The UOC is banned in the first reading, what's next?

So far there is no ban on the UOC. Photo: UOJ

As an epigraph, I would like to quote the words of the Apostle James, which are quite relevant in this case: "Count it all joy, my brothers, when you meet trials of various kinds, for you know that the testing of your faith produces steadfastness. And let steadfastness have its full effect, that you may be perfect and complete, lacking in nothing. If any of you lacks wisdom, let him ask God, who gives generously to all without reproach, and it will be given to him" (James 1:2-5).

Let us seek this wisdom from God so that we do not fall into panic or complacency.

On October 19, 2023, with 267 votes from members of parliament, the Verkhovna Rada voted in favor of passing draft law 8371 in the first reading, which seeks to prohibit the activities of religious organizations in Ukraine with their leadership based in an aggressor state. The draft law was introduced by the Cabinet of Ministers on January 19, 2023. The essence of this draft law has been discussed in the article "Shmyhal's Draft Law: Banning the UOC in 4 Moves." Therefore, we won't go to great lengths here but instead, look at possible further steps by the authorities to combat the UOC and what believers can do to protect their constitutional right to freedom of conscience.

Despite the absence of specific mention of particular religious organizations in the text of the draft law, both supporters and opponents of the UOC interpret this draft law as aimed primarily at the UOC. Regrettably, before the voting in the Rada, many members of parliament were chanting the slogan "Away with the Moscow priest!"

This draft law did not appear out of nowhere; it is part of the context of widespread persecution of the UOC, which has many components, including previous anti-church draft laws, statements from those in power, harassment by law enforcement agencies, negative media coverage, actions by radicals, church seizures, and more. All of these elements are directed against the UOC. Therefore, pretending that draft law 8371 does not pose a threat to the UOC simply because it is not explicitly mentioned in the text is rather naive.

Step 1: First Reading of the Draft Law

This step has already been taken by the authorities. The first reading of the draft law means it is accepted as a basis. This means that the basic concept cannot be changed. Religious organizations affiliated with an aggressor state will be prohibited. However, this does not yet mean the actual prohibition of UOC communities in practice.

Step 2: Second Reading of the Draft Law

After the bill has been adopted as the basis, work on its final text begins. Typically, this work is not done by the entire Verkhovna Rada but by the relevant committee. The committee accepts amendments proposed by deputies, coordinates them, and so on. Then, it is brought back to the VR for consideration, where they may vote for the final text as a whole or vote on each amendment separately. Each such amendment can be separately discussed, which theoretically can prolong the second reading for a long time.

In principle, a significant amount of time can pass between the first and second reading of the bill, months, or even years. The authorities may choose not to rush the second reading but instead observe the reaction of Ukrainian society, our international partners, international human rights organizations, and so on. If this reaction is so negative that it does not satisfy those in power, bill 8371 can be shelved for an extended period. However, having secured the first reading vote in their pocket, the authorities will pressure the Church, pushing it towards compromises or some form of joining the Orthodox Church of Ukraine (OCU).

The task for the believers at this stage is to maximize their protests, using all the forms provided by the law. Mobilize all supporters of the Ukrainian Orthodox Church (UOC) in Ukraine and abroad, appeal to Ukraine's international partners, Orthodox Churches, loudly declare violations of basic human rights, and so on. All these efforts can force the authorities to abandon further steps to prohibit the UOC or at least slow down this process.

Step 3: Third Reading of the Draft Law

After the second reading, there is a third one. At this stage, the text of the law is no longer changed, but various procedural details are determined, including the effective date of the law. If there is significant political opposition to this law, the authorities may decide to delay the law's implementation for a certain period. Often, they delay it for a year, and after a year, they may delay it for another year, and so on. This was the case, by the way, with the law on land sales.

Step 4: Presidential Signature

If the VRU votes for bill 8371 in all readings, it will then go for the president's signature. Whether the president signs it or not will depend on the political situation at that time. Predicting it even approximately is almost impossible since both Ukraine and the world have entered an era of such turbulence that the situation can change dramatically in just one day. It is entirely possible that the president to whom bill 8371 will be submitted for signature will not be Zelensky. Not long ago, he himself stated that he would not run for president if the elections were held after the war.

At this stage, the same forms of protecting their rights are possible for believers as in the previous stages. However, it should be understood that here the question of signing or not signing the bill will depend on the interests of one person, not political parties, as in the previous stage.

The president is obligated to either sign and publish the law within 15 days or make amendments to it and send it back to the Verkhovna Rada. If he wishes, these amendments can be such that they will be discussed and coordinated by MPs for a very long time. In other words, if the president does not want to declare his unequivocal position (or does not have one at all), he can prolong the final acceptance of the document for as long as he pleases.

Step 5: Entry into Force

The law comes into force ten days after its official publication unless otherwise specified in the law itself. If this happens, the following addition will be made to Article 5 of the "Separation of Church (Religious Organizations) from the State" Law of Ukraine "On Freedom of Conscience and Religious Organizations":

"The activities of religious organizations affiliated with centers of influence of a religious organization (association) whose governing center (management) is located outside of Ukraine in a state that is engaged in armed aggression against Ukraine are prohibited."

In plain language, this means that the activities of parishes, monasteries, seminaries, brotherhoods, and so on will be prohibited if they are subordinate to some center that, in turn, is subordinate to the Moscow Patriarchate (or another Russian organization). However, such subordination will need to be proven. For this, the authorities will have to take the following steps.

Step 6: Religious Expertise

Bill 8371 envisages expanding the powers of the State Service for Ethnic Policy and Freedom of Conscience (DESS), namely, granting it the right to conduct religious studies expertise to determine the affiliation of religious organizations with "centers of influence" managed from Russia. Literally, it reads as follows: "Conducting religious expertise of the activities of religious organizations to determine subordination in canonical and organizational matters to centers of influence of a religious organization (association) whose governing center (management) is located outside of Ukraine in a state engaged in armed aggression against Ukraine."

By "centers of influence" here, the Kyiv Metropolis is meant. DESS has already conducted the religious expertise that asserts that the Kyiv Metropolis is subordinate to the Moscow Patriarchate. Now, based on the literal text of Bill 8371, they will have to conduct religious expertise for each of the 12,000+ UOC parishes and each of the 260+ monasteries.

Considering that a religious community or monastery can be established independently to meet the religious needs of its members, proving such subordination can be very challenging. The UOC may claim that it will now represent a confederation of dioceses, each of which will be independent in its administration. In antiquity, this kind of diocese with a bishop at its head was called the Local Church. And a diocese, in turn, can become a confederation of communities. Thus, proving the specific connection of a particular parish with the Moscow Patriarchate will be practically impossible if operating within the framework of the law. However, if the authorities wish, they will not pay attention to these limitations.

In any case, the conclusions of the DESS's religious expertise can be challenged in court in each specific case.

Step 7: "Elimination of Violations"

If the religious expertise by DESS indeed reveals a connection between the community and a "center of influence" subordinate to Moscow, and if all judicial instances uphold this decision, DESS must issue a "prescription for the elimination of violations identified during the religious expertise, within one month from the date of issuing the prescription." This "elimination of violations" could involve the removal of references to the UOC in the community's statute and a declaration that a specific bishop is the "center of influence" for the community. Let DESS prove that this bishop, in turn, is subordinate to a center controlled from Moscow.

Step 8: Appealing to the Court

If the community does not rectify the "violations" or if DESS deems the remedy insufficient, DESS can file "an administrative lawsuit to terminate the activities of a religious organization..." because the provision allowing for the termination of a religious organization's activities by either itself or the court remains.

At this stage, the community can potentially win in court against DESS and prove the legality of its activities. Moreover, legal proceedings can take a considerable amount of time in different court instances.

Step 9: Prohibition

If the community loses in all the courts, then its activities can indeed be prohibited. However, it can immediately resurface in a different form. Article 8 of Ukraine's "On Freedom of Conscience and Religious Organizations" Law states that "notification of state authorities of the establishment of a religious community is not mandatory."

In other words, a community can conduct religious services, preach its faith, engage in charitable work, and more without state registration and without notifying state authorities of its existence. However, in this case, the community will not be a legal entity and will not have property or other rights of its own. In simple terms, from the state's perspective, it will be a group of citizens engaged in activities not prohibited by the law.

Of course, the question of church property will arise in this case. To whom will the church, church funds, and other assets belong? One way to retain ownership within the community is to sell or otherwise transfer church property to private individuals: citizens, charitable foundations, or other non-religious organizations. This method can work, although it has significant drawbacks.

Firstly, there is a possibility that it will be proven in court that the church actually belongs to the religious community, and the transfer to private individuals can be annulled. Secondly, private individuals can also be pressured to take over the church or expel the Orthodox community from it. For example, a wealthy benefactor purchased land, built a church, and transferred all of it to the community. However, relevant authorities could easily hint to such a benefactor that if he wants to keep his business safe, he should transfer the church to the OCU.

Step 10: Legal Proceedings

As previously mentioned, every action by DESS or other government bodies can be challenged in litigation. Proceedings in the first-instance court can be followed by appeals, cassation, the Supreme Court, and so on. If the rights of Orthodox believers are not protected and the national legal remedies are exhausted, two more possibilities arise.

The first is to appeal to the European Court of Human Rights (ECHR). Today, many experts, both among the supporters and opponents of the UOC, anticipate a mass annulment of court decisions against the UOC and its believers by the ECHR. There are solid grounds for this. In such a case, Ukraine would need to not only overturn decisions by DESS or the courts but also compensate citizens for the losses they suffered due to the violation of their rights. If Ukraine joins the European Union, such an outcome becomes even more likely.

The second possibility is to file a constitutional complaint with the Constitutional Court of Ukraine. According to Article 151-1 of Ukraine's Constitution, "The Constitutional Court of Ukraine decides on the compliance of a Ukrainian law with the Constitution of Ukraine (constitutionality) in the case of a constitutional complaint by a person who believes that the application of a Ukrainian law in the final court decision in his case contradicts the Constitution of Ukraine."

Furthermore, the right to file a constitutional complaint is available to individuals regardless of their citizenship. Imagine if, as DESS expert Lyudmila Filipovich claims, there are around 6 million UOC believers in Ukraine today, and they all submit constitutional complaints against Bill 8371. What if foreign citizens join them?

In summary, there are various legal avenues available for defending against Bill 8371, but...

Conclusion

The danger of Bill 8371 lies not in its legal aspects but in its socio-political implications. If Ukraine were a truly rule-of-law state, there would be no cause for concern. Unfortunately, that's not the case today. The adversaries of the UOC, for the most part, haven't read the text of the bill, nor do they intend to. To them, the decision by the Verkhovna Rada on October 19, 2023, sounds like, "The Verkhovna Rada has banned the UOC." This serves as a starting signal, a "go-ahead" sign, indicating that the UOC can be targeted as much as one has the strength to do so. There is no intention to persuade such individuals otherwise. This means that attacks on the UOC in the media, illegal reregistrations, seizures of churches, and so forth will only intensify.

However, the adversaries of the UOC fail to grasp one fundamental truth: one can take away a church, a plot of land, and other assets from believers, reregister the community, and more, but one cannot take away their faith. These may be clichéd words, but the cliché doesn't negate their meaning. A person can only surrender their faith willingly. If all 6 million UOC believers (as estimated by DESS) remain faithful to the Church, nothing negative will happen to it, no matter how many anti-church bills the Verkhovna Rada passes.

Yet, we should also acknowledge another danger that could threaten the Church. In situations similar to that of the UOC, there is always the temptation to rely on political forces that claim to support the UOC. Currently, there aren't many such forces, but they exist, and their support in society could be more extensive than is commonly thought. However, if the UOC begins to associate itself with these political entities, urges believers to vote for them, and so on, it will fall into a trap. People will increasingly see the UOC as a political actor rather than Christ's Church. The Church is open to all, regardless of their political or other convictions. The Church's mission is to save people from sin and death, not to usher politicians into positions of power. The perils of hoping that a different president will come, and under his rule, the Church won't face persecution, can be seen vividly in the example of President Zelensky. Let us not forget the words of Holy Scripture: "Put not your trust in princes, in a son of man, in whom there is no salvation" (Psalm 146:3).

The path for believers can only be one: standing firm in faith, refusing to harbor anger and condemnation in their hearts, praying, and placing their trust in God, who said, "I will build my church, and the gates of hell shall not prevail against it" (Matthew 16:18). 

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