Will Constantinople return 120 sables?
By the decree of Patriarchate of Constantinople of 11 October 2018, it declared what is called restitution in legal terms. What should the parties return to each other?
Petro Poroshenko has already managed to put at the feet of Phanar a masterpiece of architecture of the XVIII century, the Kiev Church of St. Andrew the First-Called, thereby giving away the property which was acquired after the transfer of the Kiev Metropolis to the Russian Church by Constantinople. Most likely, this is just the beginning.
The fantastic speed by transferring St. Andrew’s Church to Phanar proves the readiness of Kiev authorities to fulfill any requirements of Constantinople as for the return of total control over church property. Let us, however, look into what these claims of hierarchs from the capital of Turkey are based on.
The decision of the Synod of the Constantinople Patriarchate on the Ukrainian issue is very surprising to any lawyer or specialist in law whether it be secular or ecclesiastical. What was presented to the public and sounded by Metropolitan Emmanuel of France after the meeting of the Synod of 11 October 2018, was perceived by many as not a complete decision of the Synod, but an extract from it. That is, the decisions themselves without any allusions to legal grounds which these decisions arise from.
It was expected that after a while the Phanar would present a more sizeable and substantive document, which would indicate which canons or documents Constantinople relied on by making its decisions. So far this has not been done.
Well, let's try to understand the Phanar’s logic on the basis of the text being available to us.
By the fourth paragraph of its decree, Phanar annulled the document on the transfer of the Kiev Metropolis of the Russian Church: “4) To revoke the legal binding of the Synodal Letter of the year 1686, issued for the circumstances of that time, which granted the right through oikonomia to the Patriarch of Moscow to ordain the Metropolitan of Kyiv, elected by the Clergy-Laity Assembly of his eparchy, who would commemorate the Ecumenical Patriarch as the First hierarch at any celebration, proclaiming and affirming his canonical dependence to the Mother Church of Constantinople.”
Any lawyer or canonist, having read this wording, will ask himself the question: from what moment does the Synodal letter of 1686 lose its force? There are two options: either from the moment of the publication of the Letter itself, or from 11.10.2018, i.e. from the time of the decision on its cancellation. There is a rule known since Roman times: “the law has no retroactive force”.
This rule is recognized as a fundamental constitutional principle in all civilized countries. This principle is also enshrined in our Ukrainian Constitution of 1996. According to this principle, there can only be one option: The letter of 1686 loses its power from 11 October 2018. Thus, all decisions adopted by the Moscow Patriarchate for three hundred and a few years regarding the Kiev Metropolis, including the decision on the anathema to Mr Denisenko and other canonical punishments applied to schismatics, are valid.
But the first option cannot be discounted. Legal practice knows cases where a law or other document is recognized as having retroactive effect. And Phanar, apparently, considers its decision on revoking the Letter of 1686 to fall under this case law. The following can prove this assumption.
The third paragraph of the decree of 11 October 2018 lifts the anathema from Messrs Denisenko and Maletich:
“3) To accept and review the petitions of appeal of Filaret Denisenko, Makariy Maletych and their followers, who found themselves in schism not for dogmatic reasons, in accordance with the canonical prerogatives of the Patriarch of Constantinople to receive such petitions by hierarchs and other clergy from all of the Autocephalous Churches. Thus, the above-mentioned have been canonically reinstated to their hierarchical or priestly rank, and their faithful have been restored to communion with the Church.”
Here, Phanar is trying to justify the removal of canonical punishments by the fact that the Patriarchate of Constantinople supposedly has the right to accept appeals against such punishments from clerics from other Local Churches. However, it is not. There are no decisions of the Ecumenical Councils that would secure such a right for Constantinople. For the sake of justice, it should be said that in the first millennium there were similar precedents, but again, the decisions are based on existing rules and not on the fact that such cases could randomly occur in history. The church canons say unequivocally: the Patriarch of Constantinople can consider appeals against the decisions of the heads of the metropolis provided this metropolis is part of the Patriarchate of Constantinople.
Thus, the only legal clue that can somehow substantiate the removal of the anathema from Mr. Denisenko and Maletich lies in the fact that by returning allegedly the Metropolitanate of Kiev to the jurisdiction of Constantinople retroactively, Phanar declares the anathema decision, taken by the Moscow Patriarchate, invalid. Actually, the fact that the appeals from Mr Denisenko and Maletich were not at all considered by Constantinople is indisputable. Consideration of any appeal clearly involves hearing of the opinions of both parties to the dispute. The Phanar was supposed to invite representatives of the Russian Orthodox Church, or at least inquire written explanations from them about why they had applied canonical punishments to Messrs Denisenko and Maletich. But this was not done, which means that the right to consider appeals from clerics of other Churches, which, according to Phanar, it has, was not applied.
Consequently, Phanar “removed the anathema” on the grounds that it “returned” the Kiev Metropolis to its jurisdiction. And by doing this it explicitly demonstrated that it considers the Letter of 1686 to have lost its legal force from that same 1686. In turn, it means that all parties of the circumstances of that time around the transfer of the Kiev Metropolis should return to their initial legal and property status. In legal terms it is called a bilateral restitution.
At this point unexpected things may crop up. It seems that Petro Poroshenko with his MPs, so hospitably opening the doors to the Turkish Greeks, are not quite aware of all the consequences of their actions, or they do not particularly care about them. After all, if the President and his fellow-thinkers give such a warm welcome to the decisions of Phanar on the “reversal” of the ecclesiastic situation in Ukraine up to the time of 1686, then they are obliged to also reverse the situation with the church real estate to this time frame. To put it simply – they have to abolish the nationalization of temples and monasteries and their lands, which occurred during the Soviet era. Moreover, it seems so appropriate to do this now if we recall how fiercely our authorities are now fighting the “consequences” of the communist regime.
Given that the Ukrainian government formally gave the Orthodox Church to the possession of Constantinople and ensured full support to Phanar, it is likely that later it will be necessary to take the next step – solve property issues. And not necessarily Phanar should become the immediate owner of the temples and lands (although Constantinople would hardly object to that). There are church revenues, after all. And their distribution can be documented.
Of course, now such scenarios seem not quite realistic. But after all, at the beginning of Ukraine’s independence, hardly anyone could imagine that in 2018 our country would have a huge foreign debt, while many important decisions would respectfully be coordinated with senior fellows from across the ocean. With these very fellows, who now so violently back up not even autocephaly itself (which should arrive sometime some day), but today's real administration of a part of the Ukrainian Church by Constantinople.
Such are the dealings between Ukraine and Phanar as a result of the return of the ancient Kiev Metropolis to Constantinople.
However, there is still a relationship between Moscow and Constantinople.
We now draw attention to the remarkable words of Phanar that the Letter of 1686 was issued “according to the circumstances of that time”. One of these “circumstances” was that Patriarch Dionysius IV received from the envoys of the Ukrainian hetman and the Russian tsar a specific pecuniary and monetary reward, namely: 200 gold coins and 120 sable skins. Patriarch Dionysius personally signed a document to confirm this receipt, which today, in all likelihood, is kept in the archives of the Russian Foreign Ministry. Incidentally, the archives also contain one more document testifying to the morale of the Phanarian bishops. This is a request from Patriarch Dionysius, transmitted through clerk Alekseev to the tsar's government, to reward with money also other bishops who had signed the certificate of transfer of the Kiev Metropolis to Moscow. Whether this letter of request was satisfied is unknown, but it is definitely known that all the Eastern hierarchs who appealed to Moscow for help were very generously rewarded.
Certainly, it is not very pleasant to recall such not entirely ethical aspects, such as the monetary equivalent of certain decisions of the Patriarch of Constantinople. But the current hierarchs of this Church persistently draw attention themselves to the dark pages of their down and dirty history. Until recently, to mention such facts was a sign of bad taste, and only the “hierarchs” of the Kiev Patriarchate resorted to this. The very ones that Constantinople has now sort of begun to regard as its recognized "hierarchs".
Of course, these 120 sables and 200 (pardon, not 300, as reported by Matthew Shevchuk) gold coins are a mere trifle compared with those amounts of money and those sables the Russian tsars and patriarchs used to send every year (!) for centuries to Constantinople. Below, for example, is the order of Tsar Peter I, issued at the beginning of the XVIII century:
“A letter of grant, signed and sealed, is being sent; and since the patriarch asked the sovereign to help the extremely needy Church of Constantinople, therefore, as a loving son of Orthodoxy and Eastern Church, being concerned about it, I arrange for the constant help from our czar's treasury to the great Constantinople Church and to His Holiness Patriarch Jeremiah, as well as subsequent holiest patriarchs of Constantinople for them to receive annually sables equivalent to the amount of three thousand rubles, which are to be given without delay to envoys or successors of the most holy see (namely two or three persons) upon their arrival in our Russian state. We also make sure the envoys of Constantinople be offered proper reception and departure worthy of their dignity and rank... ”.
But all these annual alms-giving, which provided for the existence of not only the Constantinople Church but also other Eastern (and not only Eastern) patriarchs, are only alms, for they were not conditioned by anything. However, in case of the documents on the transfer of the Kiev Metropolitanate, Patriarch Dionysius received specific amounts, the receipt of which he confirmed by signing.
And if Phanar decided to return the Ukrainian Church, then it would have to completely scrape away all the filth of historical accretions and publicly acknowledge the fact that the glorious Ecumenical Patriarchs were blatant bribe takers. Meanwhile, for some reason, they are making claims toward the Russian Church for the illegal “purchase” of the Kiev Metropolis (although the ROC didn’t participate in this deal), silencing the unenviable role of the Mother Church of Constantinople.
There is another very discouraging moment in this story, this time it concerns us, Ukrainians. In 1686 we were sold by the Mother Church as an inanimate thing. Now, our ex-Mother is tearing apart our Church in an attempt to take back her formerly sold property (which, by the way, has now increased considerably). And again, no one asks us anything. Again we are just an inanimate thing.
Yet, Ukraine is already 27 years old, it is an independent state, in which we ourselves independently solve all issues, right?
And now, under the slogan of church independence, we are, in fact, surrendering to the foreign structure, which pursues its own, very pragmatic plans. And again, as in other areas of our life, we naively hope that foreigners act in Ukraine not for the sake of achieving their own selfish goals, but exclusively in the interests of the Ukrainian people.
The Ukrainian authorities have already agreed to the fact that Constantinople recovered the Kiev Metropolis into its jurisdiction and even through the lips of the Verkhovna Rada's Speaker A. Parubiy promised to transfer to the Phanar 20 of the most ancient monasteries, including the Kiev-Pechersk and Pochaev Lavras. But if restitution is already under way, then it is high time Phanar returned 200 gold pieces and 120 sable skins. But, alas, not to Ukraine ...