Expertise Resolution.
한글
Legal analysis of the Federal Act "On Freedom of Conscience and religious
associations" (passed by State Duma of RF September 19, 1997 and adopted by
Federal Counsel September 24, 1997, signed by the President of RF September
26, 1997, officially published and effective October 1, 1997)
1. Preamble
Having retained the preamble of the previous law, the Act again points out
the "special role" of one religious denomination and presents the list of
"respected" religions which breaks the Constitutional principle of equity
of all religious associations in sight of the law (Article 14 of
Constitution of RF). These statutes of preamble are contrary to the Act
itself, for example in Article 3 section 3 it prohibits "establishment of
privileges or restrictions, just as any other form of discrimination on the
basis of one's attitude toward religion". According to the Declaration of
Human Rights and Freedoms of Organization of United Nations that prohibits
all intolerance and discrimination on the basis of religion and personal
convictions (Article 2). The law of RSFSR "On Freedom of Religious
Confession" (passed October 25, 1990) contained this concept, stating in
Article 10 that "the State is neutral in questions of freedom of religious
confession and convictions, meaning that it does not take sides of any
religion or world outlook". The new Act not only omitted this position, but
has drastically moved from it.
Not withstanding that the preamble does not have the regulative effect of
the statute, it does however determine the "spirit and letter" of the law
itself. Therefore it is obvious that the inequality of religious
associations that is stated in preamble is developed later in the
proceeding articles.
2. Section 5 of Article 3
Section 5 of Article 3 of the Act refers inappropriately to religious
organizations' position stating that "enticement of minors into religious
associations or teaching them religion against their will or without
agreement of their parents' or guardians is forbidden". In other words, if
minors or children have stated their will and have received their parent's
approval it is legitimate to "entice". According to similar statutes in
Criminal Code, wording "the enticement of minors" presupposes the criminal
character of religious activities.
The Act fully describes constitutional principle of freedom of choice of
religious convictions. Thus, in section 5 of Article 3 it is stated that "
nobody, can be forced to determine opinion on religion, confession of it or
refusal to confess any, participation or refusal to participate in
services, religious rituals and ceremonies, activities of religious
associations and religious education. Section 2 of Article 5 states that
up-bringing and education of children is not only based on parent's right
to bring their children up in accordance with their convictions, but also
according to the child's right to freedom of conscience and religion.
The Act is contrary to the legislative limitation of the rights of the
minors, putting their religious orientation subject to their parent's
approval, whose opinion can vary from their children's opinion or
children's interests. According to Article 17, section 2 of Constitution of
RF the rights and freedoms belong to a person "from birth". Article 28 of
Civil Code defines minors as children under age of 14. Therefore, according
to Article 57 of the Family Code of the RF, consideration of child's
opinion is mandatory, except for cases when it is contrary to his or her
interests.
In practice the following limitation will lead to demands of controlling
organs to present a written consent certified in appropriate form of both
parents that will allow the child to participate in services, education in
Sunday school etc., even if it is initiated by the child's grandmother or
grandfather or other relatives or even by one of the parents.
3. Section 4 Article 5
The statutes of the Act that sanction the administration of state and
municipal educational establishments (upon parents' request and children's
consent) to provide opportunity for religious organizations to teach
religion aside from the educational curriculum established by the state
with consent of local officials, limits the right of parent to bring the
child in accordance to their own convictions and considering the opinion of
a child, because it puts their religious choice a subject to position of
local authorities. This statute of the Act is contrary to Articles 5,14, 50
of the Law "On Education", as well as Article 27 of Convention of the
Commonwealth of Independent States, and Article 26 of Declaration of OUN on
the elimination of intolerance and discrimination on the basis of religion
and convictions, Article 26 of Declaration of Human rights and other
broadly accepted norms of International Law, that guarantees priority of
parents' choice of education and religious upbringing according to their
personal convictions and considering the opinion of a child, not putting
their choice a subject to approval of state and local officials.
4. Articles 5 and 19
Section 1 of Article 5 of the Act states that religious education is one of
the characteristics of religious association.
In accordance with section 3 of Article 7, religious associations that
implement their activities without State registration can directly exercise
their right of providing religious education without state registration or
becoming a legal body.
However according to Articles 5 and 19 of the Act, religious associations
that have status of a legal body (religious organization) can exercise this
right only by using the privilege of teaching in Public and municipal
educational institutions, granted by the state or local officials (p.4
A.5), or by means of establishing religious educational institutions (p.3
A.5 A.19). Therefore, the Act violates the right of religious organizations
to teach religion directly, without establishing an educational
institution. This conflicts with Constitutional right of everyone to
exercise both individually and with others their freedom of religion as
well as freely spread religious and other kinds of convictions and act in
accordance with them (A 28 of Constitution of RF), as well as Article 16.6
of the Vienna Resolution 1989, Article 19 of Declaration of Human rights
and freedoms as well as other broadly accepted norms of International Law.
In reality the above described limitations will serve as grounds for
government officials that have controlling functions to demand licensing of
any of the activities pertaining to religious education, as well as making
mandatory the licensing of Sunday schools, study groups, courses of
religion that work under religious organizations.
5. Section 1 of Article 6 and section 3 of Article 7
According to positions stated in section 1 of Article 6 and section 3 of
Article 7 of the Act, religious associations have a right to the "religious
education and upbringing of their followers"
Limiting the right of religious associations to "religious education and
upbringing" only to the circles of their followers of their religion is
contrary to Article 28 of the Constitution of the RF, which guarantees the
right of everyone individually, or with others, to freely spread religious
convictions, and also the Law of the RF "On Education" which makes a
provision that state policy in the area of education is to be based on
freedom and pluralism of education (Article 2)
Furthermore the Act contradicts itself on this issue. For instance in
section 1 of Article 5 of the Act everyone has a right to choose and pursue
religious education individually and together with others. Nevertheless,
the Act in section 1 Article 6 and section 3 of Article 7, limits the right
of citizens to pursue a religious education and upbringing in the religious
association of their choice due to the exercise of that right being
connected by law with the mandatory condition of being a "follower" of the
studied religion. This is contrary to Article 14 of the Law of the RF "On
Education", according to which the substance of education should promote
the exercise of right of the students to freedom of choice of opinion and
convictions, as well the right of everyone to access of information and
ideas as established in Article 19 of Universal Declaration of Human rights
and Article 19 of International Pact of Civil and Political Rights.
6. Section 1 of Article 6, Section 1 of Article 8 and Section 1 of Article
9
According to sec.1 Art. 6 and sec.1 Art. 8 of the Act, the right of
participation in religious association (religious group or religious
organization) is recognized only for citizens of Russian Federation and
other persons, who "permanently and on legal basis" live on the territory
of Russian Federation. Therefore, according to the Act there is a whole
category of people who are living in Russia on legal grounds but who don't
have either the citizenship of the RF (foreign students, embassy employers
and employers of foreign accredited firms in Russia, foreigners and persons
without any citizenship who are contract workers in Russian organizations,
refugees etc), or are limited in their right to participate in religious
associations during their stay on RF territory and therefore of their right
to exercise their religion with others. Besides that, the phrase
"permanently and legally residing" as used in this Act does not follow the
accepted terms as used by the legislature like "place of permanent
residence" and "place of temporary residence", which in practice will lead
to arbitrary interpretations and infringement of the rights of citizens.
According to section 1 of Article 9 of the Act the right to create a
religious organization is recognized only for the citizens of the RF.
Foreign citizens, persons without citizenship as well as those permanently
residing on the territory of the RF are deprived of this right by the Act.
At the same time, Article 28 of the Constitution of the RF guarantees to
everyone the freedom of religion, including the right to confess together
with others any religion and act (together with others) in accordance with
convictions. Article 30 of the Constitution of the RF guarantees, that
everyone has a right to free association. In accordance with which,
everyone has the right to own, use and dispose of property, together with
others (Article 35) which guarantees of the constitutional right of
everyone to create a legal entity. According to section 3 of Article 63 of
the Constitution foreign citizens and persons without citizenship have
equal rights and responsibilities with citizens of the RF, except for
instances established by Federal Law or an international agreement with the
RF. Section 3 of Article 55 of Constitution or RF establishes an exhaustive
summary of grounds for possible limitation of rights and freedoms of
persons and citizens of RF by the Federal Law. International agreements
with the RF in the area of human rights do not allow for limitations in
exercise of religious confession and freedom of conscience.
7. Sections 2 and 7 of Article 8
Article 8 of the Act provides and understanding of "the territorial sphere
of the activities of the religious organization", which illegally limits
the activities of religious associations. Viewing a religious organization
as a legal entity, civil legislation provides no limitations on the basis
of territory. Viewing a religious organization as an association of
citizens with a common creed and dissimulation of faith, then limiting
these rights of citizens by territorial restrictions violates Article 28 of
the RF Constitution, which guarantees to each the freedom of creed
independent of their place of permanent or temporary residence.
8. Section 3 of Article 8, section 1 of Article 9
Articles 8 and 9 of the Act defines a religious association with the rights
of a legal entity as "a local religious organization", thereby limiting the
rights of citizens by requiring permanent residence "in one locality or in
one urban or rural settlement on the territory of one Subject of the
Russian Federation".
Limitations on the rights of citizens to the formation of local religious
organizations is a violation of the constitutional principle of the
separation of religious organizations and the state, by which religious
organizations are created and carry out their activities in accordance with
their own hierarchical and institutional structures. (sec. 5 Art. 4 of the
Act).
Limiting the rights of the founders to associate as one religious
organization by their permanent residence in one locality or one urban or
rural settlement is a violation of the constitutional right to associate
(Art. 30) and to commonly exercise their faith. (Art.28). The states
guarantees the undiminishment of rights and freedoms independent of one's
place of residence. In addition, conditioning the freedom to participate
and create a religious organizations on the location of one's place of
permanent residence is a violation of the Russian Federation's Law on "The
Rights of Citizens on the Freedom of Movement, Choice of Temporary and
Permanent Residence within the limits of the Russian Federation", according
to which the registration of citizens (by permanent or temporary residence)
or the absence of such registration may not serve as the basis for limiting
or conditioning the rights or freedoms of citizens, as provided by the
Constitution and laws of the Russian Federation.
9. Section 2 and 5, Article 8
State regulation of the hierarchical structures of religious organizations,
in sec. 2, art.8 of the Act, is a violation of the constitutional principle
the separation of religious associations and the state, and is interference
into the right of religious associations to form and act in accordance with
their own hierarchical and institutional structure. Religious associations
are not political parties, therefore the state has no right to dictate the
structure of socio-political associations (local, centralized, regional, or
national). Discriminating against religious associations on the basis of
whether or not they have reached a national level violates the
constitutional principle of equality of religious associations before the
law. Since granting national status to religious organizations will depend
entirely on the Justice's registration departments, that will lead
practically to the discrimination of "inconvenient" religious associations,
according to the opinion of bureaucrats.
Limitation of the right of religious organizations to use words "Russia",
"Russian" and other words derived from these is unlawful. According to
sec.5 of Art.8 of the Act, this right belongs only to a centralized
religious organization which has been acting on the territory of the
Russian Federation legally for 50 years prior to the day of that religious
organization application for state registration. The Act dictates a certain
hierarchical structure (mandatory formation of a centralized religious
organization) in violation of Art. 14 of the Constitution of the Russian
Federation, which may not be consistent with the internal policy of a
religious organization, and also gives privileges to organizations that
have been recognized as "lawful" in 40's and 50's. Presidential decree ?
348 (March 14, 1996), "On the Means of Rehabilitation of Clergymen and
Believers Who Became Victims of Ungrounded Repression", condemned the
terror that was launched by the Bolshevik's and the Soviet regime which
lasted for many years. This new Act practically revives political
repression.
10. Section 7 of Article 8
Contrary to the constitutional principle of equality of religious
associations in sight of law, section 7 of Article 8 of the Act states that
"state departments, in considering matters touching upon the activity of
religious organizations within society, are to take into account the
territorial sphere of the activities of a religious organization, and are
to grant the appropriate religious organizations the chance of
participating in considering these questions." It is quite obvious that the
term "appropriate religious organizations" in this case means only "the
most authoritative religious organizations" are granted the privilege of
participation in the decision making process by state departments, touching
activities of all religious organizations (as was demonstrated by the Mayor
of Moscow's Instructions ? 642-PM dated August 19, 1997).
11. Section 1 of Article 9
According to section 1 of Article 9 of the Act, religious organizations can
be registered by fulfilling one of the following conditions: presenting
proof from the centralized religious organization of the same denomination
as being a part of their structure or proof from a local authority of
existence on a given territory for a period of fifteen years.
Requirements for religious organizations to present proof of being a part
of a centralized structure limits formation of autonomous (independent from
the center) religious organizations, which violates the right of religious
organization to be formed and act in accordance with its own hierarchical
and institutional structure, as defined in the very same Act (sec. 5 of
Article 4). Moreover, the stated position of the Act is contrary to the
most important constitutional principle of all associations including
religious, that of the voluntary.
The requirement of a fifteen year period of existence, after which the
founders can register their association as a religious organization, is
unlawful. Civil Code does not contain terms of any kind for the formation
of a legal entity, the will of founders and the characteristics of a legal
entity (Article 48 of the Civil Code of the RF) is sufficient for state
registration. The Act unlawfully limits citizens' capability in their right
to form legal entities (Article 18 of the Civil Code of the RF) and
violates Articles 14 and 28 of the RF Constitution by putting religions
associations of citizens (religious groups) in discriminatory position,
unequal in sight of law. Religious group, in light of the Act is not a
voluntary, but a mandatory requirement for a religious association.
Moreover, section 1 of Article 9 and following articles of the Act that
define the procedure of formation of religious organizations, conditions
the right of citizen to form a religious organization (with the rights of a
legal entity) with the kind of religion they confess (represented by a
centralized religious organization or not), which is a gross violation of
Article 19 of the RF Constitution that forbids any limitations of citizens'
rights on the basis of religion.
12. Section 5 of Article 11
The documents that are required to be presented to registering departments
of Justice for state registration of a local religious organization must
contain information about the origin of the religion and of a given
religious association (sec. 5 of Art. 11). Moreover, one of the grounds for
denial of a state registration of a religious organization is
non-authenticity of the facts stated therein (sec. 1 of Art. 12 of the
Act). This unlawfully obligates the members of the religious association to
study, set out in writing and present the history, not only of their own
religious association, but also of religion, as whole, which they confess.
History can never be completely objective and authentical. However many
authors there are, that is how many different opinions you can get on the
same historical events. Therefore the registering department can always
find reasons to deny registration on formal grounds (unauthenticity,
unobjectiveness, incompleteness and etc.).
13. Section 8 of Article 11
According to section 8 of Article 11, a registering department has a right
to prolong the processing of documents to conduct an expert religious
study. Although the Act places the creation of the expert study under the
jurisdiction of the Government of the RF, serious objections may be raised
as to whether the expert study should be granted "state" status.
The general principles for appointing and carrying out the expert study on
all questions relating to civil legal relationships are established by the
legislature. According to Articles 74 through 78 of Civil Procedure Code of
RSFSR, the expert study may be appointed for clarification of questions
that need special knowledge in a scientific field, and the responsibilities
of this expert can be assigned to any specialist who possesses this kind of
knowledge. The expert must be independent and the conclusion of the expert
study for decisions on such matters possesses the character of a
recommendation. The same procedure is used in criminal and administrative
transgressions. But nevertheless, independent of the expert's position
(whether the expert is a state employee or not) the expertise is not
considered as having "state" status.
The Act introduces totally new terminology for the Russian legislature with
"state religious expert study" which will practically lead to limiting the
circle of experts to those that are state employees, ignoring the opinions
of independent scientist and specialists, as well as giving to the "state"
experts not the power of recommendation, but of a mandatory instruction.
14. Section 1 of Article 13
According to sec.1 of Art. 13 of the Act, the representative office of
foreign religious organizations cannot carry out religious activities.
Although the Act does not give a definition for "religious activities",
section 1 of Article 6 provides distinctive characteristics of a religious
association it can be assumed that Article 13 forbids for foreign
representative offices of religious organization to carry out worship,
religious ceremonies, teaching religion and providing religious education
to their followers.
The Act is a gross violation of the Constitution of the RF that guarantees
to everyone, which encompasses the employees of representative offices of
foreign religious organizations, including freedom of conscience, freedom
of creed, the right to profess individually as well as with others any kind
of religion, freely uphold and spread convictions and act in accordance
with those (Article 28 of the RF Constitution). Moreover, the Act is
contrary to the Article 19 of the International Pact on Civil and Political
Rights and other broadly accepted statutes of International Law that
guarantee freedom of convictions, freedom to express and spread convictions
by any means and independent of state borders.
15. Section 3 of Article 14
According to section 3 of Article 14, the procurator's office, local
governmental departments and departments of registration or religious
organizations all have the right to bring a case to court on the
liquidation of a religious organization or the banning of the activities of
a religious organization or a religious group.
Although formally, such a circumstance does not have a direct contradiction
to current legislation, granting such a power to local governmental
departments raises serious concerns that it will lead to increasing
harassment, and as a result the violation of the rights of religious
associations. Since departments that are directly connected with population
(public), local government will act in the favor of the "majority", which
will lead to literal persecutions of religious minorities. Litigation that
is initiated by "subjective" local government officials for the purpose of
liquidating or banning religious organizations which they dislike can drag
on for months and paralyze all their activities. Moreover, in granting the
local government the right to bring a case to court on the liquidation or
banning or a religious organization, the Act does not take in consideration
the difference between the level of local government and the status of a
religious organization (local, regional, national).
The Act is not consistent with broadly accepted statutes of International
Law (Articles 4 and 7 of the Declaration of OUN on the elimination of
intolerance and discrimination on the basis of religion and convictions,
Articles 16.1 and 17 of the Final Document of Meeting in Vienna in 1989 and
others), that obligate the state to take effective measure to prevent and
eliminate discrimination on the basis of religion.
16. Section 3 of Article 27
Article 27 of the Act states that by December 31 of 1999, a state
re-registration must be made even by religious organizations that were
registered before the effective date of the Act. Charters and other
founding documents of religious organizations are active except where they
do not contradict the Act and are changed to be in full conformance with
it.
Requirements of mandatory re-registration of religious organizations having
the purpose to conform it with the Act does not formally violate any
legislation. It was in a similar manner that the legislators resolved the
issue of bringing of the founding documents of commercial organizations
into conformance with the new Civil Code of the RF and charters of social
organizations into conformance with the new Federal Law "On Social
Associations".
However, section 3 of Article 27 of the Act has a major violation of the RF
Constitution and broadly accepted statutes of International Law by stating
that "religious organizations which do not possess a document proving their
existence on the corresponding territory over the course of at least 15
years are to enjoy the rights of a legal entity on the condition of
re-registration every year until the expiration of the indicated 15-year
period."
According to section 1 of the Article 54 of the RF Constitution, the law
that imposes or increases the harshness of legal responsibility does not
have prior effect. It is a widely accepted truth all around the world.
However, in contradiction to this principle section 3 of Article 27 of the
Act, gives prior effect to this Act. Application of these sections of the
Act will lead to the loss of a large number of legal rights, which
religious organizations legally enjoy at the present.
Section 3 of the Article 27 of the Act is a literal revival of Stalin's
measure of punishment known as "depriving of rights". Moreover the deprival
or rights of religious organizations comes not by ruling of a Court as a
sanction for breaking the law, but as a result of not having a "document
proving their existence on corresponding territory over the course of at
least 15 years". Furthermore, by requiring religious organizations to have
this "document", this Act does not sanction any department to issue such,
establishes no procedure of issue and does not reveal it's character, which
puts religious organizations in a legally vulnerable position with
arbitrary local authorities.
Moreover section 3 of Article 27 of the Act does not give a clear
understanding of the legislature's will on the term "do not possess the
document". Drawing an analogy with section 5 of the Article 27 of the Act
it can be presumed that it is the presentation of this document to the
Justice department during re-registration of the religious organization.
However, non-concrete use of the term in section 3 of Article 27 may result
in broad interpretation and lead, as a result, to arbitrary limitations of
the rights of the religious organizations.
The Act also has inner contradictions on this issue. In section 3 of the
Article 27 the requirement of the above mentioned "document" is directed to
all religious organizations, whereas the requirement stated in Article 9 of
the same Act of having a proof of existence fnr over a period of 15 years
is directed only at the local religious organizations.
The above stated sections of the Act is discriminative in relation to
religious organizations and contains a totally new concept for Russian
civil legislation with the terms "organizations, enjoying the rights of a
legal entity on the condition of their annual re-registration.
Depriving religious organizations of a large number of their constitutional
rights if they do not possess "a document that proves their existence on a
corresponding territory for a period of 15 years", as is stated in section
3 of Article 27, is a open act of vandalism on the Constitution and other
current legislation of the Russian Federation.
Similarly, the Act violates Article 28 of the RF Constitution that
guarantees to anyone the freedom of conscience and freedom of creed,
including the right to confess and dissimulate religious convictions, and
Article 29 of the RF Constitution that guarantees to anyone the freedom of
speech and freedom of media. The Act also deprives the religious
organizations of the right to found institutions of media. This statute of
the Act is also contrary to the Article 7 of the RF Act "On Mass Media"
that states that citizens, associations of citizens and organizations can
be the founders of mass media institutions.
Contrary to the Articles 28 and 43 of the RF Constitution the Act deprives
the above stated religious organizations of the right to found educational
institutions, including the institutions of professional religious
education. This statute is also contrary to the Article 11 of the RF Act
"On Education" that provides that religious organizations (associations)
can be founders of the educational institutions.
Even more blatant violations of the Article 28 of the RF Constitution as
stated in section 3 of the Article 27 of the Act, is the deprival of
religious organizations' right to hold religious ceremonies in health
centers and hospitals, orphanages, nursing homes and penitentiaries
(institutions applying sentences of imprisonment) at the request of the
citizens held therein, and the right to produce, acquire, export, import
and distribute religious literature, printed, audio, video material and
other articles of religious significance. It is especially absurd that the
religious organizations are forbidden to acquire religious literature.
The above analyzed section 3 of the Article 27 of the Act contradicts one
of the most important constitutional principles of equity of religious
associations before the law (Article 14 of the RF Constitution). The Act,
formally declaring in section 1 of the Article 4 the principle of equality
of religious organizations, completely abandons this principle in the
following articles (Articles 6, 8, 9 and 27), and divides religious
associations in three types on the basis of the rights provided by the Act:
religious groups (having practically no rights), religious organizations
with the rights of the legal entity and religious organizations with
limited rights of the legal entity (deprived of rights).
The above stated section 3 of the Article 27 of the Act moreover is
contrary to sec.1 of Art. 2, sec.1 of Art. 45, Art. 55 of the RF
Constitution, and also the broadly accepted statutes of the International
Law: Art. 18, 19, 26 and 29 of the Universal Declaration of the Human
Rights, Art. 18, 19 and 27 of the International Pact of Civil and Political
Rights, Declaration of OUN on elimination of intolerance and discrimination
on the basis of religion and convictions; Art. 16, 1, 3, 4, 6-11 and 17 of
the Final Document of Meeting in Vienna in 1989, Art. 10, 20 and 27 of
Convention of the Commonwealth of Independent States on Human Rights and
Basic Freedoms.
Pchelintsev A.V. Ryakhovsky V.V.
Director of the Institute of President of the Christian
Religion and Law Legal Center
Member of the Member of the
Expert-Consultative Commission Expert-Consultative Commission
of the State Duma of the of the State Duma of the
Russian Federation on Freedom Russian Federation on Freedom
of Conscience. of Conscience.