Why does the UN see discrimination against UOC but Ukrainian govt does not?

At the end of March, the Office of the UN High Commissioner for Human Rights released a report in which it acknowledged that the actions of the authorities against the UOC might be discriminatory.

The report devotes 4 paragraphs, from 110 to 113, to issues of religious freedom in Ukraine. All of them are devoted to the UOC. This is the first indicative point. That is, there are no other religious groups in Ukraine in the legal status of which the UN sees some problems. Only the UOC. The first three paragraphs of the Report focus on the anti-church bills that were submitted to the Verkhovna Rada during the reporting period. The fourth is about searches in monasteries and churches. The very mention of specific facts in the Report is already evidence that they violate human rights.

Paragraph 110

In Para 110, the Office of the High Commissioner for Human Rights (OHCHR) refers to draft Law 8221. This draft law is entitled "On Ensuring Strengthening National Security in the Area of Freedom of Conscience and Religious Organizations" and will ban the operations of all religious organizations that are organizationally or canonically linked to the Russian Orthodox Church. The UN sees a violation of human rights in two respects:

Firstly, the prohibition of the ROC and organizations linked to it. The report says the following: "Draft law No. 8221 bans the Russian Orthodox Church, as well as the operations of religious organizations that are organizationally or canonically linked to it, and prohibits them from renting state or private property in Ukraine.”

Secondly, in securing exclusive rights to the term "Orthodox" for the OCU. Quote: "The draft law also envisions a ban on the use of the term 'Orthodox' in the names of religious organizations not affiliated with the Orthodox Church of Ukraine."

In the OHCHR's view, the problem lies in the vagueness of the concepts and the lack of sufficient grounds to justify the restrictive measures in draft law 8221. Quote: “The OHCHR notes that due to vague legal terminology and the absence of sufficient justification, the limitations of the freedom to manifest one’s religion contained in the draft law cannot be regarded as ‘prescribed by law’ and ‘necessary’ within the meaning of Article 18(3) of the International Covenant on Civil and Political Rights (ICCPR).”

Article 18 (3), the OHCHR refers to, reads as follows: "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."

That is, the OHCHR considers that the wording of draft law 8221 does not comply with the limitations set out in the International Covenant on Civil and Political Rights. And this is absolutely right – the UOC's operations in no way threaten "public safety, order, health, or morals or the fundamental rights and freedoms of others".

In addition, the state is simply not competent to decide what the canonical relationship between different religious organizations is, whether it exists or not. In a sense, all of the Local Orthodox Churches have canonical relations with one another. That is, if the OCU considers itself as such, it should simply state that it falls under bill 8221 and should be banned in Ukraine. Absurd? Yes. But it is equally absurd to claim that the UOC should be banned on the basis of a "canonical connection" with the ROC.

Paragraph 111

Quote from the OHCHR Report: “Draft law no. 8262 simplifies the procedure for the transition of religious communities from one religious organization to another by lifting certain formal requirements. It also includes provisions prohibiting religious organizations affiliated with decision-making centres in the Russian Federation from renting state and municipal property.”

It is a pity that the OHCHR did not call things by their proper names and explicitly state that bill 8262 is a draft law on church raiding, where a religious community can be transferred to the OCU by essentially anyone. As of today, according to the Law "On Freedom of Conscience and Religious Organizations", the decision to transfer "shall be taken by at least two-thirds of the number of members of the religious community required to be recognized as authorized by the general meeting of the religious community" and "shall be certified by the signatures of the members of the religious community concerned who have taken such a decision".

According to Bill 8262, "The decision to change subordination <...> shall be taken by at least two-thirds of the members of the general meeting of the religious community present”. In other words, the decision can be taken not by a member of the community, but by a member of the meeting, i.e. someone who simply came (rather brought in). This is, of course, complete lawlessness, but the OHCHR simply points out that there may be a problem here.

For a more detailed analysis of the anti-church bills 8221 and 8262 see the article "Anti-Church ES and Servants of the People law: What happens if passed".

Paragraph 112

Quote from the OHCHR Report: “Draft law no. 8371 establishes a procedure for the dissolution of religious organizations with links to the Russian Federation. It refers to them as ‘religious organizations affiliated with influence centres, the management of which is located outside Ukraine in the country which carries out armed aggression against Ukraine.”

It is also regrettable that the OHCHR did not even point out that the legal wording was even vaguer than in draft law 8221. After all, it is even more difficult to define what an organization "with links to the Russian Federation" is than “canonically linked” religious organizations. This enormous ambiguity opens up a wide margin for arbitrary interpretations and, as a consequence, arbitrariness in decision-making ostensibly on the basis of the law. For more details about the anti-church bill 8371, see the article: "Shmyhal bill: banning the UOC in four moves”. By the way, even before the adoption of the bill, the authorities have already begun to implement it. A "religious expertise" of the UOC Statute has already been conducted, which "revealed" a canonical link between the UOC and the ROC, even though there is no mention of the ROC in the UOC Statute at all.

Paragraph 113

This is the lengthy clause and deals with SBU searches of monasteries and churches of the UOC.

It reads as follows: ”The SBU conducted searches (some of which it referred to as “security measures”) in several monasteries, offices, education facilities and other property of the Ukrainian Orthodox Church (UOC) in Kyiv, Rivne, Zhytomyr, Ivano-Frankivsk, Chernivtsi, Dnipropetrovsk, Khmelnytskyi, Cherkasy, Volyn, Kherson, Ternopil, Poltava and Zakarpattia regions. In some cases, SBU officers questioned several clergymen with the use of a polygraph. The SBU confirmed that at least three notices of suspicion were issued to UOC clergy – two under Article 161 of the Criminal Code (violating the equality of citizens based on race, nationality, religious belief, disability or other grounds) and one with multiple charges including trespass against the territorial integrity and inviolability of Ukraine, and denial of the armed aggression of the Russian Federation against Ukraine. At least two suspects are under round-the-clock house arrest. OHCHR is concerned that the State’s activities targeting the UOC could be discriminatory. OHCHR also recalls the need to ensure that all those facing criminal charges enjoy the full spectrum of applicable fair trial rights.”

Firstly, attention should be drawn to the rather detailed listing of the places where these searches took place, the persons who were suspected and even the methods that were used. This means that OHCHR has received materials on all or most of these cases: videos, statements, witness statements, procedural documents and so on.

Secondly, the OHCHR expresses its concern about the actions of Ukrainian law enforcement agencies and says that they could be "discriminatory".

Thirdly, the OHCHR speaks about the fair trial of those who have been suspected. This means that the OHCHR reminds the Ukrainian authorities that if the right to a fair trial is not secured in Ukraine, it will be secured at the European and international levels. For example, in the very European Court of Human Rights. Accusations like saying that a person had a book printed with the blessing of Patriarch Kirill will not be accepted there.

What evidence?

Here it is a good time to recall what evidence was gathered as a result of the searches. For example, after the searches on 22 November 2022 in the Kyiv-Pechersk Lavra and other monasteries and eparchial offices, the SBU reported on the work done.

An SBU photo report on materials found during the inspections in UOC churches. Photo: SBU

Law enforcers began their large-scale checks on the churches of the UOC with the Kyiv-Pechersk Lavra, the Korets Convent, as well as the premises of the Sarny-Polissia Eparchy. According to the SBU, they checked 350 church premises and 850 citizens and found the following:

• cash in the amount of 2 million hryvnias, 100 thousand dollars and "several thousand rubles";
• 2 copies of the book by St. Seraphim (Sobolev) "Russian Ideology";
• three issues of the newspaper “Russky Vestnik” for 2020;
• the “Russian House” magazine for 2014;
• a stack of Easter greetings from Patriarch Kirill;
• a stack of black and white leaflets with a photograph of the Patriarch and a text compiled from some of his sermons and another paragraph of vague origin.

With regard to the latter finding, it is already known that this leaflet was compiled by compilating quotations from various sermons and planted in monasteries and temples of the UOC specifically before the visit of law enforcement officers. The nuns of the Korets Convent wrote a separate statement to the police about it and asked them to look into it. You can read more about it in the article "Searches in UOC: what was sought out, found, and what will happen next”.

Similar quality findings were presented by the SBU in other eparchies and monasteries of the Ukrainian Orthodox Church. All this "evidence" can prove absolutely nothing even in our Ukrainian courts, if they try the case impartially. And for international instances even less so. We can assume that if the case reaches them, the Ukrainian authorities will lose the case, be widely publicized and obliged to pay pecuniary compensation to the victims. That is why both the Foreign Ministry and representatives of the Office of the President reacted so nervously to the OHCHR Report.

Reaction of Ukrainian authorities

Ukrainian Foreign Ministry spokesman Oleh Mykolenko published a statement on his Facebook page: "In a recent report on human rights in Ukraine, the Office of the UN High Commissioner for Human Rights noted that searches in the UOC MP buildings might be 'discriminatory'. Ukraine is a democratic state where freedom of religion is guaranteed. At the same time, freedom is not the same as the right to engage in activities that undermine national security. We urge the OHCHR to refrain from unbalanced political evaluations and to base its reports on facts".

But as mentioned above, the OHCHR definition was precisely based on facts. They studied the reports of the SBU and other law enforcement agencies quite meticulously and drew their conclusions. The fact that someone keeps an old issue of the “Russian House” magazines in their wardrobe cannot in itself undermine national security. It is everyone's elementary right to information.

M. Podoliak, Advisor to the Head of the President’s Office, reacted even more nervously. He said that the OHCHR conclusions were fiction, called it a corrupt organization and accused it of venality! "The UN is not a platform that regulates conflict situations between states. Rather, the UN is a place where the UN bureaucracy earns good money on this or that conflict, knowingly receiving huge grants from Russia," Podoliak said.

This passage is very reminiscent of how several years ago the spokesperson of the then UOC-KP, Ivan (Eustratiy) Zoria, called the Alexandria Patriarchate corrupt for the fact that back then this Local Church supported the UOC. But as soon as it recognized the OCU, it immediately became almost a measure of righteousness. A high official accusing the OHCHR of being bribed by Russia once again proves that the Ukrainian authorities cannot bring anything substantive and no counterarguments against the conclusion of the OHCHR. Moreover, the UN is an organization that was created to solve international conflicts and what it receives from Russia is not a grant but a membership fee, which each UN member state pays.

Another statement by Mr Podoliak: "These reports are not taken into account. They do not bear any consequences. It is clear that only the Russian Federation violates human rights in Ukraine. All Ukraine does is to protect its space, including its religious space, including by getting rid of the influence of the UOC." There is another point in this phrase which can be presented as a conclusion of this article.

Conclusion

It is easy to see that the centralized, large-scale repression by the authorities against the UOC did not begin with the outbreak of war. For about seven or eight months the central authorities saw in the UOC no threat to national security. This is quite true, as there is no threat in reality. On the contrary, the statements of officials, including M. Podoliak, were in the spirit of recognising that the UOC condemned the aggression of the Russian Federation, dissociated itself from the ROC and in every way helps the AFU and the war victims.

And then suddenly the UOC allegedly threatened national security. At the same time, nothing has changed: the UOC has condemned the aggression of the Russian Federation and still condemns it; the UOC believers have fought in the ranks of the AFU and are still fighting; the Church has aided the front with cars, power generators, food and everything else, and keeps doing so. Why has the state turned 180 degrees in its attitude to the UOC? Did it receive a starting signal from somewhere? Did they decide to divert public attention so that people would not ask the authorities inconvenient questions? Maybe, something else. We're not going to guess. We simply state that if the UOC really threatened the national security of Ukraine, it would have been obvious from the very beginning of the war and the authorities would have started repressive measures against it from the very beginning.

In the absence of any solid arguments why the authorities still decided to repress the UOC, M. Podoliak voices a rather strange narrative: everything we do is right and only Russia does wrong. And "we" are the Ukrainian authorities, not Ukraine as a whole. He says that Ukraine is getting rid of the influence of the UOC. But is Ukraine identical to the current Ukrainian authorities? Is Ukraine reduced only to the Office of the President and other state bodies? Are millions of UOC believers no longer Ukraine? Are there no claims to be made against the current Ukrainian authorities? Are all their decisions correct?

Yes, there is a war now, and the authorities have some carte blanche for their actions. Ukraine's international partners and Ukrainian civil society itself (of which the UOC is a part) prefer not to criticize the Ukrainian authorities in order to maintain consolidation in the face of the enemy. But after Ukraine's victory in this war, questions will arise for the Ukrainian authorities, as in any normal democratic state. All anti-lawful actions will get their proper assessment both by the Ukrainian society and international instances. We will have to answer why the constitutional right of Ukrainian citizens to freedom of religion has been so flagrantly violated. The excuse that the OHCHR report has no influence will no longer hold. It may turn out that this very Report and similar documents of international human rights organizations will have great weight. M. Podoliak and other persons are quite well aware of that. Hence such a nervous reaction to the OHCHR Report.

Finally, a rhetorical question follows: how are the Ukrainian authorities going to join the European Union while so clearly violating the Constitution of Ukraine and its international human rights obligations, encouraging blatant violations of the rights of Ukrainian citizens and banning the largest religious denomination in the country for no reason?