they didn’t like.
I. The State and religious organizations
1) The principle of inviolability and neutrality
The constitutional principle of separation is based on the principle of pluralism of though and entails the impossibility of merging the State and religion.
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. This has taken on new proportions in recent years. Virtually all top management in the executive branch of power, the Speaker of Parliament and other high-ranking public officials publicly support one or other religious organization.
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 strategic dimension. Positive decisions on these issues, with view exceptions, are received only by the dominant religious organizations.
The Head of the Synod of Independent Evangelical Churches of Ukraine Anatoly Kalyuzhny stated that in Kyiv their religious organizations are not allocated land, with this being given solely to parishes of the Ukrainian Orthodox Church under the Moscow Patriarchate. There are virtually no known cases where land was allocated to non-Christian 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 (UOC MP) or under the Kyiv Patriarchate (UOC KP), are dominant in different areas.
We can also mention systematic efforts by the President towards creating a single Local Ukrainian Orthodox Church. Although these efforts were more organizational, and their influence political, many representatives of religious organizations believed them to be direct interference in internal Church matters.
Another constant problem is seen in the support given by the authorities to one of the parties in a religious dispute linked with an internal schism in the religious organization.
The State authorities often take sides in such conflict which violates the principle of neutrality and Article 9 of the European Convention on Human Rights.
It was precisely the violation of this principle which led to Ukraine’s losing the case mentioned above in the European Court of Human Rights. This involved a split in a religious community, and the authorities took it upon themselves to determine which of the believers belonged to the community, i.e. who were members and who were not. They consequently deprived the other group of believers of their right to make changes to their articles of association. The European Court stated:
“.. The State cannot oblige a legitimately existing private-law association (which a religious organization is – author) to admit members or exclude existing members. Interference of this sort would run counter to the freedom of religious associations to regulate their conduct and to administer their affairs freely” [Item 146 of the Court Judgment).
In the same case, making use of the unclear definition in legislation of the term “religious community” and despite the clear definition of membership of this community in the articles of association, a Ukrainian court found that members of the community were all those who visit the Church and not only those who are members in accordance with the articles of association. In this way it undoubtedly interfered in the internal affairs of the organization and adopted the side of one of the parties in conflict.
There are a particularly large number of violations of this principle at local level.
For example, an Instruction from the Head of the Poltava Regional State Administration on 2 June 2005 approved a new version of the articles of association of the Sviato-Mykhailivska religious community of the Ukrainian Orthodox Church under the Kyiv Patriarchate in Poltava, and also passed amendments on changing the head of the Parafiya Council. The other side appealed against this decision. In the court hearing it transpired that the State Administration had known about the schism in the community, however, with such information and without a sufficient number of documents regarding the authority of those who had applied for registration, the authority involved carried out the registration, thus taking the side of one of the parties to the dispute. It was for this reason that on 17 September 2007, the Kharkiv Court of Appeal allowed the claim brought and revoked the State Administration’s decision. However two years of the community’s activities had been virtually paralyzed as a consequence of the unlawful activities of the authorities.
In another similar case, a panel of judges of the Higher Administrative Court passed a judgment on 4 July 2007 upholding the conclusion of the courts of first instance and appeal on the need to declare invalid the instruction issued by the Head of the Rivne Regional State Administration No. 498 from 20 October 2005. “On registration of amendments and additions to the articles of association of a religious community” and revoke it. This instruction registered amendments and additions to the Articles of Association of the religious community of the Ukrainian Orthodox Church under the Moscow Patriarchate – the Sviato-Voskresenska Parafiya in the city Ostroha, which involved the transfer of a part of this religious community to the jurisdiction of the Kyiv Patriarchate. In so doing, the respondent had not only effectively registered a new religious community of the Kyiv Patriarchate of this parafiya, but had liquidated a religious community (the Sviato-Voskresenska Parafiya of the Ukrainian Orthodox Church under the Moscow Patriarchate) which had existed since 1991 and which had the rights of a legal entity in accordance with the law. This was a violation of Article 5 § 5 of the Law on Freedom of Conscience and Religious Organizations. Moreover the courts had established that the decision of this religious community from 17 October 2005 to transfer to the Kyiv Patriarchate had not been unanimous. Some of the believers had remained in support of the previous religious jurisdiction (affiliation) and had not agreed with the decision of the other believers. Once again it took two years to reinstate the rights infringed by the authorities.
There are still problems with the return of places of worship nationalized by the Soviet regime. This property is gradually being privatized which makes its return more complicated. Despite this, parliament on 11 May rejected a draft law calling a moratorium of the privatization of property linked with religious worship in State or municipal possession. On the other hand, the authors of the draft law went ahead of events and demanded in that law that a norm be established on the compulsory return of such property. With this they obviously ruined the idea of at least establishing a moratorium of the privatization of this property.
Later a Presidential Decree from 1 November effectively established this moratorium which stopped the privatization of many structures by bodies of local self-government and the local authorities.
The situation at present is thus foreign and there are no ways visible at the present time for resolving the problems.
2) The rights of parents with regard to the religious education of their children and the principle of State neutrality
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 upbringing.
In various regions of the country courses in Christian Ethics 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.
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. On the other hand, they have aroused a wave of indignation from representatives of the Church since they are built on a symbiosis of Christian denominations, and are not fully coordinated with the teachings of these Churches.
Furthermore, throughout virtually the entire country there is a shortage of teachers of this subject. Often graduates of seminaries and religious educational institutions are invited to teach such courses. It is difficult to believe that a person who has graduated from such an institution will teach the course with objectivity and impartiality.
From 1 September 2006 in the first grades of 106 schools in Kyiv, with the consent of parents, an experiment was introduced on teaching a course on “Christian Ethics in Ukrainian culture”. The course is introduced as a variant element of the programme “Christian Ethics” and the first-grade students are taught by teachers who have undergone training in the Kyiv Teacher Training University named after Boris Hrinchenko. The students are given a “working notebook” and the teachers have received not only a methodological handbook, but also a CD with musical accompaniment which they have been using with success in their classes. From 1 September 2007 around 4 thousand students (approximately 20% of the total number in the city) began attending such courses.
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 2004
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) Permanent joint Commissions with representatives of both religious organizations and of the government should be created in order to resolve issues of mutual concern (property, cultural monuments, the family, education, etc).
8) 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.
 Prepared by Volodymyr Yavorsky, UHHRU Executive Director.
 See “Human Rights in Ukraine – 2004”, “Human Rights in Ukraine – 2005”” [Kharkiv: Folio] and “Human Rights in Ukraine – 2006” [Kharkiv, Publishing House “Prava Ludyny”]. Available in both Ukrainian and English at: www.helsinki.org.ua. and www.khpg.org.ua
 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.
 Religious panorama, № 2, 2007. pp. 43-45.
 Religious panorama. № 12, 2007. pp. 33-34. This also prompted another appeal from this organization, published on 29 January 2007 (cf. Religious panorama, № 2, 2007. pp.. 43-45).
 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.
 Religious panorama, № 10, 2007, pp. 24-25.
 Verkhovna Rada rejects draft law regarding a moratorium privatization of property designated for religious purposes which is in the possession of the State or municipal authorities // UHHR website
 Presidential Decree No. 042/2007 from 01.11.2007. „On protecting sacred monuments of culture in Ukraine”.
 Freedom of Religious and Worship in Ukraine within the context of compliance with European standards (in Ukrainian) / 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.