Did the Supreme Court give the go-ahead for raids?

Photo: UOJ

On 3 April 2024, the Supreme Court of Ukraine considered the case of the Holy Intercession religious community of the UOC in the village of Kalynivka, Zhytomyr region, which challenged the decision of the territorial community of the village to transfer the church to the OCU. There was a clear violation of the law. The Law of Ukraine "On Freedom of Conscience and Religious Organisations" requires that the issue of canonical affiliation be decided exclusively by members of the religious community. However, in Kalynivka, as in all other cases (with very few exceptions), the procedure of transfer to the OCU followed a standard scheme that contradicts the law: the territorial community gathered, which is not stipulated by either the law or the statute of the community, voted in favour of the transfer, and then strong young men seized the church.

The UOC community tried to challenge the lawlessness in court, but the courts of first and appellate instances refused to satisfy the claim. The case went to the Grand Chamber of the Supreme Court. And now finally the Supreme Court has made its decision, and it is not in favour of the UOC community.

Again, the final conclusions can be made only after the full text of the judgement is made public. But we can already conclude from the press release of the Supreme Court: the court considered the vote of the territorial community instead of the religious community to be in compliance with the law of Ukraine.

A screenshot of the website court.gov.ua/press/

First conclusions

What conclusions can be made now from the Supreme Court's decision, which has not yet been published in full? Again, we will be able to talk more specifically about all this after the text of the ruling is published in full.

I. The Supreme Court has proved that there is no independent judiciary in Ukraine. A decision that directly contradicts the Constitution of Ukraine and the relevant law "On Freedom of Conscience and Religious Organisations" can be made only under pressure from the authorities and based on political expediency.

The lack of independence of the judicial power is a legacy of the USSR, which we still cannot overcome at some deep, mental level. This legacy will hinder us greatly in building a truly independent country and a free developed society, if not make it impossible at all.

II. It will further levelling the importance of laws as regulators of social relations. After all, if the law says one thing and the courts decide another, how can citizens be guided by the law? They will be guided by the political expediency that exists at the moment. Today this expediency is that the UOC must be destroyed. And whoever is doing this can break the law, commit crimes, insult and abuse citizens and get away with it.

There are numerous videos, circulating online where tough guys, instead of defending the country from the enemy at the front, are beating up peaceful Ukrainian citizens, breaking down the church doors and committing lawlessness, while the police are taking no action and sometimes even helping raiders.

Once after the Revolution of 1917, the Bolsheviks invented the term "revolutionary expediency" and justified their every crime and lawlessness with it.

III. Now courts of first instance as well as courts of appeal will rule in favour of the temple invaders more boldly. To date, there are about 60 trials that have been suspended due to the consideration of the case on the claim of the Holy Intercession religious community of the UOC of the village of Kalynivka in the Supreme Court. Now they will be resumed, and judges will be able to make decisions in favour of the OCU with peace of mind. That is, the decision of the Supreme Court will become a precedent for similar rulings.

The lawyers of the OCU do not hide their joy on this occasion. "In general, the importance of this decision for the ongoing process of transition of religious communities of Ukraine from the UOC-MP to the OCU since 2019 can hardly be overestimated, because it will become a precedent for all other similar disputes and will give confidence in the legality of such a transition to religious communities that are still hesitant to make a decision to withdraw from the UOC-MP," Ukrainska Pravda cites the words of one of the OCU’s lawyers.

However, we repeat, it will be possible to state this definitely only after the full text of the Supreme Court's decision is published. There is a probability, albeit very small, that the court will reject the claim on formal grounds, not on the merits.

IV. The number of forceful seizures will increase, but not by much. This is because their number is already high. Of course, the Supreme Court’s judgement will give the seizers force and confidence in their impunity, but their possibilities are not unlimited either. You need to gather people, pay for their services, organise them and so on. In addition, forceful actions are recorded and result in the initiation of criminal or administrative proceedings against such persons. Yes, with great difficulty, sometimes through the courts, overcoming threats and intimidation, but still…

V. What will increase significantly is the holding of meetings of territorial communities and voting for the transition to the OCU, with subsequent changes in the state registers. All this will also be challenged in the courts by UOC believers, but after the decision of the Supreme Court, there is little hope for a favourable outcome of such court cases.

VI. The Supreme Court essentially lays a time mine in the religious field. After all, if now lawlessness against the UOC is legalised, tomorrow it may turn against other religious organisations. If, for example, there is a political expediency for the OCU to join the Greek Catholics, no one will stand on ceremony with the former.

Furthermore, there are also Muslims and representatives of other religions.

Is there anything to be done?

Firstly, it is necessary to wait for the full text of the decision. It is possible, although unlikely, that it will contain wording that does not allow making an unambiguous conclusion about the legality of the transfer of religious communities from one denomination to another by the decision of the territorial community. However, this will be clear only to lawyers, people who understand the subtleties of such formulations.

For the general public, and especially for the active supporters of the OCU, it will mean that the Supreme Court has given the go-ahead for all their lawless actions. When the text of the ruling is published, it will become clear whether it will be possible to defend the interests of the UOC communities in the courts of first and appellate instances based on it.

Secondly, for the community of the Holy Protection Church in the village of Kalynivka there is a possibility to appeal to the European Court of Justice. Kalynivka has the possibility to appeal to the European Court of Human Rights (ECHR). Probably, this court should take the side of the UOC, because the Constitution and the law "On Freedom of Conscience", as well as the European Convention on Human Rights, say so. Moreover, several years ago this court already ruled on a similar case, in which it stated that the rights of fixed members of a religious community take precedence over the opinion of those who call themselves members of the community but are not documented as such.

However, there are several points here. The ECHR can consider cases for a very long time, the process can last for years. During this time, the OCU will be able to seize all the churches of the UOC and the state will be able to ban its existence. There is also no hundred per cent guarantee that the ECHR will make a fair decision. Of course, this court is not as biased as the courts in Ukraine, but nevertheless in its practice there have been knowingly illegal and absurd decisions.

Thirdly, in order to counteract illegal transfers and to defend one's rights in courts and administrative bodies, it is very important that the UOC community has all legal documents properly executed. Particular attention should be paid to the registration of fixed membership in the communities. It should not just be the minutes of a general meeting where people gathered and voted for their inclusion in the list of the community.

Ideally, it should be a whole chain of minutes of community meetings, starting from the very creation of the community. Initially, the so-called church ten was gathered and the community was registered. But then community meetings were to be held, with the protocols being drawn up, and these ten founders of the community were to vote for the admission of another ten (for example) members, then these already valid twenty members were to vote for the admission of the next ones, and so on. That is, there should not be a situation where believers accept themselves as community members.

If the fixed membership of a community is formalised in the above way, it is legally very difficult to transfer it to the OCU if the community members are against such a transfer. But the trouble is that rarely any community pays due attention to such legal subtleties.

And the most important thing is that the key to preserving the community is, first of all, its unity and faithfulness to the Church. No legal schemes will help if people in the community do not understand why they stick with the UOC, why they suffer and endure insults and misunderstanding from their neighbours and relatives.

If believers realise that there is only "One Holy Catholic and Apostolic Church", if they understand that the anathematised schismatics cannot be the church, that it is not about who will win or lose in the courts, and not even about who will own the temple building and who will be expelled from it. It is about who will be recognised as faithful by Jesus Christ in the age to come, and who will hear him say, "... away from Me, you evildoers!" (Matthew 7:23).

This faithfulness to Christ, no matter what, is the only thing that will save us and help us overcome all today's difficulties. You can take away a temple from a Christian community, you can legally re-register it in the OCU, but you cannot take away people's faith. Such people will gather somewhere in a private house or other premises, they will serve the Divine Liturgy with their bishop with all the inconveniences and will be with them according to the word of Christ: "…where two or three are gathered in My name, there am I in their midst" (Matthew 18, 20).

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