Svato-Mykhaylivska Parafiya V. Ukraine: A Thing Done by Halves?

I. INTRODUCTION About two years have passed since the European Court of Human Rights (ECtHR) decided Svato-Mykhaylivska Parafiya v. Ukraine,1 a case in which the Court held that Ukraine violated2 Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms.3 At first glance, this case belongs to the line of ECtHR's case law which includes cases such as: Metropolitan Church of Bessarabia and Others v. Moldova,^ Moscow Branch of the Salvation Army v. Russia,5 and Church of Scientology Moscow v. Russia.6 In all these cases, typical of former Soviet Republics, the state refused to register die "wrong" (from its point of view) religious organization and, thus, prevented the religious organization from obtaining status as a legal entity. However, Svato-Mykhaylivska Parafiya v. Ukraine also belongs to another line of case law that started with Serif v. Greece, 7 and continued in Hasan and Chaush v. Bulgaria9 and partly in Metropolitan Church of Bessarabia and Others v. Moldova.9 All cases of this type deal with divided religious communities in circumstances where the state attempts to determine which part of the divided community is the proper assignee of the undivided predecessor. The peculiarity of this fine of cases is that, in making this determination, the state does not examine or judge religious doctrine and does not doubt die religious doctrine's legitimacy. Instead, the state tries to prevent the religious community from dividing, thereby forcing separated groups to reunite - or at least to identify the proper legal successor of the formerly undivided organization. In addition to these shared characteristics, Svato-Mykhaylivska Parafiya has its own unique features. Below I argue that even though this case undoubtedly dealt with freedom of religion, it was essentially a corporate and property dispute. To substantiate this view, I start with a brief explanation of the historical and factual background against which events described in the judgment happened, mentioning in passing some factual lapses by the Court. I then briefly outline Ukrainian legislation in the field of religious freedom to demonstrate die general correctness of the Court's critique of this legislation. Next, I critique the Court's abstention from considering the argument between rival groups of believers as a property and corporate dispute. Finally, I present the domestic reaction to the ECtHR's judgment. II. HISTORICAL BACKGROUND OF THE UKRAINIAN ORTHODOX CHURCH From its foundation in the tenth to die end of the twelfth century, and from the midst of die fifteenth to the end of die seventeenth century, the Ukrainian Orthodox Church was independent from die Russian, or more precisely, the Moscow Church10 and was a Metropolis (Archdiocese) of die Ecumenical Patriarchate of Constantinople. As Ukrainian territories gradually joined die Moscow Kingdom in the second part of the seventeenth century, however, the Ecumenical Patriarch of Constantinople was forced to abdicate jurisdiction over the Kyiv Metropolis to his Moscow counterpart. In the early twentietii century, during the short time of Ukrainian independence, the Ukrainian self-governing (so-called Autocephalous) Orthodox Church was established. The Ukrainian Orthodox Church was later annihilated by Soviet power in the 1930s, revived during German occupation in the 1940s, and officially revived again in 1989 on the eve of die collapse of the Soviet Union. Thus, in the early 1990s there were two Orthodox Churches in Ukraine: the Ukrainian Orthodox Church of Moscow Patriarchate (UOC MP) and the Ukrainian Autocephalous Orthodox Church (UAOC). In March of 1992, the leader of the UOC MP, Metropolitan Filaret, was forced by the Archbishop Council of the Moscow Patriarchate to retire from his position. He refused, however, to resign himself to the Council decision and took part of the UOC MP and united with part of the UAOC to establish the Ukrainian Orthodox Church of Kyiv Patriarchate (UOC KP). …