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Опубліковано: П'ятниця, 29 січня 2016, 12:23

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Conflicts related to the transition of the religious communities in Rivne region in the Ukrainian Orthodox Church-Kyiv Patriarchate has long not been in the legal plane. To these case, there was applied a lot of politics.

One of the tasks that I have set for myself, analyzing the materials of the case, was to understand by WHOM and AT WHAT STAGE were the violations or errors to understand how to fix them.

Thus, a normative act that regulates relations in the sphere of religion is called the law of Ukraine “On freedom of conscience and religious organizations”. What is this “FREEDOM of CONSCIENCE”?

The definition is contained in the law: this right includes freedom to have, adopt and CHANGE a religion or belief of his own choice, and freedom alone or together with others to profess any religion or not to profess any. To openly express and freely disseminate their religious or atheistic beliefs.

On the one hand, the government said that religion is a private affair of the person, and on the other hand, it would have to provide with a mechanism for the implementation of this right. After all, if there is conflict within communities, which lead to bloodshed and are starting to move abroad, then somewhere there is an ERROR.

After reviewing the decisions adopted by the courts in one of the disputes between the Religious communities of the UOC and the UOC-KP in Rivne region, village of Pticha (http://www.reyestr.court.gov.ua case No. 918/585/15) I can share some of my own thoughts and conclusions as an expert.

Thus, the key document in the dispute contesting rights of ownership of the Religious community of the UOC (Moscow Patriarchate) is the decision of the Executive Committee of the Rivne regional Council of people's deputies No. 173 dated 25.09.1991, “On the registration of statutes of religious communities and the transfer of religious buildings”.

Based on this decision, there were more than 400 religious communities in Rivne region and the so-called “religious buildings” were given to them in the property (!!!). This decision became the legal basis of the state registration of PROPERTY RIGHTS for the religious community of the UOC (Moscow Patriarchate) in the village of Pticha that gave rise to the conflict.

What is the significance of this decision of the Executive Committee of the local government in ensuring realization of the right to FREEDOM of CONSCIENCE AND religion” (?):

- The temple in the village of Pticha (the same cult construction by the decision No. 173, dated 25.09.1991), built by the village community, became the property of the UOC (Moscow Patriarchate) - a legal entity, and not of the society, - people-parishioners who built it.

- The property right is absolute and includes the right to own, use, and dispose. Today the UOC (Moscow Patriarchate), exercising its right of ownership on “religious building”, does not agree to alternate holding religious services with the UOC-KP.

- Inhabitants of Pticha, exercising their right to CHANGE religions, lost the temple, which was built by them.

From the analysis of judgments is seen that the evidence in the case are historical archival documents. These documents were supposed to give information whether the Religious community of the UOC (Moscow Patriarchate) registered 25.09.1991 was the successor of those religious communities that existed prior to its registration and, therefore, whether they had a right to give “religious building” in the village of Pticha by the decision No. 173 of 25.09.1991, in ownership, or usage.

In the Resolution of the Kiev appeal economic court from 01.12.2015 years in case No. 918/585/15 and the Resolution of the Supreme economic court of the 26.01.2016, case No. 918/585/15 is stated that the appealed decision of the Executive Committee of the Rivne regional Council of people's deputies No. 173 dated 25.09.1991 “On the registration of statutes of religious communities and the transfer of religious buildings” in terms of transfer of the building to the ownership of the UOC (Moscow Patriarchate) “is accepted within the limits of authority and norms of the current legislation”.

A little of law: according to article 17 of the law of Ukraine “On freedom of conscience and religious organizations” in the 1991 version of “cult buildings and property...have been given to organizations in which they are for free use or returned to the ownership of religious organizations...”. Thus, (from the content of the mentioned article of the law) the building may not be transferred into ownership of a legal entity, which was not the owner of the cult structure, but may be given in use. A similar provision in paragraph 6 of the Resolution of the Verkhovna Rada of Ukraine No. 988-XII dated 23.04.1991, “On the procedure for introduction in action of the law of Ukraine “On freedom of conscience and religious organizations“.

Now the most important: the Supreme arbitration court of Ukraine in case No. 6\72 from 10 March 2000 dealt with the same dispute in which similar claim of the UOC-KP is satisfied. However the decision of Rivne regional Executive Committee from 25.09.1991, No. 173 “On registration of charters of religious communities and the transfer of religious buildings” in terms of returning to the Religious community of the UOC in the village of Diadkovychy Rivne District, Rivne region of the Church of Paraskeva - is acknowledged void (!!!). Therefore, we have contradictory jurisprudence of the court of cassation.

CONCLUSIONS:

1. One of the keys of conflict resolution - amending resolution No. 173 dated 25.09.1991, and the key is in the hands of the authorities.

2. The existence of conflicting decisions of the courts of cassation in similar cases puts into question the legitimacy and objectivity of one of the decisions of the courts of cassation and is the basis of appeal to the Supreme Court of Ukraine as fourth instance in order of supervision. Further, the European court of human rights;

3. The struggle of the Religious community of the UOC KP in the village of Pticha is not kind of fighting for the temple as an object of property. It is a struggle for their human dignity, their constitutional right to freedom of religion, and even for the independence of their own country.

Lawyer Julia Scherbiak