December 28, 2022
On Tuesday, December 27, at a plenary session, the Constitutional Court of Ukraine delivered a Decision in the case upon the constitutional petition of 49 People's Deputies of Ukraine regarding the conformity of the Law of Ukraine “On Amending Article 12 of the Law of Ukraine "On Freedom of Conscience and Religious Organisations" regarding the statutory name of religious organisations (associations) that are part of the structure (affiliate with) a religious organisation (association), governing centre (administration) of which is located outside Ukraine in a state that is recognised by law as having implemented military aggression against Ukraine and/or temporarily occupied part of the territory of Ukraine” (the case regarding the full statutory name of religious organisations) (hereinafter referred to as “the Law No. 2662-VIII”) with the Constitution of Ukraine.
The judge-rapporteurs in this case were Serhiy Holovaty and Oleksandr Petryshyn.
The Constitutional Court of Ukraine declared the impugned Law as conforming to the Constitution of Ukraine.
The adopted Law obligated religious associations to reflect their affiliation with a religious organisation (association) outside Ukraine, to which it is a member, by mandatory reproducing the full statutory name of such a religious organisation. In addition, this Law established restrictions in the conditions of war on the access of clergy, religious preachers, mentors of religious organisations, governing centre (administration) of which is located outside Ukraine in the state which according to the law was declared as such that had carried our military aggression against Ukraine and/or temporarily occupied a part of the territory of Ukraine to units of the Armed Forces of Ukraine and other military formations of Ukraine in the places of their deployment, other military formations of Ukraine in the places of their deployment or other restrictions provided for by the Law.
The subject of the right to constitutional petition asserted that the Law No. 2662–VIII violates the right of everyone to freedom of conscience and religion guaranteed by the Constitution of Ukraine, the right of citizens of Ukraine to freedom of association, as well as the procedure established by the Constitution of Ukraine to prohibit the activity of associations of citizens. According to the subject of the petition, the contested Law No. 2662-VIII is unconstitutional due to the violation of the constitutional procedure for its consideration and adoption.
The Constitutional Court of Ukraine declared the Law No. 2662-VIII and Article 12 of the Law No. 987-XII, as amended by the Law No. 2662-VIII, as the subject of constitutional review in this case.
When resolving the case, the Court took into account its formulated legal positions, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and the case law of the European Court of Human Rights, other international acts and instruments.
In delivering the Decision, the Constitutional Court of Ukraine assumed that freedom is a fundamental value for a democratic state. According to Article 35 of the Basic Law, everyone has the right to freedom of conscience and religion.
At the same time, in this case, the Court clarified the aim of the introduced restrictions on the right to freedom of religion in combination with the right to freedom of association and the compliance of such restrictions with international standards of the right to freedom of religion.
When delivering this Decision, the Court took into account not only probable (hypothetical) risks that could exist in the process of adoption of the Law No. 2662-VIII, but also real consequences and threats from the activities of religious organisations (associations), the governing centre (administration) of which is located outside the borders of Ukraine in a state recognised by law as having carried out military aggression against Ukraine and/or temporarily occupied its territory, in the conditions of a prolonged full-scale war of aggression against the Ukrainian state, encroachment on its sovereignty, territorial integrity and people's lives.
The Constitutional Court assumes that the state has the right to apply measures that restrict freedom of religion, in particular, for reasons of public order (Article 35 of the Basic Law) or national security (Article 36 of the Basic Law), etc.
Religious groups (associations) can choose a name of their choice, guided by their own dogmas, canons, principles, etc. However, this does not mean that the right to one's own name is absolute. The Decision states that the right of a religious organisation to have its own statutory name is subject to restrictions established by national and international norms in accordance with a lawful (legitimate) aim.
The purpose of the Law No. 2662–VIII is to ensure the state security and sovereignty of Ukraine, as well as to provide society with complete and reliable information.
Therefore, the legislator, standardising the procedure for carrying out registration and accounting activities in relation to religious organisations (associations) that are subordinate to religious centres (administrations) in the aggressor state, had the right to apply restrictions in the form of the obligation of such religious organisations (associations) to specify their statutory name in this section and reflect this in their statutory acts. In adopting its decision, the Constitutional Court of Ukraine took into account the judgment of the European Court of Human Rights in the case of Ilyin and Others v. Ukraine, where, in particular, it is noted: „the mere fact of a State requiring a religious organisation which is seeking registration to take on a name which is not liable to mislead believers and the general public and which enables it to be distinguished from already existing organisations can in principle be seen as a justified limitation on its right to choose its name freely“.
Thus, the Court concluded that restrictions on freedom of conscience (religion) in combination with freedom of association in terms of the obligation to clarify the name of religious organisations are legitimate, and therefore permissible.
The Constitution of Ukraine and a number of international treaties allow for the possibility of infringing on human rights under certain circumstances and conditions. These circumstances include acts of armed aggression that threaten not only the territorial integrity of the state subjected to an armed attack, its political independence, state sovereignty, but also the existence of the state itself, which is the object of the aggression per se.
Such measures, in particular, include restricting the access of clerics of a religious organisation (association), which are included into the structure (affiliate with) of a religious organisation (association), and is subordinate to its governing centre. The free access of such clergy to the units of the armed forces of the state that have been subjected to aggression creates significant risks for military personnel.
In this regard, the Court considers that the specified restriction is also lawful (legitimate) in its aim and objectively justified, since it contributes to ensuring the defence capability of the state and the combat capability of Armed Forces' units under the conditions of armed aggression, complies with the criteria for certain limitations that are reasonable and justifiable in a democratic society, and therefore is constitutional.
The Constitutional Court of Ukraine asserts that the provisions of the impugned Law No. 2662-VIII as a whole have a legitimate legal basis, and as they are adopted in a constitutional manner, they define a legitimate aim, and thus are necessary in a democratic society and comply with an urgent public need in Ukraine.
The Constitutional Court of Ukraine concluded that the Law of Ukraine “On Amending Article 12 of the Law of Ukraine “On Freedom of Conscience and Religious Organisations“ is constitutional.