In the scientific article the features of the property of religious organizations, the ways of its acquiring and types are examined. The attention is also drawn to the realization of labor activities in religious organizations, conditions and payment for work.
Keywords: religious organization, religious buildings, property, labor activities, labor agreement.
The period of religious freedom in Ukraine has more than twenty five years. Freedom of conscience and religion in Ukraine led to a rapid revival of religious and church life. However, this did not lead to fundamental changes in relation to the property rights of religious organizations. The question of the rights of religious organizations on their property, and implementation of labor activity remains unsolved to the full.
The relevance of the research amplifies the issues that arise in practice and can not find a solution in current legislation.
From the first centuries of church history various points of view were raised about who is the subject of ownership of church property. There was the thought in Roman law that the church property, which is designed exclusively for the needs of the church belongs to God [1; P. 54]. Proponents of another theory proclaimed that church property is a property of beggars. Taking into consideration the canonical dogmas, it should be noted that the church does not have its property, and property, which belongs to the church, are conveying by its members, it’s based on the sacred grounds. All those who were unable to live on their money, including the clergy, who are unable to produce their own livelihood outside the temple, had the right to live off church property. In Western Europe the theory of total religious property was proposed which consisted of Pope’s recognition the ownership of church property, but for some reason it was not directly declared. At a later time the theory of specific property was proposed, according to which there was no need to search for an entity of church property, church property belonged not to individuals and legal entities, but to a particular goal or purpose. However, it was not perceived by a lawyer as a logically inconsistent, because the target directly involved a person who pursued it [2; P. 129].
The aim of the study is to give an analysis of the features of property of religious organizations and identify the specifics of work in religious organizations.
The scientific and theoretical basis of the research is the works of such scientists as: O. A. Ambrosimova, M. Y. Babii, I. S. Berdnikova, S. M. Bratus, H. O. Druzenko, V. S. Yelenskyi, N. S. Kuznietsova, V. F. Piddubna, M. F. Trofimchuk, V. D. Fuchedzh, Y. V. Kryvenko.
In Ukraine the property rights of religious organizations are provided by III Part of the Law «On Freedom of Conscience and Religious Organizations». In particular, according to Art. 17 of Law, religious organizations have the right to use for their needs the buildings and property available to them on a contractual basis by governmental, public organizations or citizens. Religious buildings and property which represent state property, are passing by organizations, on balances of which they are, for free use or return to the ownership of religious organizations, by the decision of regional, Kyiv and Sevastopol state administrations and the Republic of Crimea – the Government of the Republic of Crimea.
Religious buildings and property, which is a state property, may be transferred to alternate use of two or more religious communities by their mutual agreement. In the absence of such agreement, the public body determines the order of use of churches and property by making the individual contract with community.
Religious buildings and other property, which are historical, artistic or of other cultural value, are transferred to religious organizations and used by them in compliance with the established rules of protection and use of historical and cultural monuments.
A request for the transfer of religious buildings and property ownership to religious organizations or their free use is considering within a month with the written notification to the applicants. Religious organizations have the preferential right to the transfer of religious buildings with the land required for the maintenance of these buildings. The usage of land of religious organizations is carried out in the manner prescribed by the Land Code of Ukraine and other legislative acts of Ukraine. The alnd granted to religious organizations for permanent use for construction and maintenance of religious buildings and other buildings, necessary to conduct their activities, should not be used for business.
Religious organizations as subjects of civil relations have a subjective right to appeal against illegal actions, omissions or decisions of public authorities in the manner prescribed by the Civil Procedural Code of Ukraine . In addition, according to Art. 18 of the Law «On Freedom of Conscience and Religious Organizations» religious organizations possess, use and dispose property that belongs to them by the right of ownership. Religious organizations may have buildings, cult objects, objects of industrial, social and charitable purposes, transport, costs and other property necessary for their activity.
Religious organizations have the right to own property purchased or created by them at their own expense, donated by citizens, organizations or transferred to the state and purchased on the other grounds provided by law. Religious organizations may also own property that is outside Ukraine.
In addition, religious organizations have the right to seek voluntary financial and other donations and receive them. Financial and property donations, as well as other income of religious organizations are not taxed. Religious organizations are not allowed to levy believers by force. The right of religious organizations is protected by law.
In the context of the property of religious organizations, the practice of the United States on this issue is worth taking into consideration. In particular, in the United States, any person or «association of persons, united with a purpose and allowed to do business in a particular name», according to the law has the right to act as a «person» (case «Company Pembina Consol. Silver Mining & Milling Co. against the Commonwealth of Pennsylvania») . In this respect, a legal entity can be a person, organization or commercial enterprise. Thus, religious communities may establish commercial entities (e.g., corporations, individual free enterprise, general partnership, limited liability firms and limited liability companies) or non-profit organizations (usually created in the form of corporations) in order to gain legal status.
Commercial activities and non-profit corporation are governed by the laws of the state in which they are formed. Most religious groups in the United States are regarded as non-profit corporations organized under the laws of the state and Tax Code (e.g., 26 USC [United States Laws], § 501 (c) for tax benefits and regime of assistance.
In our view, the experience of the United States can not be used on the territory of Ukraine, because it allows religious groups to abuse their tax benefits and raises the risk that religious organizations as civil institutions will become the organizations that contribute to the realization of the constitutional rights to freedom of religion and freedom of association in the semi-profitable entities. In this case the whole institution of religious organizations is considerably discredited as one of the fundamental components of civil society in Ukraine.
Complex rights of religious organizations and their members in labor and other areas are covered by the chapter V of the Law of Ukraine «On Freedom of Conscience and Religious Organizations». Thus, according to Art. 25 of the Law religious organizations have the right to hire citizens. Working conditions in this case are set by agreement between the religious organization and the employee and identified by labor contract, which is in a written form.
The religious organization must register the labor contract in the prescribed manner . In the same way the documents defining the conditions of remuneration of priests, clergy and people who work in religious organizations in elected positions are registered. Citizens working in a religious organization under a labor contract may be members of trade unions.
The citizens working in religious organizations and created by them enterprises, charitable institutions under an labor contract, are subjected to the labor legislation, compulsory social insurance, taxation. In particular, the citizens working in religious organizations, created by them enterprises, institutions under a labor contract, priests, clergymen and persons working in religious organizations in elected positions are subjected to compulsory state social insurance on terms and order provided by the legislation on compulsory social insurance.
The religious organizations and their enterprises and institutions, and in the cases stipulated by law, the employees of these organizations, enterprises pay SSC (Single Social Contribution) in the manner and to the extent prescribed by law. All citizens working in religious organizations and their enterprises and institutions, are granted state pension paid on the common grounds under the law.
The practice of the European Court of Human Rights in the field of labor relations in religious organizations should be specifically emphasized. Thus, in 2013 the Court established a precedent by applying the principle of autonomy of religious organizations in the context of trade union rights by the decision of 9 July 2013 .
In this case, the applicants, who were orthodox priests and employees of the Romanian Orthodox Church, formed associations, the aim of which was to protect the professional interests of their members. However, Romanian public authorities refused to register a trade union on the grounds that it is prohibited by the statute of the Romanian Orthodox Church and its structural and functional autonomy. Unlike the House, which recognized the breach of Article 11 (freedom of association, including the freedom of trade unions), the Grand House reached the opposite conclusion of a decision in favor of the autonomy of religious communities.
In this case, the Court noted that the duties performed by members of the trade union, are characterized by many specific labor relations. For example, they operate on the basis of the decision of the bishop, who appoints them and establishes their rights and obligations. Under the guidance and supervision of the bishop they carry out their tasks. In addition to the implementation of the mass and other rituals, these tasks include management of parishioners’ assets; clergy also practice selling religious items. In addition, the national Romanian law provides a number of positions for members of the clergy and laity, which is largely financing with state and local budgets [7; P. 18].
Indeed, as representatives of the Government of Romania indicated, a feature of the clergy in this country is that it operates exclusively within the religious purposes and is within the church, which enjoys a certain level of autonomy. So it is not quite simple to provide distinction between the religious activities of the clergy and their activities in more financial character.
Taking into account all these factors, the Court finds that despite the special circumstances, clergy carry out their mission in the context of the employment relationship covered by Article 11 . Thus, Article 11 can be applied to the circumstances of the indicated case.
According to the Court, national courts must ensure accomplishment of freedom of association and the autonomy of religious organizations in accordance with applicable law, including the Convention. When it comes to interference with the right to freedom of association, the Article 9 of the Convention implies that religious organizations have the right to their own opinion against any collective action of its members and the state must respect the specified subjective right of religious organizations.
In our view, the above precedential practice of the European Court of Human Rights significantly expands the regulation of labor relations in Ukraine in religious activities, providing the right of religious organizations on the formation of trade unions, thereby confirming the right of religious organizations in the international legal level.
Thus, analyzing all the mentioned above, we can conclude that religious organizations can have: religious buildings, property, which is necessary for the implementation of rituals, donations of its members, and other people and other property transferred by the state to free of charge use. Regarding labor activities, the religious organizations may use wage labor in a general manner within the labor laws of Ukraine.
1. Kharitonov E. O. Basics of Roman private law. – Rostov n / D: Phoenix, 1999. – 288 p.
2. Kryvenko Y. V. Property rights of religious organizations /Y. V. Kryvenko // Topical problems of state and law, 2008. Pub. 38. – p. 128-131
3. The legal status of religious organizations in Ukraine [electronic resource]. – Access: http://www-jurfak.univer.kharkov.ua/newlections/Gua.pdf.
4. Recommendations about legal existence of religious groups and communities who hold certain beliefs [electronic resource]. – Access: http://www.osce.org/uk/odihr/176361?download=true.
5. Labor Code of Ukraine: Law of Ukraine on December 10, 1971 № 322-VIII // Supreme Council of the USSR. – 1971. – Application to № 50. – Art. 375.
6. Case of sindicatul «PАSTORUL CEL BUN» v. ROMANIA: The European Court of Human Rights / Application no. 2330/09. – Strasbourg, 9 July 2013. – 52 р.
7. Review of the Court’s jurisprudence on the issue of freedom of religion / Council of Europe / European Court of Human Rights. – 2011. – p. 18