Forced renaming of the UOC: earthly and Heavenly judgements

Members of the Court of Appeal don't think the Judgement of Heaven awaits them. Photo: UOJ

On 2 November 2023, the Sixth Administrative Court of Appeal ruled to dismiss the appeals of the Metropolis of the UOC, as well as hundreds of monasteries and eparchial administrations and upheld the decision of the Kyiv District Administrative Court of 15.05.2023, which stated the legality of the Ministry of Culture's actions to forcibly rename the eparchial structures, monasteries and communities of the UOC to the Russian Orthodox Church in Ukraine.

The renaming itself was plotted in 2018 when exactly five days after the so-called "Unification Council" held on 15.12.2018, where the OCU was created, the Verkhovna Rada passed the law "On Amendments to Article 12 of the Law of Ukraine ‘On Freedom of Conscience and Religious Organisations...’”. Specifically, the UOC was not named in this law, but to boil it down, the UOC should be renamed "ROC in Ukraine" with all the ensuing consequences. With astonishing promptness, the Ministry of Culture of Ukraine conducted a religious expert examination, which recognised the UOC as falling under the norms of this law. The results of the expertise were approved by Order No 37 of the Ministry of Culture dated 25.01.2019 and published on the official website.

In early 2019, a group of MPs appealed to the Constitutional Court on whether this law meets the Constitution, after which the law was effectively blocked for almost four years. At the same time, the Kyiv Metropolis of the UOC, monasteries and eparchial administrations filed a lawsuit with the District Administrative Court of Kyiv, asking to cancel Order No. 37 of the Ministry of Culture of 25.01.2019 on the approval of the results of the expertise and to recognise the actions of the Ministry of Culture as unlawful.

We do not know what fate would have awaited all these court cases if in 2022 the authorities had not decided to launch a large-scale persecution of the Church. Perhaps, after Ukraine's accession to the European Union, our courts will become independent from the executive branch, but now it is not so. On 27 December 2022, the Constitutional Court of Ukraine declared constitutional the amendment to the Law of Ukraine "On Freedom of Conscience and Religious Organisations", with the help of which the enemies of the UOC want to rename it. On 15.05.2023, the Kyiv District Administrative Court, which arose on the site of the disbanded District Administrative Court of Kyiv, completely rejected the claim of the Kyiv Metropolis of the UOC and other applicants, in which they asked to cancel the expertise of the Ministry of Culture of 2019, which recognised the UOC as part of the Russian Orthodox Church.

This decision was appealed and rejected by the Sixth Administrative Court of Appeal on 2 November 2023.

Grounds for rejecting the appeal

The decision of the Sixth Administrative Court of Appeal cites the following grounds, which essentially repeat what the Kyiv District Administrative Court has already announced in its decision of 15.05.2023.

Firstly, the court considered that the Ministry of Culture had every right to conduct religious expertise in 2019 and approve its results.

Secondly, the court considered that Order No. 37 of the Ministry of Culture dated 25.01.2019 on approval of the results of the expertise "does not have any binding prescriptions both for the plaintiffs and for other persons, except for a certain structural unit of the Ministry of Culture, and does not create any legal consequences for them".

Thirdly, the court considered the conclusions of this expertise to be correct, as they fully complied with the Law of Ukraine "On Amendments to Article 12 of the Law of Ukraine ‘On Freedom of Conscience and Religious Organisations...’” dated 20.12.2018.

As is known, this law defines the following criteria for the recognition of a religious organisation as one that is subordinate to the centre in the aggressor state:

1. Mention of this in the statute of a Ukrainian religious organization;
2. Mention of this in the statute of a foreign religious organization;
3. Representatives of the Ukrainian religious organisation are members of the foreign religious organisation.

The presence of only one criterion out of three is sufficient. This criterion, which in any case "will work", is the fact that the ROC considers the UOC as its part, which is reflected in the Statute of the ROC. Thus, the religious expert examination of the Ministry of Culture could not come to any other conclusion but recognise the UOC as part of the ROC.

Fourthly, the court considered that the decision to rename the UOC to "ROC in Ukraine" in no way infringes on the rights of believers to freedom of conscience since the section "Transitional Provisions" of the Law of Ukraine "On Amending Article 12..." states: "It is not allowed to grant advantages or impose restrictions in the activity of a religious organisation..." (i.e. the UOC), "except for restricting the access of clergymen, religious preachers, mentors of such religious organisation to units, compounds of the Armed Forces of Ukraine and other military formations of Ukraine in the places of their deployment".

This is like the text of the decision of the Patriarchate of Constantinople of 11.10.2018 on recognising schismatics and granting them autocephaly, in which the last paragraph was the following: "To urge all parties involved to avoid the appropriation of churches, monasteries and other property, as well as any other acts of violence and retaliation, so that peace and the love of Christ may prevail." That is, in the judgment that was the trigger for the seizures, persecution and violence to call for the avoidance of it all. It's like releasing a wolf into a flock of sheep and calling on him to pluck the grass peacefully while doing so.

Of course, in the case of renaming the UOC to "ROC in Ukraine" the rights of believers will not just be violated but will be violated everywhere totally. But neither the Verkhovna Rada, which adopted this law, nor the Constitutional Court, which recognised it as compliant with the Constitution, nor other judicial bodies, which base their decisions on the basis of this law, prefer not to notice this. And we are not even talking about the executive authorities and local self-government bodies.

Fifthly, the court actually stated that the UOC did not provide them with a new version of the Statute of the UOC, which was adopted at the Council of the UOC in Feofaniya on 27.05.2022, in which there is no mention of the ROC. This is extremely strange, since the Statute of the UOC, the examination of which was conducted in 2019, is no longer in force, and it is logical that the court should have been provided with a new version of the Statute. If this was indeed not done, this is a question for the UOC's lawyers and advocates. However, in our courts, there are ways to make it so that the plaintiff could not submit the documents or they would not be accepted by the court.

Sixthly, the court considered the words of the head of the Legal Department of the UOC, Archpriest Alexander Bakhov, who during a press conference on 29.12.2022 at the Kyiv-Pechersk Lavra stressed that from the Statute on the governance of the UOC, which was adopted at the Council on 27.05.2022, "all norms that in any way hinted or spoke about the connection with Moscow were excluded", as a factual confirmation of the fact that the previous Statute of the UOC still recognised the UOC's affiliation with the Russian Orthodox Church.

To crown it all, the court said that the religious expert examination of the Ministry of Culture of the new Statute of the UOC, conducted in 2023, still recognised that "the UOC continues to be in a relationship of subordination to the ROC". In other words, no matter how hard you try, we will still consider you a part of the ROC, because we need to. However, the court made a reservation that analysing the new expertise of the Ministry of Culture was not part of the tasks of this trial.

A key point in the renaming story

Before we talk about this moment, we need to make a small excursion into the theory of state and law. For a long time, the theory of positive law dominated in Europe, according to which everything that is written in the texts of laws adopted by the state was considered to be law. As the famous German jurist Rudolf Von Jhering said, "Law is the epitome of the coercive norms in force in a state." From this point of view, any law is legal, regardless of whether it is fair or not. Accordingly, the law on renaming the UOC to "Russian Orthodox Church in Ukraine" and all other laws and decisions of the authorities against the UOC are legal, simply because they were adopted by state bodies.

Perhaps, the theory of positive law would have continued to be used in Europe, but in the course of the trials of the figures of Nazi Germany it was discovered that, for all the heinous crimes of the Nazis, they acted strictly within the laws in force in Germany at the time. And on the basis of this, they quite convincingly claimed their innocence. They exterminated millions of people, but they did not violate any German law, on the contrary, they enforced it.

It was after the Second World War that mankind realised that the theory of positive law could not be recognised as correct and used further. It was replaced by the theory of natural law, according to which every human being has inalienable rights that belong to him/her simply by the fact of birth. The state cannot deprive a person of these rights or limit them at its own arbitrary discretion, and any such decision, even if clothed in the form of law, is not legal and is subject to cancellation.

In the situation of persecution of the UOC, absolutely all participants of these persecutions, both on the one side and on the other, understand perfectly well that this is a violation of the right of UOC believers to freedom of conscience, which is an inalienable human right. Some enemies of the UOC justify it by the war, while others try to present the case in such a way that since believers are not forbidden to "believe at heart", the right is not violated, but everyone understands that it is not so.

Religion is not only about "believing at heart", it is also about professing one's faith publicly and performing religious rites and much more, which requires temples, church assets, the existence of organisational forms such as communities, eparchial administrations, monasteries, etc. Plus, anti-church laws provoke negative attitudes towards believers on the part of a certain part of society and promote unlawful actions towards them. All this clearly violates the right to freedom of conscience.

But there is an important point in all this, which may become key not only in the religious field of Ukraine but also in the geopolitical sphere. This is the provision of the Law of Ukraine "On Amendments to Article 12 of the Law of Ukraine ‘On Freedom of Conscience and Religious Organisations...’”, which essentially says that the fate of Ukrainian religious organisations (namely the UOC) is decided on the basis of a normative act of the aggressor state, namely the Statute of the Russian Orthodox Church. It has already been said above that this law prescribes the subordination of the UOC to the Moscow Patriarchate on the basis of the Statute of the Russian Orthodox Church, which is a normative act of Russia.

That is, in fact, Ukraine recognises the effect of the laws of Russia, the aggressor state, on our territory.

The Sixth Administrative Court of Appeal rejected the complaint of the Kyiv Metropolitan Church of the UOC and other plaintiffs and thus confirmed the validity of Russian laws in Ukraine, and even earlier the Constitutional Court made a similar decision. If this case reaches the Supreme Court, and it also makes a similar decision,

a precedent will be created in Ukrainian law, according to which decisions of Ukrainian authorities are taken on the basis of normative acts of Russia. And this precedent, if desired, can be extended to other legal relations, in particular, to the recognition of the annexation of Ukrainian territories.

Indeed, if we recognise a Ukrainian religious organisation as part of the Russian Orthodox Church on the basis of the Statute of the Russian Orthodox Church, it means that we must recognise the four Ukrainian regions and Crimea as part of Russia on the basis of the Statute (Constitution) of Russia. This time mine was laid in the Law signed by the then President of Ukraine P. Poroshenko and adopted on the initiative of his political team. And who knows if there was no intent in it?

And now let us return to the theoretical calculations and repeat the postulate of the theory of positive law: the law is what is written in the law.

Judgments of Heaven

Whether we like it or not, we are all going to face the Judgement of Heaven, our Lord Jesus Christ. I wonder on what theory this judgement will take place. Will the judges of our district, constitutional and other courts be able to say that I judged as the law says and could not do otherwise? Will our government officials be able to say that they are not guilty because they were following orders from above?

Man always has a moral choice, everyone can choose between good and evil, and it is by this criterion that we will be judged after the grave.

"When the Son of Man comes in his glory, and all the angels with him, he will sit on his glorious throne. All the nations will be gathered before him, and he will separate the people one from another as a shepherd separates the sheep from the goats. He will put the sheep on his right and the goats on his left. Then the King will say to those on his right, ‘Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’" (Matthew 25:31-36).

The Holy Fathers in their interpretation of this place of the Gospel write that here it is about mercy. And the holy Apostle James writes: "For judgement without mercy to him who has not shown mercy..." (James 2:13). What happens to the one who does not show mercy?

"Then he will say to those on his left, ‘Depart from me, you who are cursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me." (Matthew 25:41-43).

If those who do not help people in their need are sent to the eternal fire, what will happen to those who themselves make people needy? Who makes such laws and judgements that deprive people of the most important thing: the opportunity to confess their faith?

Someone may say that all these are just general words that cannot be applied to real life and fulfilled in court proceedings. Here are practical instructions from the Old Testament to judges on how to judge on earth.

"And I charged your judges at that time, ‘Hear the disputes between your people and judge fairly, whether the case is between two Israelites or between an Israelite and a foreigner residing among you. Do not show partiality in judging; hear both small and great alike. Do not be afraid of anyone, for judgment belongs to God. Bring me any case too hard for you, and I will hear it." (Deuteronomy 1:16,17).

If our judges had at least obeyed this Old Testament admonition, we would not have seen the judgements in question.

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