National security is reason to ban Russian Orthodox Church (ROC) in Ukraine

The Ukrainian Orthodox Church of the Moscow Patriarchate (UOC-MP) no longer denies it links with the structures of the ROC. It is clear to everyone that after the decisions of the "revolutionary" UOC-MP council of May 27, 2022, its canonical and organizational status has not changed. The most important political task is performed by the structures of the ROC in Ukraine. It is to serve the interests of Russia, not Ukraine. With the promotion of theses about "violations" of the Constitution and international law by our state. And all this in a situation where Ukraine is desperately defending its security, democracy and free development of society in the face of the aggression of a terrorist state that fully uses the Russian Orthodox Church to realize its goals.   

These are the conclusions from reading the "Explanations of the threats to society from another anti-church bill" recently published by the legal department of the UOC-MP. The purpose of these "explanations" is to prove the validity of the conclusion that the government bill "On Amendments to Certain Laws of Ukraine on the Activities of Religious Organizations in Ukraine" (No. 8371) should be excluded from the agenda of the Verkhovna Rada of Ukraine and not put to a vote.

"Clarification" from the UOC-MP

I have already expressed my preliminary assessment of the government's draft law ("The government is saving the Russian Orthodox Church in Ukraine", January 21, 2023). It is critical because of a number of proposals from this document that will actually continue the activities of the Moscow Church in our country, harming Ukraine's national security, the interests of Ukrainian society, religious peace, and the protection of Orthodox believers from the invasion of the genocidal ideology of the Russian world.

Even these proposals were objected to by the UOC-MP. If approved at the state level, it would be recognized that the church, led by Metropolitan Onufriy, has neither "severed ties" with the ROC (as the previous leadership of the State Service for Ethnic Policy and Freedom of Conscience illegally stated) nor "dissociated itself" from Moscow (as Onufriy himself claimed). I have no doubt that such conclusions will be reached by experts working on the religious expertise prepared by the new leadership of the State Service of Ukraine for Ethno-Politics and Freedom of Conscience in pursuance of the decisions of the National Security and Defense Council of Ukraine of December 1 last year.   

The fact that there can be no other conclusions was convincingly demonstrated by the "explanations" of the legal department of the UOC-MP, although paradoxically. The main claims of the Moscow church's lawyers to the government's proposal are that the bill contradicts... the decision of the National Security and Defense Council of December 1, "in terms of the subject of amendments to the current legislation and in terms of compliance with international law."

However, the most important drawback is that the bill "grossly violates the basic provisions of the Constitution of Ukraine" regarding democracy, the rule of law, and the fundamental rights and freedoms of citizens. In support of this, the lawyers of the Moscow church extensively cited Parts I and II of the Basic Law. They noted that the purpose of the bill is to make it impossible for religious organizations whose governing center (management) is located in a state that has committed armed aggression against Ukraine. On this basis, they stated: "the document is once again aimed exclusively at interfering with the internal activities of religious organizations and violating the right of people to freedom of religion, which is fundamental and guaranteed by the state."  

They noted that the right to freedom of religion may be restricted by law, "but solely and only in the interests of protecting public order, health and morality of the population or protecting the rights and freedoms of others." In their opinion, the list of grounds for restriction is exhaustive and "the protection of national security is not included." So, the government bill "is unlawful, illegal in relation to every person who professes a particular religion."

War is a "political context" and the ROC is "out of politics"

The UOC-MP noted that the current legislation in the field of national security provides the state with all the tools to bring to legal responsibility "for actions aimed at violating the national interests, territorial integrity, state security and sovereignty of Ukraine", "without violating the limits of legal interference of the state in the sphere of activity of religious organizations." On this basis, the mechanism for terminating the activities of religious organizations by conducting a religious expert examination was criticized, since the key term (affiliation with the center of influence of a religious organization whose governing center is located in the aggressor country) is allegedly ambiguous.

This legal analysis allowed Metropolitan Onufriy's church to turn to journalistic lyrics that reveal the essence of their rhetoric, their strategy for defending their interests (which are equal to those of the ROC and Russia), and their concerns about the final form of the law banning the ROC in Ukraine.

The government's draft law is called "dangerous for Ukrainian society and all religious communities in Ukraine" because it is based on "the political context and artificial public demand, which is formed by manipulative opinion polls and media reports," as well as "insignificant decisions of local governments." It also "introduces a mechanism of unjustified interference in the internal affairs of a religious organization whose activities, in the opinion of the state, will pose a threat to national security!"

In addition, according to the lawyers of the Moscow Patriarchate, the mechanism proposed by the government "can be applied not only to the UOC but also to any other religious organization in Ukraine." And it is once again emphasized that "in accordance with international law and the Constitution of Ukraine, national security is not a ground for restricting the right to freedom of religion."

Thus, according to the UOC-MP lawyers, Russia's military aggression against Ukraine and attempts to destroy the Ukrainian state and nation are just a "political context" because the ROC is "out of politics." Sociological surveys showing a rapid loss of trust in the UOC-MP among Orthodox Ukrainians and the dominance of the Orthodox Church of Ukraine (the proportion of all Ukrainians is 50-54% to 2-4%) are "artificial public demand" and "manipulative polls." So is the support of the majority of Ukrainians (54%) for a ban on the activities of the UOC-MP in Ukraine.

The "restart" that never happened

We will try to translate what the legal department has said from their language into human language.

The UOC-MP is no longer embarrassed by the fact that a Ukrainian religious organization (association) is subordinate in canonical and organizational matters to the centers of religious organization influence (association). Its governing center (management) is located outside Ukraine ("affiliation") in a state that carries out armed aggression against Ukraine. Such subordination should be allowed because its prohibition is "unjustified interference in the internal affairs of a religious organization."

Patriarch Kirill, the entire bishops and the entire Russian Orthodox Church can promote the genocidal ideology of the "Russian world" and encourage the Russian forces to kill Ukrainians. The Ukrainian state, you see, shouldn’t care about this, because the Russian Orthodox Church is engaged in preaching "true piety," love, and peace in the world. They are the ones who determine the authenticity of the Orthodox religion, not Ecumenical Patriarch Bartholomew I with the "schismatics," the Ukrainian government, the "Anglo-Saxons" and "gay Europe." 

In this context, the failure to make public the "revolutionary" changes to the UOC-MP statute since May last year seems to be a minor "distraction" that not everyone noticed at first. The Ukrainian and world media were euphoric about the meeting, which was supposed to be the point of "restart" of the UOC-MP, with a move away from Moscow and toward Kyiv.

The "restart" did not happen because it could not happen. The leash on which Moscow keeps Onufriy "with his brothers in the bishopric" is too short.

The UOC-MP's removal of the "independence" mask was influenced by Moscow's decision, which "understood" the "independence" rhetoric of the UOC-MP since the end of May. However, it immediately clearly outlined the "red lines" that the UOC-MP cannot cross. The cessation of any real steps to gain "independence" and "self-sufficiency" under the threat of losing "canonicity." Also the firm fulfillment of a new task. There are obtaining an evidence base to illustrate the theses about "persecution of the canonical church" in Ukraine, "oppression of religion," the rights of believers, etc. In other words, basic European values, with the hope of reducing support for Ukraine in the EU and the US.

That is why the leadership of the UOC-MP, Onufriy, was not particularly impressed by the sanctions against leading representatives of the church, the searches of church premises, or the deprivation of Ukrainian citizenship of a significant part of the bishops. Unlike the Latvian Orthodox Church, which fully understood the decisions of the state authorities to withdraw from the Moscow Patriarchate.   

The main elements of the Moscow church's new strategy, both in Ukraine and abroad, are clearly evident. These include the Russian propaganda leitmotif of "persecution of the canonical church," support for the UOC-MP by a part of the Republican Party in the United States, "concern" about this problem by influential circles in Europe, and votes in "defense of the persecuted church" by several Orthodox churches that are particularly closely associated with the ROC. In particular, the bishops of the Polish Autocephalous Orthodox Church.

UOC-MP going underground is a myth

A representative of the UOC-MP used the recent visit of members of the All-Ukrainian Council of Churches and Religious Organizations to the Vatican to promote the thesis of "religious persecution" in Ukraine. The report stated Pope Francis and the Secretariat of State were informed of legislative initiatives aimed "at introducing restrictive measures and further termination of the UOC's activities, which contradicts the Constitution of Ukraine and international law."

In response, the Vatican representatives should have expressed "concern about the possibility of collective punishment of an entire denomination for individual violations of the law by individual clergymen." The information reports of the Apostolic See about the visit of the AUCCRO (All Ukraine Council of Churches and Religious Organizations) do not mention such statements, which is a "trifle" for the UOC-MP. On its official website, the message was headlined: "The Vatican condemns any religious persecution in Ukraine." Obviously, this is a blatant manipulation.

These will be the main "messages" of the Moscow Church's new campaign about the religious situation in our country. The UOC-MP is "persecuted," the clergy and faithful are "harassed," and "the danger of persecution applies to all denominations." So what if all this is a lie? It doesn't matter, because the point is to get the desired result.

Unfortunately, despite the actions of the Ukrainian authorities, the leadership of the UOC-MP can feel relatively safe. The government's draft law states the duration of the court procedure for banning its activities is measured in years. A lawyer I know estimated that the decision of the Court of Appeal (and there will certainly be appeals) can be expected by 2025. Later, when the decision of the Ukrainian courts is negative for the UOC-MP, it will appeal to the European Court of Human Rights. And it has been considering individual cases for years.

During this time, the Moscow church will operate freely, broadcasting its propaganda. It will be protected by Ukrainian and international law, which does not allow any actions against the subject of the judicial procedure (religious organization/association) during the case.      

In the discussion about banning the ROC in Ukraine, there are warnings about "driving the UOC-MP underground" and its "halo of martyrdom" among the faithful who, despite the war, remain supporters of the Moscow church. There are still quite a few of them.

None of this will happen, because the UOC-MP will continue to operate freely as a religious association for a long time to come, with its canonical and organizational center remaining in Moscow.   

To avert this danger, a group of MPs and I registered in the Verkhovna Rada of Ukraine a draft law "On Ensuring the Strengthening of National Security in the Field of Freedom of Conscience and Activities of Religious Organizations" (No. 8221), which was unanimously supported by members of the relevant committee. The explanations of the legal department of the UOC-MP demonstrated the correctness of the key proposals of our project. The priority of national security issues in the process of banning the activities of the ROC in Ukraine; the need for a direct ban on the activities of the ROC in Ukraine; and the regulation of the situation in Ukrainian Orthodoxy in accordance with the Tomos on the autocephalous church structure of the Orthodox Church in our country. 

Kirill and the ROC should be in the dock

The government's draft law does not use the term "national security," nor does the Explanatory Note to it (the term "national interests" is used once, which is not legally the same). However, in the "Explanations" of the legal department of the UOC-MP it is used several times with a categorical statement: the protection of national security cannot be a ground for banning the activities of a religious organization/association. That this is allegedly confirmed by international law.

I have already argued ("Ukraine is obliged to ban the Russian Orthodox Church". December 7, 2022) that the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights (ECHR) simply oblige our state to ban the activities of the Moscow church. The ECHR allows for restrictions in the interests of national security on the right to freedom of conscience and religion in the context of the right to association (including religious associations). The guarantees of the right to freedom of conscience and religion (Article 9) must be interpreted in the context of Article 11 of the Convention. Restrictions are introduced by law in the presence of circumstances that make such restrictions necessary for a democratic society. The interests of national security are named in the first place.

The ECHR clarified that "associations engaged in activities contrary to the values of the Convention" cannot enjoy the protection of its provisions. In addition, "no one shall be authorized to rely on the provisions of the Convention in order to weaken or destroy the ideals and values of a democratic society." To "guarantee the stability and effectiveness of the democratic system, the State may be required to take specific measures to protect it." Such guidelines are aimed "at providing democracies with the means to combat acts and activities that destroy or improperly limit fundamental rights and freedoms, whether or not these acts or activities are carried out by the state."

It cannot be any clearer. It is the application of the ECHR case law that the Moscow church fears. If the ban on the ROC's activities in Ukraine is justified by national security needs, then after the relevant law is approved, when it is appealed, it will be necessary to argue that the Moscow church under the leadership of Patriarch Kirill serves the national security of Ukraine, faithfully supporting the ideals and values of a democratic society.

Does it sound absurd? Absurd, which is why the UOC-MP spokespersons are desperately trying to deny the ban on the Moscow church on the grounds of national security and the interests of a democratic society. Under the previous leadership, the same position was taken by the State Emergency Service, which selflessly "advocated" the interests of Metropolitan Onufriy's church.  

A chance that cannot be missed

The task of Moscow and its henchmen in Ukraine is to preserve the structures of the Russian Orthodox Church in our country, to ensure that it is punished for allegedly "violating democracy, fundamental human rights and freedoms." That is, to turn everything upside down. So, our task is to imprison (currently in absentia and symbolically) Kirill and the ROC for assisting Russia in its armed aggression against Ukraine, encouraging it, justifying it, and arming it with the genocidal ideology of the "Russian world."

Unfortunately, when preparing draft law No. 8371, the government did not follow a rational path, choosing a longer, more complex law that can be successfully challenged in Ukrainian and European courts. Judges will ask why our state did not use the case law of the ECHR and instead used the mechanism of religious expertise. The mechanism is not clearly spelled out, the religious expertise is not based on proper criteria, and the affiliation with Moscow is not defined. Consequently, the "clarifications" of the UOC-MP legal department may have some legal force.

That is why "Carthage must be destroyed." To protect Ukrainian independence and democracy, it is necessary to adopt as soon as possible the draft law "On ensuring the strengthening of national security in the field of freedom of conscience and activities of religious organizations" (No. 8221).

Mykyta Poturaiev, chairman of the Parliamentary Committee on Humanitarian and Information Policy (Servant of the People faction), suggested three options for solving the problem: the adoption of the government's bill, the adoption of bill No. 8221, or the development of a "committee" draft that will combine both proposals.

I think this is a realistic basis for constructive work in parliament, which stems from the realization that the period of flirting with the UOC-MP's "independence," "autonomy," and "greater autocephaly" than the Orthodox Church of Ukraine is over. The time has come to implement a new strategy to avert threats to the Ukrainian state, its national security, the development of democracy, and the protection of Orthodox believers from the influence of the Russian world.

We must give an answer to this. A legally justified one, in accordance with international law and the case law of the ECHR. To strengthen national security, protect freedom and democracy, and ensure that Orthodox believers are not interfered with by Moscow.