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1914 Ch. & St. Res. 23 CONSTITUTIONAL FOUNDATION OF THE RELIGIOUS FREEDOM IN RUSSIA VS REGISTRATION OF RELIGIOUS ASSOCIATIONS UNDER THE LAW OF 1997 TIMUR SINURAYA As the legal reform in Russia forged forward, the freedom of religion became an important legal issue1. With the opening of Russia multiple religious organisations including those from abroad have established their presence in the country. If in 1985 there were 15 officially regis- tered religions, by 1993 there were already 39 religions with 9,489 branches officially registered in Russia2. There were 61 religions regis- tered with 13,461 branches as of 1 January 19973. Accordingly, the role of the state towards religion has undergone the liberalisation process on the level of the constitution4. Nevertheless, proliferation of religious sects of dubious origins augmented by lobbying by some of Russia’s influential forces have ultimately led to the adoption of the new law on religion in 1997. The background of this legal document is a complex web of political, cultural and mainstream religious interests. The result is a hybrid of requirements for the religious association to qualify for registration as a legal person and the guarantees for the so-called tradi- tional religious organisations. The present article will give a brief 1 There are 86 federal legal documents regulating the relationship between the state and the church as of 1 June 1999, Rules, Instructions, Decrees and other Legislation on reli- gious cults, associations, available in Russian at <http://law.optima.ru//>. 2 ODINTSOV, M.I., “Rossiya Stroit Svetskoe Gosudarstvo (1985-1997)”, in Gosu- darstvo Religiya Tserkovy v Rossii i za rubezhom, 3-4(1997), 138-160. 3 Goskomstat Rossii: Rossiyskiy Statisticheskiy Ezhegodnik, Moscow, 1997, 47-49. 4 The experience of Russia in this field is in many ways tragic. Although before 1917 there were dozens of religions, the state religion was the Russian Orthodox Church and conversion to another religion was subject to criminal prosecution. In this regard the state was ruling with an iron hand, driving many of non-Orthodox Russian religions into exile. During the Soviet time despite of the constitutional guarantees the religious people were considered the second class citizens and tightly controlled by the state. The real democratic reforms in this field started towards the end of 1980th. PCHELINTSEV, A.V., Svoboda Sovesti i Zloupotreblenie Svobodoy Massovoy Informatsii, Moscow, Institut Religii i Prava, 1997, 5-6. 248 T. SINURAYA overview of the fundamental nature of the constitutional principles which support organised forms of religious practice with regard to an attempt to subordinate religious associations5 to the stringent registra- tion measures under the Law of 1997. CONSTITUTIONAL FOUNDATION It should be stated that the constitutional foundation offers a sanctu- ary for the legal principles in dispute. Accordingly, the constitutional foundation of religious freedom in the Russian Federation consists of international obligations and enacted federal legislation. According to Article 15 of the Constitution of 1993, “The Constitution of the Rus- sian Federation shall be the supreme law and shall be in force through- out the territory of the Russian Federation. No laws or other legislative acts passed in the Russian Federation shall contravene the Constitution of the Russian Federation… Universally acknowledged principles and standards of international law and international treaties of the Russian Federation shall be a part of its legal system. Should the international treaty of the Russian Federation establish rules other than those estab- lished by law, the rules of the international treaty shall be applied”6. The Russian Federation is a party to a number of international documents which guarantee the freedom of religion. These include (1) the main United Nations (UN) documents7 including the UN Charter of 1945 which proclaims respect for all the religions (Articles 1-3) and the inter- national cooperation for fostering religious freedoms (Article 55-C); (2) the Universal Declaration of Human Rights of 1948 which guarantees the freedom of religion (Article 8) and which states that restrictions can only be placed on in order to ensure the religious freedom of others (Article 29); (3) the International Pact on Economic, Social and Cul- tural Rights of 1966, ratified by the Soviet Union in 1973, which guar- antees the right of persons to follow any religious education of their choosing (Article 13); (4) the International Pact on Civil and Political 5 The term religious association stems from the Soviet law which allowed the Soviet state to make religious property available to groups of twenty believers without actually recognising any religious institution. This term endured further under the Russian law, becoming a somewhat vague legal concept which defines parishes, communes and branches pertaining to different religions. VAN DEN BERG, G..P., Commentary to the Constitution of the Russian Federation (unpublished), Leiden, 1998, 15.III. 6 BELYAKOV, V.V. and RAYMOND, W.J., Constitution of the Russian Federation, En- glish translation, Moscow, Brunswik and Novosti, 1994. 7 See UN Human Rights Treaties, available at < http://www.un.com//>. RELIGIOUS FREEDOM IN RUSSIA 249 Rights of 1966, ratified by the Soviet Union in 1973, which provides that restrictions on the freedom of religion may only be imposed with regard to the health and morals of the people (Article 18), and that reli- gion can be practised regardless of state borders (Article 19); and (5) res- olution 47/135 adopted by the General Assembly on 18 December 1992 which guarantees the non-discrimination principle with regard to different religions, a resolution which is to be enforced by the states (Articles 1, 2 and 4). The Final Act of the Organisation on Co-opera- tion and Security in Europe (OSCE) of 1 August 1975, signed by the Soviet Union, stipulates in Part A, Provision VII that all UN provisions related to religious freedom shall be re-enforced. The Concluding Doc- ument of OSCE of 1 August 1989, which was also signed by the Soviet Union, stipulates in Principle 16, the equality of religious associations. The Convention of the Commonwealth of Independent States (CIS) on Human Rights and Main Freedoms which was ratified in 1995 re- enforces the obligations to protect freedom of religion as derived from the main UN and OSCE documents8. The Convention establishes that the provisions related to religious freedom shall be enforced throughout the territory of the CIS (Article 1), no restrictions shall be placed on the activities of the religious organisations (Article 10), no religion shall be discriminated against (Article 20) and there shall be no refusal for the people wishing to gather in religious associations (Article 21)9. The path-breaking law of the Russian Federation “On Freedom of Religion” was enacted on 25 October 199010 which, based on Russia’s international obligations and in accordance with the universally recog- nised norms of international law, carved out the main principles of reli- gious freedom which were later reflected and expanded in the Russian Constitution of 1993. In particular, the law establishes the principles of equality and non-discrimination for all religious associations, establish- ing their detailed legal status. The law “On Freedom of Religion” of 1990 determined that the Ministry of Justice and its branches are entrusted with the registration of religious associations11. 8 Full text of international obligations of the Russian Federation in PROTOPOPOV, A.O. (ed.), Religiya i Zakon, Moscow, Institute of Religion and Law, 1996. 9 Idem. 10 Vedomosti Syezda narodneh deputatov RSFSR i Verhovnogo Soveta RSFSR, Moscow, 1990, No.21, st.240. The law “On the Freedom of Religion” of 1990 was preceded by the law of the Soviet Union “On the Freedom of Conscience and Religious Organisa- tions” of 1 October 1990, which was very similar to the law of Russia. 11 The Ministry of Justice of the Russian Federation is the main registering author- ity for the religious organisations in accordance with the Regulation of the Russian 250 T. SINURAYA The Russian Constitution of 1993 further elaborated on the funda- mental principles of religious freedom. Article 14 proclaims that: “The Russian Federation shall be a secular state. No regulation shall be declared an official or compulsory religion. All religious associations shall be separate from the state and shall be equal before the law”. Fur- thermore, with regard to the right of the people to practice religion in associations, Article 28 of the Russian Constitution states: “Each person shall be guaranteed freedom of conscience and freedom of religion, including the right to profess individually or jointly with others any reli- gion…”. Moreover, Article 19 provides that, “…the state shall guaran- tee equal human and civil rights and freedoms without regard to… atti- tude toward religion… Any form of restriction of the civil rights on the basis of… religious affiliation shall be prohibited…”12. The legislative proliferation of the religious freedom principles based on the constitutional foundation penetrates further into other branches of the Russian law13. In this respect, one of the core principles of reli- gious freedom is the right of the people to gather in religious associa- tions which possess the status of a legal person. Article 117 of the Civil Code of 1994 states: “… religious organisa- tions (amalgamation) are voluntary combinations of citizens who have joined in the manner provided by the statute on the basis of the com- munality of their interests to satisfy spiritual… needs…. Religious orga- nisations are non-commercial organisations. They have the right to con- duct entrepreneurial activity only for the achievement of the purposes for Government of 4 November 1993 No.1187. The Ministry of Justice and its regional branches are tasked with the registration of the charters and gathering of relevant infor- mation about the main goals and activities of the religious organisations in accordance with the registration document of the Ministry of Justice of 15 December 1994 No.747, Rossiyskaya Gazeta, Moscow, 23 March 1995.
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