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July 2016 : Changes in federal law (continued)

On 6 July 2016, the Federal Law on Freedom of Conscience and Religious Associations and several other federal laws were supplemented by a series of provisions concerning the regulation of missionary activities.
In the federal law “On freedom of conscience...” a new chapter III.1 “Missionary activity” has been introduced. Article 24.1 of this chapter defines missionary activity as the dissemination by a religious association of information on its dogmas and beliefs to persons who are not participants (members, followers) of this association, with a view toward encouraging them to become so. The same article proclaims that the exercise of missionary activity unrestricted in cultural buildings, in other buildings, premises and on land belonging to the religious association, in places of pilgrimage, cemeteries and crematoriums. Missionary activity is prohibited in residential spaces, except in the form of religious rites and ceremonies. Missionary activity in buildings and on land belonging to another religious association is prohibited without the latter’s written authorisation.
Article 24.2 states that the leaders of religious associations, members of its administrative bodies and ministers of the faith are entitled to engage in missionary activity on behalf of their religious associations without any mandate. Other missionaries are obliged to hold a mandate issued by the competent authorities of the religious association. Foreign citizens have the right to carry out missionary activity exclusively in the name of the Russian religious association that invited them to Russia and only in the regions (subject of the Russian Federation) in which the respective association is registered.
According to Article 24.2, paragraph 7, religious associations are held liable for missionary activities that violate public order, carried out by persons appointed by this association.
The new wording of Article 17 of the Law “On Freedom of Conscience...” now requires that not only the publications of religious associations (printed or audiovisual), but also all materials distributed by them during missionary activities must be identified with the name of the association.
According to the new paragraphs of article 5.26 of the Code on Administrative Offences, the exercise of missionary activities by a religious association without mentioning its name, including the dissemination of texts or audiovisual material without identification, is punishable by an administrative fine of 30 to 50,000 roubles (approximately 400 to 700 euros). The exercise of missionary activities violating the legislation on freedom of conscience and religious associations is punishable by an administrative fine of 5 to 50,000 roubles for natural persons and 100,000 to 1,000,000 roubles for legal persons. The same offence committed by a foreign national is punishable by an administrative fine of 30 to 50,000 roubles, possibly accompanied by an administrative expulsion order outside Russia.
These legislative amendments and the related case law have generated much debate and criticism. Formally, this regulation of missionary activity is aimed exclusively at religious associations. The constitutional right to spread and preach one’s personal faith, convictions and beliefs must remain untouchable and is not subject to this regulation. Subject to the strict application of constitutional rules, these new provisions are almost useless, because an individual will always be able to say : “I am neither a missionary nor a representative of a religious association, I am exercising my own freedoms of conscience and speech, guaranteed by the Constitution”.
It should also be noted that in Russian legislation there is no definition of the terms “participant (member, follower) of a religious association”, nor is there any distinction between “participant”, “member” and “follower” of a religious association. This is why it is very difficult to discern these “non-participants” which the religious association wishes to turn into “participants” through its missionary activity (the majority of religious associations in Russia do not have complete lists of their followers).
In recent case law, there are instances of persons who have been convicted of violating the rules of missionary activity on the basis of an unwritten and unconstitutional principle that “any persons publicly disseminating their religious beliefs are missionaries unless they can prove that they are not”. These cases, in which the majority of the accused are ministers and followers of Protestant associations and new religious movements (so-called sectarian), took place in the different regions of Russia. The Cherkessk Court of Peace (capital of the Republic of Karachayevo-Cherkessia) acknowledged in its ruling of 15 August 2016 the absence of fault in Case V. Sibirev, charged for a discussion in the street about Krishna’s Consciousness religion with two other people to whom he presented a book with religious content. The Court confirmed that V. Sibirev is free to spread his beliefs and religious publications in his own name.

30 March 2016 : Changes in federal law

28 November 2015, Federal Law “On freedom of conscience and religious associations” has been supplemented by a new article 25.1 and by the modification of certain other articles. Religious organizations receiving funding from foreign and international organisations or foreign citizens are placed under the special control of the Ministry of Justice. They are required to submit to the Ministry a detailed annual report on their activities, their supervisory staff, the use of funding from abroad, and to publish this report in the media.
On 30 March 2016, the Federal Law “On freedom of conscience and religious associations” was supplemented by a new Article 21.1 concerning the disposition of the property of religious organisations. From now on, all contracts for the disposal of these assets (sale, purchase, lease) must be authorised by the supreme ecclesiastical authorities indicated in the statutes of the religious organisation (for example, for an Orthodox parish, the contract must be authorised by the bishop of the diocese). Without this authorisation, the contract is null and void under civil law. This new legal organization is in line with the desire of the Russian Orthodox Church and other central religious organizations to strengthen their control over the economic activities of subordinate local organizations (parishes, etc.).

  • 22 October 2014

Russian President Vladimir Putin has just signed Federal Law no. 316-ФЗ (FZ) of 22 October 2014 amending paragraphs 2 and 5 of Article 16 of the Law on Freedom of Conscience and Religious Associations. This new law details the regulation of religious assemblies in public (including the practice of worship, religious meetings etc.) in different public domains, without adding limitations to freedom of assembly.
In the previous version of Article 16 (see loi fédérale sur la liberté de conscience et les associations religieuses, in French), the free public practice of worship had been authorised, inter alia, in “other places, provided (reserved) for religious organisations for these purposes”. According to the current interpretation, this included not only buildings especially intended (built or permanently provided) for religious purposes, but also any premises, temporarily rented or offered free of charge for the practice of worship or religious meetings.
Administrative and legal authorities have, however, preferred to lend a narrower interpretation to this expression.
Two different courts imposed a fine on leaders of the local religious organisations of Jehovah’s Witnesses in Kazan and Belgorod for violating the law on public assembly, in particular for having organised public religious meetings without submitting a prior declaration to the relevant authorities. One of these meetings was held in the concert hall of a business centre, rented for this purpose, another in a room of a private company. The courts (including later the Supreme Court) considered that these premises were not “places specially intended for religious activities” and consequently that religious meetings in such premises may be held freely, but require prior declaration. Those convicted have appealed to the Constitutional Court.
The Constitutional Court could have rejected the restrictive interpretation of Article 16 of the law as applied by the courts and the Supreme Court, considering it ill-founded. In our opinion, this article in its previous version already authorised the free practice of worship and other public religious activities in this type of premises. But, in its decision of 5 December 2012, the Constitutional Court accepted the same distinction between "places specially designated" and "places temporarily provided" for religious activities. The decision by the Constitutional Court means that the legislature should modify Article 16 and distinguish between public religious activities for which it is necessary to take measures to protect public law and order, and activities which do not require such measures. The latter do not involve a prior declaration.
To comply with the Constitutional Court judgment, the State Duma has adopted the new drafting of paragraphs 2 and 5 of Article 16 on public religious activities :

"2. Divine duties, other rites and religious ceremonies may take place freely :
in premises [rooms, apartments etc.], in buildings of worship and on adjoining grounds ;
in buildings and edifices fully owned by religious organisations or provided for religious organisations [leased or free use] for them to perform their statutory activities, as well as on adjoining grounds ;
in buildings fully owned by religious organisations or provided for religious organisations to perform their statutory activities and on land on which the buildings are located, with the owner’s permission ;
in premises, edifices, building and on land fully owned by religious organisations or provided for them ;
on land fully owned by religious organisations or provided for religious organisations ;
in places of pilgrimage ;
in cemeteries and crematoria ;
in private residences”.

"5. In all other cases, public duties, other rites and religious ceremonies (including prayer meetings and religious meetings), exercised in public in circumstances requiring measures to be taken to preserve public order and the safety of those participating in religious rites and ceremonies, as well as of other citizens, are performed according to procedures put in place for gatherings, processions and demonstrations”.

We may note that in paragraph 5 the legislature adopted the formula used by the Constitutional Court, without detailing the criteria necessary to distinguish public duties, other rites and religious ceremonies “requiring measures to be taken to protect public order and safety” from those which do not require these measures to be taken. This is probably due to the impossibility of formulating universally valid application criteria.
It can be anticipated that the only concrete effect of this new law will be to better preserve the freedom to hold religious activities in temporary premises not designated for religious purposes.

  • 2 October 2014

In its decision of 2 October 2014, the ECHR states that there had been a violation of Articles 9 and 11 of the Convention in the case involving the Saint Petersburg Church of Scientology and others v. Russia (no. 47191/06).
In this case the applicants complained about the refusal by authorities to register their scientology group as a legal entity.
Between March 1995 and August 2003, the applicant scientology group submitted six registration requests. The registration authorities refused all the applications, each time putting forward different reasons to justify their refusal. The most recent refusal highlighted in particular the alleged lack of reliability of a document certifying that the group had existed for 15 years - which in Russian law constituted a legal prerequisite for registering any new religious group. In October 2003, the applicants contested the refusal in the courts and, in December 2005, the Saint Petersburg District Court highlighted the gaps in the document justifying the religious group’s fifteen year existence, and concluded that the refusal to register their group as a legal entity was indeed legal. This judgment was confirmed upon appeal in May 2006.
The European Court observed that the reasons for refusing registration of the applicant group were not uniform over the course of time, and noted that none of the reasons highlighted by the domestic courts to reject the confirmation document was founded on an accessible and foreseeable interpretation of national law. Consequently, the Court concluded that there had been a violation of Article 9 of the Convention, interpreted in the light of Article 11 (ECHR press release, 26 Sept. 2014 and text of the decision).

This was the scientologists’ third application against Russia brought before the ECHR. Previous cases - Moscow Church of Scientology v. Russia (Decision of 24.09.2007) and Kimlya and others v. Russia (Decision of 01.10.2009) - were also linked to the refusal by Russian authorities to register groups of scientologists as religious organisations with legal personality. In 2013, the Moscow Directorate-General of the Ministry for Justice refused an application to register a local association of scientologists. The refusal was based on the conclusions of experts, who stated that the applicant association lacked any of the qualities necessary to be recognised as a religious organisation, in particular the absence of a stable and resolute confession of faith. This refusal has not yet been appealed.
The Russian Law "On Freedom of Conscience and Religious Associations" establishes in Article 9 that "Persons eligible to be founders of a local religious organisation are to be no fewer than ten Russian citizens who are united in a religious group, which has confirmation, provided by the local administration, of its existence on the given territory for a period of no fewer than fifteen years, or confirmation of its membership in the structure of a centralised religious organisation of the same religious confession, provided by said organisation". As a consequence of this standard, new religious movements with no roots in Russia and without a central organisation cannot obtain legal personality before the end of a "trial period" of 15 years.
They do, however, have direct access to legal personality via the creation of "social associations" (non-governmental and non-profit organisations) using another legal form. As a result, Moscow’s scientologists have several associations registered as "non-profit partnerships". These associations are not entitled to the tax advantages provided for religious organisations (see page on Financing of Churches). These tax advantages were established as compensation for the damage undergone by faiths under the Soviet regime. As new religious movements have not been victims of atheistic persecutions, they cannot justify benefiting from the same exemptions.

By introducing this restriction on new religious movements in 1997, the Russian legislature took into account the European Parliament’s resolution of 12 February 1996 on sects in Europe which "calls on the governments of the Member States not to make the granting of religious status automatic and to consider, in the case of sects involved in undercover or criminal activity, withdrawing their status as religious communities, which confers tax advantages and certain legal protection" (see the European Parliament website).
The European Court has however rejected the arguments put forward by the Russian Government. In its decision on Kimlya and others v. Russia] of 1 October 2009, the ECHR noted that the Russian government did not cite any "pressing social need" in support of the disputed restriction, nor any "relevant" and "sufficient" reason likely to justify the long waiting period imposed on a religious organisation to obtain legal personality. The Court considered that interfering with the applicants exercising their rights to freedom of religion and association could not be considered "necessary in a democratic society". Consequently, there had been violation of Article 9 of the Convention, interpreted in the light of Article 11.
Following this decision, the Russian Ministry of Justice no longer requires a certificate for the existence of the group for 15 years in order for new religious movements to be registered as local organisations. Some have been registered in recent years, including the Moscow organisation of Zoroastrians (the refusal of registration in the case of the Church of Scientology of Saint Petersburg and others v. Russia was announced by the authorities before the decision by the ECHR in the case of Kimlya and others v. Russia).
To reconcile the practice of registration without the 15-year existence condition, based both on the ECHR decision and the letter of the 1997 Law, the Russian Government introduced a draft law in 2014 aimed at repealing "the 15 year rule" and at authorising free access of new religious movements to the status of registered religious organisation with moral personality. In exchange, this draft law restricts the legal capacities for new autonomous religious organisations which are not affiliated to a central religious organisation.
During the first 10 years of registration as a legal entity, the group will not have the right :
 to create educational establishments or even teach religion within the framework of extra-curricular activities ;
 to organise open religious ceremonies in health centres, hospitals, children’s homes, retirement homes, premises catering for handicapped people and penal establishments ;
 to create officially state-subsidised educational establishments designed to train members of the clergy and their assistants ;
 to create press bodies ;
 to invite people from abroad to the Russian Federation with a view to performing religious activities on a professional basis, including preaching ;
 to create a central religious organisational structure.

In October 2014, this draft law was passed by the Russian State Duma upon its first reading.

  • 1 July 2013 : “Law on offending religious feelings” comes into effect

On 29 June 2013, Russian President Vladimir Putin signed federal law no. 136-03 (FZ), amending Article 148 of the Russian Criminal Code and 5.26 of the Code of Administrative Offences. In the Russian media, the law is called the “Law on offending religious feelings”. It came into effect on 1 July 2013.

The draft bill was introduced in Autumn 2012 following the scandal that arose in Spring 2012 involving the punk group Pussy Riot in the Cathedral of Christ the Saviour in Moscow. At that time, disturbing public order in an intentional and blasphemous way in a place of worship was punished by a maximum fine of 1000 roubles (about 25 euros). The three young women in the Pussy Riot group were convicted on questionable grounds for a crime under Article 213 of the Russian Criminal Code (hooliganism motivated by hatred of a particular social group - in this specific case Orthodox priests and believers).

But this draft is not only the result of a one-off scandal. In recent years in Russia, several conflicts have erupted as a result of blasphemous offences committed against Christian and Muslim worshippers. Respect for religious and ethnic traditions is a very sensitive issue in Russian society, being of a multi-confessional and multi-ethnic nature. The legislator needs to take care to avoid possible violent reactions from offended worshippers or even riots and lynchings in reaction to the impunity enjoyed by offenders. One must also consider the fact that Russian society had undergone, until not so long ago, 70 years of totalitarianism and atheism.

The law has been criticised regarding the use of the wording “offends religious feelings”. Some of its opponents apply an absurd logic, claiming that each statement denying the existence of God may offend the faithful and that, in a multicultural society, a person’s behaviour, beliefs and customs may, most of the time, be described as unacceptable and offensive to another person. But what the law is highlighting here is an offence that is 1) intentional, 2) public and 3) indecent, manifesting a disrespectful attitude towards society. This means that non-offensive criticism of religion, worship or beliefs and unintentionally formulated offences in respect of canons and religious traditions are not sanctioned. In addition to protecting religious or liturgical texts and religious objects, the law condemns the desecration of symbols, emblems or attributes of ideological convictions. This includes protection of atheists’ symbols and non-religious convictions and beliefs (ideological, philosophical or political), e.g. the Communist hammer and sickle symbol etc.

Previously, the Russian Criminal Code would punish in Article 148 only “illegal obstruction of the activities of religious organisations or the exercising of religious rites”. So far, nobody has been sentenced in accordance with this article or section 5.26 of the Code of Administrative Offences (see infra).

The law has increased the maximum fine from 80,000 to 300,000 roubles and adds three new paragraphs (1, 2 and 4) to Article 148 of the Criminal Code :

“Article 148. Violation of the right to freedom of conscience and religion :

1. Public acts that manifest patent disrespect for society and are committed with the aim of offending the feelings of religious believers shall be punishable by a fine amounting to a maximum of three hundred thousand roubles or the offender’s salary or other income for a maximum period of two years or compulsory labour for a maximum period of two hundred and forty hours or forced labour for a period of one year or deprivation of liberty of the same duration.

2. The actions described within the first paragraph of this article, perpetrated in places specially assigned to the practising of religious services or other rites and religious ceremonies, shall be punishable by a fine amounting to five hundred thousand roubles maximum or the offender’s salary or any other income for a maximum three year period or a maximum of four hundred and eighty hours’ compulsory labour or enforced labour for a maximum of three years or “loss of liberty” (prison sentence) of the same duration able to include a “restriction on freedom” (stay in a specialised establishment) for a one year period.

3. Illegally preventing the activity of religious organisations or the practising of religious services or other rites and religious ceremonies shall be punishable by a maximum fine of three hundred thousand roubles or the offender’s salary or other income for a maximum period of two years or compulsory labour for a maximum period of three hundred and sixty hours or correctional labour for a period of up to one year or arrest for a maximum of three months.

4. The actions described in the third paragraph of this article, when perpetrated by persons in authority or with use or threat of violence, shall be punishable by a maximum fine amounting to two hundred thousand roubles or the offender’s salary or other income for a maximum period of one year or by compulsory labour for a maximum period of four hundred eighty hours or by correctional labour for a maximum period of two years or by forced labour for a maximum period of one year or by deprivation of liberty of the same duration with the forfeiture of certain duties or a ban on practising certain specific activities for a maximum period of two years”.

Section 5.26 of the Code of Administrative Offences provides that anyone who infringes the right to freedom of conscience and freedom of religion and offends religious feelings is punishable by a fine of 1000 roubles (about 25 euros) maximum. The law significantly increases the fines provided for in this article and replaces the term “offence” by the expression “intentional public offence”, thus underlining the intention and the public nature of the violation. It adds to the list of objects of desecration “religious or liturgical texts (books)”, probably as a result of the scandal after an American pastor burned a Quran in public.

“Article 5.26. Violation of the laws on freedom of conscience and freedom of belief, as well as on religious associations.

1. Obstructing the exercise of the right to freedom of conscience or freedom of belief, including the adoption of religious or other beliefs, or refusal thereof, as well as obstructing the entry into a religious association or the exit therefrom - shall entail the imposition of a fine of ten thousand roubles minimum and thirty thousand roubles maximum ; for state officials, the fine is raised to between fifty thousand and one hundred thousand roubles.

2. Intentional public profanation of religious or liturgical texts (books), objects of worship, symbols, emblems or attributes of ideological convictions and their deterioration or destruction is punishable by a fine of thirty thousand roubles minimum and fifty thousand roubles maximum or compulsory labour for a duration of one hundred and twenty hours maximum ; for state officials, the fine is raised to between one hundred thousand and two hundred thousand roubles”.

It is likely that the new law will rarely be applied and that it will primarily constitute a preventive measure as regards acts of violence of an anti-religious nature.

D 16 janvier 2017    AMikhaïl Chakhov

CNRS Unistra Dres Gsrl

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