Ukraine: Implications and Controversies of the Law Banning Religious Organizations Associated with Moscow

Recent, the Verkhovna Rada in Kyiv passed a law banning the activities of churches controlled by a state, specifically Russia, that is conducting acts of aggression against Ukraine. We discussed the implications and controversies of this law—which also affects ethnic Romanians in Ukraine—with Dmytro Vovk, director of the Center for Rule of Law and Religion Studies at Yaroslav the Wise National Law University (Kharkiv) and a visiting professor at the Benjamin N. Cardozo School of Law (USA)

How the ongoing war in Ukraine, which in fact began in 2014, has altered the religious landscape in the country, particularly in terms of church-state relations?

Dmytro Vovk: In the Ukrainian church-state relationship, there are two main trends here that overlap. The first trend is securitization, and the second one is a drift to a more cooperationist model of church-state relations. Since 2014, religion, and especially inter-Orthodox competition, has become a matter of security concerns. Before the war, there were several academics and experts, and some politicians, promoting this sort of “spiritual security” approach, but it was never a matter of urgent high political priority or comprehensive state policies.

When the war began, the situation dramatically changed. First of all, the state played a crucial role in the establishment of the Orthodox Church of Ukraine (OCU) and granting the Church with Tomos— ecclesiastical independence—by the Patriarch Bartholomew. In addition, the state implemented several restrictive measures against the OCU’s main rival, the Ukrainian Orthodox Church historically and ecclesiastically affiliated with the Moscow Patriarchate (UOC), including: the forced renaming of the Church to explicitly identify its links with the Russian church; more intrusive regulation of decision making processes in order to simplify the transition of the UOC communities to the OCU; and the deprivation of the Moscow Patriarchate’s right to send their chaplains to the military forces. All these measures were implemented as security-related measures, either in a narrow sense of military and political security, or in a broader sense of spiritual or cultural security.

Regarding the second trend, there are several examples of the state and church becoming closer to each other. For instance, prison and military chaplaincy appeared after 2014, the state started recognizing religious educational and academic degrees, and the state gave religions the right to establish educational institutions. So religion has become more visible in the public space. Religious prayer breakfasts have become regular practices both at the central and local levels of government.

The interesting question here is whether this drift will result in some form of official or endorsed church in Ukraine, because we see some signals from the OCU and its political sponsors that they would like to have some sort of special status as the church of majority or the national church. But at the same time, the religious landscape and the rather strong political positions of religious minorities in Ukraine will probably make it difficult to establish a special partnership between the state and the OCU, as in, for example, Romania, Georgia, Russia, or Belarus, where there is a very strong Orthodox partnership with the state.

These trends, however, do not constitute a linear process, from less religion to more religion or from less cooperation to more cooperation. In 2019 President Zelenskyi completely changed the trend at that time. He seems to be very secular and have no personal interest in religious issues (at least, at the level of institutionalized religion).

Given that, he was completely ignorant of religion and religious leaders in first years of his presidency. The situation changed significantly after the beginning of the full-scale invasion. In December 2022, under the pressure of the growing public demand to ban “the Russian Church in Ukraine” and the criticism of the part of the opposition, Zelenskyi declared a goal to preserve what he called “spiritual independence” and to ensure that Ukrainian spiritual spaces, like the Kyiv Pechersk Lavra for example, are liberated from Russian influence, and that Ukrainian religious communities are not affiliated with Russia.

Zelensky also initiated a draft law that will allow to ban religious organizations that are in any form affiliated with Russia. After more than a year and a half of political debates, the draft law was finally adopted by the Ukrainian Parliament in August 2024. The law will obviously contribute to the change of the Ukrainian religious landscape. However, it’s still not clear how the state will implement it. While some oppositional politicians and a part of the government support the full ban of the UOC with the consequent transition of its parishes to the OCU, Zelensky and his team seem to be less interested in making any sort of alliances with the OCU or plays to strengthen this church.

There have been several legislative efforts to ban religions with ties to Russia. The most recent, Bill No. 8371, has just been adopted by the Ukrainian Parliament. What are its main provisions and intended outcomes?

The law bans the Russian Orthodox Church (ROC) for its justification and active support of the Russian aggression against Ukraine. The law also establishes a legal mechanism to ban Ukrainian religious organizations affiliated with the ROC. (The UOC is meant here.

Affiliations with other Russian religions are also prohibited but the text of the law makes it very clear that the main target of this legislation is the UOC.) While the ROC’s ban is merely symbolic (the Russian Church has no chances to operate in Ukraine notwithstanding this ban), legal consequences for religious organizations affiliated with the ROC are concrete and practical.

After the law comes to force, they will be deprived with the right to use state-owned religious properties and, if they don’t revoke their connections to the ROC, they will be banned by the court (this part of the law is postponed for 9 months during which the UOC is expected to cut its ties with the ROC). The law also prohibits the so-called “Russian world” (Russky mir) ideology claiming Russia’s control, both political and spiritual, over Ukraine. Religious organizations involved in the repeated dessimination of this ideology shall also be banned.

There are several scenarios of the implementation of the law varying from the legal destruction of the UOC structure with the majority of UOC communities’ voluntary or involuntary joining the OCU to the establishment of some relatively independent structure for the UOC under the Constantinople and the postponement of the final resolution of this question for indefinite future.

Do you have any concerns regarding this law?

There are a few problematic moments in the draft law from the perspective of religious freedom. The concept of the “affiliation” with the ROC is the first of them as the law prohibits religions that have any sort of links to Russia, including historical or ecclesiastical links. They can be banned based on the mere fact of these links. International human rights standards work in quite a different way. Religious organizations can be banned for their involvement in illegal activities not for their ecclesiastical status.

For example, if you see a religious community support the military aggression, or provide the Russian military with resources or information or spread Russian propaganda, or commit any sort of crimes, and they do it collectively or the leadership of the community is involved, the ban of this community can then be an appropriate measure. However, the law sets up a different framework. It can be interpreted in a way that it’s not just about crimes and it’s more about the general contribution of the UOC to the promotion of the Russkiy mir ideology, operating as a Russian proxy for soft power in Ukraine, or even about having any sort historical or ecclesiastical links with Russia.

In addition, human rights norms presuppose that, as a general rule, the state does not need any specific legislation to address religiously related concerns. They should use general criminal law or public law norms. If you have for example, a thief who stole something in the supermarket you must prosecute this thief with general criminal laws, you don't have any specific regulations for religious thieves and for secular thieves. It is the same here, if you have national security crimes, you must prosecute people involved in crimes based on general legislation. The Ukrainian criminal code has already prohibited public denial of the Russian aggression (Article 111-1), pro-Russian war propaganda (Article 436), the justification or legitimization of Russia’s military aggression against Ukraine and glorification of its participants (Article 436-2), and the spreading of ethnic and religious hatred (Article 161).

Besides, criminal cases initiated by the Security Service of Ukraine (SBU) against UOC clerics prove that the state is able to effectively use general criminal-law norms to deal with these issues.

Second, the liquidation or the deregistration of religious communities is a measure of last resort, when less intrusive measures are not effective or are not available. We have about 40 court verdicts against UOC clerics (mostly for inappropriate speeches – religious hatred and justification of the Russian aggression) and 100+ criminal cases that are either being investigated or being considered by courts. While these are significant numbers and individuals involved in the collaboration with the Russian army or incitement of religious hatred must be prosecuted, it's still quite difficult to argue that there is no other way to address this issue other than to liquidate the whole church of more than 8.000 communities and 10000 clerics.

Third, the concept of sanctioning religious groups for ecclesiastical or historical affiliation with no need to prove any illegal behavior is internally contradictory. The UOC claims that it has become a fully independent after its council in May 2022 where the church’s “full independence and autonomy” was proclaimed. The state disagrees with this and argues that the preserved ecclesiastical links between the ROC and UOC communities are dangerous for national security. If UOC communities, which are not involved in any kind of illegal behavior and are not guided by the ROC and entities, are still actually dangerous enough to be liquidated, the formal separation from the ROC won’t make them less dangerous. They can preserve their loyalty informally and be as dangerous as they were before. However, if the formal declaration of the disloyalty to the ROC or the departure from it makes UOC communities no longer dangerous, it is safe to say that they were not initially dangerous since this declaration can be fake or imitative and the state is still happy with this.

Ironically enough, even if the UOC decides to somehow self-declare its autocephaly, from the legal perspective it still won’t be enough to avoid the dissolutions. According to the law, the mere ROC’s recognition of the UOC as a part of the Moscow Patriarchate (for example, by mentioning this in the ROC statute or by Patriarch Kirill’s blessing UOC priests) is enough for qualifying the UOC’s affiliation with the ROC even if the UOC denies this affiliation and claims to be an autocephalous church.

And finally, there are also some rule of law concerns around the possible ban of the UOC. We know that in January 2023, the government conducted a religious expert investigation, which concluded that the UOC preserves canonical and organizational links with the Russian Orthodox Church. Religious expert examinations have quite a problematic history of being applied in many post-Soviet countries against religious minorities, for example, against Jehovah’s Witnesses in Russia. But even if we put aside these problems, we see that the government appointed a panel of experts, and the majority of them, I would say, were publicly and loudly affiliated with the opposing church, with the Orthodox Church of Ukraine. This, unfortunately does not contribute to the reliability of this expert investigation and to government's intentions regarding the implementation of this law in general.

The law appears to be based on a broad concept of national security, including the idea of decolonization, which is a crucial process in Ukraine. However, from a human rights perspective, is this draft law sufficient to encourage believers to voluntarily rename their communities or join a different church?

I think you are right. In a way, the law connects the Ukrainian Orthodox Church case with a parallel process of the so-called decolonization of Ukraine. This includes measures like renaming streets, the removal of monuments and mosaics related to Russian or Soviet history, changes in school curriculums, renaming goods like beer or sausages because they still have Soviet names.

But the problem here is that from a human rights perspective, there is an obvious difference between these symbolic changes and dealing with believers by forcing them to rename their communities or join a different church.

The prime goal of the decolonization is to restore justice to those who were oppressed, for example, to Greek Catholic communities and other religious minorities or those Orthodox communities which don’t want to be affiliated with Moscow. Within this process, the state, for example, can reconsider the usage of historically significant religious properties (like Kyiv-Pechersk or Pochayiv Lavras) and is required to provide all necessary opportunities for the above-mentioned communities to freely develop. However, this cannot be done at the cost of discrimination of UOC clerics and believers who enjoy the same protection of their religious freedom as any other individual.

For example, if the state prosecutes the UOC clergy and believers for offensive or even simply harsh speech against the OCU but look through its fingers when OCU clerics or believers do the same, it has little to do with decolonization and constitute religious discrimination. (I personally think that in most situations even mutually offensive speeches of UOC and OCU clerics should be protected by their freedom of speech.)

The 2024 law does not require UOC communities to change their names anymore. If previously they were required to explicitly identify their belonging to the Russian church in their names, it’s not the case anymore because now this belonging or affiliation is completely prohibited. Regarding the transition to a different church, from the international law perspective, the state is supposed to be neutral in inter-religious relations and do not take any side in religious disputes (which is obviously very difficult to reconcile with the Orthodox tradition and political practices in Orthodox-majority states). Therefore, when it comes to UOC communities’ transitions to the OCU, the state’s main task is to remove unnecessary barriers and legally recognize the transition of those communities which would like to switch the jurisdiction and join the OCU, and to protect from blaming and discrimination those communities which would like to stay with the UOC. We see that the Ukrainian state is overall quite successful with the first task and significantly less successful with the second one.

In this sense, again, we observe that Ukraine is drifting to a more typical for Orthodox states model of church-state relations.

As you may know, most ethnic Romanians in Ukraine belong to the Ukrainian Orthodox Church (UOC). Recently, the Holy Synod of the Romanian Orthodox Church (ROC) announced its support for the establishment of a separate church for ethnic Romanians, ostensibly to help Romanian-descended individuals escape Russia’s religious propaganda. This move was met with a lukewarm response from the Orthodox Church of Ukraine (OCU). As an analyst, what is your view on the ROC’s plans? From a legal standpoint, what steps should ethnic Romanian parishioners take to join a ROC-affiliated church?

As for now, I don’t think that political leadership and president Zelensky has any interest in this issue, and, therefore, it will remain at the discretion of the state body responsible for religious affairs (the Ukrainian State Service for Ethnopolicies and Freedom of Conscience).

In my view, the Service will decide it given the interests of the OCU, which means that the Service will be reluctant to recognize any Romanian Orthodox Church structures in Ukraine, especially before its recognition of the OCU. Therefore, I doubt that the Service will recognize any kind of entity affiliated with the RomOC.

From the human rights perspective, ethnically Romanian UOC communities that would like to leave the UOC can switch the jurisdiction and join the Romanian Orthodox Church but it’s my assumption that the Service will not recognize their statues claiming their subordination to the Romanian church for the above-mentioned reasons.