Venice Commission’s expertise on UOC law not to be in favour of authorities

A meeting of the Venice Commission. Photo: the Commission's website

In late November, it became known that a group of more than fifty MPs wrote an appeal to the Speaker of the Parliament Ruslan Stefanchuk with a request to send the text of Bill 8371 adopted in the first reading (which all directly call the law "on the UOC ban") to the Venice Commission for examination.

The MPs want to find out whether this bill complies with constitutional and international law, European standards and values.

What does this appeal mean? Does it block further consideration of the bill? What could be the result of the expertise?

The UOJ took a comment from Oleg Denisov, the head of ‘Public Advocacy’, a human rights organisation with consultative status at the UN ECOSOC.

– What can you say about the fact that a number of MPs are seeking consideration of the draft law on banning the UOC by the Venice Commission? Is Stefanchuk obliged to fulfil the demands of the MPs indicated in the appeal and send the bill for examination?

– The European Commission for Democracy through Law (the Venice Commission) is an authoritative international body set up by the member states of the Council of Europe to provide legal assistance to states in shaping constitutional and legislative frameworks in line with European standards. The Commission is composed of authoritative legal experts who are highly qualified and have sufficient guarantees for the independence of their work.

Therefore, of course, sending the law on the UOC ban for examination to this body would be a positive step. From the legal point of view, banning a religious denomination is impossible in principle. This is understood both in the UN, the structures of the European Union, and in general at any qualified legal level.

It should be understood that a rather limited circle of persons can initiate expertise or any other actions in the Venice Commission, which includes representatives of the highest bodies of state power, including the head of Parliament. However, not only the head of Parliament can raise the issue of compliance of Bill 8371 with the norms of international law for consideration by the Commission. In practice, in different countries there are cases of appeal to the Venice Commission by deputy heads of Parliament, the Prime Minister, the Minister of Justice, as well as by the institution of the Ombudsman.

– So, in case Stefanchuk refuses to apply to the commission, there are other options?

– Yes. Ukrainian parliamentarians can apply to other representatives of the state to submit such an application. There is no special law or rule of law that would oblige the head of Parliament or any other official to submit a draft law for international expertise. This is primarily because the application of a particular representative of the state to an international body is his right and not an obligation. Such actions remain within the framework of a political or private initiative, which, incidentally, can also be realised through officials and bodies of the Council of Europe, including such as PACE.

Therefore, parliamentarians, if they are concerned about the draft law "on the UOC ban", should expand their circle of contacts and send appropriate appeals to other persons who have the right to address the Venice Commission. If the head of the Ukrainian Parliament refuses such an appeal, alternatives should be sought.

– Can Stefanchuk shelve the decision?

– Since the appeal itself is politically motivated, the head of Parliament will have to explain his refusal to appeal to the Venice Commission. At the same time, in my opinion, such a refusal will be an indicator of the head of Parliament's uncertainty about the quality of the bill on the UOC ban. In fact, it would be tantamount to recognising the fact that the proposed bill violates human rights, otherwise, there would be no problem in getting a positive opinion from the Venice Commission on this issue. In other words, by refusing to allow the parliamentary initiators of the appeal to realise their idea to check the draft law for its compliance with international law, the head of the Ukrainian Parliament will attest that he understands the destructive non-legal nature of this bill and is covering it up from evaluation by the international community.

– Does this mean that the draft law on banning the Ukrainian Orthodox Church is now effectively blocked in the Rada and further consideration of it is impossible without the response of the Venice Commission?

– Any country is legally sovereign in its decisions. An appeal to the Venice Commission does not block the consideration of the law by the Parliament and does not suspend a possible vote on it. Thus, formally, the law banning the UOC can be adopted at any time, despite the presence or absence of such appeals. Another issue is that at the international level, there is already a rather powerful discussion on the UOC issues both at the UN level and at the level of the pre-election parliamentary race in the USA. Thus, the law on the ban, if it is voted for now, will inevitably cause justified criticism both on international platforms and in the course of various political processes.

Besides, even without the Venice Commission, Ukraine has already received enough hints from high diplomatic and international levels that the law banning the UOC should not be adopted and that the attitude towards the Ukrainian Orthodox Church should be reconsidered.

– What decision of the Venice Commission should we expect, given its experience with Ukrainian draft laws?

– It is quite obvious that the Venice Commission will criticise the law banning the UOC, as it violates the basic principles of human rights and protection of religious freedom. Moreover, in my opinion, the bill "on banning the UOC" actually puts Ukraine on a par with the totalitarian regimes that have existed in history.

– How do you assess the text of the appeal of the MPs to Stefanchuk? Is it possible to assume that the results of the expertise will still not be in favour of the UOC? What then?

– I believe that such a result is simply impossible. At least, if we talk about the version of the bill that exists at the moment. Because there are principle rules of law: fundamental and doctrinal. In particular, a religious denomination cannot be banned for its organisational or canonical subordination, it is in principle impossible.

There is a universally recognised element of individual responsibility. It means that a legal person can be banned only if that person is specifically engaged in unlawful activity. There is also another possibility when legal entities that declare belonging to an organisation carrying out extremist activity are banned.

But neither the first nor the second criterion applies to the Ukrainian Orthodox Church. It is a long-established and internationally recognised Orthodox organisation with ancient canons and Christian faith, and there can be no legal claims against it.

I would like to stress once again that only specific individuals guilty of committing a particular offence can be held legally liable, under appropriate judicial procedures that provide guarantees for defence and respect the principle of presumption of innocence.

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