Analysis of legislative initiatives in freedom of worship and the activity of religious organizations in 2005
Maxim VASIN, expert on legal questions at the Institute of Religious Freedom, master of law
The past year was abundant in legislative initiatives in the area of freedom of worship and the activity of religious organizations. On the one hand, the new regime announced its course of raising spirituality and protecting moral values in Ukrainian society, and, on the other hand, representatives of religious and civic organizations sought to use the opportunity to solve old, sore problems in this area and to improve the existing situation. We are going to consider here the character of the most significant legislative initiatives and the course of consideration thereof.
1. Religious organizations acquiring the status of juridical persons
With the coming into force of the law of Ukraine 755-IV “On state registration of juridical and natural people, business people” of 15.05.2003, a number of practical problems arose with regard to the acquiring of the status of juridical persons by non-profit organizations, including religious ones. The collision of legal norms on the procedure of state registration of religious organizations between this law and the law of Ukraine “On freedom of worship and religious organizations” #987-XII of 23.04.1991 caused a problem of the double registration of religious organizations, which, in its turn, led to the complication of the process of acquiring the status of juridical persons by religious organizations, gave occasion to the ambiguous practical application of the law and posed substantial obstacles for religious activity (the extension of the registration period, necessity of paying a registration fee for state registration, the complexity of reaching agreement on changes and addenda to the statutes, etc.).
The most widespread responses to legislative initiatives in the religious environment were evoked probably by bills aimed at the elimination of the mentioned collision. The number of bills submitted to the Parliament of Ukraine and associated with individual questions of state registration included only two bills, which provided a comprehensive solution to the problem.
The first one is the draft law of Ukraine on making alterations to certain laws of Ukraine (in connection with passing of the law of Ukraine “On state registration of juridical and natural people, business people”) #7250 of 25.03.2005 (authors: national deputies of Ukraine Y.I. Yekhanurov, V.V. Dubytskyi), which draft law proposed to eliminate the legal collision by way of making alterations to special laws and the introduction of double registration of non-profit organizations, including religious ones.
The other bill submitted for the consideration of the Parliament of Ukraine was the draft law “On making alterations to article 3 of the law of Ukraine ‘On state registration of juridical and natural people, business people’” (with regard to the status of juridical persons) #4389-1 of 03.06.2004 (author: National Deputy of Ukraine V. L. Musiiaka). These legislative changes were conceptually different in that bill 4389-1 proposed not only to eliminate the existing legal collision between the laws, but also to solve the problem of “double” registration of non-profit organizations. The bill envisaged alterations and addenda to article 3 of the law “On state registration of juridical and natural people, business people,” which specified that the law is not applicable to state registration of religious organizations and associations of citizens (political parties, public and charitable organizations, trade unions, etc.), which are to be registered by a special procedure established by law.
Bill 4389-1 was supported by the All-Ukrainian Council of Churches and Religious Organizations (AUCCRO), whose position was set out in a respective address to the Parliament of Ukraine of 24.06.2005, and was approved by Parliament in the first reading and assumed as a basis at a plenary meeting of 04.10.2005
However, the experience of the Ukrainian Parliament again confirmed the thesis that even the best legislative alterations can reach the second reading in a completely different form. That is exactly what happened to bill 4389-1, which, after being amended by the deputy head of the Committee on Industrial Policy and Entrepreneurship, Kseniia Liapina, in its wording for the second reading, completely ignored the problems of state registration of religious organizations. Despite the solution of the problem with respect to individual non-profit organizations, a new legal collision arose for religious organizations and no solution of the issue of their “double” registration was offered.
The national deputies passed bill 4389-1 in its new wording without examining its character thoroughly. This worsened the position of religious organizations even more. There arose some hope of solving the problem eventually only because the president of Ukraine paid attention to the addresses of the AUCCRO of 27.12.2005 and public organizations and vetoed the law, which was passed by Parliament. The future of these legislative changes depends now on the position of Parliament members who are going to re-consider the law with the president’s proposals for solving the problems of state registration of religious organizations.
2. The right of religious organizations to establish general education institutions
In the context of introducing a moral-ethic component into school education, the problem of founding general educational institutions by religious organizations, which is one of the most urgent problems in the field of education, was ignored. There were no governmental initiatives in this regard. Draft law 8002 “On making alterations to certain laws of Ukraine” (regarding the founding of general education institutions by religious organizations) of 18.07.2005 (author: National Deputy of Ukraine Y.A. Boiko) was registered in the Parliament of Ukraine.
However, providing a solution to the problem of granting religious organizations the right to found general education institutions, the bill offers the changes not in the best manner, as it presupposes amending the law of Ukraine “On freedom of worship and religious organizations.” This approach is not appropriate given the considerable politicization of the process of consideration of questions of freedom of worship and religious organizations by Parliament. Therefore, we consider it more appropriate to make respective alterations to legislation in the field of education, namely, to articles 9, 18 of the law of Ukraine “On education” #1060-XII of 23.05.1991 and to articles 8, 11 of the law of Ukraine “On general secondary education” #651-XIV of 13.05.1999.
In addition, as of today, there are no legislative initiatives regarding the definition of private educational institutions as commercial or non-commercial. For religious organizations seek to provide education and not to make a profit when they found educational institutions. Therefore, it is expedient to develop a legal mechanism which will enable non-commercial educational institutions to enjoy certain tax benefits equally on a level with non-profit organizations, and to receive humanitarian and charitable aid for improvement of the conditions of education.
3. Right of religious organizations to permanent use of land
According to part 5 of article 12 of the law of Ukraine “On payment for land,” religious organizations are released from payment for land. However, it is almost impossible to use the benefit in practice, because religious organizations, from the legislative point of view, have no right to permanent use of land. They had this right according to article 7 of the Land Code of Ukraine, which came into effect in 1990, but in 2001 religious organizations were deprived of the right to permanent use of land according to article 92 of the Land Code of Ukraine #2768-III of 25 October, 2001 (in the new wording).
In order to solve this problem, in 2003-2004, five bills, including a bill of the Cabinet of Ministers of Ukraine, were submitted to the Parliament of the 4th convocation. The governmental bill was even approved by the Parliament of Ukraine in the first reading, but the members of Parliament lacked the political will to solve the problem of restoring the right of religious organizations to permanent use of land. Due to a political confrontation, the bill did not receive a sufficient number of votes during its consideration in the second reading.
The Parliament of Ukraine currently considers the draft law of Ukraine “On making alterations to part 2 of article 92 of the Land Code of Ukraine” (regarding the right of religious organizations to permanent use of land) #8409 of 3. (authors: national deputies of Ukraine V.M. Stretovych, O.H. Bilorus, Y.M. Sukhyi, etc.) The support of this initiative by representatives of various factions of the parliament indicates the fact that these changes have been long expected by society, which will enable religious organizations to use the benefits during their use of land.
Bill 8409 has been included in the list of questions of the agenda of the 9th session of the Parliament of Ukraine of the fourth convocation, which is to start in February, 2006. Therefore, it is possible that the expectations of many believers will be fulfilled in the event of approval by Parliament of the mentioned bill.
As for this question, decision #5 of 22.09.2005 of the Constitutional Court of Ukraine with regard to the conformity of the Constitution of Ukraine to the constitutionality of the provisions of article 92, paragraph 6 of chapter 10 “Transitional provisions” of the Land Code of Ukraine (the matter of permanent use of land lots) says that religious organizations, which were granted the right to receive land lots for permanent use according to article 7 of the Land Code of Ukraine in its wording of 13.03.1992 and are released from land tax as organizations engaged in no business activities (paragraph 5 of article 12 of the law of Ukraine “On payment for land”), will have a right to permanent use of land lots and will be entitled to benefits regarding land tax of 1.01.2008 according to paragraph 6 of the transitional provisions of the code. The other part of religious organizations are deprived of these rights and benefits in contradiction to article 22 of the Constitution of Ukraine, Articles 4, 5 of the Law of Ukraine “On freedom of worship and religious organizations.”
One should note that, apart from the problem of permanent use of land, religious organizations still have also the problem of lack of legislative definition thereof as subjects capable of gaining the right of ownership to land lots. According to the land code of Ukraine in effect, juridical persons may acquire land in their ownership only for business activity. Not a single bill was submitted to Parliament with regard to this issue.
Therefore, at present, religious organizations have to conduct their activity being deprived of the right of permanent use of land and without the right to acquire land lots in their ownership, which, undoubtedly, cannot indicate provision by the state of appropriate conditions for the spiritual and social activities of religious organizations.
4. Right of release from conscription and release from military training
According to article 17 of the law of Ukraine “On general military duty and military service” # 2232-XII of 25.03.1992, release from conscription is granted to draftees who are church ministers and incumbents of offices in a religious denomination registered according to established procedure. According to article 30 of this law, persons who are ordained and hold an office in a religious denomination registered according to established procedure are also released from periodical military training.
The problem is that the notion “denomination” is not legislatively defined. Therefore, there often arise obstacles in the way of exercise of the right of a citizen to release from conscription and periodical military training. To solve this problem, it is necessary to bring the terminology of the articles in line with the law of Ukraine “On freedom of worship and religious organizations.”
Several bills were submitted to Parliament, which bills were aimed at elimination of the mentioned inaccuracy of terminology, but these initiatives were not supported by the deputies for certain reasons. Later, the draft law “On making alterations to the law of Ukraine “On general military duty and military service” (regarding the term “denominations”) # 4119 of 17.12.2003 (authors: national deputies of Ukraine V.V. Taran-Teren, O.V. Turchynov) was submitted to the Parliament of Ukraine. The draft law offered a solution to the problem.
These proposals were taken into account in the governmental draft law on making amendments to the law of Ukraine “On general military duty and military service” (new wording of the law) #8047 of 29.08.2005, which contained even clearer provisions on release from the draft and periodical military training. The bill was approved by the Parliament of Ukraine in its first reading and assumed as a basis at a plenary meeting on 22.12.2005.
5. Bills on the activity of religious organizations
1) A draft law of Ukraine “On making amendments and addenda to the law of Ukraine “On freedom of worship and religious organizations” (regarding dangerous psychological influence) #8397 of 02.11.2005 (author: National Deputy of Ukraine V. L. Spivachuk) was registered in the Parliament of Ukraine. The draft law is now under consideration of the Committee on Culture and Spirituality. According to the author, the bill allows provides legislative regulation of the problem of protection of citizens from the dangerous psychological influence of totalitarian religious cults, whose activity is based on the principle of the complete leveling of human personality and destruction of moral values dominant in society.
In the draft regulation 8397/П of 27.12.2005, National Deputy of Ukraine O.H. Bilorus expressed a position that the mentioned bill is unacceptable, because the implementation of bill 8397 may cause tension in interchurch relations and, consequently, in society. In addition, if passed, it will provide legislative ground for the persecution of citizens on the basis of their denomination, and the norms of the bill are so designed as to apply to absolutely all religious organizations and their members.
In view of the ambiguity of the provisions of bill 8397, experts and representatives of religious organizations are agreed that this bill should be voted down as one posing obstacles for exercise by citizens of the right to freedom of worship and religious confession and containing a threat of making these constitutional rights devoid of their essence in Ukraine. In addition, despite its certain deficiencies, the effective law of Ukraine “On freedom of worship and religious organizations” is sufficient for legal regulation of the activity of religious organizations and grants the right to freedom of worship and religious confession, provided for by the Constitution of Ukraine, to each citizen of Ukraine and is today the guarantor of stability in interchurch relations.
2) Another bill submitted to Parliament was the draft law of Ukraine “On financing by the state of religious communities” 36051 of 21.08.2004 (author: National Deputy of Ukraine L.M. Chernivetskyi), which remains to be considered by the Parliament of Ukraine. The bill offers financing by the state of religious communities whose faithful pray for health and Christian mercy for the president of Ukraine and other officials, the Ukrainian nation, etc. during their services.
The profile committee and the main scholarly-expert board of the Parliament of Ukraine propose voting down the bill, because it contradicts the Constitution of Ukraine, the Budget Code of Ukraine and the law of Ukraine “On freedom of worship and religious organizations.” Proceeding from the tenor of these initiatives, one can conclude that they are of a populist character, because they are not based on any practical mechanism for their implementation and also violate the constitutional principle of separation of the church and religious organizations from the state and legislative prohibition of financing by the state of the activity of any organizations founded on the basis of one’s attitude to religion.
To summarize the above, one should note that there are still many problematic questions regarding the activity of religious organizations to be solved at the legislative level. We are convinced that the solution of these problems can be made more quick and effective by engagement of representatives of religious organizations and experts in the elaboration of governmental bills and statutory acts on matters of freedom of worship and religious organizations, which has hardly been done so far. Such cooperation will allow the solving of problems which religious organizations face in practice and the avoidance of legal collisions and adoption of legislative changes which do not improve the existing situation.
We hope that Parliament in its new composition will be able to pay due attention to solving problems of the activity of religious organizations, which will ensure the spiritual and moral elevation of Ukrainian society.
The Ukrainian original of this text was posted on RISU on 2 February 2006.