Full text of Law No. 2662-VIII: See.
On violations of international law by the State of Ukraine in connection with the adoption of Law No. 2662-VIII, containing the obligation to change the names of religious organizations of the UOC
1. Legal regulation of forced change of the name of religious organizations of the UOC under the legislation of Ukraine. Fundamental violations of international law by the State of Ukraine by the adoption of Law No. 2662-VIII
The requirement to forcefully change the names of religious organizations of the UOC is enacted by amending Article 12 of the Law of Ukraine “On Freedom of Conscience and Religious Organizations” in accordance with Draft Law No. 5309 (Law No. 2662-VIII).
Article 12 of the Law states that “a religious organization (association), which directly or as part of another religious organization (association), is included in the structure (form part) of a religious organization (association) whose lead center (administration) is located outside Ukraine in the state recognized by law as having committed military aggression against Ukraine and temporarily occupied the territory of Ukraine, shall be obliged in its full name, specified in its statute (regulation), to reflect jurisdictional affiliation with a religious organization (association) outside Ukraine which it is included in (forms part of) by obligatory reproduction of the full statute name of such a religious organization (association) with the possible addition of the words "in Ukraine" and/or designating its place in the structure of a foreign religious organization.”
The above wording allows us to conclude that by adopting this law, the State of Ukraine violated the provisions of international law in several important areas:
· exceeded the permissible limits of intervention in the regulation of legal relations of private law, which establishes the methods and procedure for assigning names (titles) to legal entities created by legal entities or individuals;
· established a discriminatory restriction of rights based on a religious basis, in fact, banning the UOC believers from using their unique historical name on the grounds that the denomination has a certain religious and national origin;
· restricted freedom of belief in the form of using a name as part of religious freedom and the mode of expression;
· lowered the degree of protection of human rights and created conditions for the preparation of genocide and\or other massive violations of human rights on religious grounds;
· did not ensure the implementation of international commitments to protect human rights on its territory – the international concept of the responsibility to protect.
2. Proof of violations by the State of Ukraine of international law according to the practice of the European Court of Human Rights, the methodological recommendations of the UN and other provisions of international law
The proof of violations of human rights by the law under consideration is most clearly illustrated on the basis of the practice of the European Court of Human Rights. In this connection, the rationale below contains the ECtHR judgements on some cases that can be applied to the situation in question.
Paragraph 3 of Section II of the Law contains the obligation of religious organizations to make in changes in their full name and submit their statutes for registration in the prescribed manner. In addition, paragraph 2, Section II of the Law entitles the central executive body, which implements the state policy in the sphere of religion to conduct expert examination of the registered statutes of religious organizations.
These provisions of the Law demonstrate that, at the legislative level, state bodies are unable to maintain neutrality while discharging their duties, testifies to undue interference with the freedom of believers to profess their religion under Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
According to paragraph 121 of the Judgement of the European Court of Human Rights on the case of “Svyato-Mykhaylivska Parafiya v. Ukraine” No. 77703/01 dated June 14, 2007: “The believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention…”
The imposition of any obligations to change the name of the church is a means of unjustified influence by public authorities on the way believers express their religious convictions, which is condemned by the European Court of Human Rights in its numerous judgements. For instance:
Paragraph 47 of the Judgement of the European Court of Human Rights “Manoussakis and others v. Greece” dated September 26, 1996, states: “The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.”
Paragraph 150 of the Judgement of the European Court of Human Rights on the case of “Svyato-Mykhaylivska Parafiya v Ukraine” No. 77703/01 dated June 14, 2007 prescribes that: “The Court points out that the right to freedom of religion excludes any discretion on the part of the State to determine whether the means used to express religious beliefs are legitimate.”
We draw attention to the fact that the legislation of Ukraine does not oblige any other legal entities registered on the territory of Ukraine, except for religious organizations of a particular denomination, to change their names due to the fact that such legal entities “belong” to other legal entities outside Ukraine. This fact testifies to religion-based discrimination against believers of the Ukrainian Orthodox Church alone.
Moreover, changes in the names of churches belonging to the Ukrainian Orthodox Church, in their essence, will not stop any offenses to which the Ukrainian Orthodox Church could hypothetically be related. The purpose of this Law, among other things, is to pin a label on believers and clergymen of the Ukrainian Orthodox Church and their property to make them clearly visible as the group of persons to be discriminated on religious grounds.
In addition, it should be noted that state authorities are squarely exerting pressure on believers of the Ukrainian Orthodox Church, thus forcing them to transfer to the newly established local church (the Orthodox Church of Ukraine). Against this background, the Law in question is one of the tools of the pressure.
Paragraph 78 of the Judgement of the European Court of Human Rights on the case of “Hasan and Chaush v. Bulgaria” No. 30985/96, dated October 26, 2000, established that “the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. State action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. In democratic societies the State does not need to take measures to ensure that religious communities are brought under a unified leadership.”
Paragraph 117 of the Judgement of the European Court of Human Rights on the case of “Metropolitan Church of Bessarabia and others v. Moldova” No. 45701/99 dated December 13, 2001, states that: “The Court further observes that in principle the right to freedom of religion for the purposes of the Convention excludes assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed. State measures favouring a particular leader or specific organs of a divided religious community or seeking to compel the community or part of it to place itself, against its will, under a single leadership, would also constitute an infringement of the freedom of religion. In democratic societies the State does not need to take measures to ensure that religious communities remain or are brought under a unified leadership.”
Therefore, Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms prohibits public authorities from taking any measures of pressure, including at the legislative level, aimed at forcing believers against their will to move from one confession to another, or change one leadership to the other.
Moreover, paragraph 84 of the Judgement of the European Court of Human Rights of the case of “Hasan and Chaush v. Bulgaria” No. 30985/96, dated October 26, 2000, states that: “In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.”
However, the Law does not provide for legal protection against the intervention of public authorities in the exercise of the rights guaranteed by the Convention.
According to paragraph 132 of the Judgement of the European Court of Human Rights on the case of “Svyato-Mykhaylivska Parafiya v. Ukraine” No. 77703/01 dated June 14, 2007:“The Court notes that under Articles 9 § 2 and 11 § 2 of the Convention exceptions to freedom of religion and association must be narrowly interpreted, such that their enumeration is strictly exhaustive and their definition is necessarily restrictive (see, mutatis mutandis, Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, , § 38). Legitimate aims exhaustively listed in this provision include: the interests of public safety, the protection of public order, health or morals, or for the protection of the rights and freedoms of others (see paragraph 114 above).”
The Ukrainian Orthodox Church, its canons and religious observations provide for the respect of public order and the morality of the individual, therefore the intervention of the authorities takes place in case of deviation from the canons and observations.
We draw attention to the fact that all actions that are being taken in relation to the Ukrainian Orthodox Church testify to the intention of the authorities to completely destroy this religious group, as such. This conclusion can be reached on the basis of the following.
Based on the Convention on the Prevention and Punishment of the Crime of Genocide as of December 9, 1948, the Framework of Analysis for Atrocity Crimes was developed by the Special Adviser to the UN Secretary-General on the Prevention of Genocide to prevent the possibility of mass atrocities (hereinafter referred to as “Framework of Analysis”). The Framework of Analysis is recommended for use by UN member states as a tool for preventing, monitoring and evaluating possible mistakes in a strategy to prevent the destruction of groups of people at the national level.
The Framework of Analysis enumerate the main risk factors, the presence of which reveals the intentions of a state to completely or partially destroy a certain group. Among such factors are the following:
international or non-international armed conflict, political instability caused by abrupt or irregular regime change or transfer of power, the presence of an armed conflict, political instability caused by abrupt or irregular regime change or the transfer of power, Security crisis in the country;
· economic instability caused by severe crisis in the national economy, acute poverty, mass unemployment or deep horizontal inequalities;
· social instability caused by resistance to or mass protests against State authority or policies;
· serious violations of international human rights law (including violations of civil and political rights, severe restrictions on economic, social and cultural rights, often related to patterns of discrimination or exclusion of protected groups, groups of the population or individuals);
· weakness of the state system (including the absence of an independent and impartial judicial system, the lack of effective civilian control over the security forces, a high level of corruption);
· political motives, particularly those aimed at the attainment or consolidation of power;
· availability of personnel and of arms and ammunition, or of the financial resources, public or private, for their procurement;
· lack of a strong, organized and representative national civil society and of a free, diverse and independent national media;
· imposition of emergency laws or extraordinary security measures that erode fundamental rights, imposition of strict control on the use of communication channels, or banning access to them;
· increased violations of the right to life, physical integrity, liberty or security of members of protected groups, populations or individuals, or recent adoption of measures or legislation that affect or deliberately discriminate against them.;
· Marking of people or their property based on affiliation to a group;
· acts of incitement or hate propaganda targeting particular groups or individuals;
· present serious discriminatory, segregational, restrictive or exclusionary practices, policies or legislation against protected groups;
· official documents, political manifests, media records, or any other documentation through which a direct intent, or incitement, to target a protected group is revealed, or can be inferred in a way that the implicit message could reasonably lead to acts of destruction against that group;
· and other.
Analysis of the above provisions allows us to conclude that at present Ukrainian society is characterized by most of the signs that, in their entirety, indicate that the government has a certain plan/policy regarding the destruction of the group of people united by their affiliation with the Ukrainian Orthodox Church.
According to the Resolution adopted by the Human Rights Council on the prevention of genocide on March 23, 2018, each state is obliged to protect its population from genocide, which entails the need to prevent such a crime, including incitement to it, by taking appropriate and necessary measures.
It should be noted that the Law in question together with continuing violations of human rights on religious grounds, such as seizures of churches, battering of believers by police officers (in the village of Katerinovka of Ternopil Region and in the village of Pticha of Rivne Region), repeated calls by government officials to seize the Kyiv-Caves Monastery or other religious shrines, public accusations of the UOC of “anti-Ukrainian activities”, impunity of crimes against the UOC, non-investigation of criminal proceedings, banning of the registration of 13 monasteries and dioceses of the UOC, adoption of anti-church draft laws by the Parliament of Ukraine (Nos. 4128, 4128д, 5309, 4511) – all of these instances form sufficient evidence to support the fact of the state has embarked on a systematic policy to destruct the denomination of the UOC.
In this regard, the transition of the state and state-driven radical structures to more extremist actions has already manifested itself as the volitional intent of the political elite to prepare by means of propaganda a part of society that will accept such violations. The future degree of intensity and severity of such offenses will depend solely on the combination of external and internal factors, but the important thing is that certain political forces have already started to prepare the society for mass violations.
Currently, such violations take the form of violent transfers of UOC communities to another denomination by drawing up fake protocols of community meetings to disguise them as voluntary transitions. The offences are committed against the background of pressure on clerics and believers of the UOC from the state administrative and law enforcement agencies. With the adoption of the Law in question, a new element of pressure was added – the legislative marker of UOC believers as a potential group of victims. Thus, according to international frameworks used to assess the signals of imminent atrocities, Ukraine is preparing to commit massive crimes on religious grounds.
Thus, Ukraine not only fails to fulfil its international obligations, including in the framework of cooperation with the UN, but also endangers the believers of the Ukrainian Orthodox Church by adopting the Law under consideration.
3. On the concept of the responsibility to protect
The concept of protection is an international rule that encourages states and the international community to take concrete actions to prevent massive violations of human rights in a particular territory. The concept answers questions that worried the international community in specific historical periods: how to respond to massive and gross violations of human rights in the situation when modern international law prohibits the use of force in interstate relations? How should the international community respond to genocide or massacres in situations when peaceful means of resolving disputes have proved ineffective? What actions should be taken to prevent such disasters?
The initiative to elaborate the concept belongs to the International Commission on Intervention and State Sovereignty, established in Canada in 2000. The Commission’s report for the first time proposed the phrase “duty to protect” with the emphasis that providing protection is neither a military matter, “nor represents a confrontation between state and individual sovereignty.” The key components determining the content of this concept were “the duty to prevent, the duty to react and the duty to restore”. In other words, the Commission determined the sequence of stages in the implementation of the concept of “duty to protect”.
This concept was confirmed and elaborated in the Report of the High-Level Group on Threats, Challenges and Changes, established by the UN Secretary-General in 2004. In the Report, the concept has received a new name: the responsibility to protect. The most important Group’s contribution to the elaboration of the concept is the determination of the correlation of the responsibility of the state to protect its citizens and the collective responsibility of the international community. Moreover, “the primary responsibility for protecting their own citizens ... from massacres and rape, ethnic cleansing, which is expressed in expelling and intimidating people, and deliberately creating conditions in which people are starving and exposed to disease,” are borne by sovereign states. And only “when they are unable or unwilling to provide such protection, should the international community take responsibility for this,” which, through peaceful means, including preventive measures, reacts to violence, facilitating, if necessary, the restoration of a ruined society. Military intervention, if required, should be applied as a last resort and authorized only by the UN Security Council.”
The main provisions of the “responsibility to protect” concept, which embodied the recommendations of the International Commission and the High Level Group, were consolidated in the 2005 UN Summit Outcome Document adopted by the heads of state and government of 170 countries. In the Outcome Document, the concept of “responsibility to protect” is considered as a set of obligations of each sovereign state and the international community as a whole. First of all, it is the duty of each state to “protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity ... and prevent such crimes”. Secondly, it is incumbent upon the international community to use diplomatic, humanitarian, and other peaceful means in accordance with Chapters VI and VIII of the UN Charter to help protect the public from these crimes, as well as “take collective action in a timely and decisive manner through the Security Council in accordance with the Charter, including on the basis of Chapter VII, taking into account specific circumstances and in cooperation, if necessary, with regional organizations, if peaceful means are prove insufficient, and national authorities are clearly not able to protect their people from genocide, war crimes, ethnic cleansing and crimes against humanity.”
Based on the above, the further protection of the interests of the UOC should be based on the recognition of the fact of the state of Ukraine has been violating its international commitments and responsibility to protect. Thus, it is the international community, that should take up the issue and take concrete measures to protect the targeted group of victims in view of the fact that such protection is not actually provided by the state of Ukraine.