LEGAL ANALYSIS of the Slavic Center for Law and Justice

14 Октября 2011

October 11, 2011

LEGAL ANALYSIS

of the Slavic Center for Law and Justice 

The Ministry of Justice of the Russian Federation has developed the Draft Federal Law of the Russian Federation, “On Amending the Federal Law “On Freedom of Conscience and Religious Associations” (“Draft Law”). In addition to a number of “technical” amendments to the Law on Freedom of Conscience, the proposed law includes several important and fundamental changes relating to the activities of religious associations.

I.          The Draft Law proposes to delete the term “religious group” from the Law on Freedom of Conscience.

The Draft Law proposes that only certain religious organizations will be recognized:

(1) Religious (faith-based) organizations;

(2) Institutions of professional religious education; and

(3) Organizations that were established by a centralized religious organization in accordance with its charter, which indicates its objectives and characteristics, as stipulated in Paragraph 1 of Article 6 of the respective federal law, including a governing or coordinating body.

By restricting this definition to the above-mentioned forms of religious communities, this draft law is not necessarily establishing a ban on any religious communities that operate without having undergone state registration. Rather, by its terms, the Draft Law would ensure that the government simply will not recognize such communities as religious groups. Under this draft law, the authors would effectively eliminate religious groups’ access to legal rights and benefits provided by the state. As a result, these religious groups will legally cease to exist despite the fact that some of these organizations’ currently reach and minister to more people than those reached by officially registered religious organizations.

The current version of the Law on Freedom of Conscience (“the Law”) recognizes a religious group as one of a number of forms of religious association. However, in practice, the current Law raises many questions about religious groups’ status and activities. For instance, at what point does the Law recognize a group’s creation? Does creation require a constituent assembly, or is creation deemed upon a group’s first member meeting without any official decision? How should the group be identified (e.g. does it need to have a name, etc.)? What is the minimum qualifying number of participants for a group (e.g., do two people constitute a group)? These unanswered questions do not form an exhaustive list.

Notably, the Law could have been amended to simply address all questions relating to religious groups’ legal status. However, the Ministry of Justice of the Russian Federation took a defective approach that would wholly exclude the term “religious group.”

II.        What would the legal consequences be if the proposed amendments were to be adopted?

Article 28 of the Constitution of the Russian Federation provides that “[e]veryone is guaranteed freedom of conscience and religion, including the right to profess, individually or jointly with others, any religion or to not practice any religion, and to freely choose, possess and propagate religious and other convictions and act in accordance with them.” Moreover, Article 15 of the Constitution ensures that “the Constitution of the Russian Federation shall hold supreme legal force and a direct effect and it shall be applied throughout the Russian Federation.” Additionally, Article 18 of the Constitution addresses how laws must be interpreted: “The rights and freedoms of man and citizen shall have direct effect. They determine the meaning, content and application of laws, the activity of legislative and executive bodies and local authorities, and are secured by the judiciary.” Thus, every citizen has a constitutional right to confess his faith, both individually and collectively with others.

The aforementioned constitutional rights are directly applicable and restrain the government from enacting laws that interfere with those rights provided. Therefore, excluding the term “religious group” from the Law on Freedom of Conscience cannot be properly interpreted to ban any religious activity by a group that has yet to register with the state. Thus, if the Draft Law were to be enacted, citizens should still be able to freely associate and assemble to collectively practicing their faith, just as before. Once enacted, however, groups declining to register will not be recognized by the state as religious associations. As a result, the Law on Freedom of Conscience, which regulates religious associations’ activity, will no longer apply to them.

Additional enforcement issues will be raised if the Draft Law is enacted. The Draft Law will be open to varying interpretations by regulatory and supervisory authorities that do not always follow the spirit of the law. Some interpretations may actually harm civil rights. For example, because the Draft Law eradicates religious groups, some would interpret this category’s deliberate removal to mean that no such category should exist. There have been numerous civil rights violations against the right to collective manifestation even in our own modern history. Whether a religious entity registers and receives legal recognition or maintains status as a religious group, and whether constitutional rights apply to these entities, religious entities will remain subject to violations through ad hoc determinations because of the Draft Law’s ambiguity. Because legal nihilism is widespread in our country, even among those charged with enforcing the law and protecting religious liberty, one does not need to hope that regulatory and supervisory organs will treat the constitutional rights of citizens with due respect without any reference to this that legislative act. In terms of law enforcement practices, we conclude that the changes proposed by the Ministry of Justice in the Draft Law will raise more questions and problems than it proposes to answer. As currently written, the Draft Law definitively requires further clarification. Moreover, if enacted, the courts will be overburdened through a series of lawsuits brought to protect religious entities and individuals from unreasonable interpretations and applications of the Draft Law.

Furthermore, if the purpose of the Draft Law was to improve upon existing legislation, this version completely fails in this respect. Improvement cannot be reasonably attained by excluding religious organizations because most religious associations will cease to exist de jure, while continuing to exist de facto (absent a legal interpretation that would prohibit an entity’s activities altogether). If religious groups continue to exist without falling within the purview of the Law on Freedom of Conscience, they cannot be criminally and civilly liable for any of their activities. As such, the authorities’ next logical step would be to prohibit any unregistered religious communities from assembling, in stark contradiction with and a blatant violation of Article 28 of the Constitution.

The wiser approach would be to prepare a draft law that essentially responds to the questions that arise in practice regarding religious groups’ activities, rather than simply eliminating religious groups from the legal framework. This approach would go a long way to alleviate current problems.

III.       Following state registration, the Draft Law effectively proposes a 10-year limit on newly established religious organizations’ rights.

Under Article 9, Paragraph 1 of the current Law on Freedom of Conscience, religious associations must (as a prerequisite to legal registration) prove that the association has existed as a religious group for at least 15 years. However, in the case of Kimla, et al. v. Russia, nos. 76836/01 and 32782/03, §§ 103-104, 1 October 2009, the European Court of Human Rights held that this requirement violated the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, the European Court of Human Rights obliged Russia to take measures aimed at removing the practice of refusing to register religious organizations on the basis of their non-compliance with the pre-requisite of a religious association’s prior existence as a religious group for a period of at least 15 years.

            Although the Draft Law proposes to exclude this 15-year history prerequisite for registration, it imposes new insurmountable difficulties that continue to block registration for new entities. True, the Draft Law proposes to allow local religious organizations not affiliated with any centralized religious organization to register without providing proof of its 15-year history. The Draft Law, however, makes the exercise of certain rights contingent upon the local religious organization’s ability to prove its inclusion within a centralized religious organization. Thus, although a local religious organization may register without proving such affiliation, it may not exercise certain rights for a ten-year period – a period similarly unreasonable to the 15-year period addressed (and found to violate the Convention) in Kimla, et al. v. Russia. The restricted rights are listed below:

·      Offering religious instruction to children outside of the educational programs offered at state and municipal educational establishments;

·      Involving any representatives of a foreign religious organization;

·      Conducting religious services in health care institutions and hospitals, orphanages (children’s homes), communal homes for the elderly and disabled, and in correctional facilities (e.g. prisons, penitentiaries) at the request of citizens who are at the premises specifically allocated by the respective administration for this purpose;

·      Establishing educational institutions or setting up mass media capabilities;

·      Creating institutions offering professional religious education (religious educational institutions) to train ministers (clergy) and religious personnel;

·      Inviting foreign citizens in order to engage in the professional activities, including preaching and religious activities, of such organizations in accordance with federal legislation;

·      Becoming involved as the founders of a centralized religious organization.

 

The proposals put forth by the Ministry of Justice regarding such restrictions violate the requirements outlined in Article 14, Paragraph 2 of the Constitution, in which “Religious associations are separated from the state and are equal before the law.” Decisions rendered by the Constitutional Court of the Russian Federation and the European Court of Human Rights have repeatedly stated that, although different rights may be granted to religious organizations, religious organizations should not be subjected to discriminatory treatment.

This latest proposed Draft Law explicitly ignores the Constitutional Court of the Russian Federation’s November 23, 1999 decision, Decision N 16-P. Sub-section 4 of this Decision reads as follows:

From Article 28 of the Constitution of the Russian Federation, in conjunction with Articles 13 (part 4), 14, 19 (parts 1 and 2) and 30 (part 1), it follows that the freedom of religion includes the freedom to form religious associations and the freedom of such associations to pursue activities on the basis of legal equality, by virtue of which the federal legislator, in realizing the powers deriving from Articles 71 (points “c” and “o”) and 76 of the Constitution of the Russian Federation, has the right to regulate the civil and legal status of religious associations, including the conditions for recognizing a religious association as a legal entity, the order of its establishment, its creation and state registration, and to determine the matter of the legal capacity of religious organizations.

 

At the same time, the legislator, given the historically multi-religious way of life that has developed in Russia, must abide by the provisions of Article 17 (part 1) of the Constitution of the Russian Federation, whereby the Russian Federation guarantees the rights and freedoms of man and citizen according to the principles and norms of international law and in accordance with the Constitution of the Russian Federation. The introduction of measures relating to a religious association’s establishment, creation and registration of religious organizations should not distort the very essence of the freedom of religion, the freedom of association and the freedom of carrying out its activities, and the potential limitations affecting these and other constitutional rights must be justified and proportionate to constitutionally significant purposes.

 

Id. (emphasis added).

 

Because the Draft Law fails to specify its objectives, any discussion or analysis of whether the relevant “limitations affecting . . . constitutional rights” are “justified and proportionate to constitutionally significant purposes” is not possible. The Draft Law’s restrictions are based on unfounded opinions that are not related to a religious association’s actual activities. Thus, the authors of the Draft Law fear the rise of “new” religious groups and equate them with something that is “dangerous.” The Constitution does not make this assumption, and neither should the Draft Law.

IV.       The Draft Law expands the powers of the state religious expert examination.

 

Under the current Law on Freedom of Conscience, a state religious expert examination may be carried out only if the organization is registered upon its initial establishment. The Ministry of Justice now proposes to examine religious organizations that already exist. According to the draft law, a state religious expert examination may be carried out in the following instances:

1)        The submission, in the prescribed manner, of an application for state    registration to the appropriate federal state registration body (or a      territorial agency thereof):

 

˗     For a local religious organization that does not have confirmation issued by a centralized religious organization of the same religion/faith;

˗     Any amendments to the charter of a religious organization (including its legal name) in the case that these changes are associated with specified or altered information about the religious confession of the organization;

 

2)        If necessary, an expert assessment to determine whether or not a

            registered religious organization still exhibits the characteristics of a

            religious organization, as established under Federal Law.

 

The provisions in the Draft Law (or lack thereof) regarding religious expert examinations appear to open the door to abuse, because the Draft Law is unclear as to whether religious expert examinations may be carried out repeatedly against a single organization. Neither does the Draft Law indicate how often examinations may be conducted. Further, the legal consequences are similarly not clear should a particular examination of a religious organization find that necessary requirements are no longer met. Under Article 12 of the current Law, a religious organization may initially be denied the opportunity to register if it is not recognized as a religious entity. Additionally, the current Law on Freedom of Conscience does not impose any sanction in such a case, because an examination is only permitted during the initial registration or when registering amendments to the founding documents. On the other hand, the Draft Law contains expert examination requirements in virtually the same form as the existing Law. However, the proposed amendment fails to mention both the timing of the expert examination and the procedural requirements for carrying out the examination. The text of the Draft Law merely makes reference to a departmental regulation, which permits these matters to be regulated. This fact ultimately reduces the credibility of the Draft Law’s regulatory function.

Although this analysis of the Draft Federal Law, proposed by the Ministry of Justice of the Russian Federation, “On Amending the Federal Law ‘On Freedom of Conscience and Religious Associations,’” has primarily been negative, the Draft Law notably contains some positive features. In particular, the Draft Law introduces some necessary technical changes, e.g. it specifies grounds for refusing registration to a religious organization.

Our overall assessment, however, is negative. On October the 10^th, 2011, the active Class I State Advisor to the Russian Federation, Andrei E. Sebentsov, made a statement during an interview with the Nezavisimaya Gazeta that captures the troublesome nature of the Draft Law: “[I]t is simply amazing how much we (speaking on behalf of the Ministry of Justice) are able to create precedents of worsening problems in the guise of solving them.”

 

V.V. Ryakhovsky

Honorary Lawyer of Russia, Member of the Advisory Board of the State Duma

Committee on Non-Governmental Associations and Religious Organizations

A.V. Pchelintsev

Editor-in-chief of the journal “Religion and Law”, Candidate of Legal Sciences (Ph.D.)

S.V. Chugunov

Lawyer