Offence against the sacred

The ECHR protects the church from baseless state interference.

Peripetia unfolded around one of the greatest architectural monuments of Kyiv – St. Andrew’s Church, are once again forced to reconsider precedents in similar cases. Although its transfer to the Ecumenical Patriarchate does not change the regime for ownership of a sacral building, this may not end very well for Ukraine.

The right to autonomy

Complaints about state interference in religious affairs have already fallen into the European Court of Human Rights. The Court always argued that the church should be completely independent of the state. Because of this, the ECHR formed a certain practice of interpretation of Article 9

The Convention for the Protection of Human Rights and Fundamental Freedoms.

It affirms the right of everyone to freedom of thought, conscience and religion. The said international agreement provides these rights through the prism of relations between religious institutions and the state.

For example, in the Decision of 26.10.2000 in the case of Hasan and Chaush v. Bulgaria the Court concluded that the provisions of Article 9 should be understood as protecting the church from unreasonable interferences of the state. After all, such guarantees are necessary both for ensuring the implementation of the right of a citizen to freedom of religion, and for the adoption of one of the basic principles of pluralism in the legal state.

A relatively recent decision of 14.09.2017 in Nagy v. Hungary case, which clearly demonstrates the position of the ECHR: the church has complete autonomy. Such a status of affairs can only be supported by the state.

In an expert opinion of the human rights organization ADF International, developed upon the request of the Court, a number of international legal norms are analyzed. The authors of the document reached the unanimous conclusion that the church is endowed with the right and should have the opportunity independently, without the mediation of the government, to resolve their internal affairs. One can assume that the state in this case is only obliged to secure these rights and refrain from any unnecessary interference (in the theory of state and law – the so-called negative interference).

Ukrainian context

In due course Article 9 of the Convention was also applied to assess disputes between the church and the state in cases against our state too. In particular, in the decision of 14.06.2007 in the case of the St. Mykhaylivska parish v. Ukraine, the Court concluded: for the settlement of relations between the state and the church, Article 9 of the Convention should be applied only in conjunction with Article 11, which protects the association from unreasonable interference by the state

In Strasbourg, it was stated that citizens can only fully exercise their right to freedom of religion if they establish appropriate conditions under which the church will not be subjected to any influence on the part of the state. In the same judgment, the ECHR once again stressed that interference of secular state institutions in religious affairs is possible only if it is “necessary in a democratic society” and is carried out on the basis and in the manner prescribed in a qualitatively and easily accessible formulated law, which allows for predicting the consequences of its application.

Moreover, the position of judges in this and many other cases is based on the fact that the state must not only explain, but also prove the necessity, lawfulness and legality of its interference into those spheres of public life that they are not subject to.

Therefore, the aforementioned grand gesture of the Ukrainian Government, namely the transfer of the St Andrew’s Church to the Ecumenical Patriarchate, obviously, has no urgent need. Such questions cannot and should not be solved on the sidelines of the Verkhovna Rada and the offices of the Presidential Administration. Intervention in church activity in this case was groundless, since it was not based on norms of the law, nor on social necessity.

Moreover, Part 3 of Article 35 of the Constitution expressly states that “the church and religious organizations in Ukraine are separated from the state”. So, at the level of the Basic law the religious and socio-political spheres are divided. Obviously, this provision is conditioned by historical experience.

Article 5 of the Law “On Freedom of Conscience and Religious Organizations” also states that in Ukraine the state is separated from the church and other religious organizations. It follows from these provisions that the state and the church are independent in the exercise of their basic functions and can not in any way influence one another.

However, the Government and legislators, seeking to achieve certain political goals, neglected law and offended against the sacred, in the direct sense of the word. It is possible to outline a quite reasonable perspective: in case of addressing dissatisfied believers to Strasbourg, the ECHR will find no reason to deviate from its previous practice and will definitely be on the side of the church.

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