Will the Venice Commission help us?

On October 19, 2023, the Verkhovna Rada voted by 267 votes of the people's deputies to adopt in the first reading the bill 8371 on banning the activities in Ukraine of religious organisations with their governing centre in the aggressor state. Despite the fact that the Ukrainian Orthodox Church does not have its governing centre in Russia, the bill is directed precisely against it. This is what the initiators and supporters of this bill say in public, again despite the fact that the UOC is not mentioned in the bill. What the adoption of the law in the first reading means, we have considered in detail in the article "The UOC banned in the first reading, what next?", and its essence – in the article "Shmyhal's bill: Banning the UOC in 4 moves".

After the adoption of the bill in the first reading, there were two options for the development of events: either a long pause to study the reaction of the Ukrainian and international community, or forced adoption in the second and third reading, the signature of the President and entry into force. At first, everything was going towards the second option. The deputy head of the Servant of the People faction, Yevheniya Kravchuk, said in an interview with the Ukrinform news agency that the bill No 8371, which envisages a ban on the Ukrainian Orthodox Church, was going to be considered in the Verkhovna Rada in the second reading by the end of this year.

But the reaction both inside Ukraine and especially abroad was so negative that now the first option is becoming more and more clear.

On 21 November 2023, a group of MPs sent a letter to the speaker of the Verkhovna Rada Ruslan Stefanchuk demanding "to address the Venice Commission with a request to provide a conclusion on the compliance of the draft Law "On Amendments to Certain Laws of Ukraine Regarding the Activities of Religious Organisations in Ukraine", registration number 8371 of 19.01.23, with constitutional and international law, European standards and values". As of 27 November 2023, the appeal to the speaker of the Verkhovna Rada has already been signed by 53 people's deputies.

According to an MP of the European Solidarity party, Iryna Herashchenko, this demand made it impossible to consider the bill No 8371 in the second reading before the end of 2023. She also pointed out that among the 53 MPs who signed the appeal to Stefanchuk there are MPs from the presidential faction "Servant of the People", and the appeal itself is conditioned by "the international reaction and criticism of the bill, which was made in the West and in the USA".

What is the Venice Commission?

This commission was established in 1990 under the Council of Europe and has an official name: "European Commission for Democracy through Law". It is unofficially called the Venice Commission because its sessions are held in Venice. An interesting detail: on the one hand, the work of the Commission does not require the participation of Council of Europe member states, but on the other hand, non-Council of Europe member states can participate in the work of the Commission. Thus, Algeria, Brazil, Israel, Kazakhstan, South Korea, Mexico, Peru, USA, Tunisia, Chile and other countries are members of the Venice Commission.

The Venice Commission is an advisory body and is primarily concerned with analysing the laws and draft laws of participating States for their compliance with constitutional and international law. The Commission is composed of independent experts who are authoritative specialists in the above-mentioned fields of law and have experience in working with various democratic institutions. Each participating country appoints one expert to the Commission, who does not represent his/her state, cannot be instructed by it, and acts independently on the basis of his/her own convictions. The term of office of each member of the Venice Commission is 4 years.

As of today, such a member from Ukraine is Serhiy Golovaty, who simultaneously holds the position of Deputy Head of the Constitutional Court of Ukraine. It was he who, on 27 December 2022, ruled on the constitutionality of Poroshenko's law on the forced renaming of religious organisations, the centre of which is located in the aggressor country. This circumstance casts doubt on his independence, as it is unclear how he can be an independent expert while being a representative of the judicial branch of the state.

The Commission's activities centred mainly on the observance of democratic standards, the electoral system and the protection of the rights of various minorities. The advisory nature of this body does not imply that its decisions should be implemented on a mandatory basis, but many international and European bodies are guided by the findings of the Venice Commission in their decision-making. This is especially true when a certain state is negotiating with the European Union or other European organisations on cooperation, let alone accession.

In the case of Ukraine, non-compliance with the Venice Commission's recommendations could, without exaggeration, cost it its EU membership. There are already many sceptics in the EU about this. There are governments in Hungary, Slovakia and now the Netherlands that believe that our country has no place in the EU. And giving them an extra reason to reproach Ukraine for not conforming to European human rights standards is not the most sensible solution.

The Ukrainian authorities are well aware of this. On 26 November 2023, the head of the Servant of the People faction in the Verkhovna Rada, David Arahamiya, said that the expertise of the draft law on the ban of the UOC in the Venice Commission is necessary for Ukraine to join the EU.

"Given the complexity of going through the opening of the negotiation procedure with the EU, it is necessary to have a 100% guarantee that this will not be put on our heads as a violation of religious rights. Therefore, the Venice Commission is a normal decision," he wrote in a comment on the publication of the former Deputy Minister of information policy Dmytro Zolotukhin in Facebook, in which the latter reproached the MPs, who addressed the relevant request to R. Stefanchuk, in lobbying the interests of "Moscow priests".

The importance of the Venice Commission's conclusions

David Arahamia can be slightly corrected: Ukraine does not need an expert review of draft law 8371 to join the EU, but a positive conclusion of the Venice Commission, which is hard to imagine, given the obvious discriminatory content of the draft law itself.

However, it would be a bit premature to say that the Venice Commission will unequivocally reject draft law 8371. It is unlikely to approve it, but the Venice Commission's criticism may be so general and mild that it will allow our state to continue to legislatively oppress the UOC. For example, in 2019. Venice Commission released its findings on the religious law in Montenegro. These conclusions contained such mild criticism of this law and such vague recommendations for its improvement and clarification that the Montenegrin authorities were able to pass this law, according to which virtually all church property, including temples and monasteries were taken away from the Church. In that case, the Montenegrin Orthodox were not helped by the Venice Commission. The property was defended through numerous protests, prayer services and processions, which eventually led to the victory of the opposition forces in the parliamentary elections.

Another example is the confrontation between Ukraine and the Venice Commission over the adoption of amendments to the laws "On Education", "On National Minorities in Ukraine" and "On Ensuring the Functioning of the Ukrainian Language as the State Language", which many called a law on total Ukrainisation.

Even before the war, the Venice Commission recognised these bills as discriminatory, inconsistent with the Constitution and Ukraine's international obligations, and violating the rights of national minorities. The Commission proposed a number of significant amendments to these laws. At the same time, the main EU institutions - the European Parliament and the European Commission - demanded that Ukraine take into account the Venice Commission's recommendations when adopting the legislation.

"Finalise the reform of the legal framework for national minorities, which is currently being prepared in accordance with the recommendations of the Venice Commission and adopt immediate and effective implementation mechanisms," the European Commission said in a statement. "The European Parliament <...> requests the Ukrainian authorities to fully comply with their international obligations and the recommendations contained in Venice Commission Opinion No. 960/2019, i.e. to respect the right of national minorities to develop and make full use of their language and to act with the highest degree of care and balance with regard to national minorities, their language and their right to education," the European Parliament resolution read.

But despite this, Ukraine still adopted these laws (or rather amendments to the laws), and Volodymyr Viatrovych called the Venice Commission's conclusions inadequate at the time. Now he calls its members "pro-Russian" (well, you bet they are): "I would not say that the Venice Commission is anti-Ukrainian, but there is quite a strong pro-Russian lobby there, there are pro-Russian positions. This was proven by the commission's recommendations on the law on national minorities."

Viatrovych has alarming expectations from the possible expertise of the commission with regard to the draft law on banning the Ukrainian Orthodox Church: "The outcome may not be in our favor."

Conclusion

In general, we can expect a positive effect from the appeal to the Venice Commission. Elementary common sense suggests that they will not be able to recognise the draft law banning Ukraine's largest confession as compliant with the Constitution and Europe's ideas on human rights. Incidentally, the recommendations on legislation on national minorities contain one interesting proposal – to involve the national minorities themselves in drafting this legislation. If the Ukrainian authorities really wanted to secure Ukraine from the real influence of the Russian Orthodox Church, they would have involved the UOC in the elaboration of relevant decisions. But apparently there is no such task; the real task is to destroy the UOC and create a religious organisation fully under the control of the authorities, which the authorities could count on at the right moments.

If the conclusions of the Venice Commission are negative, much will depend on how harsh the wording will be. If they are sufficiently unambiguous, it is unlikely that the Verkhovna Rada will dare to adopt Bill 8371 as it is now.

Otherwise, negotiations on Ukraine's accession to the EU may become much more complicated. And if Ukraine does join the EU, we should expect that disputes between the UOC believers and their opponents will be considered in the last instance in the EU judicial system, which will most likely make judgements that are not too pleasant for the Ukrainian authorities. However, even without accession to the EU, there is a possibility of appealing to the European Court of Human Rights, and it seems that the decisions of this court in favour of the UOC believers are only a matter of time.

The most likely option for today is to delay consideration of this draft law. Today very ambiguous internal political processes have begun in Ukraine, and it is not very reasonable to give critics of the current government extra arguments for this criticism.

However, it should be remembered that in politics there is a technique that can be called "selling air". As applied to our situation, it means that the authorities can offer the UOC some compromises in exchange for the non-adoption of the law banning the UOC, which in fact (with a high degree of probability) will not be adopted. And here it is a question of the wisdom of our clergy not to fall for this bait and not to sacrifice the interests of the Church.