Source: www.forum18.org
Date: August 21, 2024
https://www.forum18.org/archiv
By Dmytro Vovk, @VovkDmytro
Russia's war against Ukraine, and especially its full-scale invasion of
Ukraine launched in February 2022, has strengthened the Ukrainian state's
interference into religious affairs. It has also turned its relations with
the Ukrainian Orthodox Church (the UOC, which is historically and
ecclesiastically affiliated with the Moscow Patriarchate) into a security
issue.
Concerns over the UOC's affiliation, the alleged or already proved in court
involvement of several UOC bishops and priests in crimes against national
security, and also the growing public support for the imposition of
extraordinary restrictions on the UOC, have all resulted in a draft law
aiming to ban the UOC (https://www.forum18.org/archi
for its links with Russia and a variety of security measures and criminal
proceedings against UOC clerics and believers. Parliament, the Verkhovna
Rada, finally approved the law on 20 August and it now goes to President
Volodymyr Zelensky for signature (see forthcoming F18News article).
Many clerics and believers of the UOC have and are facing criminal cases on
charges of justifying Russian aggression and inciting religious hatred.
Many of the cases are instigated or have the involvement of the Security
Service of Ukraine (SBU). One such is the case of Fr Mykola Danylevych, the
Kyiv-based deputy head of the UOC Department of External Relations (see
below).
The SBU appears to interpret criticism of state policies regarding the UOC
as well as UOC clerics' verbal attacks on other religious communities, and
above all, on the UOC's rival Church - the Orthodox Church of Ukraine (OCU)
recognised by the Ecumenical Patriarchate of Constantinople - as
dissemination of "pro-Kremlin" or "Russian propagandist" narratives (see
below).
Clerics and believers of the UOC have been punished for often harsh
rhetoric against the OCU. However, OCU clerics and believers are rarely
punished for often harsh rhetoric against the UOC (see below).
While combating religious hatred and speech justifying the Russian attack
on Ukraine, the state should follow international standards and
recommendations in this field. These include:
- religious hatred should not be perceived as a national security issue per
se;
- restrictions imposed on religious speech must be applied in a
non-discriminatory manner;
- claims of religious superiority or inferiority do not constitute
religious hatred or extremism;
- court assessments of religious hatred cases cannot be abstract and
non-contextual;
- international law tends to perceive anti-hatred norms as, first of all, a
legal tool to protect vulnerable groups and religious minorities (see
below).
Fr Mykola Danylevych's case
One of the most prominent cases against clerics of the Ukrainian Orthodox
Church (UOC, which is historically and ecclesiastically affiliated with the
Moscow Patriarchate) is that of Fr Mykola Danylevych. He is the Kyiv-based
deputy head of the UOC Department of External Relations.
In April 2024, the Security Service of Ukraine (SBU) charged Fr Danylevych
with incitement of religious hatred (Criminal Code Article 161) and
justification of Russian aggression (Criminal Code Article 436-2). He was
put under house arrest and is still waiting for his case to be heard in a
Kyiv court.
According to the SBU
(https://ssu.gov.ua/novyny/sbu
Fr Danylevych called for the "joint prayer with the occupiers" and
systematically used his Telegram-channel (https://t.me/MykolayDanylevyc
(a one-way feed in Telegram messenger) to share "pro-Kremlin narratives"
among his over 2,800 subscribers.
The SBU additionally claims that Fr Danylevych, who also coordinates a
network of UOC parishes abroad, spread "Russian Federation propagandist
narratives" wrapped into spiritual assistance to Ukrainian refugees. Fr
Danylevych called these accusations politically motivated and connected
them to his role in the UOC Department of External Relations.
While the SBU provided no further details regarding Fr Danylevych's case,
previously the SBU had reported about criminal cases regarding other UOC
clerics involved in "disinformation about the social-political situation in
Ukraine", including "so-called 'persecutions'" against the UOC.
The SBU also informed
(https://ssu.gov.ua/novyny/sbu
about a UOC metropolitan who had written "pro-Kremlin leaflets and
brochures". In these, the SBU alleged, he "offended religious feelings of
Ukrainians, diminished convictions of believers belonging to other
religions and promote hostile views regarding them".
In addition, the SBU points to religious hate speech criminal cases
initiated against UOC clergy as part of its work to protect Ukraine's
national security.
Therefore, the SBU appears to interpret criticism of state policies
regarding the UOC (so-called "persecutions") as well as UOC clerics' verbal
attacks on other religious communities, and above all, on the UOC's rival
church - the Orthodox Church of Ukraine (OCU) recognised by the Ecumenical
Patriarchate of Constantinople - as dissemination of "pro-Kremlin" or
"Russian propagandist" narratives.
Criminal cases against UOC clerics
Fr Mykola Danylevych is not the only UOC priest accused of incitement of
religious hatred and / or the justification of Russian aggression. The
Registry of Court Decisions (https://reyestr.court.gov.ua/
of court verdicts and procedural rulings in such cases. Some of these were
initiated against UOC clerics and closely-related believers that presumably
used religious arguments or their ecclesiastical status to blame and label
other religious communities and justify the Russian attack on Ukraine.
For example, in June 2022, a UOC cleric serving in Dnipropetrovsk Region
was sentenced to suspended imprisonment
(https://reyestr.court.gov.ua/
hatred against Ukrainians and Jews. While conducting a service, the cleric
claimed to his flock, in a clearly anti-Semitic manner, that the division
between Russians, Ukrainians and Belarusians was created by Jews, who also
provoked a "civil war" between Russia and Ukraine. He also claimed that
Jews "educated many nationalists during the last 30 years [of Ukrainian
independence], they have whole battalions, whole brigades fighting [in this
war]".
In February 2024, a UOC cleric's wife was sentenced to suspended
imprisonment (https://reyestr.court.gov.ua/
District Court of Zaporizhzhia Region on charges of justifying Russian
aggression. She shared in an online chat the argument that "in Ukraine,
Russia is fighting to the death with an unequivocal anti-Orthodoxy. … The
essence of the Ukrainian regime is the war against Orthodoxy. … Russia
did not provoke them; the war just de-masked them and forced them to hurry
up. … The Orthodox Church of Ukraine was created with the only goal—to
turn Ukraine into an anti-Russian project, which is impossible without
undermining Orthodox unity [between Russia and Ukraine]. … Russia's only
fault is that previously it lacked the strength to choke off a
wriggling-out young serpent but waited until [this serpent] became a
dragon."
In April 2024, a UOC priest serving in Sumy Region was sentenced to
suspended imprisonment (https://reyestr.court.gov.ua/
charges of justifying Russian aggression. While preaching and communicating
with believers, he blamed Ukraine for the start of the war with Russia in
2014 and blamed Europe for the dissolution of ancient Rus and the USSR and
what he claimed was its current intention of using Ukraine as a means to
dissolve Russia. The priest insisted that "the Third World War has been
going on… But Russia is not fighting against Ukraine…. Again, all
Europe led by America is going to war against Russia."
However, in many cases UOC clerics' harsh religious speech (primarily
against the OCU) does not refer explicitly to the Russia-Ukraine war. For
example, a UOC cleric serving in Dnipropetrovsk Region was convicted on
charges of inciting religious hatred
(https://reyestr.court.gov.ua/
criticism of the OCU. The court argued that the cleric provoked the
negative stance towards the OCU by putting the Church's name into quotation
marks, thereby implying that the OCU is not a real Church but, as the
cleric had maintained, "a superficial project of the unification of
Ukrainian Orthodoxy … with purely political and electoral goals".
A UOC believer and member of a UOC-affiliated non-governmental organisation
was fined for inciting religious hatred
(https://reyestr.court.gov.ua/
"a train going down to the abyss", labelling its believers as "insane,
evil-minded and demonic people", and calling the OCU leader, Metropolitan
Epifany, "a sick person" with no sense of conscience or humanity.
A UOC cleric based in Dnipropetrovsk Region was punished for claiming that
the UOC was "the only true faith" while the OCU were schismatics and
cultists, "a political party and a pure fraud" headed by an "illegitimate
leader". The cleric insisted that the OCU had no grace, and its believers
will not be saved. The Amur-Nizniodniprovskyi District Court of
Dnipropetrovsk qualified these speeches as incitement to religious hatred
(https://reyestr.court.gov.ua/
A UOC believer was accused of inciting religious hatred
(https://reyestr.court.gov.ua/
at a meeting of an Orthodox community in the village of Tarasivka in Kyiv
Region and, then, on her Facebook account, condemning OCU members who
raided her community's property and beat her fellow believers.
Combating religious hatred: International law perspective
The Ukrainian state has a strong legitimate interest in combating religious
hatred and speech justifying the Russian attack on Ukraine. While doing
this, however, the state should follow international standards and
recommendations in this field.
First, religious hatred should not be perceived as a national security
issue per se. Obviously, freedom of religion or belief (FoRB) cannot be
utilised to justify the Russian aggression. However, criticism of the
state's religious policy or even spreading religious hatred should not be
turned into a security issue simply because the state considers a
particular religious community (in this case the OCU) as the national
religion or more patriotic or more loyal to the state.
Similarly, criticism of state policies in the religious domain, either on a
religious or political basis, or of the state's perceived favouritism of
the OCU, generally fall within the scope of freedom of speech – including
of UOC clerics and believers. It should not be considered a threat to
national security and prosecuted as such.
Second, there is no one particular model of regulation of religious speech
that fits international law. The scope of protected speech can vary from a
broader approach in the United States to more restricted models in Europe.
However, restrictions imposed on religious speech must be applied in a
non-discriminatory manner.
In Ukraine, relations between the two biggest Orthodox churches are
overheated on both sides. OCU clerics and supporters call the UOC clergy
and believers people who are "sick with the Russian Orthodox Church of the
FSB (https://t.me/padrePoltava/421
type
(https://life.kyiv24.news/news
and "traumatised by the Moscow faith in worshipping
(https://www.facebook.com/stor
and, therefore, need some treatment before joining a "real" Church. They
blame UOC believers for "bringing war to Ukraine
(https://www.facebook.com/reel
religious extremism
(https://www.facebook.com/menz
With only a few exceptions (https://reyestr.court.gov.ua/
the state does not attempt to restrict this type of speech.
(While such statements by OCU clerics and believers may not necessarily
constitute hate speech, the state's differential approach demonstrates that
its anti-hatred measures are inconsistent and might be biased.)
Third, claims of religious superiority or inferiority do not constitute
religious hatred or extremism (as noted by the2019 OSCE/ODIHR Freedom of
Religion or Belief and Security: Policy Guidance
(https://www.osce.org/odihr/42
the incitement to violence, hatred or discrimination. Thus, both the UOC
and the OCU - as well as any other religious communities or individuals -
shall be allowed to argue for the exclusivity of their faith.
Fourth, court assessments of religious hatred cases cannot be abstract and
non-contextual. While deciding whether a certain speech constitutes
incitement of religious hatred, courts should take into account the context
of the speech and provide a nuanced, case-by-case assessment. The cases
already considered and being considered by Ukrainian courts do not prove
that their approach to the assessment of religious speech is nuanced
enough.
The 2017 Rabat Plan of Action
(https://www.ohchr.org/en/free
advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence recommends applying a
six-pronged test, taking into account:
1) the social and political context;
2) the status of the speaker;
3) the intent to incite the audience against a target group;
4) the content and form of the speech;
5) the extent of its dissemination;
6) the likelihood of harm, including how imminent it might be.
Importantly, international law tends to perceive anti-hatred norms as,
first of all, a legal tool to protect vulnerable groups and religious
minorities (see the 2024 Report by the UN Special Rapporteur on Freedom of
Religion or Belief on the advocacy of hatred based on religion or belief
A/HRC/55/47
(https://www.ohchr.org/en/docu
In these terms, the state should consider whether harsh criticism or even
hatred against the OCU, as sociologically the biggest Ukrainian religious
group, always require a criminal-law response.
Real threat, but freedom of religion or belief concerns
The cases of Fr Danylevych and some other UOC clerics and believers signal
that state policies regarding the UOC provoke FoRB concerns. While the
state attempts to address a real threat of the utilisation of religion to
support and justify the Russian aggression, it is inclined to do this by
using tools - in particular by imposing a blatant ban on the UOC and by
turning inter-Orthodox relations in Ukraine into a security issue - that
are neither reasonable nor proportionate.
- Dmytro Vovk (https://x.com/VovkDmytro) is a visiting professor at the
Benjamin N. Cardozo School of Law. He also runs the Center for the Rule of
Law and Religion Studies at Yaroslav Mudryi National Law University in
Ukraine. (END)
More reports on freedom of thought, conscience and belief in
Russian-occupied Ukraine (https://www.forum18.org/archi
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(https://www.forum18.org/archi
Forum 18's compilation of Organisation for Security and Co-operation in
Europe (OSCE) freedom of religion or belief commitments
(https://www.forum18.org/archi
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