LEGAL OPINION

on the draft law “Introducing amendments to the Law of Ukraine “On Freedom of Conscience and Religious Organizations” (submitted by the MPs V.Y. Yelenskyi, S.M. Voitsekhovska and others)

 

Adjunct: text of the draft law, comparative table

 

 

Having considered the draft law materials, it should be noted it does not meet the requirements of standards of the International Law and creates an artificial seedbed for multiplying inter-denominational conflicts in Ukraine. In particular, there are the following drawbacks to be pointed to in the draft law:

 

The draft law contains the terms that are not defined by the legislation in force which allows for their arbitrary interpretation. In particular, such terms (notions) as “self-identification” and “participation of a particular community in the religious life” (the term “particular”) are not defined by the legislation in force and, thus, cannot be used in establishing legal norms. Otherwise, one should lay down a specific interpretation of these terms (notions). 

 

1. Insight into the circumstances of the transition of religious communities of one confession to another enables to conclude that the majority of clashes occurs, when certain persons who have made their minds to change the denomination they belonged to, are willing not only to opt for a different affiliation but also put forward property claims as for the worship building and other assets which are in the ownership of  a legal entity – the religious community, registered in the manner prescribed by the laws of Ukraine, and having its founders and administrative bodies. Namely these administrative bodies are responsible for forming a property complex of the legal entity – religious community. It’s noteworthy, the manner of forming the property of the religious community does not basically differ from forming a property complex by any enterprise, except for the earmarked funds intended for the religious organization. Particularly, a greater amount of these funds is transferred on condition of the right to donation which execution is prescribed by article 729 of the Civil Code of Ukraine. Under the article hereof the donation agreement involves some provisions of the gift agreement. Hence, a religious community being a legal entity becomes an owner of the property having been transferred to it by physical and legal persons. Management of this property is handled by the bodies administering a legal entity – the religious community, which composition is determined by the legal entity’s statutory documents.          It’s important to realize that changing of the religious community’s statute can lead to changing of the circle of people who exercise control of the property complex of the religious community, therefore defining the circle of the legal entity’s administrative body members who are authorized to adopt the decision on amending the statute or approving a new wording of the statute is crucial by exercising control over the religious community’s property. Owing to the fact that the draft law’s content is aimed at creating a legal standard to enshrine who can be a member of the religious community (paragraph 1 of the proposed draft law), as well as establishing a new obligation – to seek approval for introducing amendments to the statute from the individuals who become members of the religious community in a unilateral way, by means of self-identification, but might not be members of the administrative body which is authorized, under the religious community’s statute, to  make decisions on introducing amendments to the statute, the draft law in question, without any grounds, invests rights in the persons who did not set up a property complex of the religious community, who are not members of the body administering a legal entity – the religious community – with regard to the key issue for the community’s livelihood.

 

In the event the draft law is adopted, individuals who are not members of the administrative body and are entitled to introduce amendments to the statute in a unilateral way, – just by means of declaring they identify themselves with the community concerned – are in a position to block the decisions of parish assemblies of the religious community or impact otherwise decisions of the religious organization, including acts of unlawful seizure of the worship property.

 

3. Pursuant to part 1, article 17 of the Law of Ukraine “On Implementing Decisions and Using Practices of the European Court of Human Rights” the courts by proceeding cases must apply the Convention and practice of the Court as a source of the rule of law.  

 

 It’s noteworthy, the European Court of Human Rights laid down some legal provisions which are not to be changed even by virtue of adopting the draft law under consideration. In particular, under the ECHR’s decision dated 14.06.2007 in the case “Saint Michael parish against Ukraine”, it is stated (para 146-147): “Contrary to the conclusions of national courts, articles 7 and 8 of the Law it was not enshrined that a religious group shall consist of all individuals and all believers who attend worship services of a particular church. Besides, apparent are controversial provisions of the national law regarding what is “religious organization” and what is “religious group” or whether it means the same thing; the only difference between them is a local status of the “religious group” and absence of any requirements as to its registration according to the Law provisions… Apart from that, article 8 of the Law (987-12 ) in no way restricted or hampered a religious organization to determine on its own choice in which way it will decide to enroll new members, define the membership criteria and election procedure for the administrative bodies. From the standpoint of article 9 of the Convention (995_004), taken together with article 11, these were the decisions being in the private law plane and not being subject to interference from the state power bodies unless they violate rights of other individuals or fall under restrictions specified in para 2 of articles 9 and 11 of the Convention. In other words, the state cannot commit a legally existing private association to accept new members and exclude the elected ones.  Intrusion of such kind will definitely enter into collision with the freedom of religious associations to freely regulate their behavior and handle their matters. Hence, the Court must consider the statute’s provisions that regulate the Parish membership issue and factual circumstances to the case”.

 

Furthermore, under the ECHR’s decision: “150. The Court reminds that religious associations are entitled to define to their own discretion the way by which they are going to accept new members and exclude the current ones. The internal structure of a religious organization and the norms regulating its membership, shall be approached to as a way whereby such organizations express their views and observe  their religious traditions. The Court points out to the fact that the right to freedom of confession excludes any state powers as for evaluation of the legitimacy of the way to express religious views (see  Hasan and Chaush,  cited above,  paragraph 78; and Manoussakis and Others vs. Greece, judgment of 26 September 1996,

Reports 1996-IV, paragraph 47)”.

 

It’s worth mentioning that according to article 1 of the Declaration on Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief dated 25.11.1981, every human enjoys the right to freedom of thought, conscience and religion. This right includes freedom of confessing one’s religion alone or jointly with others, publicly or privately, in accordance with the religious riots and dogmata.

 

Paragraph g) of article 6 of the above mentioned Declaration envisages that the right to freedom of religion includes the right to prepare, appoint, elect or determine, based on the hereditary right, respected chiefs in accordance with the norms of the given religion or beliefs. 

 

Consequently, standards of the international law establish an obligation of the state to ensure internal guidelines and norms of the religious right as a part of freedom to the freedom of religion. For this reason individuals who observe their religious guidelines can enjoy an unquestionable right to accept or not accept other persons to become members of their religious group, and independently define if these new comers are in line with the criteria enshrined by whatever religious doctrine.  

 

There are no doubts that the person who does not conform to certain rules of religious life, which are deemed fundamental by the certain religious organization, can be not only non-admitted to membership of this religious group but also excluded from it. 

 

In fact, the European Court of Human Rights in the case Obst vs. Germany (№ 425/03), by the chamber resolution of 23.09.2010, declined a complaint of the applicant – member of the Mormon religious organization who had been made redundant in this organization and excluded from the community’s membership due to the fact of his conjugal infidelity. The court admitted that the claimant, who had been raised in the Mormon environment, had to be aware of the importance of faithfulness in marriage and inappropriateness of misconduct under the regulations of this organization.     

 

In the case Siebenhaar vs. Germany (№ 18136/02) the European Court of Human Rights, by the chamber resolution of 03.02.2011, declined a complaint filed by the woman who had been removed from her post in a Protestant parish due to her affiliation to another religious association – “Ecumenical church/brotherhood of humaneness”. The court decided, in particular, the dismissal of this person was necessary in order to retain the authority of the church and make her understand that her activity in the Ecumenical church would be incompatible with the commitments she had in the protestant organization.   

 

Hence, the ECHR decisions cited above reaffirm the idea that the right to freedom of confession does not include an obligation of the religious group to enroll any persons just because they identify themselves with a particular religious community. Norms of religious activity of the group that got united prior to joint confession of a particular religion may have restrictive provisions concerning probation period terms, doing catechization courses, other riots of membership initiation with the religious community.    

 

Such provision fully complies with the norms of the right and spirit of freedom of confession which is confirmed, inter alia, by the following: from the review of the Department for Studies of the European Court of Human Rights (http://www.echr.coe.int/Documents/Research_report_religion_RUS.pdf): “16. Freedoms, guaranteed in article 19 of the Convention, have a dual aspect, internal and external. In terms of “internal” aspect freedom is absolute: fundamental ideas and beliefs, born deep inside the human soul, cannot be per se restricted by the state bodies. Nevertheless, in the “external” plane this freedom is relative. This relativity is reasonable because, as it comes to the freedom of confession of one’s beliefs, public order can be subject to threat. 17. Although the religious freedom is, first and foremost, a matter of personal conscience, it also includes freedom “to confess one’s religion” alone or together with others, publicly or privately, in a circle of people having the same faith”.        

 

Certainly, a unilateral self-determination of a person by means of his/her self-identification as a member of the parish community cannot be implemented without consent of the religious community itself to such creation of the community, since the persons who identify themselves with the religious community can not necessarily be its co-religionists or comply with other membership requirements set by the guidelines of a particular religious denomination.      

 

The autonomy principle and non-interference of the state into the life of religious communities

 

A key principle to be taken into account when addressing the issue of appropriateness of the person’s self-identification as a ground for including him/her in the religious community is the autonomy principle of the religious community and the principle of non-interference.

 

Let’s consider a position of the European Court of Human Rights on the matter in question: based on the review of the ECHR’s Department for Studies (http://www.echr.coe.int/Documents/Research_report_religion_RUS.pdf): “… the right of believers to freedom of confession that includes the right to confess one’s religion together with others stipulates that the faithful can freely organize associations without any state interference. Actually, the autonomy of religious communities is an integral part of pluralism in a democratic society and, thus, falls directly under defense, provided for in article 9 (Hassan and Tchaouch vs. Bulgaria [GC], № 30985/96, § 62, ECHR 2000 - XI; Metropolitan of Bessarabia and others versus Moldova, Holy Synod of the Bulgarian Orthodox Church (Metropolitan Innocent) and others vs. Bulgaria № 412/03 and 35677/04, § 103, 22 January 2009). 22. The autonomy principle laid above forbids the state to demand that the religious community should accept new members or exlude others (Saint Michael parish vs. Ukraine, № 77703/01, § 146, 14 June 2007). 23. Additionally, article 9 of the Convention does not guarantee any right to different visions within a religious organization.  In the event of doctrinal and organizational discrepancies between the religious community and its members the freedom of conscience of the latter consists in the right to freely leave this community. (Holy Synod of the Bulgarian Orthodox Church (Metropolitan Innocent) and others vs. Bulgaria, p. 137, Karlsson vs. Sweden, № 12356/86, decision of the Commission of 8 September 1988; Decisions and Reviews (DR) 57, p. 172, Spetz and others vs. Sweden № 20402/92, decision of the Commission of 12 October 1994 and Williamson vs. Great Britain, № 27008/95, decision of the Commission of 17 May 1995)”.

 

Conclusion: the right to self-identification of a person as a ground for his/her being enrolled as a member of the religious community and his/her being invested simultaneously with powers of the administrative body of the religious community appears as a violation of the international legal principle of autonomy of religious organizations and non-interference of the state into internal activity of denominations to be regulated solely by their internal rules and guidelines.  

Therefore, the proposal of the draft law makers that persons can become members of the religious community merely by virtue of self-identification does not comply with the provision, defined in the International Law and enshrined in the above mentioned decision of the European Court of Human Rights, with regard to the decision on who can be a member of the religious community, which pertains exclusively to the sphere of competence of the religious community concerned, whereas the state is not vested with the right to interfere into the community’s internal relations given that these relations are of private legal character.