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
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. 12 BELYAKOV, V.V. and RAYMOND, W.J., Constitution of the Russian Federation, En- glish translation, Moscow, Brunswik and Novosti, 1994. 13 For example, the constitutional right of religious people to alternative civil ser- vices is elaborated in Articles 1, 3, 7 of the federal law on military service of 1993; the right to religious education is elaborated in Articles 5, 11, 12, 40 of the federal law on education of 1996; the right to be equal before the law in family matters is elaborated in Articles 1, 31, 57, 65 of the Family Code of 1996 and so on. Further protection of the civil rights of religious people is reflected in: Article 19 of the federal law on secu- rity service of 1995 which forbids the use of clergymen as informants and agents; Arti- cle 5 of the federal law on police investigative activity of 1995 and Article 18 of the fed- eral law of 1992 which forbids an undercover infiltration into religious organisations in order to influence them; Article 7 of the federal law on private detectives which forbids them to gather information relating to religious convictions of other people and so on. PROTOPOPOV, A.O. (ed.), Religiya i Zakon, Moscow, Institute of Religion and Law, 1996. RELIGIOUS FREEDOM IN RUSSIA 251 which they were created and corresponding to those purposes…”14. The activities of the non-commercial organisations are regulated by the fed- eral law “On Non-commercial Organisations” of 1996. Articles 2, 6, 8, 10, 17 further specify the non-commercial forms of religious associations and their possible engagement in entrepreneurial activity15. We should note here that the term association means the same as organisation or amalgamation only without confirmed status of legal person16. Article 48 of the Civil Code defines “a legal person is an organisation that has sep- arate property under its ownership…and that it is liable for its obliga- tions with regard to this property and that may, in its own name, obtain and exercise property and personal non-property rights, bear duties, and be a plaintiff and defendant in court… Legal person with respect to which their founders (or participants) do not have property rights include: society and religious organisations (or amalgamation)…”17. In accordance with the fundamental principles envisaged in the law “On Freedom of Religion” of 1990, the registered religious legal persons (organisations) enjoy certain rights. They may possess property such as church buildings, have bank account, participate in the establishment of a trust18, use the land plots for agricultural and construction purposes19. The religious organisations are relieved of the enterprises’ income20 and property taxation21, value added tax22, duties for the use of land plots23 and so on. It should be confirmed that the foundation laid down by the
14 General Part of Civil Code of the Russian Federation, Statutes & Decisions, The Laws of the USSR and its Successor States, September-October 1996, Cambridge/Har- vard, vol.32, No.5. 15 PROTOPOPOV, A.O., Religion and Law, Moscow, Institute of Religion and Law, 1996, 72-73. 16 The Russian word for association is obyedineniye, which also means amalgamation or union in the sense of one organisation. ANDRIANOV, S.N. e.a. (ed.), English-Russian Law Dictionary, Moscow, Russo, 1998, 38. AKHMANOVA, O.S. e.a. (ed.), Russian-English Dictionary, Moscow, Sovetskaya Entsiklopediya, 1969, 363. 17 Chapter 4 “Legal Persons”, General Part of Civil Code of the Russian Federation, Statutes & Decisions, The Laws of the USSR and its Successor States, September-October 1996, Cambridge, Harvard, vol.32, No.5. 18 Parts 1, 5 of the Presidential Decree “On Trust” of 24 December 1993 No.2296. 19 Articles 57, 75 of the Land Code of the RSFSR of 25 April 1991 as amended. 20 Article 6 of the Law of RSFSR “On Taxes on the Income of the Enterprises and Organisations” of 27 December 1991 as amended. 21 Article 4 of the Law of RSFSR “On Taxes on the Property of Enterprises” of 13 December 1991 as amended. 22 Article 5 of the Law of RSFSR “On Value Added Tax” of 6 December 1991 as amended. 23 Article 12 of the Law of RSFSR “On Land Duties” of 20 February 1992 as amended. 252 T. SINURAYA
Russian Constitution of 1993 has enabled the principles of religious freedom to take root in the Russian legal system, however, the transition from the strict controlling functions of the Soviet State to the regulatory role has not been an easy path. As has been mentioned above, the devel- opment of religious freedom in Russia has also manifested itself in an overlapping complex of different, often adversarial forces, which ulti- mately led to the adoption of the new law on religion.
LAW OF 1997
Amid ferocious debate inside and outside of the official state fora24 and a number of re-drafting attempts25 the controversial law “On Free- dom of Religion and Religious Associations” was adopted on 26 Sep- tember 199726 (Law of 1997), replacing the law “On Freedom of Reli- gion” of 1990 (Law of 1990). The main goal of the law was to distinguish the mainstream religions, in particular, the influential Rus- sian Orthodox Church as well as other traditional religions, from other, primarily foreign and newly established, religions which had proliferated extensively in the Russian society in the last seven years. In this regard, the legislators utilised the so-called “cultural-historical selectiveness” approach27. The new law “recognises a special role” of the Russian Orthodox Church and “respects” Christianity, Islam, Buddhism, Judaism and other religions which make up an integral part of the historical heritage of the peoples populating Russia28. The Law of 1990 did not make any distinctions between religious associations which under its provisions
24 Letter to the President of the Russian Federation B.N. Yeltsin from the members of the State Duma (Lower House of the parliament) “On dangerous consequences from the activities of some religious organisations on the health of society, family, citizens of Russia”, Rossiyskaya Gazeta, 28 December 1996. 25 For example, in the original draft of the Law of 1997 only the four “traditional religions” were named: Russian Orthodoxy, Islam, Judaism and Buddhism. After numerous protests from some members of State Duma, religious organisations and citizens, the Human Rights Chamber (HRC) of the Presidential Political Consultative Council introduced an expanded concept which included Christianity and other tra- ditional religions. NRC’s decision of 28 August 1997, Ekspress khronika, No.33, 12 September 1997. 26 Sobranie Zakonodatelystva Rossiyskoy Federatsii (SZ RF), 29 September 1997, No.39, st.4465. 27 SALEAGIN, E., “Kakim beaty gosudarstwenno-tserkownem otnosheniyam w Rossii?”, Rossiyskaya Yustitsiya, 2(1998), 25-27. 28 Preamble of the Federal Law “On Freedom of Religion and Religious Association” of 25 September 1997. RELIGIOUS FREEDOM IN RUSSIA 253 could all register as legal persons. The Law of 1997, however, introduces a clear difference between two types of religious associations: religious organisations and religious groups. Article 6 of the Law of 1997 speci- fies that a religious association may only be established as a voluntary association of the citizens of the Russian Federation or foreigners who legally and permanently reside in the territory of the Russian Federa- tion. Unlike the religious group the religious organisation is a legal per- son, and as such it enjoys a number of advantages over the status of reli- gious group29. Under the Law of 1997 the religious organisations have the right to create educational institutions and participate in the educa- tion of children at the state institutions (Article 5); receive relief from taxes and state subsidies in teaching the subjects of a standard curricu- lum in their own educational institutions (Article 4); establish institu- tions of professional religious education in which the student who fol- lows the day studies can postpone the draft to the military service (Article 19); establish affiliated representative offices of other foreign religious organisations (Article 13); produce, purchase, export, import and distribute religious literature and relevant audio and visual materi- als (Article 17), and other privileges. In accordance with Article 8 of the Law of 1997 the religious orga- nisations are divided into local and centralised organisations. The local religious organisation is the religious association consisting of no less than ten members of at least eighteen years of age who reside perma- nently in one location. One location means a close proximity of settle- ments and towns located close to each other, that is, can be reached without intercity transportation, which are not necessarily located in one administrative unit of the Russian Federation. According to Article 9 of the Law of 1997, the founders of the religious organisation have to submit the proof issued by the local government or administration that the organisation has existed for at least fifteen years in the given terri- tory. If the local organisation is a part of the registered centralised reli- gious organisation no such proof is required. The centralised religious organisation is an organisation which has within its structure at least three registered local religious organisations30.
29 The cultural-historical selectiveness of the state has been clearly implemented in the division of religious associations into groups and organisations. SALEAGIN, E., “Kakim beaty gosudarstwenno-tserkovneam otnosheniyam w Rossii?”, Rossiyskaya Yustit- siya, 2(1998), 25. 30 According to Article 8 of the Law of 1997 only those organisations which have existed legitimately on the territory of the Russian Federation for at least fifty years are entitled to have in their titles the names “Russia”, “Russian” and the like. This can be 254 T. SINURAYA
It should be stated that the Law of 1997 was not primarily aimed at regulating the traditional centralised religious organisations but was drafted with the emphasis on the local or territorial registration require- ments.
REGISTRATION AND TERRITORIAL PRINCIPLE
The main regulative instrument of the Law of 1997 are the strict requirements for registration or re-registration of the religious associa- tions, with heavy restrictions on foreign religious organisations. The Law of 1990 did not contain such provisions31. Article 11 of the Law of 1997 provides that the state registration of religious activities is con- ducted by the Ministry of Justice and its territorial branches of every administrative unit of the Russian Federation. Article 65 of the Russian Constitution determines the organisation of the Russian Federation, which consists of the territorial administrative units of the Russian Fed- eration such as republics, autonomous regions, areas and the cities of Moscow and St. Petersburg, which have special territorial status32. There are 89 administrative units in the Russian Federation; each administra- tive unit has its local government or administration with its own depart- ments of justice. The centralised religious organisation has to register its local organisations in every administrative unit in which it intends to conduct its activity although in this case the local religious organisation is not required to submit proof of fifteen years of existence. In order to create a local religious organisation the religious group33 should be cre- ated first with the aim of registering itself as a local religious organisa- tion. For the state registration the founders should submit the following documents34: an application for registration; a list of founders with their names, nationality, proof of residence; a charter of the religious organisation; a record of the founders’ meeting containing the informa- considered an additional distinguishing sign for the traditional religions. PCHELINTSEV, A.V. and RYAKHOVSKY, V.V., “Expertnoe zaklyucheniye”, Religiya i Pravo, 2-3(1997), 12. 31 There was much less emphasis on the difference between citizens and foreigners under the Law of 1990 with regard to registration of religious organisations and other religious activities. BERMAN, H.J., “Religious Freedom and the Rights of Foreign Mis- sionaries under Russian Law”, The Parker School Journal of East European Law, 4- 5(1995), 433. 32 BELYAKOV, V.V. and RAYMOND, W.J., Constitution of the Russian Federation, Eng- lish translation, Moscow, Brunswik and Novosti, 1994. 33 Article 7 of the Law of 1997. 34 Article 11 of the Law of 1997. RELIGIOUS FREEDOM IN RUSSIA 255 tion about their religion and the number of members; a document which proves that the religious group has existed in the given territory for at least fifteen years; information about the history, forms of prac- tice, attitude toward matrimony, family and health of its followers; pos- sible requirements limiting the civil rights and duties of members; and a document which proves the legal address of the religious organisation. In case the local religious organisation which is seeking registration has its centre in a foreign country, in addition to the above-mentioned doc- uments the local organisation should submit the charter or other funda- mental document which has been certified by the state authority of a foreign country. In case the centralised religious organisation is seeking registration, it should submit the same above-mentioned documents of the local organisation except for the information about its history and fifteen years of existence in the given territory. Instead, the centralised organisation should submit the documents of an already-registered local religious organisation. The local religious organisation which has no proof of fifteen years of existence in the given territory has to re-register every year until the fif- teen-year period expires. The number of years for re-registration is determined for every local organisation by the local authorities depend- ing on the number of recorded years of existence in the given territory. In this case, under Article 27 of the Law of 1997, the local religious organisations are denied the rights which other organisations which meet 15-year requirement enjoy under the Law of 1997. They cannot apply for the postponement of the draft to the military service for their clergymen (Article 3); engage in educational activities (Articles 5, 18, 19); establish affiliated representative offices of the foreign religious organisation (Article 13); hold public services outside of their meeting places (Article 16); engage in media activities (Article 17); or invite for- eigners to conduct professional religious activities (Article 20)35. The registration of the representative offices of the foreign religious organisations in accordance with Article 13 of the Law of 1997 is regu- lated by the Decree of the Russian Government No.13036. The repre- sentative office cannot engage in religious activities, and it has no status
35 SEBENTSOV, A.E., “Kommentary k Federalynomu zakonu ‘O swobode sowesti i o religiozneh obyedineniyah’”, Gosudarstvo Religiya Tserkovy w Rossii i za rubezhom, 3- 4(1997), 88-92. 36 Decree of the Government of the Russian Federation “On the procedure for reg- istration, opening and closing in the Russian Federation of the representative offices of the foreign religious organisations” No.130 of 2 February 1998, SZ RF, No.6, 9 Febru- ary 1998, st.754. 256 T. SINURAYA as a legal person. The representative offices can be affiliated with the Russian religious organisation. In order to register the representative it should submit: application for registration; the number of foreign nationals working at the office; general information about the foreign religious organisation; the types of activities which are planned for the office; the official address of the office; and an official letter from a for- eign religious organisation. In the case of affiliation with the Russian religious organisation it should be supported by a letter from this orga- nisation37. It should be confirmed that state registration is largely determined by the territorial principle, that is, the authorities of the administrative units play a pivotal role in, for example, determining whether the reli- gious organisation meets the 15-year requirement. Again this is a novel feature compared to the Law of 1990. Only in the case of the cen- tralised organisation or representative office of foreign religious organi- sations which have local organisations or representative offices respec- tively in two or more administrative units of the Russian Federation does the federal Ministry of Justice have to carry out the registration. According to the Letter of the Ministry of Justice of 24 December 1997 the branches of the Ministry of Justice or the registration organs are tasked with control over religious organisations38. This includes control over compliance with the charter of the religious organisation with regard to its goals, activities, and changes in status. According to the Letter of the Ministry of Justice the registration organ may revoke the registration of the religious organisation if it is involved in activities which are not envisaged in its charter or contravene the existing legisla- tion, including participation in political activities, unlicensed educa- tional or medical activities and so on. Control over the activities of the religious organisation may be initiated by the registration organ itself, local administration or, based on the information from the citizens, dif- ferent organisations or other sources. Another document, which clarifies the registration requirements for the religious organisation, is the Letter
37 The provisions of the Decree No.130 were directed at establishing uniformed standards for the local branches of the Ministry of Justice and local governments; how- ever, the restrictions remained augmented by the bureaucratic difficulties of registering an organisation by the local authorities. DOZORTSEV, P., “Mozhet li Rossiyskiy grazh- danin werity w “inostrannogo” boga?”, Rossiyskaya Yustitsiya, 6(1998), 50-51. 38 Letter of the Ministry of Justice No.08-18-257-97 on “Methodological recom- mendations on the implementation by the branches of controlling functions with regard to the religious organisations”. Rules, Instructions, Decrees and other; Legislation on reli- gious cults, associations, available in Russian at
SOME CASES
There are already a number of publicised cases with regard to the problems arising between the state and different religious associations as a result of the adoption of the Law of 199741. In September 1998 the public prosecutor’s office of a Moscow district filed charges in the civil chamber of a district court against the Jehovah’s Witnesses. The lawsuit was pursuing the liquidation of the Moscow branch of the Jehovah’s Witnesses based on the provisions of Article 14 of the Law of 1997. The public prosecutor alleged that the activities of the Jehovah’s Witnesses resulted in parents becoming estranged from their children, blood trans- fusion being denied in emergency situations, some of the members
39 Letter of the Ministry of Justice No. 08-18-207-97 on “Methodological recom- mendation on the implementation by the branches of justice of some of the provisions of the Federal Law “On Freedom of Conscience and on Religious Organisations”, Rules, Instructions, Decrees and other; Legislation on religious cults, associations, available in Rus- sian at
42 HARRIGAN, S., “Moscow court case against Jehovah’s Witnesses”, Aired by CNN February 8, 1999. Found at
Khakasia Christian Centre, ordering them to suspend the publication and distribution of their materials and educational activities. The regis- tration was refused on the grounds of Article 9 of the Law of 1997, which requires 15 years existence for the religious organisation to be eli- gible for full registration. A representative of the Lutheran Mission argued that the Evangelical-Lutheran Mission had existed in Russia for over 400 years47. In another case at the beginning of 1998 authorities of the Yaroslavl region first foreclosed the activities such as publication and education of the New Generation Church, and then refused to register the church by referring to Article 9 of the Law of 199048. The Moscow based Institute of Law and Religion has filed a constitutional challenge to the Law of 1997 based on the cases in Khakasia and Yaroslavl regions and it is now pending before the Constitutional Court of the Russian Federation. It should be added that there are many other cases relating to the misconceived interpretation of the registration requirements under the Law of 1997. The full account of the cases, however, falls beyond the scope of this article because the deadline for the registration or re-registration of religious associations is 31 December 1999 and it has not expired yet49.
LEGITIMATE CONCERNS AND EXPECTATIONS
At this point we should probably take a helicopter’s view of the prob- lem. The opening and liberalisation of society in Russia at the begin- ning of the 1990s has confronted the country with its own unique set of problems. Historically, the relationship of the Soviet State towards religion since the 1970s was dominated by the education of atheism and related scientific research50 as well as strict control especially on the part of the security apparatus51. Towards the end of the 1980s there was growing support for the Russian Orthodox Church, manifested in a
47 RFE/RL (Radio Free Europe) No.3, 15 October 1997. 48 The Mission was registered as a religious organisation under the Law of 1990 in 1996. RFE/RL, February 1998. 49 Article 27 of the Law of 1997. 50 ANDERSON, J., Religion, State and Politics in the Soviet Union and Successor States, Cambridge, University Press, 6-67. 51 This was primarily a prerogative of the Fifth Main Directorate established in the 1960s in the Committee of State Security (KGB) under its then chairman Yuri Andropov for “sophisticated surveillance and persecution of descent” including different religious groups, WALLER, J.M., Secret Empire: the KGB in Russia Today, San Fran- cisco/Oxford, Westlaw Press/Boulder, 1992, 71-90. 260 T. SINURAYA further identification of the Russian nationhood with Orthodoxy even while restrictions remained52. The opening meant the removal of the ideological paradigm of the socialist state and a true renaissance of the Russian Orthodox Church. Throughout the transition period of 1990s Orthodoxy remained the only traditional cultural force which could offer a stable set of values to the Russian people; however, Orthodoxy is also a conservative force which uses the ancient Church Slavonic lan- guage instead of the Russian language and is traditionally anti-Western inclined53. It should be added that a closed society, which Soviet Russia undoubtedly was, needs time to psychologically adjust to the change and openness for which it is neither accustomed nor equipped54. Accordingly, the rapid proliferation of different religions in Russia has stumbled on a certain resistance. By 1997 about one third of Russia’s administrative units had passed religious laws and decrees which run contrary to the Law of 1990 in restricting the activities of religious groups and denying registration55. Consequently, one of the tasks of the Law of 1997 was to impose the uniformed standards of registration throughout the Russian Federation and by this the law would tackle the problem of “totalitarian sects” and their morally destructive activities. Furthermore, the religious sensitivity, which manifested itself in the Law of 1997, which emphasised the tra- ditional religions in order to ensure societal status quo, is not incom- patible with the European practice56. Therefore, the concerns of the drafters of the Law of 1997 can be considered legitimate. However, in pursuing their goals the drafters made some miscalculations with regard
52 In this regard, we should note that Russians, Ukrainians and Byelorussians formed an ethnic and political foundation of the Soviet Union cemented by Orthodoxy. DUNCAN, P. J.S., “Orthodoxy and Russian Nationalism in the USSR, 1917-1988”, in HOSKING, G.A. (ed.), Church, Nation and State in Russia and Ukraine, School of Slavonic and East European Studies, Macmillan, 1991, 312-332. 53 VAN DE BERCKEN, W., Theologische Cultuur in het Hedendaagse Rusland, Oratie uitgesproken bij de aanvaarding van het ambt als bijzonder hoogleraar in het Oosters Christendom aan de Katholiek Universiteit Nijmegen, 16 September 1994. 54 NIVAT, G., “De la dissidence à l’avenir”, in NIVAT, G. (ed.), De la dissidence à la démocratie. Passé, présent et avenir de la Russie. Actes du colloque consacré à la mémoire de Vladimir Maxinov, Monaco/Paris, Éditions du Rocher, 1996, 15-18. 55 “Russia: Religious Freedom” in United States Policies in Support of Religious Free- dom: Focus on Christians, U.S. State Department Report of 22 July 1997,
57 PCHELINTSEV, A.V. and RYAKHOVSKY, V.V., “Expertnoe Zaklyuchenie”, Religiya i Pravo, 2-3(1997), 10-14. 58 Chapter 4 “Legal Persons”, General Part of Civil Code of the Russian Federation, Statutes & Decisions, The Laws of the USSR and its Successor States, September- October, Cambridge, Harvard, 1996, vol.32, No.5. 59 BELYAKOV, V.V. and RAYMOND, W.J., Constitution of the Russian Federation, English translation, Moscow, Brunswik and Novosti, 1994. 262 T. SINURAYA document, which proves it has existed in the given territory for 15 years, it can be registered but with some significant restrictions until the 15 year term expires. This will worsen the conditions for already registered organisations, which contradicts Article 54 of the Russian Constitution, which determines that the newly adopted laws imposing new liabilities, do not have retroactive force60. The imposition of the yearly re-registra- tion requirement for already registered legal persons who do not meet 15-year requirement, contravenes the existing provisions of the Russian civil law. Furthermore, Article 27 of the Law of 1997, with regard to organisations which have to undergo yearly re-registration resulting in restrictions such as barring religious organisations from educational activities, contradicts Articles 28 and 43 of the Russian Constitution which guarantee the right of everybody to establish religious educational institutions. Article 27 of the Law of 1997 denies to the organisations in question access to the mass media, which runs contrary to Article 29 of the Russian Constitution that guarantees to everybody freedom of infor- mation. The registration restrictions, envisaged in Article 27 of the Law of 1997, contradict the international obligations of the Russian Federa- tion. In particular, Articles 18, 19, 29 of the Universal Declaration of Human Rights, Articles 16, 17 of the Concluding Document of the Vienna Meeting of 1989, Articles 10, 20, 27 of the CIS Convention on Human Rights and Main Freedoms of 1995 and others61. Remarkably, even the official Letter of the Ministry of Justice of 16 November 1997 on the implementation of the Law of 1997 states that the re-registration requirement and restrictions contradict Article 54 of the Russian Con- stitution62. Furthermore, Mr. A.E. Sebentsov, who was one of the main drafters of the Law of 1997, in his official commentary to the law, ques- tions the legitimacy of the re-registration requirement and resulting restrictions63. It should be confirmed that the constitutional foundation of reli- gious freedom in the Russian Federation can raise legitimate expecta- tions on the part of the followers of different religions to have their
60 Idem. 61 PCHELINTSEV, A.V. and RYAKHOVSKY, V.V., “Expertnoe Zaklyuchenie”, Religiya i Pravo, 2-3(1997), 10-14. 62 Letter of the Ministry of Justice No.08-18-207-97 on “Methodological recom- mendations on the implementation by the departments of justice of the provisions of the Federal Law ‘On the Freedom of Conscience and on Religious Organisations’”. 63 SEBENTSOV, A.E., “Kommentary k Federalynomu zakonu ‘O svobode sovesyti i o religiozneah obyedineniyah’”, Gosudarstwo Religiya Tserkowy w Rossii i za Rubezhom, 3- 4(1997), 88-90. RELIGIOUS FREEDOM IN RUSSIA 263 rights protected to the full extent of the law with regard to the registra- tion restrictions imposed by the Law of 1997.
CONCLUSION
The registration requirements under the Law of 1997 yield the local authorities an instrument to harass the religious associations which fall outside of their favour. What remains unchanged are the constitutional underpinnings of religious freedom in Russia which possess the quality of continuity, pre-existing meaning and logic of the law. That is, as the principles of religious freedom have been embedded into the constitu- tional bases, they do not succumb to moulding by the Law of 1997. So while the Law of 1997 was supposed to be a tailor-made suit to fit the unique body of social development during the transition period in Rus- sia, it came out badly cut and oversized.