Remarks on the draft "On introducing amendments and addenda to the federal law 'On freedom of religious worship'"
by Galina Krylova, attorney for Unification Church, Moscow
Freedom of conscience and religious worship has been in effect for over six years. Notwithstanding the introduction of several pieces of legislation, and especially the adoption of the new Federal Constitution of 1993, the law remains compatible with constitutional norms. Undoubtedly the adoption of the new Constitution, the Civil Code and other laws necessitates amendments and addenda to this law; however, it is compatible in concept and content with the Constitution and international rules and regulations.
Presently an attempt is being made to adopt a new law on freedom of conscience which will entail rigid control of religious rights and activities and will restrict the activities of foreign religious organizations. Although the bill is called "On introducing amendments and addenda to the federal law 'On freedom of religious worship,"' it is actually a new and distinct law. The necessity for this law was explained in the explanatory statement by the Chairman of the Duma Committee on Issues of Public and Religious Organizations (Mr. V.I. Zorkaltsev); it also indicated that the absence of state control in the area of religion has led to increasing conflicts related to religious sects. The use of the term "sect" is also indicative. According to Mr. V.I. Zorkaltsev, the adoption of this bill will result in the "eradication of the power vacuum in the activities of foreign religious organizations and their affiliates." This statement is important, since it clearly indicates the intention to divide religious organizations (into local and foreign or religious organizations and "sects," although this term was not included in the bill per se), to protect traditional religions from "sects," thereby ignoring the basic principles of religious freedom. Apparently the present religious pluralism does not satisfy certain officials and the representatives of Russian traditional religions and anti-cult organizations. The essence of this bill is the rigid control of all non-traditional religious movements, which eventually will restrict religious freedom.
The version of the law "On freedom of religious worship" is actually a new law, allowing the possibility of restricting religious rights, especially during the registration process, and particularly the introduction of a division of religious organizations into local and foreign (the latter are denied legal status), and new grounds for dissolution. The registration procedure for religious organizations and its requirement, according to Article 26, Part 2 of the bill, creates the conditions necessary to ban the activities of "new" religions. Therefore the absence of Article 5 (guaranteeing religious freedom), which notwithstanding its declarative nature necessitates such laws, is not surprising. Instead the bill introduces the concept "detrimental to state security," which opens the door to a wide range of arbitrary and groundless decisions. In summary, the bill clearly allows violations of religious rights.
The bill lacks Article 5, present in the old law. Although it is declarative, its absence in the new bill is indicative. The current law prohibits the formation of state authorities specially created to deal with issues concerning freedom of conscience (Article 8) and establishes the obligation of the state to uphold freedom of religious worship (Article 11). The bill lifts the prohibition on creating special authorities and maintains the necessity for state control in the activities of religious organizations (Article 24). This formulation will allow the Ministry of Justice and the regional judicial bodies to interfere in the activities of religious organizations, and the absence of the said prohibition paves the way for the creation of authorities on religious issues, which on regional levels would restrict the activities of organizations counted as "sects. "
The 1990 law requires the registration of the statutes of existing religious organizations, as well as new religious organizations.
According to the new bill, official registration requires the presentation of some information on teachings and practices, which will invite bias in official registries (depending on the relation to these practices and teachings, etc.). To register organizations whose head offices are located abroad, it is necessary to present the charter or other documents notarized in the country of origin. The registration period for these organizations will be increased to six months.
The basis for rejection will be broadened considerably. Currently registration can be declined on the grounds that statutes violate the law "On freedom of religious worship" and federal legislation (Article 20); according to this bill, registration will be denied if the aims and activities of an organization violate the Federal Constitution and current legislation [Note: How can an unregistered organization violate laws?], the organization is defined as non-religious [Note: What are the criteria?], or the contents of the charter are unacceptable.
The proposed registration procedure for registering foreign religious organizations is discriminatory in essence. The bill also allows official registries (i.e., judicial bodies and the Ministry of Justice) to relate subjectively to religious organizations.
Article 2, Part 2 contradicts Article 2, Part 1, since Part 1 stipulates that federal legislation on freedom of conscience and religious worship correspond to the Federal Constitution. Hence, the legislature is proposing a series of laws which can be adopted only on the federal level. The regions were completely excluded. Besides, it is unwise to allows regions to pass laws concerning freedom of conscience, not only because the federal legislation is sufficient (e.g., a Kazan or Altai Civil Code does not exist) but also because this can lead to regional-level conflicts even among traditional religions. Concerning non-traditional religious organizations, the present situation already manifests violations of current legislation by current administrations, the restriction of activities; the proposed bill is discriminatory and contradicts the Constitution and legislation.
Article 11 ignores the principle of equality of all religions before the law and is discriminatory, since in issues of faith there are no foreigners. It is discriminatory because international law not only does not contain the concept "foreign religious organizations" but prohibits all forms of discrimination. Besides, the proposal to register affiliates also restricts the rights of foreign organizations, since, according to Article 55, Part 3 of the Federal Civil Code, affiliates are not legal entities (the legal entity is the parent organization and not the affiliate). This also violates Article 4, Part 1 of this bill, which stipulates that all religious organizations are equal before the law. Apparently this article was adopted to buttress the division of religious organizations; however the concept "foreign religious organizations" directly leads to religious conflicts.
If currently a religious organization cannot be banned (although it can be stripped of legal status), then according to this bill (Article 12, Paragraph 2) the dissolution of a religious organization can be contested in court.
Article 12 is legally untenable, it contains concepts not existing in legislation -- for example, according to Article 61 of the Federal Civil Code, a registered body cannot be dissolved -- while Article 12 of the bill indicates the restriction of activities.
The fact that jurisdiction was not discussed is a serious shortcoming. According to Article 116 of the Federal Civil Code, the Federal Supreme Court reserves the jurisdiction to settle cases concerning the proscription of Russian and foreign public organizations. Therefore, it is necessary to either propose the introduction of amendments in the Civil Code or directly adopt the jurisdiction stipulated in the Civil Code (regional courts for interregional and regional religious organizations and the Supreme Court for federal and international religious organizations).
The procedure of dissolving public organizations is described sufficiently in Articles 41 to 45 of the federal law "On public organizations"; these articles can serve as a blueprint for amendments to Article 12 of this bill, which from my point of view requires further analysis.
The basis for dissolving organizations as stipulated in Article 12 is not appropriate for official legislation; it belongs to the programs and declarations of the various committees. The principle of individual culpability was ignored by the author of the bill. Besides, if the activities of a particular group of people are considered illegal (according to Article 12, Part 2), these people must be prosecuted for the alleged crimes committed. But how can the activities of an organization be considered illegal if this fact has not been contested in the court of law? Obviously, only the leaders and active members of an organization can be censured for crimes committed; if these crimes are associated with the activities of the organization, then the issue of dissolution can be proposed (including restriction during preliminary investigation).
The question of which contradictions of statutes can allow the court to dissolve an organization was unanswered.
A more rational approach to this issue would be: a system of notification, the possibility of restricting the activities of an organization based on specific irregularities, and dissolution only if these irregularities are continued (according to the law "On public organizations").
As a whole, the new edition of this article is imbued with judicial cynicism and is remarkable for its declarative nature. This article will allow judicial bodies and opponents of non-traditional religious organizations to practice administrative tyranny, and will allow local courts to make illegal and groundless decisions to dissolve religious organizations.
On the basis of this analysis, the bill is in essence less effective than the current legislation.
In December, 1997 (sic), during discussion of the draft of the law, amendments were introduced which did not change the meaning and intent of the law as a whole.
As a result of this discussion, significant changes were made, bringing the text of Article 2 of the law into conformity with the Constitution of the Russian Federation.
According to Article 71 of the Constitution of the Russian Federation, the regulation and defense of human rights and the freedoms of citizens and non-citizens alike are at the discretion of the Russian Federation. Article 72 of the Constitution of the Russian Federation attributes the defense of human rights and freedoms of citizens and non-citizens alike to the joint discretion of the Russian Federation and the regions of the Russian Federation.
In accordance with constitutional norms, it is written in Article 2, Part 2 of the draft that the human rights of freedom of conscience and religion are regulated solely by federal law.
It is obvious that remarks which had been made during the discussion likewise were taken into consideration on the question of the conformity of regional legislation and the legislation of the Russian Federation on freedom of conscience and religious organizations. It is indicated in Article 2, Part 1 that the legislation of the Russian Federation on freedom of conscience and religious organizations consists of the appropriate guidelines of the Constitution, the Civil Code of the Russian Federation, present federal law, and other statements adopted in accordance with federal and regional legislation. It is indicated in Article 2, Part 2 that the federal laws and other regulatory legal acts regarding freedom of conscience, religion, and the activities of religious organizations must conform with the present federal law. In case regional regulations and legislation on the rights of freedom of conscience, freedom of religion, and activities of religious organizations are in contradiction to federal law, then the pertaining federal law is applied. This thesis reflects constitutional norms, according to which regional laws and other regulatory legal acts may not contradict the federal laws on issues which are either under the jurisdiction of the Russian Federation or under the combined jurisdiction of the Russian Federation and its regions. In the case of conflict, the federal law is to be applied, in accordance with Article 76, Part 5 of the Constitution of the Russian Federation. Therefore the amendments introduced in Article 2 bring the law into conformity with present legislation.
While being declarative, the amendments which have been introduced in the text of Articles 3 and 4 of the draft fully correspond to the commonly recognized norms and principles established by international law and in the Constitution of the Russian Federation. According to Article 3, Part 3 of the draft, providing advantages, limitations, or other forms of discrimination based on one's religion or personal convictions is prohibited. In Article 3, Part 5 the legislation expressly forbids the location directly near the places of activity of religious organizations of any public events, texts or images that might offend the religious feelings of citizens. Article 4, Part 4 prohibits state and local authorities, other state institutes and organizations, and military servicemen from using their position in order to shape attitudes toward religion.
It appears that the addenda to Article 3, Part 7 of the draft, according to which a religious organization has the right to conduct its activities without creating a legal entity, were made with the active participation of religious and human rights protection organizations during the discussion of the draft.
Nevertheless, the draft maintains the strict regulation of the religious rights of citizens and of the activities of religious organizations.
Amendments have been made in Article 4, Part 5 on religious education. According to the draft, the administration of a state or municipal educational institution has the right to give permission to a registered religious organization to use its premises for the purpose of extracurricular religious education only with the parents' request, with the consent of the students of that institution, and with the agreement of the corresponding municipal educational administration. The legislation defines more precisely the term "foreign religious organization" to mean an organization created outside the Russian Federation and according to the laws of a foreign state. The regulatory procedure for registering, opening, and closing down the Russian branch of such a religious organization is referential, i.e., such regulation should be issued by the Government of the Russian Federation.
The procedure for liquidation of a religious organization has been left unchanged; the legislature did not regulate it. On the other hand, an addendum has been introduced which, among other things, allows for suspension in special cases, providing the opportunity for voluntary measures (compliance). The legislation does not specify who has the right to suspend the activities of a religious organization nor what is meant by "special cases. " The list of grounds for liquidation or prohibition of a religious organization has been expanded. The new items are: compulsory family breakup, inciting suicide or the refusal of medical treatment because of religious motives, and the inflicting of moral damage or physical harm to citizens (as evaluated according to law), including the use of drugs, hypnosis, and engaging in lascivious or criminal acts in connection with religious activities. Without a doubt, no one would protest the liquidation of a religious organization which is using drugs in its activities. In such a case, individual members first will be prosecuted for distributing drugs, and court sentences will confirm their guilt. However, the legislation does not explain how it might be possible to establish "compulsory family breakup" and what can be considered as "compulsion." It also does not mention how, "according to the law," to establish "moral damage or physical harm."
Once again, the new edition of this article is full of legal naivete, and gives broad license to those who fight against new religious organizations to foment interdenominational discord, as well as to administrative organs to suspend the activities of a religious organization in "special cases," to liquidate an organization because of alleged "moral damage or physical harm," etc.
Therefore, even though the draft has certain amendments which bring it into conformity with the Constitution of the Russian Federation, in general its purpose remains to restrict the activities of religious organizations new or non-traditional for Russia, which consequently will lead to the restriction of religious freedom itself.
Galina A. Krylova
Moscow December 1996