Redrafting of the Ukrainian Law on Religious Freedom: Ukrainian Churches vs. Ukraine's Obligation to the Council of Europe

ABSTRACT In 2005, the Council of Europe criticized the current Ukrainian Law "On the Freedom of Conscience and Religious Organizations" ("Law"). In response to this criticism, the President of Ukraine called for substantial amendments to the Law and commissioned the Ministry of Justice to prepare a draft of these amendments. Even though the drafting of the Law involved representatives from the largest Ukrainian churches and was generally welcomed by the Venice Commission, major Ukrainian denominations took a conservative stance toward the legal reform and successfully opposed any material changes to the current edition of the Law. This deadlock led to a standstill in drafting the amendments, which lasted until 2010 when a newly elected President of Ukraine resumed drafting efforts. However, it seems that the All-Ukrainian Council of Churches and Religious Organizations, which unites major Ukrainian churches, has again blocked the advancement of the amendments to the Law. This Article analyzes the causes of the apparent collision between Ukraine's obligation to the Council of Europe and the Ukrainian religious community's firm opposition to amending the current Law. More specifically, it argues that the fundamental human rights creed quite predictably clashes with the religious majority's agenda in Ukraine, and that it is critical not to confuse respect and protection of human rights with the state favoring major religious denominations. I. BACKGROUND INFORMATION The current Ukrainian Law "On Freedom of Conscience and Religious Organizations" was adopted in 199 11 and has since been amended several times. According to the authoritative opinion of the Council of Europe, this "quite progressive law for the time of its adoption now requires significant rewording."2 The principal defects of the Law, vis-a-vis European standards, were summarized in the Explanatory Memorandum to the Resolution of the Council of Europe on Honouring of Obligations and Commitments by Ukraine in 2005. 3 These defects were listed as follows: (1) The Law limits the forms in which a religious organization might be set up; (2) The Law requires at least ten adult citizens to be founders of a religious community to register an organization's charter and thus obtain legal entity status (whereas the same requirement for other civic associations is three persons); (3) The Law does not provide a mechanism for establishing separate units or subdivisions (e.g., branches) of a religious organization without obtaining legal entity status; (4) The Law does not provide a mechanism for granting legal entity status to religious associations (which include unions of religious organizations, churches, or confessions ); (5) The Law discriminates against foreigners and stateless persons; (6) The Law is not clear on which organizations should be registered by regional state administrations and which should be registered by the central authority responsible for religious matters; (7) The Law also "contains a number of other ambiguous provisions, which leave wide discretion to the implementing authorities."5 In response to this criticism, Victor Yushchenko, the President of Ukraine at that time, approved an Action Plan for the Honouring of Obligations and Commitments of Ukraine to the Council of Europe through presidential decree at the beginning of 2006.6 The President's decree ordered, among other things, the Ministry of Justice of Ukraine to draft and submit to the Cabinet of Ministers of Ukraine a new edition of the Law before September 1, 2006/ The Ministry of Justice set up an ad hoc drafting team consisting of the relevant Ministry experts, representatives of registered churches, non-governmental organizations, and academics.8 The team prepared a draft of the Law's rewording. In July 2006, the Ministry of Justice of Ukraine submitted the draft to the Venice Commission and the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODHIR),9 with a request that those bodies examine it vis-avis relevant European standards. …