The Standoff at the Lavra & Other News

Source: Peter Anderson, Seattle USA

On March 30, the commission of the Reserve, whose responsibilities include the inventory of the property to determine what belongs to the Reserve and what belongs to private persons or organizations such as the UOC, attempted to enter the Church of the Nativity of the Mother of God, located in the area of the Far Caves.  See the map at https://dayting.com.ua/en/excursion-to-kiev-pechersk-lavra.  This is the church used by the Kyiv Theological Academy and Seminary (UOC).  The commission was not able to enter the church due to a large crowd with Archbishop Sylvester, the rector of the Academy, in the front.  Later in the day, the Academy posted an official statement concerning the event as well as a video.  http://kdais.kiev.ua/event/yziavlenye-30032023/  The statement includes the following:

Today, March 30, 2023, at about 10:30 a.m., people came to the church in honor of the Nativity of the Mother of God on the territory of the Kyiv-Pechersk Lavra.  The people, in communications with representatives of the Kyiv Theological Academy and Seminary, called themselves the Commission for the National Historical-Cultural Reserve “Kyiv-Pechersk Lavra.”  The mentioned persons declared their intention to visit the Church of the Nativity of the Mother of God. This church today functions as an academic church and is directly subordinate to the rector of the Kyiv Theological Academy and Seminary.  That is why the rector of the Academy, Archbishop Sylvester of  Bilogorodka, came to the church to communicate with the representatives of the Reserve.  The rector asked the representatives of the Reserve to introduce themselves and present the documents on the basis of which they act. The named persons refused to disclose their names and positions. They also did not submit documents certifying their right to act.  For this reason, the representatives of the Reserve were not allowed to enter the temple.  The Kyiv Theological Academy does not deny the right to employees of the Reserve to fulfill their official duties.  However, all actions must be carried out within the legal framework and without violation of the current legislation. 

On the evening of March 30, Minister of Culture Oleksandr Tkachenko commented on these events on Facebook.  https://www.facebook.com/oleksandr.tkachenko.ua  He stated:

We have to state that due to physical obstacles on the part of the UOC-MP, the commission for receiving-transfer of state property of the National Reserve “Kyiv-Pechersk Lavra” could not start work today.  Representatives of the Monastery from the Holy Assumption Kyiv-Pechersk Lavra, who are part of the Commission, could not explain who had the keys to the building that was scheduled to be inspected.  In addition, many unknown persons prevented the members of the Commission from entering the building.  On the fact of obstructing the work of the commission, a statement was filed to the police.  The rude behavior of the representatives of the UOC-MP towards the representatives of the Commission is greatly inconsistent with their calls to God.  Tomorrow the Commission will continue its work in any case. 

It appears that the commission on March 31 did not return to the Church of the Nativity of the Mother of God but rather went at 9:30 a.m. to Lavra Building  No. 111 by the Church of St. Agapit in the Lower Lavra.  It was reported that the keys given by the Monastery to the building did not work and that approximately 20 unknown persons in monks’ robes blocked passage to the building.  Water was also used against the commission members.  The commission left and plans to resume its work on Monday.  https://informator.ua/uk/boji-za-lavru-rosiyski-chenci-z-viryanami-zirvali-perevirku-minkultu-2; https://www.ukrinform.ua/rubric-society/3689845-do-cerkvi-u-kievopecerskij-lavri-komisiu-mkip-ne-puskali-nevidomi-v-cernecih-rasah.html  So far, the websites of the UOC and of the Academy have been silent on this latest inability of the commission to do its work.

Tkachenko has addressed this latest incident on Facebook.  https://www.facebook.com/oleksandr.tkachenko.ua   He stated on March 31:

Today, the Commission for Acceptance-Transfer of State Property of the Kyiv-Pechersk Lavra National Reserve failed to start its work again due to resistance to the UOC-MP.  Because of this, the Reserve turned to the Commercial Court of Kyiv to remove the numerous obstacles that the UOC-MP is putting in the way of the legal transfer of the property of the Lavra to the rightful owner – the state.  In accordance with Article 381 of the Civil Code of Ukraine, the owner of the property has the right to claim the elimination of obstacles in its implementation of the right to use and dispose of its property.  We will solve the situation in a legal way. 

From this, it appears that the Zelensky government is proceeding cautiously in obtaining possession of the Lower Lavra.  Presumably, it is aware that many are concerned about the Lavra situation and that the Russian media is giving great coverage to the Lavra events.  The government is therefore seeking to obtain possession through the courts and legal processes, where the UOC has the right to argue its case rather than invoking immediate police intervention (except to keep the peace).  The commission will probably attempt each day to continue its efforts to access the property and will back off for the day if it is blocked.  To the extent there is continuing self-help to prevent the work of the commission, this will simply provide more evidence for the government attorneys to present to the court and to support its arguments that judicial intervention is needed.  In this sense, future blockage by monks and others may actually be helping the government.

With respect to the courts, the UOC has filed a lawsuit in the Commercial Court of Kyiv challenging the Reserve’s termination of the UOC rent-free lease to the Lower Lavra.  In connection with the lawsuit, the UOC sought a court order preventing the Reserve from taking action with respect to the termination until the court has an opportunity to consider the case on its merits.  In American law, this is called a preliminary injunction.  On March 28, the court denied the UOC’s request for this type of order.  The full decision of the court can be read at https://opendatabot.ua/court/109840891-ee0a77f5ff6e4c6c1e779e11e9d9e98b (the Google translation tool works on this order).   The legal department of the UOC has stated that the UOC will appeal this denial.   https://news.church.ua/2023/03/30/yuridichnij-viddil-upc-poyasniv-perebig-sudovogo-procesu-shhodo-kijevo-pecherskoji-lavri/#2023-03-31  The legal department also points out that this is not a decision on the merits and that the merits will be considered by the court on April 26. https://news.church.ua/2023/03/30/yuridichnij-viddil-upc-poyasniv-perebig-sudovogo-procesu-shhodo-kijevo-pecherskoji-lavri/#2023-03-31  Although this is correct, the denial is not a good sign that the court will favor the UOC in deciding the merits.

On March 30, the Council of Ministers of Ukraine decided that the order of the Council of Ministers (Order No. 519) issued during the Yanukovych administration on July 11, 2013, was no longer valid.  https://www.kmu.gov.ua/news/uriad-skasuvav-rozporiadzhennia-chasiv-ianukovycha-zavdiaky-iakomu-upts-mp-bezkoshtovno-korystuvalasia-derzhavnymy-budivliamy-i-mainom-u-kyievo-pecherskii-lavri  This earlier order had provided for the rent-free use of the Lavra by the UOC and was silent on a termination date.  This Council’s action on March 30 counters an argument by the UOC that the termination of the lease by the Reserve is not valid as it is contrary to a 2013 decision by a higher authority, namely the Council of Ministers.

In my opinion, the UOC has a weak argument that the State cannot terminate the lease without the approval of the UOC and that the UOC has a rent-free lease to the end of time – namely, the absence of a termination date means that the lease lasts forever.  A far better argument is based not on contract law but rather on the guarantees of freedom of religion.  The argument would be:  Even if the Reserve has a legal right to terminate the lease, that right cannot be used as a pretext to discriminate against the UOC and to cause monks to change their affiliation from the UOC to the OCU.  With respect to the buildings built by the UOC in the Lower Lavra without approval, this must have been known by the Reserve for years and still, the Reserve did nothing.  Now when great pressure is being exerted against the UOC, the Reserve takes action.

On March 31, the DECR  of the UOC sent a letter to all foreign embassies in Ukraine relating to the “situation surrounding the Kyiv-Pechersk Lavra.”   The letter discusses the position of the UOC with respect to the March 30 decision of the Council of Ministers and also the March 28 decision by the Commercial Court.  A memo from the legal department of the UOC is also attached.

Metropolitan Sawa, primate of the Orthodox Church of Poland, now joins other primates who have expressed their support for the UOC in the current controversy.   On March 31, the primate sent a letter to Archbishop Sylvester, rector of the Kyiv Academy.  https://news.church.ua/2023/03/31/predstoyatel-polskoji-pravoslavnoji-cerkvi-visloviv-pidtrimku-kijivskij-duxovnij-akademiji/#2023-03-31 (includes photocopy of English letter)    Metropolitan Sawa stated in part:

The Polish Orthodox Church has always been and is in favor of the canonicity of the Ukrainian Orthodox Church.  What is happening today with the Kyiv-Pechersk Lavra, other monastic centers, churches, and Your Academy is an expression of great enslavement and persecution of the Church.  For this, we express our regrets, raise our prayers and join all those who raise prayers and suffer persecution. 

This letter has not yet been posted on the official website of the Orthodox Church of Poland.  It may never be.  An earlier letter from Metropolitan Sawa to Patriarch Kirill caused an uproar in Poland, and Sawa subsequently issued an apology.  However, a letter from Ecumenical Patriarch Bartholomew to Metropolitan Sawa has been posted by the Polish Church.  https://www.orthodox.pl/komunikat-kancelarii-metropolity-50/  In the letter, dated March 24, Ecumenical Patriarch expresses his great sadness “that we have been informed that once again your precious health has deteriorated and you have been admitted to the hospital and in addition to the intensive care unit for therapy and convalescence.”  He also states that “although we differ in our approach to certain current church issues, we love you as a brother and a concelebrant in Christ, and we appreciate your long-term contribution to His Church and your struggles for the spiritual uplifting and prosperity of the Orthodox flock in the noble country – Poland….” 

Peter Anderson, Seattle USA