How to preserve the community after the Supreme Court's decision
The Supreme Court's decision of 3 April 2024 on illegal transfers to the OCU was recently published. Raids will continue, but there are nuances. Let's analyse the text.
The Grand Chamber of the Supreme Court of Ukraine, which considered this case, published the full text of the decision very promptly, which suggests that someone was interested in it. After all, quite often, the Supreme Court took months to publish such a decision. The text of the decision itself is quite difficult to comprehend even for professional lawyers. To understand its meaning, you have to read the same thing several times. In this article, we will highlight only the most important points of this decision. For a brief description of the essence of the dispute, as well as the initial conclusions of the Supreme Court's decision, you can read the article "Did the Supreme Court give the go-ahead for raids?"
Essentially, the court had to answer the question: can a territorial community make a decision to change the jurisdiction of a religious community? To this question, the Supreme Court gave, again with a caveat, an affirmative answer. Credit should be given to the judges who tried to give a legal appearance to an assertion that clearly contradicted the laws and the Constitution of Ukraine. This decision should become a precedent, and other courts will refer to it when considering similar cases. The scheme of re-registration of the Holy Intercession religious community of the UOC in the village of Kalynivka, Zhytomyr region, is a typical scheme of a church seizure.
Key points of the dispute
The statute of the Holy Intercession religious community was approved by the Zhytomyr Eparchy of the UOC on 24 October 1991, and the religious organisation itself was registered by the executive committee of the Zhytomyr Regional Council on November 20, 1991.
On 20 January 2019, a community meeting of 28 members was held, during which it reaffirmed its faithfulness to the UOC and its Primate, Metropolitan Onuphry.
On 9 March 2019, a meeting of the territorial community of the village of Kalynivka, to which neither the rector nor the actual members of the religious community were invited, made a decision to move to the OCU.
On July 6, 2019, a meeting of the most active supporters of the transition to the OCU, numbering 10 people, was held, which called itself a meeting of the religious community and made changes to the Statute.
On October 3, 2019, the new Statute, now subordinated to the OCU, was registered by the head of the Zhytomyr Regional State Administration.
The UOC religious community challenged these decisions in court, went through all instances up to the Grand Chamber of the Supreme Court, and was denied everywhere.
Key issue: membership formalization
This is the most basic thing in the court's decision. It was the weakness of the UOC community's position on this matter that allowed for this decision to be made. And this could be the key to successfully defending UOC communities from church raiders in the legal field.
A quote: "The judges of the chamber... note that the issue of membership in the religious community is one of the key issues in this dispute, considering that the Plaintiff (the rector of the Holy Intercession community of the UOC – Ed.) as the leader of the religious community of the Ukrainian Orthodox Church denies that the decision to change subordination was made by authorized members of the religious community."
The Supreme Court is absolutely right; the question of how the state, including the courts, can distinguish between true members of the community and impostors is indeed key. In the statutes adopted by religious communities in the early 1990s, the definition of community members was so vague that there were essentially no formal criteria. This situation persists in the vast majority of UOC parishes to this day, making them vulnerable to such illegal re-registrations.
Here's another quote: "The statute (of the Holy Intercession community of the UOC) in the 1991 edition does not establish any regulated procedure and clear criteria regarding the admission of members to the religious community, as well as the procedure for their registration and maintenance of the register, which would allow for the clear identification of the actual number of members of the religious community, nor does it contain the concept of fixed membership, the procedure for admission to membership of the religious community."
In this part of the Supreme Court's decision, there is a task for UOC communities: to include all these points in their statutes and formally document lists of community members. However, there are two unpleasant aspects here. Firstly, it's probably too late to do this, as state registrars refuse to register changes to statutes if they do not involve a transition to the OCU. This unofficial directive comes from the top and is executed under various pretexts in most cases. Secondly, for the courts, it's important that there is continuity in decisions regarding the admission of new members. That is, the initial "ten", who created and registered the community, must accept and formalise the acceptance of new members, then the expanded composition of the community must accept the next members, and so on. The question of excluding members from the community due to the cessation of participation in worship, death, and other reasons should be similarly documented. Retroactively formalizing all of this is now unlikely. However, despite all these difficulties, efforts should be made to formalize membership in religious communities as much as possible. The more protocols of various meetings, more lists, names, addresses, signatures, etc., the better.
Identification of the location
The text of the Supreme Court's decision reads the following idea: since you have not established clear criteria for membership in a religious community, we, the court, will establish them according to our considerations. And, naturally, in favour of the OCU.
The statutes of UOC religious communities of the 1990s essentially contain criteria for membership. They are as follows:
- Attainment of the age of 18;
- Recognition of the binding nature of the Statute of the UOC;
- Regular attendance of services and confession;
- Staying in canonical obedience to the rector;
- Non-being under a ban or a church court.
The Supreme Court considered that only two criteria can be established objectively: 18 years of age and attending services. Herein lies the deceit. While age can be determined from a passport, how can one establish whether a person has regularly attended services or not? After all, no one compiles a list of attendees at every service. Here, the judges exercised their imagination.
The court ruled that a sign of attending services is... residing in the given locality. A quote: "Taking into account the absence of data referred to by the Plaintiff (the rector of the UOC community), which would allow verifying regular attendance of services, the Grand Chamber of the Supreme Court takes into account the criterion of territorial connection, i.e., residing in the area where the religious community operates, since compliance with this criterion makes it possible to fulfil the condition of regular attendance of services." This is the substitution of the concept of "religious community" with the concept of "territorial community" in this context, although elsewhere in the decision, the Supreme Court asserts that they do not coincide.
However, the Supreme Court once again noted that such substitution of concepts is possible only in conditions of formal uncertainty of membership in the community. A quote: "The Grand Chamber of the Supreme Court again notes that the concepts of ‘religious community’ and ‘territorial community’ are not identical but merely indicate that in the absence of a regulated order of membership in the religious community provided by the statute, which would allow establishing its members, it applies the criterion of territorial connection as such, which objectively enables fulfilling a certain statute condition of membership – regular attendance of services."
Another absurd aspect is the presumption that the residents of the village of Kalynivka are considered members of the religious community a priori if the opposite is not proven. A quote: "The Plaintiff has not provided any evidence on what basis he considers the residents of the village of Kalynivka... not parishioners of the religious community...". In other words, the rector must prove in court that Kalynivka residents did not attend services!
Restriction of bishops' rights
This statement by the Supreme Court is logical from a secular legal perspective, but it violates one of the fundamental principles of Orthodox ecclesiology. We're talking about the authority of bishops. In the ancient Church, a bishop was the head of the church community and its key figure. Here are some very concise statements by the holy martyr Ignatius the God-Bearer:
"He who honours the bishop is honoured by God; he who does anything without the knowledge of the bishop, serves the devil."
"Wherever the bishop shall appear, there let the multitude [of the people] also be; even as, wherever Jesus Christ is, there is the Catholic Church."
"Let no man do anything connected with the Church without the bishop."
Initially, a bishop held a position similar to what a priest does now. Moreover, this was an elected, not an appointed, position. The community would choose a bishop, and neighbouring bishops would gather to ordain him. Over time, bishops became more administrators than shepherds; they became detached from the communities, and their authority became increasingly extensive. Bishops began to be appointed from above and to oversee several (and later many) communities. Church history testifies that the power of bishops extended far beyond pastoral care. It reached the point where a bishop could sentence people (for example, church serfs) to penal servitude or even death. The term "Lord" still used today eloquently speaks to this.
Now, in a sense, the pendulum has swung the other way. The Supreme Court no longer recognises the rights that belong to a bishop according to the canons of the Church. A quote: "In the context of the state-recognised right of religious communities to freely change their subordination in canonical and organisational matters, this refers to the fact that the mechanism established by the state for exercising this right (through approval by a general assembly) cannot be nullified by imposing requirements that effectively make it impossible to exercise this right, even if these requirements correspond to the hierarchical and institutional structure of the religious organisation."
Furthermore, the Supreme Court explains that this concerns cases where members of a religious community voted to switch jurisdictions, but the bishop does not release them, which is obvious. The Court ruled that the bishop's opinion need not be taken into account. But then, what about Orthodox ecclesiology and the canon that nothing can be done in the Church without a bishop?
A spoonful of honey in a barrel of tar
But there is a small bright moment in the decision of the Supreme Court. The point is that the courts of the first and appellate instances argued an absurd thing, that allegedly the transfer of the community to the OCU does not prevent the dissenters from continuing to attend services, since they were not forbidden to do so. A quote: “Considering this case, the courts of first and appellate instances pointed out that the Plaintiff (rector of the UOC community – Ed.) did not prove the violation of his rights to freedom of religion, because at the disputed meeting of the religious community a decision was made only on changing its subordination in canonical and organisational matters, <...> but no decisions were made regarding church attendance....” Let us consider this nonsense! “Yes, we transferred the church to the schismatics, but we did not forbid you to go to it! Come to services and realise your right to freedom of religion as if nothing happened!” That is, the freedom of the rector of the UOC community (as well as other believers) to worship is that he must now come to the services of the OCU. And this obvious absurdity was approved both in the court of first instance and in the court of appeal.
It's fortunate that at least the Supreme Court disagreed with this. A quote: “In view of the reasoning set out above, the Grand Chamber of the Supreme Court disagrees with this conclusion of the courts of previous instances and considers that it concerns the Plaintiff's right to freedom of religion as a right to practise religion individually. At the same time, the most contentious issue in this case is precisely the question whether there has been a violation of the Plaintiff's right to practise his religion jointly with others within the religious organisation headed by the Plaintiff”.
In other words, the Supreme Court has separated the concept of individual religious practice and collective worship.
Conclusions
What is bad
Firstly, the Supreme Court approved the presumption that all residents of a locality are a priori considered parishioners of a temple, and therefore can vote in favour of its transfer to the OCU. This, of course, opens the door wide for territorial communities, which can now transfer churches to the OCU without looking at the norms of the law. Now it is not they who have to prove that they are members of the religious community, but on the contrary, the rector will have to prove in court that they are not members of the community.
Secondly, the fact that bishops are now deprived of their canonical rights and cannot prevent the community from transferring to the OCU or at least help those believers (as a rule, they are the majority) who want to stay in the UOC. Now the bishop's authority over believers regarding jurisdictional changes is nullified.
What is good
Firstly, a clear instruction from the Supreme Court to the UOC communities: if you want to avoid being subjected to a raider seizure, bring the issue of membership in the community into a clear legal order: statutes, criteria, protocols on admission/exclusion, and so on. Hold regular community meetings, record all minutes and so on. If membership in the community is clearly defined by documents, then the courts will not be able to engage in fantasies like enrolling all villagers in the community. And of course, it is necessary to look at who should be accepted as a member of the community and who should be held off.
Secondly, the recognition that the concept of individual freedom of religion does not coincide with the concept of its collective realisation. Each citizen can indeed individually attend the services of the community they consider the right. If one is taken over, they can go to another. However, collective worship implies the presence of a church structure, a community, a priest, clergy, a church building, liturgical items, icons, etc. If all of this is taken away, then the right to practise religion is violated.
Where everything is going
It is clear that now UOC communities will have to get down to the legal registration of membership and all the documentary work that should have always been done. It is clear that litigation for churches will most likely be lost by the UOC communities. It is clear that the number of still illegal transfers to the OCU will increase. I would like to speak about more global trends.
First, UOC communities will have to realise one simple truth: the Church is not an open society, where any loitering person can enter, but a closed society, access to which is opened only after catechesis and confirmation in the Orthodox faith. The cry at the liturgy: ‘Ovangelised, be gone!’ will acquire its real meaning, namely: those who are not fully established in the faith are not admitted to the Sacraments, and therefore to the governance of the community, let alone those who come to church once a year to bless their Easter cakes.
Secondly, the Church is not the buildings, but the people. Yes, it is not very pleasant to go from a magnificent temple to a trailer, but everything is going to be like that. And this is where some change in our ecclesiastical consciousness must take place. If the community of believers is preserved as such, it doesn't matter so much what room it prays in. If the community administers the Sacraments and lives according to the commandments of Christ, it is joined to the Body of Christ and is in communion with the Church as one God-human organism. “Do not store up for yourselves treasures on earth, where moths and vermin destroy, and where thieves break in and steal. But store up for yourselves treasures in heaven, where moths and vermin do not destroy, and where thieves do not break in and steal. For where your treasure is, there your heart will be also” (Matthew 6:19-21).
Thirdly, bishops must become closer to the communities, closer to the ordinary believers. Even if the state takes away their rights to manage communities, it cannot take away their ability for spiritual influence. If a bishop takes an interest in the life of his communities, communicates closely with them, engages in pastoral activities, then the trust of the communities in the bishop will only increase, and no authorities, no supporters of the OCU, will be able to seduce them.
To put it in a nutshell, God is leading us back to the ancient original church identity, even though we are having a terrible time on this path. In this sense, the Supreme Court, like other state bodies, is nothing but an instrument in the hands of God.
Lord, grant us strength and wisdom!
