Interview with Anna YUDKIVSKA, candidate for the position of judge from Ukraine of the European Court of Human Rights
In recent years, an increasing number of Ukrainian citizens have been approaching international institutions to defend their rights. The most famous of the institutions is the European Court of Human Rights. In matters against Ukraine, the court has passed more than one decision and settled complicated issues on which no agreement was reached in the Ukrainian courts.
This year, the term of the judge of the European Court of Human Rights who represented Ukraine has expired. Therefore a national competition for the selection of candidates for the vacant position was declared. For certain reasons, it was held for a second time on 17 December 2007. Anna Yudkivska was two times selected as one of three candidates for the post of the judge to represent Ukraine. This is an indication of her high professional level and support from society, particularly, from civic and law-enforcement organizations.
In January 2008, the Parliamentary Assembly of the Council of Europe is to consider at its sessions the question of electing from among the three candidates presented by the government the judge of the European Court of Human Rights to represent Ukraine. In view thereof, we took the opportunity and asked a candidate for the post of the judge, Anna YUDKIVSKA, a few questions regarding the legislative and judicial provision of the right to freedom of religious expression and regarding the improvement of church-state relations.
-Recently, polemics have been increasing as to the necessity to reform the judicial system in Ukraine. This looks especially urgent against the background of political crises in which the judicial branch is often used not as an independent arbiter but as a tool in the struggle for power or property. In that situation, what should be the priority steps to be taken towards the reformation of the Ukrainian judicial system in your opinion?
Yes, unfortunately, the judicial branch today is being turned into a tool in both the political struggle and the struggle for property (according to the erroneous expression of Yurii Vasylenko, Ostap Bender’s 400 methods of “honest” seizure of money lacked one - seizure by court decision); judges de facto are neither independent nor sovereign in making decisions. The widespread corruption of the judicial system today is recognized even by top state officials. It is a systematic problem which must be addressed by introducing reform to the system of pre-trial investigation, public prosecution and defense. In my opinion, the steps being proposed now - namely the complication of the already complex, multi-staged judicial process - will not help but will worsen the crisis.
Today, there are repeated cases of trials drifting between the economic, administrative and general courts due to the deficiency of the introduced system of rules of jurisdiction. And the further “detailing” of general jurisdiction and two-level cassation will considerably complicate people’s access to the court, make the process longer (a process which is too long as it is), and generally have a negative effect on the unity of the various levels of legal practice. By the way, the conclusions of the Venice Commission regarding the bills on the court system and the status of judges in Ukraine say the same.
The priority should be steps aimed at combating corruption in the court system and, accordingly, the rehabilitation of the public’s perception of and respect for justice. Therefore, the focus should be work on the quality of justice and the level of the judges. The judge cadres are of great importance. Requirements of judges should be increased considerably and the procedure of selection should be transparent. I think that only a person who has had previous practical experience in the general judicial process as an independent participant (i.e., a lawyer), a representative, or a public prosecutor can aspire to be appointed a judge. Only in this way can one learn to weigh conflicting interests and understand the various legal positions. And, undoubtedly, it is a priority to ensure the real independence of judges so that they are unhindered by pressure and interference in their work.
—One of the things required of Ukraine by the Parliamentary Assembly of the Council of Europe (PACE) for entrance into their organization was that it ensure the independence of the church in its relations with the state. Can one say that Ukraine has fulfilled that responsibility or are there still certain problems in that area?
—Historically and traditionally, religious neutrality of the state - full non-interference in religious matters, both in terms of support and opposition - is difficult to establish. On one hand, the state cooperates with religious communities. On the other hand, religious organizations seek recognition from the state, make themselves heard regarding certain sore social subjects such as morality, bioethics, abortion, euthanasia, and so on. Clearly, the boundary is not distinct.
One should note that PACE never required of the member-states the classical separation of church and state modeled after the USA . Its latest position on the issue (#1804 (2007)) recognizes the existence of different types of church–state relations in European countries, that in some countries, one or several religions dominate, and thus religious figures play certain political roles. For example, the presence of bishops in the House of Lords in Great Britain. Even in France, where the strict separation between church and state was established as early as in 1905 by law, the state pays salaries to hospital, prison and military ministers, as it is impossible to meet the religious needs of certain categories of the population by other means. Greece’s Constitution contains a regulation according to which Orthodox Christianity is the dominant religion in the country and prohibits proselytism. By the way, this regulation was considered in the European Court on Human Rights in the matter of “Kokkinas vs. Greece,” but the court ruled that article 9 of the European Convention on the Protection of Human Rights and Basic Freedoms had been breached.
In general, the European Court of Human Rights made several decisions that dealt with the problems associated with secular states. Some of them dealt with the question of taxation (obligatory taxes for the state church in certain countries). In the matter of “Buscarini vs. San Marino,” the court ruled that the obligatory oath of a state official on the Bible is a forced pledge of loyalty to a certain religion that contradicts the provisions of article 9 of the convention.
Convention members recognize that it is impossible to delineate a unified approach to the role of religion in European societies. This is where the broad limits of judgment come in - to regulate these questions. For instance, the European court supports Turkey’s aspirations to establish a secular regime. In the famous case of Leyl Sakhin vs. Turkey concerning the prohibition of Muslim clothes at universities, the court took into account both the role of institutions of higher education and the special “Turkish context” - social aspirations for “secularity” as well as the existence of extremist trends that seek to govern according to Shariah law - and found no violation in the prohibition of such clothing. In Turkey, the court also recognized the legitimacy of interference in the matter of the “Party of Prosperity” and dismissed the case on the grounds that it tried to establish a pluralistic system and reinstate Shariah law. So, these questions are settled by each state according to its historic experience and the contemporary needs of its society.
Churches in Ukraine, traditionally, play a significant role in society, especially considering the level of trust in churches as compared to the level of trust in the state. What is unacceptable is the engagement of the church in politics, a phenomenon which unfortunately occurs in Ukraine especially (but not solely) during elections. Certain politicians engage certain churches in political campaigning or call people to join certain churches – this is flat-out religious interference by the state. Religious minorities are the most vulnerable in such situations. In my opinion, this is one of the main problems in this area.
The obligation of state neutrality in its relations with the church also means that the state should abstain from taking sides in religious arguments. It should not take steps to keep or bring religious communities under the leadership of a single party. The role of the bishop in such a conflict is to ensure the respect of religious groups for each other (this is stressed, for instance, in the matter of “Serif vs. Bulgaria”). This is especially important in multidenominational Ukraine, where the state bears the responsibility of ensuring the peaceful coexistence of all denominations frequently in conflict with one another.
—The Council of Europe often states that the existing system of registering churches and other religious organizations in Ukraine is to a certain extent discriminatory and unclear. What is your opinion? Is there really a need to introduce a new system of registration in Ukraine?
—The answer to that question was given by the European Court in the matter of “St. Michael’s Parish vs. Ukraine.” In this particular case, the Kyiv City Administration refused to make an amendment to the community’s statute that would allow it to join the UOC-KP [Ukrainian Orthodox Church-Kyivan Patriarchate-editor]. The government objected on the grounds that the community was not forced to join any patriarchate and no one interfered in its activity. The court reminded the government that a refusal of a state to register a group of believers is an interference in freedom of worship, guaranteed by article 9 of the convention. The court noted that despite the fact that the Ukrainian law on the freedom of worship and religious organizations really allowed the religious group to exist without registering, the activity of unregistered religious organizations was limited. Furthermore, if a religious organization is in conflict with the leadership of the church to which it is affiliated and must make alterations to its statutes or risk being legally excluded, state authorities must approach the conflict neutrally and delicately. The court came to the conclusion that the refusal of state authorities to make alterations to the statutes considerably limited the capabilities of the religious community, which could no longer practice the whole spectrum of religious activities. In general, the court criticized the Ukrainian law on registration of religious associations and noted that it lacks “concord and predictability.” For instance, the law does not define what a “religious group” or a “religious organization” is, whether or not they are the same thing, or if the difference between them is the status of the legal person.
The right to establish religious associations is a component of the system of basic rights and freedoms of a person. Registration of religious associations is the key for ensuring that such associations are not susceptible to state interference. This issue is connected with the previous question of the independence of the church from the state: the registration requirements to specify beliefs and adhere to formalities (in the matter of “Metropolitanate of the Church of Bessarabia vs. Moldova,” the court ruled that article 9 of the convention excludes the evaluation of religious beliefs). The question of internal structure is also a question of beliefs – how and by what rules is the church to be governed. In this light, additional requirements regarding the structure of a religious organization can be viewed as pressure from authorities. In addition, participation of recognized spiritual authorities in the registration process is also unacceptable, at least according to the European Court. Therefore, a clear system of registration of religious associations is a fundamental institutional component of religious rights and freedoms guaranteed by the convention and Constitution; believers should have a chance to unite freely, without interference from the state.
—Recently, the question of the restitution of church property expropriated in the past by the state has become increasingly acute. The international community has pointed repeatedly to this problem as one of the main ones in church-state relations in Ukraine. However, even state officials admit to imperfect and insufficient legal mechanisms for the restitution of real estate to the church. What legal initiatives should be introduced to deal with this problem?
—Obviously, solving this problem is a priority, as most interdenominational conflicts arise precisetly due to the lack of religious buildings;several religious communities sharing one building increases tension in any religious environment.
As of today, appropriate legislation is still not in place, unfortunately. Moreover, the bill that stopped the privatization of religious buildings has been rejected. In my opinion, the reintroduction of this bill should be the primary initiative to avoid a situation in which a law on restitution has been passed and there is nothing to give back!
The Parliamentary Assembly of the Council of Europe recommended the restitution of nationalized property that previously belonged to religious communities as early as 2002. In 2005, it again raised the unresolved status of that question again. Despite the undisputable complexity of this problem, it cannot ever be avoided, because religious peace and agreement in the country depend on its solution.
—What actions does the European Court of Human Rights take to solve the problems in the area? And were there any actions taken by religious associations of Ukraine and other countries?
—Appropriate statements from religious communities of other European countries were submitted to the court. But the European Convention on the Protection of Human Rights and Basic Freedoms does not guarantee the right to the restitution of property. And decisions regarding such statements depend directly on the way these questions are addressed in national laws: a community which complains about a violation of the right to peacefully own property should have “legitimate expectations” with regards to the return of said property – i.e. clear legislative provisions regulating the return. According to the Court, expectations for renewal of the right to ownership of property lost long ago are not legitimate. Such expectations should be clearly defined in the internal law; article 1 of the First Protocol cannot be interpreted as imposing a general obligation on member states to return property which they obtained prior to the ratification of the convention.
Therefore, the court made rules according to national law. One should note that in most European countries, these issues are actually settled on the internal level.
—The European Convention on the Protection of Human Rights and Basic Freedoms guarantees each person the right to free assembly. In recent years, the mass media reported repeated incidents of local councils referring to outdated norms of the effective law on the freedom of worship to prohibit churches and religious organizations from organizing celebratory processions, peaceful gatherings, or otherwise publicly professing their religion.
— Yes, unfortunately there are repeated examples of the prohibition of religious gatherings, which run contrary to article 39 of the Constitution of Ukraine. Such actions can undoubtedly be considered violations of the right to peaceful gathering guaranteed by article 11 of the convention. In a recent case (“Barankevych vs. Russia”), a minister of the Church of Evangelical Christians applied for permission for a public service but was refused due to “differences between the religion of Evangelical Christians and the religion professed by the majority of the town population,” and due to the fact that permission for a public service given to one of the numerous religious organizations may cause dissatisfaction in others. As far as this argument is concerned, the court reminded the state that democracy is not limited to majority interests – a balance should be sought to ensure fair and equal treatment of minorities – and that the right to the freedom of gatherings applies to both closed gatherings and street meetings, marches, and so on.
Moreover, even though article 11 is intended to protect a person from state interference, there exist certain situations in which the state has a positive obligation to ensure these rights are effectively exercised. Also, to ensure fairness, the state cannot eliminate causes of tension by eradicating pluralism, instead promoting tolerance between competing groups. As the state was not able to ensure the effective exercise of the rights of the claimant, the court concluded that article 11 of the convention was violated in light of the requirements of article 9.
In general, the court quite often interprets the provisions of article 9 of the convention as protecting freedom of association, guaranteed by article 11 of the convention. Therefore, religious activity is protected by the convention, which guarantees state non-interference as a requirement of pluralism.
—In 2006, the Ministry of Justice of Ukraine in conjunction with church representatives drafted a newly worded version of the basic law “On Freedom of Worship and Religious Organizations,” which did not get through to Parliament. Today, the adoption of such a law is a highly prioritized objective of the democratic coalition in Parliament, as specified in a published agreement. What, in your opinion, are the most important problems that should be addressed by a new wording of the law?
—Human rights campaigners complain that human rights organizations specializing in freedom of worship issues in Ukraine did not participate in the development of this law. They criticize this bill for imposing a unified structure and free religious gatherings on religious groups, for ambiguity as to the rights of foreigners, and so on. It is excellent that religious leaders were engaged in discussion thereof, but it is unacceptable that the final wording is not developed yet, to the best of my knowledge, due to the varying positions of these leaders.
In the interpretation of the European Court of Human Rights, the law should first of all be brought in line with the requirements of articles 9 and 11 of the convention. Certain shortcomings of the existing law were considered by the court in the St. Michael’s Parish case; all the court’s remarks should be taken into account. In the same way, the remarks of the Venice Commission, which also pointed to the necessity of clear formulations and proposed to simplify the existing system of registration of religious associations, should be taken into account.
In general, the more clear and detailed the law is and the more accurate its formulations are, the less space is left for state interference. Consequently, religious associations in Ukraine and their members will feel more free and secure. This is the task to be realized by the new law.
—Ms. Yudkivska , we thank you for the interesting conversation and wish you success in your work!
Maksim VASIN, an expert of the Institute of Religious Freedom in Kyiv, conducted this RISU special interview on, 24 December 2007.