UKRAINIAN CHURCHES VS.

COUNCIL OF EUROPE?

Gennadiy Druzenko, LL.M.Director for Central & Eastern EuropeWilliams WorldWide Groupe

The Law of Ukraine on the Freedom of Conscience and Religious Organizations

Adopted on April 23, 1991 (before the final collapse of the USSR)

Traces over the Law of the USSR on the Freedom of Conscience and Religious Organizations of 1990

Consists of 6 chapters and 32 articles Since its adoption has been slightly

amended 9 times

The Council of Europe assessment

1) The Law limits the forms in which a religious organisation might be set up;

2) It requires at least 10 adult citizens to be founders of a religious community to register organization’s charter and thus obtain legal entity status (whereas the same requirement for other civic associations is 3 persons);

3) The Law provides no possibility for establishment religious organization’s separate units or subdivisions (like branches) without legal entity status;

4) It provides no possibility for granting legal entity status to religious associations (unions of religious organizations, churches or confessions);

5) The Law discriminates foreigners and stateless persons; 6) There is a lack of clarity with regard to which organisations are

registered by regional state administrations and which by the State Committee on Religious Affairs;

7) The law also contains a number of other ambiguous provisions, which leave a wide discretion to the implementing authorities

The Council of Europe conclusion

Therefore “quite progressive law for the time of its adoption now requires significant rewording.

The Explanatory Memorandum by Mrs Severinsen and Mrs Wohlwend to the Resolution of the

Council of Europe # 1466 (2005) on Honoring of obligations and commitments by Ukraine, § 269

Reaction of the Government of Ukraine to the Resolution of the CoE # 1466(2005)

Action Plan for the Honouring of Obligations and commitments of Ukraine to the Council of Europe, adopted by the Decree of the President of Ukraine of 20 January 2006 # 39/2006, which ordered inter alia the Ministry of Justice of Ukraine to draft and submit to the Cabinet of Ministers (Government) of Ukraine new edition of the Law on the Freedom of Conscience and Religious Organizations by September 6, 2006

Drafting new law

New edition of the Law of on the Freedom of Conscience and Religious Organizations was drafted by ad hoc drafting teem consisted of religious organizations’ representatives, leading scholars and experts

In July 2006 the draft law was submitted to the Venice Commission and OSCE/ODHIR with request to examine it vis-à-vis relevant European standards

The Venice Commission’s Opinion

“...in general, the draft law can be seen as a liberal and favourable framework for the exercise of freedom of religion”, although Commission’s Opinion provided a good deal of specific remarks and recommendations for the draft

Opinion no. 391 / 2006 of 18 October 2006 on The Draft Law on the Insertion of Amendments on Freedom of

Conscience and Religious Organisations in Ukraine, adopted by the Venice Commission at its 68th Plenary Session

(Venice, 13-14 October 2006)

First challenge for the draftLaw

The draft Law was discussed by the All-Ukrainian Council of Churches and Religious Organizations, an independent inter-religious forum which drew the conclusion to recommend refrain from approval and introduction of the draft law to the Parliament, but “to carry on consultations with regard to refining the draft law…”.

The letter of the All-Ukrainian Council of Churches to the President, Prime-Minister and the Head of the Parliament

approved on the meeting of November 24, 2006.

All-Ukrainian Council of Churches and Religious Organizations

Established in 1996 by State Committee on Religious affairs initiative

Independent forum of religious organizations since 2005

19 religious unions / churches are members of the Council (from 55 registered in Ukraine)

This 19 religious unions / churches represent 90-95% of the religious communities registered in Ukraine

All-Ukrainian Council of Churches and Religious Organizations

3 Orthodox Churches which cover 51% of the religious communities registered in Ukraine

2 Catholic Churches, which covers 8 Protestant Churches 3 Muslims unions 1 Jewish union 1 Armenian Church Bible Society

First Draft Law proceeding postponement

After and due to the All-Ukrainian Council of Churches and Religious Organizations intervention the drafting process was postponed and the Draft never been submitted to the Cabinet of Ministers consideration,

even though President’s decree required the draft law preparation and submission to formal consideration was still in force

Meanwhile

On June 14, 2007 European Court of Human Right (ECtHR) delivered its first decision on the case brought before the Court by a Ukrainian religious organisation, i.e. Judgement in Svato-Mykhaylivska Parafiya v. Ukraine (Application no. 77703/01)

ECtHR findings

the Court inter alia referred to the Explanatory memorandum to the Resolution of the Council of Europe # 1466 (2005)

§ 87 of the judgment the Court held in obiter dictum that it was

principally shortcomings of the Ukrainian legislation on religious freedom which led to the violation of the Convention by Ukrainian courts.

§ 152 of the judgment

Drafting efforts of 2009-2010

After some suspension the law drafting was resumed by the State Committee on Nationalities and Religious Matters in 2009 and then again in 2010.

Pursuant to Presidential commission the rewritten draft law (clearly based on the 2006 draft) was formally submitted by the State Committee to the Cabinet of Ministers for consideration and further approval on November 24, 2010.

All-Ukrainian Council of Churches and Religious Organisations response

The All-Ukrainian Council of Churches and Religious Organisations reacted without delay. In its letters of November 4, 2010 and of December 14, 2010 the Council reiterated its view that the amendments to the Law are possible and advisable only as a result of consensus reached among all religious organization in Ukraine as in the Council’s opinion was not the case

New President – old story of the law drafting

On January 12, 2011 the Head of State approved updated Action Plan for the Honouring of Obligations and Commitments of Ukraine to the Council of Europe.

The Action Plan inter alia ordered the Ministry of Culture and the Ministry of Justice to submit to the Council of Ministers the draft law “On the amendments to the Law of Ukraine “On the freedom of conscience and religious organizations” until February 1, 2011 for consideration, approval and introduction to the Parliament The Presidential Decree # 1085/2010 (supra note 20) envisages that the competence of the State Committee on Nationalities and Religious Matters to implement national policy in the religious realm should be handed over to the newly-created Ministry of Culture and Tourism.

New President – old story of the law drafting

On January 12, 2011 the Head of State approved updated Action Plan for the Honouring of Obligations and Commitments of Ukraine to the Council of Europe.

The Action Plan inter alia ordered the Ministry of Culture and the Ministry of Justice to submit to the Council of Ministers the draft law “On the amendments to the Law of Ukraine “On the freedom of conscience and religious organizations” until February 1, 2011 for consideration, approval and introduction to the Parliament The Presidential Decree # 1085/2010 (supra note 20) envisages that the competence of the State Committee on Nationalities and Religious Matters to implement national policy in the religious realm should be handed over to the newly-created Ministry of Culture and Tourism.

New President – old story of the law drafting

The All-Ukrainian Council of Churches and Religious Organisations opposed Presidential move by all possible means.

It got the meeting with the President called “the Head of State meeting with religious organization representatives” and was processed that the President could not speed up the draft introduction to the parliament and its consideration

Now the All-Ukrainian Council of Churches and Religious Organisations insists on “pinpoint” amendments to the current Law “On the Freedom of Conscience and Religious Organizations”

Current concerns

Is the All-Ukrainian Council of Churches and Religious Organisations the right body to represent whole religious community in Ukraine?

Whether the voice of the All-Ukrainian Council of Churches and Religious Organisations pretended to be the voice of whole religious community in Ukraine muffles voices of “minority” churches and religious organization (like Jehovah's witnesses or Mormons )?

Should the Government favor religious stance toward legal reform at the expense of its obligation to the Council of Europe?