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The Unconstituionality of Russia's New Law on Religions and Its Applications PDF Print E-mail

Galina A. Krylova
Russia

delivered at the
International Coalition for Religious Freedom Conference on 
"Religious Freedom and the New Millenium"
Washington DC, April 17-19, 1998

Adopted in Russia in September 1997, the Law on Freedom of Conscience and Religious Associations demonstrates not only a blatant violation of human rights and freedoms, raised to the level of federal law, but also the Russian state’s ability to ignore its own international obligations. Theoretically, Russia recognizes and guarantees human rights and freedoms in accordance with the common norms and principles of international law, which are part of its legal system. The constitution of the Russian Federation recognizes the priority of international law over domestic law. This means that no Russian law may contradict the Universal Declaration of Human Rights, the Pact on Human Rights, and other international agreements in this area. The adoption of the new law signifies Russia’s violation of not only its own constitution but also the aforementioned norms of international law.

The law is a blatant manifestation of intolerance and religious discrimination toward practically all religious organizations. The rights of believers, both Russian citizens and foreigners as well as those without citizenship, are deliberately violated by this law.

Violating the Universal Declaration of Human Rights and the International Pact on Civil and Political Rights, it not only denies the right to freedom of thought, conscience and religion—freedom of convictions and expression—it also ignores and violates human rights and basic freedoms as declared by international as well as Russian legislation.

Russian law decisively acknowledges the right of everyone to freedom of conscience and belief, as well as to equality before the law regardless of one’s religious convictions (preamble). The equality of religious associations before the law is declared; freedom of conscience, freedom of belief, and the inadmissibility of establishing priorities or limitations based on attitude toward religion are guaranteed. It declares that nothing in the legislation on freedom of conscience, belief and religious associations should be interpreted to lessen or infringe upon a person’s right to freedom of conscience and freedom of belief, as established by the constitution of the Russian Federation or derived from the international agreements of the Russian Federation.

However, despite these declarations, the law by its essence and wording (not only in interpretation) is clearly discriminatory and violates the constitution of the Russian Federation, the legislation of the Russian Federation, and international norms. The references to the restrictions allegedly undertaken for the sake of public order, health, or morality, as well as to protect the rights and freedoms of others, in this case are obviously cynical because they do not talk about these values but about open discrimination toward the majority of religious organizations legally registered at present in the Russian Federation.

Article 2 of the constitution recognizes human rights and freedoms as having the highest value and consequently gives priority to these rights and freedoms in the activities of all state organs. This means that all legal acts should be based on the principle of the inalienability of human rights.

According to Part 1 of Article 15, the constitution has the highest legal authority and is applied throughout the territory of the Russian Federation. Laws and other legal acts applied in the Russian Federation should not contradict the constitution. Part 4 of Article 15 recognizes generally accepted principles and norms of international law and recognizes the international agreements of the Russian Federation as part of its legal system.

Part 2 of Article 17 interprets basic human rights and freedoms as inalienable and belonging to everyone from birth.

Article 18 indicates that these rights directly determine the meaning, content, and application of the laws, the activities of the legislative and executive branches and local governments, and that these rights are secured by the justice system.

Article 19 foresees a state guarantee of equality of human rights and freedoms independent of an individual’s attitude toward religion, convictions, or membership in public associations. Any restrictions on a citizen’s rights because of his religious orientation are prohibited.

Article 28 guarantees everyone freedom of conscience and freedom of belief, including the right to confess individually or together with others any religion or not to confess any and the right to freely choose, have, and spread religious or other convictions and act according to them.

Let us observe only one aspect of the Law on Freedom of Conscience and Religious Associations that completely ignores constitutional guarantees. Part 3 of Article 27 of the law makes the rights of individuals and organizations who engage in religious activities dependent upon an association’s duration of existence or its application with a centralized organization. For example, citizens who are members of a religious association that has existed less than 15 years in a certain territory have no right to:

1) conduct religious rites in hospitals and clinics, orphanages, homes for senior citizens and invalids, or prisons, even if invited

2) distribute religious literature, printed, audio and video materials and other items of a religious nature or

3) invite into the country foreign citizens with the purpose of conducting professional activities as well as preaching and religious activities.

The law affects virtually all religious organizations, because its requirement that a religious organization exist for 15 years can be applied to even the most respected confessions. For example, the Roman Catholic Church has been active in Russia since the 12th century. However, during the Soviet period, for understandable reasons, its activities significantly declined and only in 1991 did Rome establish in Russia two apostolic dioceses, that is, districts under a bishop’s jurisdiction. In Soviet days one of this church’s dioceses was within the territory of Belarus. Will this be evidence of its existence within the territory of Russia more than 15 years?

Protestants have been active in Russia for more than 400 years. Registered Catholic associations canonically are the subjects of the Vatican and part of one church structure, but Protestants belong to dozens of different churches. The Church of England was registered in Moscow only in 1993. The Lutheran Church has been registered within Russia only since 1991, even though its first Lutheran community was established in Moscow in the middle of the 16th century and was persecuted in the USSR. Today we have the Evangelical Lutheran Church and the United Evangelical Lutheran Church of Russia (1991), the Union of Evangelic Reformation Churches of Russia (1992), etc.

The new law will compel many presently autonomous religious organizations to join centralized structures. For example, spiritual administrations of Muslim believers during the Soviet period existed only in Baku, Tashkent, Makhachkala, and Ufa. Therefore, spiritual administrations registered in Russia after 1991 will be faced with the task of receiving from a centralized organization a certificate proving their existence more than 15 years in order to preserve their legal status. The canonical structure of Islam does not foresee centralization.

The first Krishna community of the Moscow Society of Krishna Consciousness was registered only in 1988, even though their adherents were active in Russia much earlier and were persecuted for their religious convictions. Their All Russian Association was registered in 1992. Whether the documents of the conviction, imprisonment, and later rehabilitation of several adherents will be recognized as evidence of the religious organization’s activities depends on the opinion of the registering organs.

The Unification Church has worked unofficially in Russia since the 1970s and was registered in 1992. It is obvious what kind of restrictions it may encounter because of the new law. It is not unlikely that the question of its very existence will arise.

Briefly looking at information obtained from the official reference book Religious Associations of the Russian Federation, published by the Analytical Department of the Federation Council Administration in 1996, one can see what kinds of problems await practically all religious organizations.

Autonomous Protestant communities will have to present confirmation from their centralized organization, because they will hardly be able to receive confirmation from organs of the local government that they have been active within this territory more than 15 years. (The same is true for Muslims.) At the same time, according to the “Methodical Recommendations of the Ministry of Justice of the Russian Federation on the Application by Justice Organs of Certain Regulations of the Law on Freedom of Conscience and Religious Associations,” local religious organizations that were not successful in re-registering have no right to establish centralized structures. This creates certain difficulties for such communities, because they will have to join existing centralized organizations even though that may be contrary to their desire.

Some organizations will have to solve the issue of changing their leadership because, according to the same “Methodical Recommendations,’’ foreign citizens and persons without citizenship temporarily staying in the Russian Federation may not head religious organizations.

Therefore, many religious organizations that are legally active may lose their status or be subjected to numerous restrictions. The fate of nearly 15,000 registered organizations and several thousand unregistered ones that, according to the previous legislation, had the right to act without registration, actually is in the hands of the authorities, especially since the Ministry of Justice’s “Methodical Recommendations” on controlling religious organizations include checking that a religious organization’s activities conform with the purposes and goals declared in its bylaws. Obviously, these contrivances allow the local authorities enormous subjectivity in interpreting the law.

Because the theoretical analysis of discriminatory aspects of the law might be interesting to only a closed circle of people, I think it is important to illustrate all the effects of this law with several concrete examples. Since the law was passed more than a half-year ago, practice has confirmed the theoretical conclusions that the rights and freedoms of everyone can now be differentiated, according to the new law, by authorities depending on their attitude toward one or another religion.

It is necessary to mention that the new law has not been fully enforced yet. There are two reasons. The first is political: It is necessary to show the world that the law is not so discriminatory and that there are no grounds to worry about human rights violations in Russia. (For example, the rejection of the registration of Lutherans by the Ministry of Justice of the Russian Autonomous Republic of Khakassia in October 1997 brought such a strong reaction from abroad that the decision was withdrawn; however, local authorities warned the Lutherans that this was temporary.) The second reason is a practical one: The law is so imperfect from a legal point of view, that other legislative acts are necessary to apply it. At the present time the regulations “On the Conducting of the State Religious Expertise,” “On the Order of Registration, Opening and Closing in the Russian Federation of Representations of Foreign Religious Organizations” and “Rules of the State Registration of Religious Organizations in the Organs of Justice of the Russian Federation” have been adopted. The additional regulations, while preserving the discriminatory nature of the law, are designed to make it concrete and allow its practical application.

It is not by accident that the Lutherans of Khakassia were the first victims of the new law, with the activities of their evangelical mission being shut down. Many in Russia connect the spiritual resurrection of the country with the Russian Orthodox Church. This implies the support of the Moscow Patriarchate and its merger with the state. Yet, considering that the Russian Orthodox Church actually has extremely few really faithful people and considering the poor reputation of the state authorities, such a policy may actually have the opposite result. According to sociological surverys of Russian citizens who think of themselves as Orthodox, there is an extremely low percentage of those who can be called real believers-who make confessions, join the Holy Communion, fast, and are able to fluently recite the “Our Father.” All of them are potential believers not only of the Orthodox Church but other denominations as well. They call themselves Orthodox because, as usual, this is the belief of their fathers; they cross themselves, light candles in the Orthodox Church and, according to the Orthodox custom, paint eggs at Easter. Therefore, a touching, wise word from a pastor or the good attitude of a community toward an individual may bring a person to the Protestants, Catholics, or other denominations. Ministering is the weak point of the Russian Orthodox Church. Involvement with gigantic building projects, dubious commercial activities, and, most importantly, the merging of the Moscow Patriarchate and the state actually put the fight for the human soul in last place on the scale of its priorities. It is an understandable desire to shield the parish from outside influence. But few church priests understand that to fight for souls the church needs to conduct spiritual activities such as preaching, prayer, and charity and not rely upon the support of the state, which in violation of its own constitution is acting in favor of only one confession.

Therefore, the law can be used against any confession that is not actually supported by the state. Such is the situation of every confession in Russia except the Russian Orthodox Church. This means that in each particular case the issue will be resolved based on political or other reasons. Obviously that discrimination may pass by the Catholics; however, were the Vatican to appoint a non-Russian Federation citizen to be a bishop, the law might present obstacles to his activities. Obstacles may be created to the ministering of an American Baptist pastor or the legal activities of the Russian Orthodox Church Abroad (whose headquarters are in New York) on the territory of the Russian Federation. Of course, religious bodies will act based on concordance and agreements with authorities; however, this gives the authorities broad opportunities to influence religious organizations.

The creation of an obstacle is less likely on the federal level than directly in the regions. For example, the Ministry of Justice cannot reject the registration of Mormons, but in the regions their activities might be hindered, based on the law, even though they have registered on the federal level.

As I mentioned about the incident in Khakassia causing a widespread reaction in the world, let me show with this example the application of the regulations of the new law.

According to Part 5 of Article 11 of the federal Law On Freedom of Conscience and Religious Associations, state registration of a local religious organization requires that the founders submit to the appropriate organ of justice documentation that this religious association has existed in Russian territory for 15 years.

The regulations determining the order of creation of a religious organization state that citizens’ opportunity to realize their right to establish a religious organization (as a legal entity) depends upon which religion (having 15 years qualification, represented by a centralized organization or not) they confess. This is a gross violation of Article 19 of the constitution of the Russian Federation. Also they violate part 1 of Article 30 of the constitution, according to which everyone has the right to association.

The requirement of the federal Law on Freedom of Conscience and Religious Associations, that a religious group submit a document proving its existence within this territory for at least 15 years or its participation in a centralized organization, unjustly restricts the constitutional right of citizens to association, joint confession, or propagating of religion. Preliminary conditions, which are set up by appealed law norms, cannot serve as grounds for restriction or as a condition for the realization of citizens’ rights and freedoms, as guaranteed by the constitution of the Russian Federation.

According to Part 2 of Article 27 of the Law On Freedom of Conscience and Religious Associations, religious organizations that do not have a document proving their existence on this territory for at least 15 years have the right to be a legal entity under the condition of annual re-registration until this period is exceeded. During this period these religious organizations do not have the following rights:

  • to have their priests exempted from military service (Part 4 of Article 3)
  • to create educational institutions and, with the permission of the educational institution and in agreement with the organ of local government, to directly teach religion to children outside the curriculum (Part 3 and 4, Article 5)
  • to have attached to themselves a representative body of a foreign religious organization (Part 5, Article 13)
  • to conduct religious rites in hospitals and clinics, orphanages, prisons, or homes for senior people and invalids, according to the requests of the people there (Part 3, Article 16)
  • to produce, acquire, export, import, and distribute religious literature, printed, audio and video materials, and other items with a religious purpose (Part 1, Article 17)
  • to establish organizations publishing religious literature and producing religious items (Part 2, Article I 7)
  • to establish educational institutions and mass media (Part 2, Article 18)
  • to establish spiritual educational institutions for the preparation of ministers and religious personnel (Article 19)
  • to invite foreign citizens with the purpose of conducting professional activities, as well as preaching and religious activities (Part 2, Article 20).

The demand for the re-registration of presently active organizations that are registered according to the previous law of the RSFSR “On Religious Freedom” gives the law retroactive power, which contradicts Article 54 of the constitution. The constitution contains the principle that any law restricting citizens’ rights, thereby worsening the situation of citizens and, therefore, of associations established to realize the constitutional rights and freedoms of citizens, has no retroactive power.

However, the regulations of Part 3 of Article 27 of the law violate this very important constitutional principle by giving the law retroactive power. They place additional demands on religious organizations and discriminate against them. There also comes about a completely new Russian legal concept of organization—that the right to exist as a legal entity is conditional upon annual re-registration.

Following these theoretical explanations, let us observe a concrete example.

On February 24, 1998, the prosecutor of Abakan city of the Khakassian Republic submitted to the religious association Christian Church Proslavienie (Glorification) the Directive No.1-14-98, requiring the removal of violations in its activities. The Prosecutor’s Office found violations in that the religious association—which was registered by the Ministry of Justice of the Khakassian Republic on April 9, 1992 and had existed within the territory of the Republic less than 15 years—conducted religious meetings in the club of a veterans’ home for seniors, during the period from October to December 1997. The religious association, together with the home’s inhabitants, distributed religious literature, taught citizens at a Bible school, invited foreign citizens to participate in church services, regularly held religious meetings at the Ust-Abakan educational colony for minors, and conducted an international conference from November 14 to 16, 1997, in Abakan city with the participation of citizens of Switzerland, Ukraine, Uzbekistan, and Mongolia. These activities were recognized as a violation of the regulations of Part 3, Article 27 of the federal Law on Freedom of Conscience and Religious Associations. It was directed that the church remove the violations of the law mentioned in the directive.

The prosecutor of Abakan city sent a similar directive to the Abakan seniors’ home for veterans and the Ust-Abakan educational colony for minors. The chiefs of those institutions were prohibited from allowing representatives of the religious association to enter their territory and conduct any events with its participation.

On March 13, 1998, 54 veterans living in the Abakan seniors’ home complained to the Prosecutor’s Office of the Khakassian Republic and requested to have their right to freedom of conscience restored, seeing its violation in that they were prevented “from listening to and confessing Christian faith and receiving teaching through ministers of the Christian Church Proslavlenie.” The Prosecutor’s Office of the Khakassian Republic rejected the complaint, stating that according to Part 3, Article 27 of the federal Law on Freedom of Conscience and Religious Associations, the religious association Christian Church Proslavenie, existing on the territory of Khakassia less than 15 years, “has no right to conduct missionary preaching activities in the home for senior people and invalids.”

On March 12, 1998, the prosecutor of Shirin District of the Khakassian Republic, according to the results of investigations, submitted to the religious association Evangelic Lutheran Mission letter No.13-25. In the letter the prosecutor indicated that, violating Part 3, Article 27 of the federal Law on Freedom of Conscience and Religious Associations, the mission distributes religious literature and, in hospitals, gives patients humanitarian material aid, organizes the free showing of films and cartoons with religious content, and conducts discussions about religion. It was directed that the head of the mission never repeat violations of this law, which prohibits religious organizations whose activities within the corresponding territory have not exceeded 15 years from publishing and distributing religious literature, periodicals, audio and video materials or conducting missionary and preaching activities in hospitals.

In addition, on March 12, 1998, the prosecutor submitted a directive with the same number to the Evangelical Lutheran Mission directing that the religious association within 10 days remove from its bylaws all regulations that contradict Part 3, Article 27, namely those on the systematic preaching of the Gospel by all possible means and methods, in the framework of present legislation, both directly and through mass media; the theological training of believers; organizing Sunday School; organizing discussions, seminars and conferences on problems of Christian morality; creating Christian libraries, etc.

These are not the only cases. On January 26, 1998, the Prosecutor’s Office of Yaroslavl Region submitted a warning dated No.7-2-04.98 to the Christian Church Novoye Pokolenie (New Generation), which indicated that, violating Part 3, Article 27, the church sells books and brochures with religious content to believers, operates an audio-video studio at the church, and maintains an electronic magazine in the computer net through which the teaching of the church is spread. According to the law, religious organizations that have not proved their existence within the corresponding territory for more than 15 years are subject to special demands. Until 15 years are exceeded, they cannot produce, acquire, export, import, and distribute religious literature, printed, audio and video materials, and other items of a religious purpose. In case these violations of the law continue, the Prosecutor’s Office warned about its right to submit to the court a proposal to ban the activities of this religious organization.

From these examples it is obvious that the application of the Law on Freedom of Conscience and Religious Associations grossly violates the constitutional rights and freedoms of citizens and contradicts the constitution of the Russian Federation. It is easy to suppose how the law will be applied to the new religious movements, if even such traditional confessions as Lutherans are undergoing such restrictions.

However, the violations mentioned are not grounds for pessimistic prognoses, but the opposite. I am sure that in the near future several of the most discriminatory regulations of the law will be recognized by the Constitutional Court of the Russian Federation as contradicting the constitution.

First of all, despite the established unfavorable practice in the courts of general jurisdiction, religious communities have opportunities to fight discriminatory legislation up to the Supreme Court. The Plenary Resolution of October 13, 1995, explained that courts are expected to apply the constitution in those cases in which federal law, adopted after enforcement of the constitution, contradicts its statements.

If the Supreme Court, led by political interests, makes a decision contradictory to its explanations, it is possible to appeal to the Constitutional Court of the Russian Federation, which is obliged to hear cases involving conformity of legislative acts with the constitution, or it is possible to bring certain cases to the jurisdiction of the European Court on Human Rights.

According to Article 125 of the constitution, the Constitutional Court resolves cases of conformity of legislative acts with the constitution by request of the president, the Federation Council, the state Duma, one-fifth of the members of the Federation Council or the deputies of the state Duma, the Supreme Court of the Russian Federation, or organs of legislative and executive authorities of the Russian Federation regions. After the almost unanimous acceptance of the law, it is difficult to expect that one of the above-mentioned persons will appeal with a request to the Constitutional Court. However, Part 4, Article 125 of the constitution states the right to a constitutional complaint:

That the application of the new law, which contradicts the constitution, will create certain problems is understood even by high-ranking officials not sympathetic with new religious movements. Explaining in an interview the possibility of an appeal to the Constitutional Court not only from the president, the Duma, or the Federation Council but from the side offended by the application of Article 27 of the law about re-registration, A.I. Kudriavtsev, the chief of the Department of Registration of Religious Associations at the Ministry of Justice of Russia, claims: “My opinion is the following: There is the constitution, there is Article 54 in it.This article says, ‘The law, establishing or hardening the responsibilities, cannot have retroactive power.’ In this case, there is an application of retroactive power to the aggravating part of the law. That means, for example, an organization was registered, during the registration we did not demand the 15 years, but now if it will start to re-register we will not register it. This is of course a violation of Article 54 of the constitution, and I am sure, if the Constitutional Court will be involved, it will abolish this part of the law.”

An appeal to the European Court on Human Rights is very possible. Ratification by Russia of the European Convention on Human Rights, of course, gives hope of defending freedom of conscience in Strasbourg. Nonfulfillment of European Court decisions may lead to suspension of membership in the European Council, and even though the court cannot oblige any state to change its legislation, its decision on a concrete case will undoubtedly cool down the restrictive fervor of Russian legislators.

Because it is necessary for a case to go through all interstate court levels, and consideration of the complaint in the European Court will itself take significant time, it would be naive to expect quick results.

However, for me it is obvious that there is a good chance that at least one of the three court institutions—the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation, or the European Court on Human Rights in Strasbourg— by its decision, will be able to significantly influence the observance of the right to freedom of conscience in Russia.