6 April 2023 / Dmytro Vovk, @VovkDmytro
The government revoked the 10-year-old agreement for the Ukrainian Orthodox Church (affiliated with the Moscow Patriarchate) to rent the state-owned Kyiv Pechersk Lavra (Monastery of the Caves), claiming some constructions had been built on the site illegally. The UOC did not fully comply with the 29 March deadline to leave. The Lavra’s UOC abbot faces a criminal case and a court placed him under house arrest. The government backs a rival Orthodox jurisdiction. «In Ukraine, there will be only the Orthodox Church of Ukraine,» a presidential aide declared.
On 10 March, the government notified the Ukrainian Orthodox Church (UOC) that the ten-year-old agreement for it to rent the state-owned Kyiv Pechersk Lavra (Monastery of the Caves) was to be terminated with effect from 29 March. The government claimed the UOC had illegally built 36 buildings on the Lavra, including administrative buildings, storage spaces, and monuments, although some of these pre-date the 2013 rental agreement. The UOC has not fully complied with the de facto expulsion.
© RadioSvoboda.org (RFE/RL)
The UOC brought a case to Kyiv Economic Court demanding that it find the government’s decision invalid. The court hearing is due to start on 24 April. The UOC also asked the Court to suspend the government decision until the court resolves the dispute, but the Court refused this (see below).
The Lavra has been the location since the 1990s of Kyiv Theological Academy and Seminary, a UOC male monastery, and the UOC central eparchy and administrative departments. In 2013, the Government made a decision to rent the UOC a set of Lavra properties for an indefinite time period, and made a rental agreement stating this (see below).
On 1 April, the Security Service of Ukraine (SBU) searched the residences of the Lavra’s abbot, Metropolitan Pavlo (Lebid), as it suspects him of «violation of citizens’ equality based on their race, nationality or religious preferences» and «justification, or denial of the Russian Federation’s military aggression against Ukraine, or glorification of its participants», both criminal charges. The SBU published some of his intercepted communications and extracts from speeches to back up its claims (see below).
On 1 April, a Kyiv court placed Metropolitan Pavlo under house arrest for 60 days, to be spent in his house in a village about 50 kilometres (30 miles) from the Lavra (see below).
Metropolitan Epifany, head of the rival Orthodox Church of Ukraine (OCU), stated in a January interview that his Church would eventually gain exclusive use of the Lavra. The government has already given the OCU the right to conduct services at the Lavra’s Assumption Cathedral, and registered the OCU’s own monastery at the Lavra (see below).
The advisor to the head of President Volodymyr Zelensky’s office, Mykhaylo Podolyak, stated in a 30 March interview that the UOC will definitely not use the Lavra premises, and that the government «must finalise the work on the establishment of the local Orthodox Church». «In Ukraine, there will be only the Orthodox Church of Ukraine,» he added (see below).
The conflict over the Lavra came amid continuing inter-Orthodox rivalries over churches. Young men in balaclavas used tear gas to force the UOC out of a church in Ivano-Frankivsk. In Khmelnitsky, a group of local people voted to transfer the cathedral from the UOC to the OCU. Two days later, Khmelnitsky regional council prohibited the UOC’s operation in the region (see below).
The conflict also came as a Parliamentary committee backed a government-sponsored draft law prohibiting the operation of religious organisations affiliated with «centres of influence of religious organisations or associations with ruling centres» in Russia. The full Parliament has not yet considered the draft law (see below).
However, the state should not use its power in order to intervene in inter-Orthodox competition and conflicts and to compel or force the Lavra monks to join the OCU under the threat of the expulsion from the monastery, or in order to replace one Orthodox community with another based on the government’s preferences.
An earlier judgment of the European Court of Human Rights in Strasbourg states that «the Court does not consider that, in democratic societies, the State needs to take measures to ensure that religious communities remain or are brought under a unified leadership» (see below).
The state has a legitimate interest in the protection of national security, which is especially important in times of war. However, the UN Human Rights Committee’s General Comment 22 on Article 18 («Freedom of thought, conscience and religion») of the International Covenant on Civil and Political Rights notes that national security is not a permissible reason to limit freedom of religion or belief, and that «this right is non-derogable even during times of national emergency threatening the life of the nation» (see below).
Steadily worsening relationship
The Ukrainian state and society’s relationship with the Ukrainian Orthodox Church (UOC), which is historically and ecclesiastically affiliated with the Moscow Patriarchate, has been steadily worsening since Russia renewed its invasion of Ukraine in February 2022.
From May 2019, when President Volodymyr Zelensky took office, and during the first months of Russia’s February 2022 full-scale invasion, he did not develop a religious policy. His attitude changed in autumn 2022, apparently under the pressure of claims – some proven in court – of collaboration by some UOC clerics with the Russian military, and growing support among the Ukrainian public for punishments against the UOC.
In October – December 2022, the Security Service of Ukraine (SBU) searched UOC properties and the homes of UOC clerics across the country. The SBU reportedly found Russian propaganda material, evidence of Russian citizenship obtained by several UOC clerics, as well as Russian army-issued food.
The Office of the United Nations High Commissioner for Human Rights (OHCHR), in its Report on the human rights situation in Ukraine, 1 August 2022 to 31 January 2023, noted SBU searches of OCU institutions and questioning of those present. It expressed concern «that the State’s activities targeting the UOC could be discriminatory. OHCHR also recalls the need to ensure that all those facing criminal charges enjoy the full spectrum of applicable fair trial rights.»
In response, the Ukrainian Foreign Ministry stressed that «Ukraine remains a democratic country where religious freedom is guaranteed» and urged the OHCHR «to avoid unbalanced political speculations and build its reports upon facts».
Russian-occupied Ukraine
Within Russian-occupied Ukraine, the occupation authorities have committed severe violations of freedom of religion or belief and other human rights. Up to January 2023 Russia had destroyed, damaged or looted up to 500 religious properties belonging to Orthodox, Protestant, Catholic, Jewish, and Islamic religious communities. The Kyiv-based Institute of Religious Freedom estimates that around a third of these belong to the UOC.
Russia in 2023 appears to be following a coordinated approach to impose the full range of Russian restrictions on the exercise of freedom of religion or belief across all the Russian-occupied areas of Ukraine.
Ukrainian government draft law
In January 2023, the Ukrainian government submitted a draft law to Parliament prohibiting the operation of religious organisations affiliated with «centres of influence of religious organisations or associations with ruling centres» in Russia, but imposing an obligation on the state to prove any affiliation in court. The draft law in its present form raises freedom of religion or belief concerns. If adopted and implemented, it may significantly change the UOC.
In February 2023, the parliamentary Committee on Humanitarian and Information Policy, responsible for the draft law, recommended it to be approved in the first reading. Fedir Venyslavskyi, a member of the Servant of the People parliamentary faction, foresaw the adoption of the draft law «by the end of winter». However, Parliament has not yet considered the draft law.
Forcible takeover of UOC church in Ivano-Frankivsk, conflict in Khmelnitsky
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On 28 March, a group of clergy and others from the UOC’s main rival in inter-Orthodox competition – the Orthodox Church of Ukraine (OCU) — and supported by the local authorities forcibly expelled UOC clergy from the Church of the Nativity of Christ in Ivano-Frankivsk. (The OCU was established with strong support from President Petro Poroshenko, who ruled from 2014 to 2019.)
The UOC stated that young men in balaclavas gassed priests and believers, and the Kyiv Post reported that «with the tear gas cleared, [OCU] priests were able to hold a service for peace in Ukraine». Ivano-Frankivsk Mayor Ruslan Martsinkiv was reported as saying that «This was the last church in Ivano-Frankivsk that belonged to the UOC,» adding that «from now on, this temple is officially the property of the OCU».
A group of OCU and UOC priests and believers condemned the forcible seizure of the church as an inappropriate way of resolving intra-confessional conflicts.
On 2 April, media reported that an UOC priest in concert with church members beat a Ukrainian soldier who entered the UOC Cathedral in Khmelnitsky and started asking: «How many Ukrainians must die for you to stop attending Moscow Patriarchate churches?»
Later, a group of local people gathered near the cathedral voted to transfer it to the OCU. Two days later, Khmelnitsky regional council prohibited the UOC’s operation in the region. UOC speakers called the incident «a provocation».
On 4 April, Lviv’s mayor, Andriy Sadovyi, announced that UOC «illegal» constructions will be demolished, while other properties will be turned into public assets with an exception for the property of UOC communities which join the OCU.
What the Ukrainian Government did in relation to the Kyiv Pechersk Lavra
Since December 2022, when President Zelensky announced a goal «to protect Ukraine’s spiritual independence», the government has refused to renew the rental agreement with the UOC for two churches located on the territory of the Kyiv Pechersk Lavra (Monastery of the Caves). This is an 11th century state-owned Christian Orthodox Monastery complex recognised as a UNESCO World Heritage Site. In March 2023 the government decided to expel all UOC institutions from the Lavra.
The Lavra has been the location since the 1990s of Kyiv Theological Academy and Seminary, a UOC male monastery, and the UOC central eparchy and administrative departments. In 2013, the Government made a decision to rent the UOC a set of Lavra properties for an indefinite time period, and made a rental agreement stating this. On 10 March 2023, the government notified the UOC that the rental agreement was to be terminated with effect from 29 March.
The government said it was terminating the rental agreement due to the UOC’s illegal construction of 36 buildings on the Lavra, including administrative buildings, storage spaces, and monuments.
On 11 March, the Culture and Information Policy Minister, Oleksandr Tkachenko, emphasised that the government would not use force to expel the monks. However, he implied that if they want to stay, they must join the UOC’s main rival, the Orthodox Church of Ukraine (OCU). «They know the terms,» Tkachenko said.
On 30 March, Tkachenko announced on Facebook that the Ukrainian government had cancelled its 2013 decision renting Lavra properties to the UOC.
The Rule of Law and the Lavra case
One rule of law requirement is legal certainty. In its 2011 study on the concept of the rule of law (CDL-AD(2011)003rev), the Council of Europe’s Venice Commission points out that «legal certainty requires that legal rules are clear and precise, and aim at ensuring that situations and legal relationships remain foreseeable». The application of legal rules must also be fair, predictable, and non-discriminatory.
The government insists that the UOC violated construction rules, thus violating the rental agreement. However, at least some of these allegedly illegal buildings and other structures were built before the rental agreement was made in 2013. One example is the Cyril and Methodius monument erected in 2008. None of these pre-2013 structures stopped the government making a rental agreement with the UOC, and if the government now in 2023 thinks the agreement is wrongful or illegitimate, the reasons for this change of mind must be openly explained.
UOC reaction
The UOC brought a case to Kyiv Economic Court demanding that the court find the government’s decision invalid. The court hearing is due to start on 24 April 2023. The UOC also asked the Court to suspend the government decision until the court resolves the dispute, but the Court refused this.
Many of the UOC institutions left the Lavra by the government’s deadline of 29 March. One that did not was the male monastery. The Lavra’s abbot, Metropolitan Pavlo (Lebid), stated that the monks would not leave the Lavra until the court’s final decision. Metropolitan Pavlo also stated that the monastery had asked the government for permission to stay at the Lavra at least until Easter (16 April), but he said the government had not replied to this request.
UOC head Metropolitan Onufry (Berezovskyy) and the UOC Holy Synod tried to arrange a meeting with President Zelensky, but he refused to meet them. Metropolitan Pavlo reacted to this refusal by describing Culture and Information Policy Minister Tkachenko as «possessed with evil and outrage», and claimed that President Zelensky and his family «won’t be forgiven by God».
Since 30 March, a government commission has been trying to regain control of UOC-occupied buildings on the Lavra, but has not been able to gain access to some buildings as UOC monks and others stopped the commission from entering them. The Culture and Information Policy Ministry then complained to the police.
Since the government announced on 10 March that it was ending the UOC’s rental agreement for Lavra buildings on 29 March, UOC priests and others have been holding open-air prayer meetings and protests against the decision. On 2 April, three days after the rental agreement ended, UOC Metropolitan Onufry conducted a service in one of the Lavra’s churches.
Charges against Lavra abbot Pavlo
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On 1 April, the SBU searched Metropolitan Pavlo’s residences, as he is suspected of «violation of citizens’ equality based on their race, nationality or religious preferences» (Criminal Code Article 161) and «justification, or denial of the Russian Federation’s military aggression against Ukraine, or glorification of its participants» (Article 436-2). He had earlier, on 24 January, been subjected to a range of financial sanctions and other penalties, including bans on travel.
The SBU referred to an «expert examination» of Metropolitan Pavlo’s speeches which, the SBU insists, proves that he «frequently diminished the religious feelings of Ukrainians, offended the convictions of followers of other religions and attempted to provoke enmity against them, and justified or denied» Russian aggression.
On 1 April, the SBU also published a compilation of Metropolitan Pavlo’s tapped phone calls, where he claimed that «[local] people are happy» with Russia’s occupation of Kherson, and claimed Russia’s renewed invasion of Ukraine was a «war between America and Russia until the last Ukrainian dies». Metropolitan Pavlo also repeated Russian propaganda disinformation about alleged (and non-existent) «US biolabs» in Ukraine «provoking» Russia’s invasion.
The SBU also refers to one of Metropolitan Pavlo’s public speeches where he called the rival OCU «the so-called ‘church’ that is ruining spirituality and the sacredness of life» and condemned Ecumenical Patriarch Bartholomew who «behaved outrageously in many countries of the world». The SBU also published images of Metropolitan Pavlo’s residence to illustrate a claimed luxurious lifestyle with a doorknob engraved with the Russian Empire’s national emblem.
If the published SBU material is all that the government can produce in court, it is unclear what legal charges prosecutors can credibly bring against Metropolitan Pavlo.
On 1 April, Kyiv’s Shevchenko District Court placed Metropolitan Pavlo under house arrest for 60 days. He is under arrest in his house in the village of Voronkiv, located in Borispil District about 50 kilometres (30 miles) from the Lavra.
Religious hatred
Religious hatred is clearly a serious threat to freedom of religion or belief and other human rights. The state must protect individuals, especially those belonging to minorities and vulnerable groups, from being targeted or attacked based on their religion or beliefs. However, the state still has the obligation to prove that Metropolitan Pavlo’s statements are an incitement to religious hatred.
The UN OHCHR’s Rabat Plan of Action proposes a six-part threshold test for expressions considered as criminal offences: (a) context; (b) speaker; (c) intent; (d) content and form; (e) extent of the speech act; (f) likelihood (probability that the speech would succeed in inciting actual action against the target group).
Metropolitan Pavlo has made a very critical and rude assessment of the OCU, including the claim that the UOC is superior as a «more spiritual» church. However, it is crucial to demonstrate in law that his speeches cross the Rabat Plan of Action’s threshold test and had a legally-provable harmful impact on concrete actions. It would also be important for the state to legally demonstrate that his claims are significantly worse in their impact than other statements made by representatives from both the UOC and the OCU, as persons from both churches have periodically made aggressive and even insulting claims of one church’s superiority over the other.
The OCU and the Lavra
Since its establishment in 2018, the OCU under Metropolitan Epifany (Dumenko) has declared that it wants to be present in and perform services at the Kyiv Pechersk Lavra. Between December 2022 and January 2023, the OCU obtained from the government the right to conduct services at the Lavra’s Assumption Cathedral, and registered its own monastery at the Lavra. The OCU also asked the government to transfer some Lavra buildings to the OCU for these purposes.
OCU head Metropolitan Epifany stated during a TV interview on 16 January that the OCU will eventually gain the exclusive use of the Lavra.
After the government announced on 10 March that it was ending the Lavra rental contract with the UOC on 29 March, Metropolitan Epifany encouraged UOC monks to join the OCU in order to stay at the monastery.
On 29 March, the OCU announced that it had appointed Archpriest Avraamiy (Lotysh) as the acting abbot of all of the Lavra, not just for the new OCU Lavra monastery. Avraamiy is a former UOC Lavra monk who joined the OCU, and has called on other UOC monks to follow suit. In a video statement, Avraamiy called Metropolitan Pavlo «the former abbot» and insisted that Pavlo’s curses on President Zelensky will «return to the former abbot himself».
In its published 1 April compilation of Metropolitan Pavlo’s speeches, the SBU also identifies Pavlo as «the former abbot». This might be a public signal that the government intends to transfer all of the Lavra to the OCU.
The advisor to the head of President Zelensky’s office, Mykhaylo Podolyak, stated in a 30 March interview for the 24 Channel that the UOC will definitely not use the Lavra premises, and that the government «must finalise the work on the establishment of the local Orthodox Church». «In Ukraine, there will be only the Orthodox Church of Ukraine [OCU],» Podolyak added.
In the light of the serious rule of law questions about whether the 2013 rental agreement with the UOC was — as the government now claims — illegitimate, Presidential adviser Podolyak’s comments, and Culture and Information Policy Minister Tkachenko’s comment that UOC monks should join the OCU (see above), indicate that the illegal construction argument could well be a pretext to expel UOC institutions from the Lavra and force the monks to either leave or join the OCU.
Freedom of religion or belief and the Lavra case
The Kyiv Pechersk Lavra is an important historical site, a crucial part of Ukraine’s spiritual heritage. The importance of the Lavra and its ownership by the state presupposes that the Ukrainian state enjoys broad powers to preserve the site. For example, the state might have a legitimate interest in providing the different Ukrainian Orthodox churches with access to the Lavra, to protect freedom of religion or belief for all.
However, the state should not use its power in order to intervene in inter-Orthodox competition and conflicts and to compel or force the Lavra monks to join the OCU under the threat of the expulsion from the monastery, or in order to replace one Orthodox community with another based on the government’s preferences.
The Serif v. Greece judgment of the European Court of Human Rights (ECtHR) in Strasbourg (Application no. 38178/97) states that «the Court does not consider that, in democratic societies, the State needs to take measures to ensure that religious communities remain or are brought under a unified leadership».
The state also has a legitimate interest in the protection of national security, which is especially important in times of war. However, the UN Human Rights Committee’s General Comment 22 on Article 18 («Freedom of thought, conscience and religion») of the International Covenant on Civil and Political Rights (ICCPR) notes that national security is not a permissible reason to limit freedom of religion or belief, and that «this right is non-derogable even during times of national emergency threatening the life of the nation».
Freedom of religion or belief cannot be used as an excuse for illegal activities, such as collaborating with the Russian army and secret services. The state can take legally permissible action to defend national security, and Ukraine’s existing criminal and other public law already allows the prosecution of any individual and entity involved in such illegal activities.
However, the state’s response must focus on concrete individuals and communities involved in illegal activities. As the Organisation for Security and Co-operation in Europe (OSCE)’s Freedom of Religion or Belief and Security: Policy Guidance notes: «Any wrongdoings on the part of individuals should, therefore, be addressed through criminal, administrative or civil proceedings against that person, rather than directed at the religious or belief community as a whole.»
The OSCE Policy Guidance also recommend that, to ensure security, «Where individual believers or groups of believers are involved in criminal or illegal activities, participating States should not attribute blame to the community as a whole and should sanction only the individuals concerned.»
It is not obvious that expelling Lavra monks who do not want to join the OCU, and others from the UOC such as students of the Theological Academy, will strengthen Ukraine’s national security. Ejecting them from the Lavra can disproportionately limit their human rights, which as the ICCPR notes are «the foundation of freedom, justice and peace in the world», and so undermine Ukraine’s security as a democratic state resting on the rule of law.
A perfect storm
The Lavra episode is a new wave of the ongoing perfect storm the UOC has found itself in in recent months. The church has done too little in the view of most of Ukrainian society to separate itself from the Russian Orthodox Church and its leaders, who frequently and enthusiastically bless Russia’s war on Ukraine.
So too did most UOC leaders, who have failed to clearly and loudly condemn the cases of UOC clerics being involved in spying for Russia, justifying Russian aggression against Ukraine, and the incitement of religious hatred and collaboration with Russian forces in the occupied territories.
This has led to not only harsh public criticism of the church from politicians, civil society, media, and academia, but has also led to government responses such as the proposed draft law aimed at the UOC and the termination of the Lavra rental agreement.
On 29 March, President Zelensky stated in an address to the nation that «Ukraine is the territory of the greatest religious freedom in our part of Europe. This has been the case since 1991. It will always be so.» The preservation of this accomplishment, however, requires state policies to be based on international human rights law, rather than on the consensus rejecting the UOC that much of Ukrainian society seems to have reached.
— Dmytro Vovk 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 and teaches law at Ukrainian Catholic University. He is grateful to Elizabeth A. Clark, an associate director of the International Center for Law and Religion Studies, for her help with this article.
