The Council of Europe’s Requirements for Ukraine’s Legislation on Religious Freedom: Between Truth and Falsehood

On April 21, 2011, Ukrainian President Viktor Yanukovych met with the All-Ukrainian Council of Churches and Religious Organizations (AUCCRO). This was Viktor Yanukovych’s first meeting with the religious leaders of Ukraine as head of state. During the meeting both sides expressed their views on pressing issues in church-state relations in Ukraine, including the question of the further development of legislation on freedom of conscience and religious organizations.

One of the key issues in the sphere of developing legislation on freedom of religion is the issue of the Law of Ukraine “On Freedom of Conscience and Religious Organizations” – an issue the participants of the meeting between the president and the AUCCRO paid particular attention to.

A short historical excursion

We recall that the Law of Ukraine “On Freedom of Conscience and Religious Organizations” was adopted by the parliament in April 1991 on the eve of Ukraine’s independence. The last substantial changes made to this law were in December 1993 (some modifications were made later, but these changes were not substantial).

Attempts to radically change the law on religious freedom intensified after Ukraine joined the Council of Europe (1995) and the adoption of the Constitution of Ukraine (1996). Originally, the government initiated a draft Concept on Church-State Relations in Ukraine, and later, over the course of several years, a new version of the law was lobbied in parliament.

The apogee of this process was in 2002-2003 when the Verkhovna Rada of Ukraine reviewed the government bill “On Introducing Changes to Law of Ukraine ‘On Freedom of Conscience and Religious Organizations’” (regist. № 1281). Without going into the substance of this bill, we will note that this bill was rejected by the parliament in November 2003. Since then, not taking into account specific legislative initiatives, the main “battles” for changes to this law took place outside the parliament of Ukraine (in the government, the Ministry of Justice, and the state agency for religious affairs).

It should be noted that cooperation between the denominations in 2002-2003 in working to protect religious freedom in the context of the above-mentioned bill was one of the factors that led to the formation in December 2003 of the Council of Representatives of Christians Churches of Ukraine.

Subsequent attempts to introduce changes to the Law of Ukraine “On Freedom of Conscience and Religious Organizations” began in 2006 in connection with Presidential Decree № 39/2006 from January 20, 2006, “On the Action Plan for fulfilling the obligations and commitments of Ukraine arising from membership in the Council of Europe.” The decree was prompted by Resolution of the Council of Europe Parliamentary Assembly (PACE) № 1466 (2005) On the Honoring of Obligations and Commitments by Ukraine, which was passed on the basis of the Report of the Monitoring Committee.

According to the this presidential decree, the Ministry of Justice was ordered to develop and submit to the government a new edition of the Law of Ukraine “On Freedom of Conscience and Religious Organizations.” The working group of the Ministry of Justice (which included representatives of the denominations, the public, and academics) prepared a new draft of the law, which received a positive evaluation from experts of the Venice Commission and the OSCE/ODIHR. In November 2006 the draft was reviewed at a session of the All-Ukrainian Council of Churches and Religious Organizations. As a result of the discussion, the AUCCRO sent an address to President of Ukraine Viktor Yushchenko, in which it wrote that “in order to reach a consensus we believe it expedient to continue consultations on the revision of the concept on church-state relations and the new version of the Law of Ukraine ‘On Freedom of Conscience and Religious Organizations.’”

In connection with the Ministry of Justice it was proposed to the government to give the AUCCRO the chance to jointly with the newly created State Committee on Nationalities and Religions continue consultations regarding the draft law before a decision is made on it by consensus and only then return it to the Cabinet of Ministers for review.

In 2008-2010 work on the new draft Law of Ukraine “On Freedom of Conscience and Religious Organizations” was carried out by the State Committee on Nationalities and Religions. But the draft was not submitted to the government to be reviewed by the parliament because the AUCCRO and a number of denominations expressed objections to the draft.

The situation on the eve of the meeting between the President and the AUCCRO

On December 9, 2010, according to Presidential Decree № 1085/2010 “On Optimization of the System of Central Executive Power,” the State Committee on Nationalities and Religions was liquidated and its functions in implementing government policy in the religious sphere were passed to the restructured Ministry of Culture.

On January 12, 2011, according to Presidential Decree № 24/2011 “On the Action Plan for fulfilling the obligations and commitments of Ukraine arising from membership in the Council of Europe,” the Ministry of Culture was requested to submit in due course to the Cabinet of Ministers of Ukraine for the next review by the Verkhovna Rada of Ukraine the bill on introducing changes to the Law of Ukraine “On Freedom of Conscience and Religious Organizations” (new edition).

On February 17, 2011, the minister of culture of Ukraine, M. Kulyniak, met with members of the All-Ukrainian Council of Churches and Religious Organizations, as a result of which it was decided to create a working group as part of the ministry to prepare a draft law in the sphere of religious freedom with the participation of representatives of the Secretariat of the AUCCRO.

The working group, which met on March 16 and April 8, 2011, developed an approach to improve the legislation on freedom of religion that in general sees no urgency in making a new version of the Law of Ukraine on the freedom of religion; however, the approach does call for changes in the sectoral legislation, which will regulate the activity of religious organizations in specific areas of public life.

On April 7, 2011, President of Ukraine Viktor Yanukovych in his annual message to the Verkhovna Rada of Ukraine proposed the following initiatives from the side of the state in terms of updating the legislation about the freedom of religion:

• develop and adopt a concept of church-state relations;
• develop with the consideration of the provisions of the concept the new edition of the Law of Ukraine “On the Freedom of Conscience and Religious Organizations” to ensure interdenominational peace and accord, the equal treatment of all churches, and the debarment of any sort of fundamentalism.

From the above it is evident that the presidential decree from January 12, 2011, and the presidential letter to the parliament propose two different approaches to updating legislation on the freedom of religion and religious organizations. Furthermore, representatives of the denominations in the working group of the Ministry of Culture proposed yet another approach to improve the legislation.

Meeting of Ukrainian President with the All-Ukrainian Council of Churches

At the meeting with the All-Ukrainian Council of Churches and Religious Organizations on April 21, 2011, President of Ukraine Viktor Yanukovych welcomed the active participation of representatives of religious organizations in developing the draft law “On Freedom of Conscience and Religious Organizations” (new edition) and noted that after the elaboration of this draft law and its provisions by general consensus, he will sign the law.

In its turn, the AUCCRO in its appeal to the President of Ukraine Viktor Yanukovych about improving legislation on the freedom of religion emphasized the following requisites:

• withdraw the orders of the Ministry of Culture regarding the development of the daft law “On Introducing Changes to Law of Ukraine ‘On Freedom of Conscience and Religious Organizations’” (new edition);
• in agreement with the AUCCRO adopt the Concept on Church-State Relations in Ukraine;
• develop and introduce certain changes, with the agreement of the AUCCRO, to sectoral legislation, which will regulate the activity of religious organizations in specific areas of public life.

In this context it is entirely evident that President Yanukovych and the All-Ukrainian Council of Churches have different approaches to improving legislation on freedom of religion, which should of course lead to the continuation of a dialogue between the sides regarding the issues. However, it is worth noting the head of state’s readiness to achieve a general consensus on the issue of introducing changes to the law on religious freedom.

On Ukraine’s obligations and commitments to the Council of Europe

In connection with updating the current Law of Ukraine “On Freedom of Conscience and Religious Organizations,” it is worth remembering Ukraine’s commitments in the sphere of religious freedom.

Ukraine joined the Council of Europe in November 1995. On entering the council, Ukraine agreed to fulfill commitments according to PACE Opinion no. 190 (1995). In the sphere of religious freedom, according to paragraph 11.xi. Ukraine agreed to the following commitments:

• a peaceful solution to the disputes among the Orthodox churches will be facilitated while respecting the Church’s independence vis-à-vis the state;
• a new non-discriminatory system of church registration and a legal solution for the restitution of church property will be introduced.

In PACE Resolution No. 1466 (2005) On the Honoring of Obligations and Commitments by Ukraine, subparagraph 13.18 reads “to introduce clear rules on the restitution of church property as required by Opinion No. 190 (1995) (paragraph 11.xi).” Point 269 of paragraph F Freedom of Conscience and Religion, in the Human Rights section, the report, on which the above-mentioned resolution was adopted, attention is paid to the present Law of Ukraine on Freedom of Conscience and Religious Organizations and stresses that “the quite progressive law for the time of its adoption now requires significant rewording.”

It is necessary to note that when Ukraine joined the Council of Europe it was not obliged – neither by the requirement to establish a new nondiscriminatory system for registering churches nor by the PACE Monitoring Committee’ statement “the quite progressive law for the time of its adoption now requires significant rewording” – to adopt a new version of the Law of Ukraine on the Freedom of Conscience and Religious Organizations.

In this context it is also appropriate to draw attention to Ukraine’s commitment to “a peaceful solution to the disputes among the Orthodox churches will be facilitated while respecting the Church’s independence vis-à-vis the state.” Indeed, the conflicts between the Orthodox churches (UOC-MP, UOC-KP, and UAOC) – despite the fact that there are fewer “hot spots” than there were in the 1990s – remain, and so the Ukrainian authorities must practice a balanced policy, including in the area of updating the legislation on the freedom of conscience and religious organizations and in assisting in establishing a dialogue between the Orthodox Churches of Ukraine.

Conclusions

• The issue of changing the current Law of Ukraine “On Freedom of Conscience and Religious Organizations” in the nearest future continues to carry a potential for conflict in church-state relations and, partially, in interdenominational relations.
• The example of many post-Soviet countries shows that the adoption of a new law on religious freedom poses considerable risks to religious freedom. Threats to the freedom of religion exist along the lines of (a) restriction of religious freedom, (b) regulation of religious activity, (c) favoring one denomination, (d) increasing governmental, including fiscal, influence in the religious sphere.
• The All-Ukrainian Council of Churches and Religious Organizations, having reviewed various approaches and points of views of the denominations, the path of the interdenominational dialogue and consultation, on the basis of a consensus worked out proposals regarding the improvement of legislation on religious freedom.
• The state must pursue a balanced policy in the religious sphere, including in regards to the issue of updating the legislation on freedom of conscience and religious organizations, in view of the multidenominational Ukrainian community and the existing inter-Orthodox conflicts.
• An important condition for improving the legislation on religious freedom is the presence of a real, constant dialogue between representatives of the government, denominations, and the society.

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This article was published as “Urgent Issues in Developing Ukraine’s Legislation in Religious Freedom” in the Collection of Academic Articles on the theme “Freedom of Religion and the Interreligious Dialogue: Global Dimensions and Local Manifestations” and presented by the author at a conference of the same name in Kyiv on May 20-21, 2011.