Grand Chamber of the Supreme Court defines the procedure for exercising the right of a religious community to change its canonical affiliation

The change of subordination in canonical matters does not depend on the consent of the hierarch of the church from whose jurisdiction the religious community wishes to leave.

The decision to change the subordination and to make the corresponding amendments to the statutes is taken by at least two-thirds of the number of members of the religious community required to recognise the general assembly of the religious community as authorised in accordance with its statutes. The legislator recognised the autonomy of a religious community in determining the number of members required for its general assembly to be recognised as competent, as well as in matters of membership.

If the statutes of a religious community do not specify the procedure for admission to membership, or for determining membership, the criteria established in the statutes to be met by the members of the religious community who participated in its general assembly and took the disputed decision to change their subordination in canonical matters shall be taken into account.

These conclusions were formulated by the Grand Chamber of the Supreme Court in a case concerning the change of canonical affiliation of a religious community.

The plaintiff in this case, the rector of a religious community, brought an action for the annulment of the minutes of the general assembly and of the new version of the statutes of the religious community adopted at that assembly. At the above-mentioned meeting, some inhabitants of the village of Kalynivka, Zhytomyr district, Zhytomyr region, decided in particular to change the subordination of the religious community in canonical and organisational matters by joining the Orthodox Church of Ukraine. According to the plaintiff, the general assembly was convened by unauthorised persons and the decision to change the canonical subordination and to make the corresponding amendments to the statutes was taken by persons who were not members of the religious community.

The courts of first and appeal instances dismissed the claim.

Considering the plaintiff's appeal in cassation, the Grand Chamber of the Supreme Court stated that the decision to change the subordination of the religious community in canonical and organisational matters affected the plaintiff's right to freedom of religion in its collective dimension.

In determining whether the right has been violated, which is the basis for bringing a case to court, it should be borne in mind that the right to freedom of religion includes the provision of a free opportunity to profess one's religion, to engage in religious practices and to observe religious rites, both individually and in community with other believers.

The legislator has established a mechanism whereby the decision to change the subordination and to make corresponding amendments or additions to the statutes is taken by at least two-thirds of the number of members of a religious community required to recognise the general assembly of the religious community as authorised, and such an assembly may be convened by its members.

The mechanism established by the State for the exercise of this right cannot be leveled by requiring the mandatory approval (consent) of the hierarch of the religious organisation from whose jurisdiction the community wishes to withdraw and which is obviously opposed to such a decision.

If the state were to legislate this procedure, or if the courts, applying the Law of Ukraine "On Freedom of Conscience and Religious Organisations", were to recognise the necessity of such a sanction by the hierarch in order for the change of subordination in canonical matters to be recognised by the state, a situation would arise in which the state would make the recognition of a religious community dependent on the will of the recognised ecclesiastical authorities, which are obviously opposed to such recognition, which would indicate that it is not fulfilling its duty to be neutral and impartial in its relations with various religions, confessions and beliefs.

In this regard, the Grand Chamber of the Supreme Court stated that the mere recognition by the state of the right of a religious community to freely change its subordination in canonical and organisational matters, for the reasons indicated by the plaintiff, cannot violate the right of the rector of that community or its member to freedom of religion.

In this case, the Grand Chamber of the Supreme Court held that the legislator had regulated the procedure for religious communities to exercise the right to change their subordination in canonical and organisational matters only in the necessary general terms, in particular that the decision to change subordination and make the corresponding changes to the statutes must be taken by at least two-thirds of the number of members of the religious community required to recognise the competence of its general assembly. At the same time, the legislator recognised the autonomy of a religious community in determining the number of its members required to recognise the general assembly of a religious community as authorised, as well as in matters of membership.

In this case, the statutes of the religious community did not establish a regulated procedure and clear criteria for the admission of members to the religious community and the procedure for their registration and maintenance of the register, and did not contain the concept of permanent membership, the procedure for admission to the religious community.

In determining the criteria to be met by the members of the religious community who participated in the general assembly of the community and who took the contested decision to change their subordination in canonical matters, the court took into account the criteria for members of the parish assembly set out in the statutes of the religious community, as amended in 1991 - being over 18 years of age and regular attendance at services.

In the absence of any data relied on by the plaintiff to demonstrate regular attendance at services, the SC Grand Chamber took into account the criterion of territorial connection, which is also reflected in canon law, i.e. residence in the area where the religious community operates. Fulfilment of this criterion makes it possible to meet the requirement of regular attendance at services. The Grand Chamber of the Supreme Court was guided by the fact that in this case the disputed decision was taken by residents of the village of Kalynivka, who considered themselves to be members of a religious community.

In this case, the courts considered all of the plaintiff's claims on the merits and dismissed the case, concluding that there were no grounds to conclude that the plaintiff's rights had been violated.

The Grand Chamber of the Supreme Court held that the lower courts had made a substantively correct decision in dismissing the case because, in view of the evidence presented by the parties, there were no grounds to conclude that the Law of Ukraine "On Freedom of Conscience and Religious Organisations" had been violated when the religious community made the contested decision and, consequently, to interfere in the affairs of the religious community by annulling the contested decision.

The Resolution of the Grand Chamber of the Supreme Court of 3 April 2024 in case No. 906/1330/21 (proceedings No. 12-38гс23) - https://reyestr.court.gov.ua/Review/118465129.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.