Shmyhal bill: banning the UOC in 4 moves

On 19 January 2023, draft law 8371 on banning religious organizations with a governing centre in Russia in Ukraine has been submitted to the Verkhovna Rada.

The bill is aimed at "ensuring spiritual independence, preventing a division in society along religious lines, promoting the consolidation of Ukrainian society and protecting national interests”.

It provides for amendments to the laws of Ukraine "On Freedom of Conscience and Religious Organisations" and "On State Registration of Legal Entities, Individual Entrepreneurs and Public Organisations”.

Its initiator is the head of the Cabinet of Ministers Denis Shmyhal. It means that the bill is sure to be passed. This was stated by an MP from the "Servant of the People" party, a member of the VR Committee on National Security, Defence and Intelligence Fedir Venislavsky on "Channel 5": "This bill is a priority in terms of national security of Ukraine, and the issues of state sovereignty and territorial integrity clearly prevail over a possible negative assessment of the prohibition of religious organizations with the governing centre in the Kremlin, so I predict that this law will be passed fairly quickly. I think that by the end of winter, there is every chance of this bill being passed at least in the first reading.”

Parliament speaker Ruslan Stefanchuk said the same thing at the beginning of the year: "Today society and all of us are ready for radical decisions. The Cabinet has been assigned the task of developing a bill which, I am convinced, will be unanimously adopted by the Verkhovna Rada of Ukraine in the very near future".

The author of the other bill 'on the ban', an MP of the 'European Solidarity Party', Mykola Kniazhytsky, has already reacted to such an activity of the Cabinet of Ministers with quiet anger. He complained that a similar bill already exists and was even supported by the relevant Verkhovna Rada committee. You can read more about Kniazhytsky’s draft law in the article "The Bill to Ban the ROC in Ukraine: What is the Catch?” We remind briefly that it assumes that, firstly, the Russian Orthodox Church will be banned in Ukraine, and secondly, that only those religious organisations that are either subordinate to the OCU or received permission from it can be called "Orthodox”.

M. Kniazhytsky is a representative of Poroshenko's “Euro-Solidarity” party, which believes that the church issue is their exclusive and therefore does not want to give up the initiative. The MP said that the Cabinet of Ministers introduced its own bill and did not support his bill because they want to "build autocracy”. This looks like a showdown between two hyenas, fighting for the right to claw the victim first.

It is no secret that all these (and many other) bills are directed against the UOC. Let's take a look at the moves prepared for believers in the Cabinet of Ministers.

Move 1: Prohibition

Step 1 is the ban itself. It is formulated in the form of an addition to Article 5 "Separation of Church (Religious Organisations) from State" of the Law of Ukraine "On Freedom of Conscience and Religious Organisations”:

"Activity of religious organisations affiliated with centres of influence of religious organisation (association), the governing centre (management) of which is located outside Ukraine in the state carrying out an armed aggression against Ukraine, is not allowed’.

This wording refers to three entities:

1. The religious organisations whose activities are not allowed. These are parishes, monasteries, etc.
2. The centre of influence of a religious organisation (association). This can be an eparchial office but most likely the Kyiv Metropolis of the UOC itself.
3. A governing centre (management) located outside Ukraine in a state carrying out armed aggression against Ukraine. This is the Moscow Patriarchate.

It is not difficult to see that the relationship between Entity №1, i.e. the parish, and Entity №2, i.e. the metropolis, is designated by the term "affiliation", and subject №2 itself is not called the governing centre and not the control centre, but the centre of influence. The concept of "influence" is much broader than "governance" and can be interpreted in any broad sense and applied to any number of persons.

Ukrainian legislation does not define the term "affiliation" in relation to religious organisations. Accordingly, officials will interpret it at their discretion. They did it all so that it would be easy to prove the connection of a parish or a monastery to the centre of influence, i.e. the Kyiv Metropolis of the UOC. The head of the State Service for Religious Affairs V. Yelensky once complained that it would be difficult to ban UOC communities because they can be described in their statutes as organisations that are independent of anyone. This wording of the ban is intended to solve this problem, because it is fairly easy to prove that a parish or monastery is "affiliated" with the Kyiv Metropolis, and the Metropolis itself is the "centre of influence" for the parish and monastery, even if the statutes do not say so.

The relationship between Entity #2 and Entity #3, on the other hand, is defined as "governance" or "management". That is, in order to ban a UOC community, one must prove that the community is influenced by the Kyiv Metropolis, while the Metropolis itself is governed by a centre in Russia.

Move 2: Religious expertise

The next three moves are to expand the powers of the central executive body that implements state policy on religion. As of today, it is the State Service of Ukraine for Ethnopolitics and Freedom of Conscience (DESS – in Ukrainian), which is headed by Viktor Yelensky, a long-time antipathic of the UOC.

Thus, Article 30 "The central executive body implementing the state policy in the field of religion" of the Law of Ukraine "On Freedom of Conscience and Religious Organisations", which describes the mandate of the DESS, is supplemented with the following paragraph:

"To conduct religious expertise of the activities of religious organisations to identify subordination in canonical and organisational matters with the centres of influence of a religious organisation (association), the governing centre (management) of which is located outside Ukraine in the state carrying out armed aggression against Ukraine".

That is, V. Yelensky will determine together with his subordinates whether the UOC in canonical and organizational matters is subordinate to the Moscow Patriarchate. We can assume that this expertise will conclude that the UOC is not subordinate to the Moscow Patriarchate in organizational matters because everyone can imagine such "organizational matters" quite clearly. And there is no hint in the statutory documents of the UOC and the ROC about the organizational relationship.

But the canonical questions are another matter. Few can imagine what this is, what canon law is in general, what its sources are, etc.. Therefore, any arbitrariness is possible here. And the most likely result of the "examination" led by V. Yelensky is that the UOC will be recognized as dependent on the ROC in canonical issues, even though the statutory documents of the UOC do not mention that. Moreover, another option in the current situation is in fact impossible; otherwise, it will be unclear why the authorities launched this wild campaign against the UOC in the first place.

Move 3: Elimination of violations

This is the next new power of the DESS, a continuation of the same Article 30 of the Law of Ukraine "On Freedom of Conscience and Religious Organisations":

"Issuance of orders to eliminate violations identified as a result of the religious expertise within one month from the date of the issuance of the order".

If the DESS had identified any references to the ROC in the statute of the ROC, it could have demanded that they be removed from there. But how can something that is not formally defined, namely issues of canonical subordination or affiliation be eliminated?

That is, Yelensky says: we have found the canonical relationship with the ROC, remove it. And the UOC says – we do not have these relations. Next, after a month given to eliminate the violations, the DESS will be able to boldly declare that the violations have not been eliminated and make the next move.

Move 4: Appeal to the court

The next new power of the DESS is defined in the continuation of the text of Article 30 of the Law of Ukraine "On Freedom of Conscience and Religious Organizations":

"Appeal to the court with an administrative action to terminate the activities of a religious organisation in the case of its failure to comply with orders to eliminate violations, revealed as a result of the religious expertise, within the prescribed time frame."

The Law of Ukraine "On Freedom of Conscience and Religious Organisations" provides for the possibility of terminating the activities of a religious organisation only in two cases: by decision of the religious organisation itself and by court decision. Moreover, article 16 "Termination of activities of a religious organisation" provides an exhaustive list of grounds for such a court decision. Failure to comply with the DESS's orders is not included in this list. Bill 8371 addresses this "gap" and supplements Article 16 with the following paragraph: "In the case of other violations of the requirements for the establishment and activities of a religious organisation (association) established by the Constitution of Ukraine, this and other laws of Ukraine”.

Thus, bill 8371 gives light to bureaucratic arbitrariness. After all, the notion of "other violations" can be applied to anything. But in this case, of course, they mean the revelation of the canonical connection or subordination to the ROC by the DESS "expertise". And in order that there would be no questions at all about the possibility of a legal ban of religious organisations at the suit of the DESS, Art. 16 is supplemented with the following text:

"In the cases stipulated by the present Law, the activity of a religious organisation may be terminated in court upon an administrative action of the central executive authority implementing the state policy in the field of religion or the public prosecutor."

How should a judge deal with such cases? If the judge is conscientious and unbiased, he should appoint a forensic examination to verify the correctness of the DESS. And most likely such a forensic examination will be assigned to the Institute of Philosophy of the National Academy of Sciences of Ukraine, namely the Department of Religious Studies, headed today by Oleksandr Sagan, another longtime antipathic of the UOC. There is no doubt that the results of the examinations under the direction of these two religious scholars will coincide.

Conclusion

It should be noted that there is no direct mention of the UOC in bill 8371, just as there is no mention of it in other anti-church draft laws. Therefore, the adoption of this bill does not automatically mean the UOC ban. However, the four-step process will certainly be given the green light. In this connection, we would like to draw attention to another statement by Fedir Venislavsky, an MP of the "Servant of the People" party and a member of the VR Committee on National Security, Defence and Intelligence: "I think that we will write the final version of the bill in such a way that if a religious organisation does not give up its management by the aggressor country or declares that there are no links – either canonical or organisational or legal – then it will be decided in each specific case.”

In other words, the UOC will be required to dissociate itself from the ROC in canonical, organisational, and legal matters. As a matter of fact, the UOC did so at the Council of the UOC in Feofaniya on 27 May 2022. What else can they demand from the UOC?

The OP spokesperson Mykhailo Podoliak and the head of the State Ethnopolitics Sevice V. Yelensky said that only one Orthodox denomination (the OCU) should remain in Ukraine. Therefore, the authorities will do everything in their power to force the parishes to join the Dumenko structure. Apparently, the OCU will become a "court church" and the UOC will remain Christlike. Whether it will be in legal/semi-legal status or go into hiding is too early to say.