In the scientific article a complex scientific research of procedure of establishing religious organizations is conducted. The attention is also paid to the main shortcomings of the mechanism of registration of religious organizations and the acquisition of legal personality.
Keywords: religious organization, religion, community association, the status of the religious organization, community.
One of the issues that precede the activity of religious organizations is the procedure of their registration. The legislation in this area has significant drawbacks. Their peculiarity is that being insufficiently defined, the system of registration of religious organizations gives the opportunity of vague interpretation of these rules by the public authorities. The procedure of registration of religious organizations is too protracted and cumbrous, however, as practice shows, some inconveniences are created by the subjects of registration: administration set their own requirements to the list and to the forms submitted for registration of documents [1, P.137]; there is no clear regulation of the time of the application and registration.
The scientific and theoretical basis of the scientific research is the works of such scientists as: O. A. Ambrosimova, M. Y. Babii, I. S. Berdnikova, S. M. Bratus, O. L. Derkach, A. Y. Kochkodan, Y. A. Rozenbaum, H. L. Serhiienko, V. D. Fuchedzh and others.
Every state, which aims to promote the formation of civil society and to ensure the realization of freedom of conscience and religion, has an appropriate regulatory and legal basis, which regulates the order of establishment and stopping activities of religious organizations. The order of formation of religious communities, administrations and centers, monasteries, religious brotherhoods, missions, religious schools and associations, which consist of abovementioned religious organizations in Ukraine, is created by the Law of Ukraine «On Public Institutions» and the Law of Ukraine «On Freedom of Conscience and Religious Organizations».
Besides, the procedure of providing administrative services for registration of the statute of religious organizations, such as religious centers, monasteries, religious brotherhoods, missionary communities, religious schools is provided in the Order of the Ministry of Culture of Ukraine № 366 of 18 April 2012 «On Approval of the Standard of Providing Administrative Service of Registration of the Statute (Regulation) of Religious Organizations and Amendments to It» .
Religious organizations are established and act on the basis of honesty, equality of their members, self-government, legality and publicity. They are created in order to satisfy the religious needs of their citizens to profess and propagate the faith. The founders of religious organizations may be the citizens of Ukraine, citizens of other countries, stateless persons who have reached 18 years. The members of religious organizations may be the individuals who have reached 14 years.
We should note, that in the period from 1991 to 2004, the registration of the statutes (regulations) of religious organizations in the current legislation of Ukraine was regulated by articles 14 and 15 of the Law of Ukraine «On Religious Organizations» of 23 April 1991. Other regulatory and legal document, by which was again stated provisions of Part 1 and 2 of Article 14 and Article 15 of the Law, was an explanation of the Presidium of the Supreme Arbitration Court of Ukraine «On some issues arising from the application of the Law of Ukraine «On Freedom of Conscience and religious organizations» [3; P. 13] issued in 1996 in order to ensure similar application of the law.
Since July 2004, Ukraine has begun the second period for religious organizations about the registration of their statutes, that is the attainment of a status of legal person. In Ukraine registration of religious organizations primarily involves the registration of statutes (regulations) of religious organizations, solely to obtain the legal capacity of a legal entity and not for the legalization of their activities on the territory of Ukraine .
A religious organization functions on the base of the statute, which determines its legal capacity and is addmiting on general meetings of religious citizens or on religious congresses, conferences [5; P. 85]. According to the third part of 12 Article of the Law of Ukraine «On Freedom of Conscience and Religious Organizations» it should contain information about:
1) type of a religious organization, its religious belonging and location.
2) location of a religious organization in the organizational structure of religious association.
3) property status of a religious organization.
4) rights of a religious organization to establish enterprises, mass media, other religious organization, to create educational institutions.
5) order of introduction of changes and amendments to the statute(regulation) of a religious organization.
6) order of solution property and others items in case of abandonment of religious organization’s activity. Moreover, the statute of religious organization may contain other information, connected with the peculiarities of activity of a given religious organization.
Statutes of religious organizations are subjected to the registration. Alterations and amendments in statutes of religious organizations are subjected to the registration in the same order and periods as the registration of statutes (regulations) [6; P. 319]. A religious organization is defined as a legal person from the moment of statute registration [7; P. 18].
The order of registration of religious organizations is created by the Article 14 of the Law of Ukraine «On Freedom of Conscience and Religious Organizations». In particular, for the obtaining by religious organization the legal capacity of legal person, citizens in the number not less than ten persons, who created it and has reached 18 years, applying assertion and statute to the registration to the regional, Kiev’s and Sevastopol’s city state administrations and to the Republic Crimea – the Government of the Republic of Crimea. Religious centers, administrations, monasteries, religious brotherhoods, missionary communities, religious schools shall submit the registration statute to the official body of religious affairs in Ukraine.
The body that fulfills the registration within a month reviewing the application, the statute of a religious organization, takes an appropriate decision within ten days and in written form informs about it the applicants. In essential cases body, that realizing the registration of religious organizations’ statutes, may require the conclusions of the local administration, the executive committee of village and town councils, as well as specialists. In this case, the decision to register the articles of association shall be taken within three months. The excess of the agreed term of decision-making on the registration of statutes of religious organizations can be appealed in the court in the manner prescribed by civil procedural law of Ukraine.
Part 1 of the Article 15 of the Law of Ukraine «On Freedom of Conscience and Religious Organizations» provides that the registration of statute (regulation) of a religious organization may be refused if its statute (regulation) or activity contradict to current legislation. However, the law does not specifically define cases in which the registration of religious organization can be denied.
This situation may be solved by the use of rules similar to the provisions of Part. 1, Art. 4 of the Law of Ukraine «On Public Associations», according to which the establishment and activities of public associations, the purpose (s) or actions of them are aimed at:
• the liquidation of Ukraine’s independence;
• change the constitutional order by force;
• violation of the sovereignty and territorial integrity;
• undermining its security;
• unlawful seizure of state power;
• propaganda of war, violence, incitement of ethnic, racial, or religious hatred;
• infringement of human rights, freedoms and public health;
• communist propaganda and / or national socialist totalitarian regimes and their symbols, are forbidden .
Under current legislation on the legalization of religious organizations, the decision to refuse registration statute (regulations) of religious organization with stated grounds for refusal, is informing the applicants in written form within ten days. This decision may be appealed in court in the manner prescribed by the civil procedural legislation of Ukraine.
We consider quite progressive and revealing a legislator’s decision, who has provided the opportunity to appeal the decision on unlawful refusal to register a religious organization. On the one hand, in such cases, the petitioner in the case stands as a very specific subject, since the whole religious organization has not been established and, accordingly, can not represent their rights and legitimate interests. This specific subject – applicants who realize their constitutional right to freedom of association in public association with the purpose of realization and protection their rights and freedoms and the right to religion’s freedom.
Besides the court order, the applicants also have the subjective right to appeal the illegal decision to refuse the legalization of religious organization in administrative order, that is superior to the registration authority [10; P. 9].
Religious organizations may stop their activity in connection with their reorganization (division, merger, acquisition) or liquidation. Liquidation of religious organizations can be made by:
• the decision of their founders or the body authorized by the statute of a religious organization;
• the court in cases provided by law, including:
1) committing by religious organization actions, inadmissibility of which provided in Articles 3, 5 and 17 of the Law of Ukraine «On freedom of conscience and religious organizations»;
2) a combination of ritual or predicant activity of religious organization with encroachments on life, health, freedom and dignity;
3) systematic violation of established by the legislation order of conducting public religious activities (worship, rituals, ceremonies, marches, etc.);
4) encouraging citizens to non-fulfillment of their constitutional duties or actions which are accompanied by gross violations of public order or infringement of the rights and property of the state, public or religious organizations.
The court adjudging the case of termination of the religious organizations activity by the order of opposition proceedings stipulated by the Civil Procedural Code of Ukraine, according to the body, authorized to register the statute of a particular religious organization or a prosecutor.
Thus, a religious organization operates under the statute, which defines its legal capacity and should contain information on: type of religious organization, its religious affiliation and location; local religious organization in the organizational structure of a religious association; property status of a religious organization; the right of religious organizations to establish businesses, the media, other religious organizations and the creation of educational institutions; the procedure for making amendments and additions to the statutes of a religious organization; procedure for resolving property and other issues in case of termination of a religious organization. In addition, the statute of a religious organization may contain other information related to the features of the religious organization.
In the course of investigation the procedure of legalization a religious organization there are fairly established progressive decision of the legislator, who predicted a possibility of appealing decisions on unlawful refusal to register a religious organization. On the one hand, in such cases, the plaintiff in the case stands as a very specific subject, since the whole religious organization has not established and, accordingly, can not represent its rights and legitimate interests. This specific subject – applicants who are implementing their constitutional rights to freedom of association in the community association with the purpose of realization and protection their rights and freedoms and the right to freedom of religion. Also a major disadvantage of current legislation is that the Law of Ukraine «On Freedom of Conscience and Religious Organizations» does not specifically define in which cases the registration can be refused, in which case we have to use the analogy of the Law of Ukraine «On Public Associations».
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2. On approval of the Standard of providing administrative services for registration of statute (regulation) of religious organizations and amendments to it: Order of the Ministry of Culture of Ukraine number 366 of April 18, 2012 [electronic resource]. – Access: http://zakon4.rada.gov.ua/laws/show/z1415-12.
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