Rada’s Legal Department Identifies Potential Violations of International Law in Draft Bill 8371


Save the UOC Editor

On May 3rd, 2024, the lawyers for the Ukrainian Parliament, the Main Legal Department of the Supreme Council of Ukraine (the ‘Legal Department’), provided a legal assessment of Draft Bill 8371(the ‘Law’), a law aiming to ban the religious practices of the Ukrainian Orthodox Church (“UOC”). This report on their findings was prepared by Amsterdam & Partners LLP, legal representative of the Ukrainian Orthodox Church.

  • The assessment highlights that in its current form, the Law violates the International Covenant on Civil and Political Rights, the European Convention, the established Jurisprudence of the European Court of Human Rights and the Ukrainian Constitution.
  • Particular emphasis is placed upon the stated aim of the Law to protect ‘national and public security, human rights and freedoms’. The Handbook on the application of Article 9 of the European Convention, issued by the Council of Europe together with the European Court of Human Rights, notes that Article 9 (right to freedom of thought, conscience and religion) specifically, is not capable of being restricted on the grounds of ‘national security’. Similarly, the OSCE Office for Democratic Institutions and Human Rights has noted that national security is not a permissible restriction under Article 9.2 of the ECHR and Article 18.3 of the ICCPR.
  • The legal remark does note that under the provisions of the Constitution of Ukraine, upon the imposition of martial law, some constitutional rights may be limited for the period only in which martial law is in effect. However, the legal regime of martial law as implemented on February 24, 2022, never specifically allowed for the limitation religious freedom under Article 35 of the Constitution of Ukraine, religious freedom, and as such has not adequately specified that restrictions to freedom of religion are permitted. Therefore, the remark suggested that the decree implementing martial law will need to be amended in order to be compliant with Draft Law 8371.
  • Highlighting the inadequacy of the Law as a whole, the Legal Department analysis indicates that in its current form, applying the Law even to the Russian Orthodox Church which has its legal registration outside of Ukraine, would be unlawful. When the Law is applied to religious organisations that are registered in Ukraine but stand to be banned due to their association with banned foreign religious organisations (a veiled reference to the UOC), the Legal Department expresses its view that the vague way that the Law has been drafted and its broad construction, this application will produce even more legal issues.
  • The Legal Department is clear in that the Law is inadequate in terms of its provision of creating a proper procedure for the termination of a religious organisation, with respect to what the government defines, or omits to specifically define as promoting the “Russian World ideology”. Failures of procedure are noted throughout the analysis. Such as that, under the Law as proposed, if a religious body does not comply within 3 months it shall be terminated but specifies no period of time for said termination. It further indicates that there is little scope for recourse or remedies under the law as it stands.
  • The analysis indicates multiple issues with the manner in which Law will progress through and interacts with the Ukrainian courts and judiciary. The use of the Administrative Courts as the appellate courts for actions taken under the Law is criticised due to their being unsuited to dealing with issues of individual rights and fundamental freedoms which will inevitably result from the passing of the Law. The restriction requiring certain cases to being heard in the Kyiv division of the administrative court only, is highlighted as restricting the right to judicial protection. The Law is criticised for the fact that under it, decisions or summons would simply be published, as opposed to delivered to the person concerned. The Legal Department admits that this does not correspond to general principles of justice and would violate the rights of those who did not know about the case and were unable to participate in it because of this.
  • The Law proposes to change the Civil Code of Ukraine such that the property within the ownership of terminated religious groups “with the exception of religious property” can be transferred to the state free of charge. This exception to the transfer of religious property does not, however, extend to cult property. “Cult property is transferred to other organisations”. The analysis advocates therefore that creative linguistic construction be employed to ensure the UOC will be designated as a cult, meaning it’s assets will transferred to the Orthodox Church of Ukraine, leaving no recourse to appeal the decision.
  • The Law specifies precisely that a central executive body will immediately apply to the court with a claim for the termination of an unlawful religious organisation. At the same time, a commission for the termination of a religious organisation (liquidation commission) is appointed by a court decision on the termination of a religious organisation. The Law is criticised for acting ultra vires here since “the specified provisions of the project are related to the administration of justice by the court, they should be subject to the regulation of the procedural code” not the amendments of the Law, as stated in Article 92 of the Constitution of Ukraine. This proposed section is particularly heavily criticised for giving no clarity in regard to the powers of the Commission, what decisions it should adopt and the term of its authority.

Draft Law 8371 will fundamentally affect the lives of millions of devoutly religious Ukrainians by depriving them of practicing their religion. It is therefore deeply concerning to see in the summation of the Ukrainian parliament’s own lawyers, that the comments provided in the 28-page dossier are not exhaustive. What this indicates is that had the Legal Department not been rushed to complete the remark on the Law, due to the Ukrainian government’s fanatical drive to push the Law through and ban the UOC, in the hopes of securing a domestic political win, it is likely that the Legal Department would have had further comments to make on the deficiencies of the Law.

Moreover, in any event, the UOC denies being proponents of advancing any “Russian World ideology” and no evidence has been been presented by Ukrainian authorities supporting those allegations since the full-scale invasion of 2022. In fact, the UOC has taken significant steps to disassociate itself administratively from the Russian Orthodox Church, including withdrawing their bishops from the Bishopry of the ROC and even condemning the Russian government and ROC in their roles in the present conflict.

Any proposed legislation in any rule of law country, should be thoroughly and exhaustively considered. This is particularly the case where the proposed legislation will have effects on something as personal and protected as the right to express one’s own faith. As such, when the legal advisers to a government are advising that they have had insufficient time to fully formulate their advice on a bill, and when the limited advice that has been given indicates that the proposed legislation will contradict both national and international law, rationally the conclusion should be that the proposed law is unfit to be implemented as full legislation.

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