FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
The section is prepared by Maksym Vasin, an executive director of the Institute for Religious Freedom (Kyiv)
Comparing to the previous year, the number of religious organization in Ukraine at the beginning of 2015 increased by 328, totaling 35317 religious organization, including 989 religious communities without a corporate status.
As of 01.01.2015 there are 87 religious centers and 292 religious institutions (archdiocese, dioceses etc) in Ukraine representing over 50 different confession directions. There are also 32792 local religious communities, 516 monasteries, 365 religious missions, 78 brotherhoods, 198 religious educational establishments, 12406 Sunday schools. According to official statistics, nowadays 31871 clergies are involved on religions affairs, including 693 foreigners. There is a tendency about the annual slight growth of a number of religious organizations (about 0.5-1.8% a year).
This official data doesn’t take into account religious organizations on the territory of Ukraine illegally annexed by Russia – in the AR of Crimea (2083 – in 2014) and in Sevastopol (137 – in 2014), where the situation with freedom of religion and expression of ideas is getting worse based on the data of the monitoring mission of OSCE and human rights advocates. This statistics also doesn’t reflect the real religious situation in Donets and Luhansk regions. That’s why the declared slight growth of the number of religious organizations on these territories is not in line with the monitoring data about closing, migration to other regions of Ukraine and hiding of religious communities that were pursued by pro-Russian forces and separatists, as it is mentioned in the report of human rights advocates “When God becomes a weapon”.
During 2015 there was a conflict in inter-Orthodox relationships, related to property disputes at the time of jurisdiction change by orthodox communities. The number of conflict points was 70, which often occurred in cases when religious communities transferred from jurisdiction of Moscow to Kyiv Patriarchate.
Law of Ukraine No.498-VIII on establishment of educational institutions by religious organizations (draft No.1447) became effective on August 04, 2015. From now on registered religious organizations can be founders (owners) of pre-school, general education, out-of-school, vocational and higher institutions. Such institutions will be private and undergo licensing procedure in the Ministry of Education and Science of Ukraine on the same level with other private educational institutions established by public associations, charitable foundations, companies or natural persons.
Despite the fact that the military mobilization in Ukraine has been going on for over one year and a half, during this period neither government, nor parliament took appropriate measures to eliminate legislative vacuums in the sphere of practical provision of constitutional guarantee for substitution of military obligation with an alternative (non-military) service. Problems arise due to the fact that the Law of Ukraine “On alternative (non-military) service” first of all relates to military conscription and reserve training, however, it doesn’t clearly state the procedure for substitution of military obligation with an alternative service at the time of mobilization. Due to multiple complaints the General Staff of the Armed Forces of Ukraine agreed with the fact that by analogy, in order to regulate this issue legally, it is necessary to the mechanism, provided by the Law for the purposes of doing alternative service in times of peace. The corresponding order was sent to military commissariats.
Meanwhile, another problem related to legislative vacuum in this sphere is regular refusal of structural subdivisions regarding operation of local state administrations to consider applications of the mobilized about confirmation of their right to alternative service. Thus, it makes a vicious circle with mobilized religious citizens in it, which often ends up with their criminal prosecution and accusation of mobilization evasion. However, judicial practice regarding this issue is quite controversial.
On the one hand, an acquitting judgement of Novomoskovsk Municipal District Court of Dnipropetrovsk region dd.13.11.2014 concerning the mobilized religious person from Jehovah’s Witnesses was confirmed in the court of appeal and the court of cassation. On the other hand, there are many examples when courts ignore provision of the Constitution of Ukraine and explain their position in judgements by the lack of legal standards allowing exempting those mobilized from military service, whose religious beliefs forbid using weapons.
As an example, decision of the Court of Appeal of Rivne region dd.17.11.2015, according to which repeated review of the judgement after comments of the court of cassation resulted into mitigation of a sentence, and the right of the mobilized religious person to alternative service was kept being denied.
On September 10, 2015 Terny District Court in the city of Kryvyi Rig sentenced a religious person, who “refused being mobilized due to the fact that he is not allowed to hold weapon based on his religious beliefs” to 2 years in prison with probation period. Text of the judgement doesn’t even contain information about the right of the citizen to alternative service, and only says that reasons for exemption from military service have no objections based on religious beliefs in article 23 of the Law of Ukraine “On mobilization training and mobilization”.
Another debating issue is that the Law and bylaws can narrow constitutional guarantee on substitutions of military obligation with an alternative service. In particular, the List of religious organizations, beliefs of which don’t allow using weapons, which was approved by the Resolution of the Cabinet of Ministers of Ukraine dd.10.11.1999 No.2066 was never reviewed.
The problem of mobilization of the religious became the subject of examination in administrative proceedings as well. For example, on June 11, 2015 Kharkiv County Administrative Court fully sustained a claim of the religious person, who was mobilized by the military registration and enlistment office despite his requests about an alternative (non-military) service. The court found his call-up illegal. The court decision specified that at the moment of the plaintiff’s call-up the territory of Ukraine wasn’t declared any military or emergency conditions, upon condition of which the law can establish particular restrictions of constitutional rights and freedoms with the specification of the period for such restrictions. In this case norms of the Constitution should be used as norms of direct application.
On April 14, 2015 Rivne County Administrative Court also obliged Zdolbuniv District State Administration to reexamine an application of the mobilized religious person regarding exemption from military service at the time of mobilization due to his religious beliefs. The Court pointed out that “analysis of the applicable legislation gives reasons to state that military service at the time of mobilization can be substituted with an alternative (non-military) service for religious citizens, who told about inability to do military service due to their religious beliefs”. Such conclusion is also approved by practice of the European Court of Human Rights in cases of Bayatyan v. Armenia, Bakharatyan v. Armenia, Tsaturyan v. Armenia, Stefanov v. Bulgaria, Erchyep v. Turkey.
An old norm on the need to get a permit from the local authority for carrying out public peaceful religious meetings 10 days before the desired date remains valid in part 5 of article 21 of the Law of Ukraine “On the freedom of conscience and religious organizations”. Such norm contradicts with provisions of article 39 of the Constitution of Ukraine, which says nothing about restrictions regarding the period of notification. Provisions of this article were explained by the Constitutional Court of Ukraine. However, article 24 of the Constitution guarantees equality of constitutional rights and freedoms of citizens, with no religious discrimination.
Nevertheless, despite direct nonconformity with the Constitution, applications and decisions of officials from local state administrations and self-governing authorities still contain requirements to religious organizations based on the old norm of the Law regarding the need to get a permit for public peaceful meetings – either outside or even inside of rented premises. Due to this fact on October 26, 2015 Ukrainian Parliament Commissioner for Human Rights Valeriia Lutkovska made a submission to the Constitutional Court of Ukraine regarding unconstitutional part 5 of article 21 of the Law of Ukraine “On the freedom of conscience and religious organizations”.
The need to improve the procedure of state registration of religious organizations was separately pointed out in the Order of the President of Ukraine dd.25.08.2015 No.501/2015 “On Approval of the National strategy in the Sphere of Human Rights”, and in the Plan of actions for its implementation approved by the Order of the Cabinet of Ministers of Ukraine dd.23.11.2015 No.1393-р. First of all, it is recommended to set information exchange and cooperation between government authorities, competent registrars of statutory religious organizations and state registrars entering data to the Unified State Register. However, the main reason of difficulties is nonconformity of different legislative acts, which can be eliminated only by means of the Parliament of Ukraine.
- To Parliament of Ukraine together with the Ukrainian Council of Churches and religious organizations: form principles of the nation-wide state policy in the sphere of provision of the freedom of conscience and belief that have to be based on democratic principles and and provide full participation of religious organizations in public life, namely by adopting the Law of Ukraine “On the Concept of State Confessional relations in Ukraine”.
- To the Cabinet of Ministers of Ukraine: resume operation of the Board regarding realization of rights of religious organizations for solving issues that require interdepartmental interaction (provision of constitutional rights of citizens to alternative service at the time of mobilization, exchange of information between registrars of articles of association of religious organizations and state registrars, simplification of customs clearance procedure and distribution of humanitarian aid etc).
- To the Cabinet of Ministers of Ukraine together with the Ukrainian Council of Churches and religious organizations: develop and submit to Parliament of Ukraine a draft law on provision of a constitutional right of citizens to substitution of military obligation at the time of mobilization with alternative (non-military) service and exemption of the clergies of registered religious organizations from mobilization to the military service.
- To the Ministry of Culture of Ukraine together with the Ukrainian Council of Churches and religious organizations: develop and submit to Parliament of Ukraine a draft law on improvement of the procedure of acquisition of legal personality for religious organizations by coordinating applicable legislative acts in this sphere.
 Order of the Ministry of Culture of Ukraine dd.13.03.2015 No. 126 “On training and approval of statistical and informative reports for 2014 regarding religions and state confessional relationships”: http://mincult.kmu.gov.ua/mincult/uk/publish/article/401816
 Maksym Vasin. Religious map of Crimea – infographic: http://mvasin.org.ua/eng/2014/04/459
 Report of the OSCE mission about the assessment of a situation with observance of human rights in Crimea: freedom of belief: http://www.irf.in.ua/eng/index.php?option=com_content&view=article&id=439:1&catid=34:ua&Itemid=61
 Human rights advocates collected facts of religious pursuits in occupied Donbas: http://www.irs.in.ua/files/publications/2015.04_Report_Religious_persecution_in_occupied_Donbas_eng.pdf
 Law of Ukraine “On amendments to some laws of Ukraine on establishment of educational institutions by religious organizations” No.498-VIII dd. 02.06.2015: http://zakon2.rada.gov.ua/laws/show/498-19
 Part four of art.35 of the Constitution of Ukraine: http://zakon3.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80
 Decision of Novomoskovsk Municipal District Court of Dnipropetrovsk region dd.13.11.2014 in the case No. 183/6316/14: http://www.reyestr.court.gov.ua/Review/41351969
 Decision of Court of Appeal of Rivne region dd.17.11.2015 in the criminal proceeding No.12014180050000848: http://www.reyestr.court.gov.ua/Review/53569572
 Terny District Court in the city of Kryvyi Rig dd.10.09.2015 in the criminal proceeding No.12015040760001335: http://www.reyestr.court.gov.ua/Review/50010577
 Decision of Kharkiv County Administrative Court dd.11.06.2015 in the case No. 820/5487/15: http://www.reyestr.court.gov.ua/Review/45105474
 Decision of Rivne County Administrative Court dd.14.04.2015 in the case No.817/818/15: http://www.reyestr.court.gov.ua/Review/43710494
 Find more at: http://www.ombudsman.gov.ua/ua/all-news/pr/31115-kh-valeriya-lutkovska-vnesla-konstitutsijne-podannya-do-ksu-schodo-vidpov/
© 2016 The Institute for Religious Freedom, Ukraine