ICNL logo

The International Journal
of Not-for-Profit Law

Volume 6, Issue 1, September 2003

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Religion and NGOs

Introductory Letter from the Guest Editors
W. Cole Durham, Jr. and Elizabeth A. Sewell

A Bend in the Road to Civil Society: The Effect of Russian Anti-Extremism Legislation on Not-for-Profit Organizations
Brian Gross

A Practical Comparison of the Laws of Religion of Colombia and Chile
Scott E. Isaacson

Faith-Based NGOs in Bosnia and Herzegovina
Mojca Leban

Refah Partisi (The Welfare Party) and Others v. Turkey
Christian Moe

The Impact of the New Czech Law on Churches
Petr Pajas

Comments on the 2002 Belarusian Law "On the Introduction of Changes and Amendments to the Law of the Republic of Belarus 'On Religious Freedom and Religious Organizations'"
Melinda R. Porter

Russian Federation Constitutional Court Decisions on Russia's 1997 Law "On Freedom of Conscience and Religious Associations"
Marina Thomas

God and Caesar: Personal Reflections on Politics and Religion
Shirley Williams

Articles

Should Foundations Exist in Perpetuity?
Robert O. Bothwell

The Prohibition of Nigerian Civil Servants From Political Activities: A Necessary Derogation from Freedom of Association
Emeka Iheme

The Charity/Business Duet: Harmony or Discord?
Andrew Phillips (Lord Phillips of Sudbury)

From Benin to Baltimore: Civil Society and Its Limits
Sally J. Scott, Ph.D.

Reviews

Global Civil Society: An Overview
By Lester M. Salamon, S. Wojciech Sokolowski, and Regina List
Reviewed by Jonathan Nelms

The Changing and Unchanging Face of U.S. Civil Society
By Marcella Ridlen Ray

Civil Society: The American Model and Third World Development
By Howard J. Wiarda

Freedom in the World 2003: The Annual Survey of Political Rights and Civil Liberties
By Freedom House

Religion Returns to the Public Square: Faith and Policy in America
Edited by Hugh Heclo and Wilfred M. McClay

The State of Nonprofit America
Edited by Lester M. Salamon

Terrorism and Development: Using Social and Economic Development to Inhibit a Resurgence of Terrorism
By Kim Cragin and Peter Chalk

- - - - - - - - - -

Editorial Board

Russian Federation Constitutional Court Decisions on Russia's 1997 Law “On Freedom of Conscience and Religious Associations”

By Marina Thomas*

Scholars and practitioners have criticized the 1997 Russian law “On Freedom of Conscience and Religious Associations” (“Law” or “Law of 1997”), claiming that it violates the constitutional guarantee of freedom of conscience and religion.[1] The Law’s constitutionality has also been challenged in the Russian Federation Constitutional Court. Each time the Law has been challenged, the Constitutional Court has applied constitutional standards and defended freedom of conscience. However, the Court has always refrained from declaring the Law as a whole unconstitutional. This article provides an overview of the three significant cases in which the Constitutional Court interpreted the most restrictive provisions of the 1997 Law. In conclusion, the article attempts to explain the outcomes of those decisions.

Emergence of the 1997 Law

The 1990 Russian Soviet Federal Socialist Republic (RSFSR) law “On Freedom of Religion” established freedom of religious expression and practice in Russia. Under this law, religious associations could exist in Russia without being registered, and they were entitled to proselyte and perform a wide range of religious activities; however, they could choose to register for purposes of tax exemption. In 1997, the Russian Duma passed a new law, “On Freedom of Conscience and Religious Associations” (“Law” or “Law of 1997”), that replaced the liberal law of 1990.[2] Impetus for the Law stemmed from a variety of factors, including religious, cultural, and administrative ones. During the seven years of broad religious freedom under the 1990 law, the Russian Orthodox Church became increasingly concerned as many Russians abandoned their Orthodox roots and converted to other, often foreign-based religions.[3] The Russian Orthodox Church petitioned the government to tighten regulations for all foreign churches that were proclaiming religious ideas alien to the Russian mentality. According to the Orthodox Church, this onslaught of foreign religious views could lead to a widespread loss of national identity and cultural heritage.[4] Alongside the Church, part of the Russian intelligentsia voiced an argument about the need to restore the Orthodox Church following its strained plight under Communism. Orthodox Christianity, they argued, has been Russia’s protection and strength for hundreds of years. Many believed that its restoration would bring about a spirit of renewal and restore “ Russia’s religious-cultural mix, lest Westernism finish Communism’s work.”[5]

The Russian Orthodox Church was not alone in its concern about the influence of foreign religions; there was also a general societal demand for stricter control regarding these religious associations. Many Russian citizens feared that the influx of non-traditional religious organizations, operating with virtually no governmental control, might bring with it religious fanaticism and terrorism. In particular, many feared a recurrence of mass suicide attempts such as those staged by Russia’s homegrown “White Brotherhood.”  Many also worried about the infiltration of terrorist organizations and activities, such as those carried out by Aum Shinrikyo.[6] Fear of extremism led to a desire for stricter regulations for non-traditional religious organizations. The 1997 Law was adopted in part to respond to a perceived need to protect the Russian populace from dangerous foreign influence. Unfortunately, several of the Law’s provisions limit religious freedoms for a host of religious organizations. Many innocent religious organizations faced the possibility of losing the right to worship because of the Law’s restrictions.[7]

Another reason for the emergence of the Law was the need to determine registration and liquidation procedures for religious organizations. According to Russia’s continental law system, governance of these processes is a legislative responsibility. Professor Lev Simkin explains that the Law had two positive effects: it “put an end to the widespread practice of registering commercial companies as companies of religious organizations to obtain tax privileges”; and it “improved remedy procedures by giving judicial power a larger role in resolving conflicts.”[8]

Before examining the Russian Federation Constitutional Court’s interpretation of the 1997 Law, it is helpful to identify the Law’s most restrictive provisions, which many scholars[9] view as a violation of the constitutional guarantee of freedom of conscience and equality of religious associations before the law.[10] In fact, when the Law was passed, its blanket application to all minority religions provoked an international uproar.[11] The Law has been criticized for a number of provisions.

First, the preamble to the 1997 Law assigns a “special role” to the Russian Orthodox Church, recognizing its traditional influence on Russian culture and history. It also makes special mention of well-established religions in Russia, such as Islam, Buddhism, and Judaism.[12] Therefore, the Law appears to differentiate between traditional and non-traditional religions. Many interpret this as a violation of the Russian constitutional principle of equality of religions before the law.[13]  

Second, the Law divides all religious associations into two categories: religious groups and religious organizations (Articles 7 and 8). (Religious organizations in turn could be local and or centralized, depending on the sphere of their activities.[14] ) The citizens of any country may establish a religious group, providing they permanently reside in Russia and inform the appropriate local Russian government agency.[15] “Religious groups,” under the Law, have limited rights because they are non-registered entities. While a religious group has the right to perform religious services and teach its members, it cannot proselytize, disseminate religious literature, or perform other activities.[16]

In order for a religious entity to become a full-fledged local “religious organization” and possess all legal rights, it must register with the Ministry of Justice of the subject of the Russian Federation on the territory where it commences its activities.[17] Two main requirements must be satisfied to qualify for registration at this level. First, the group must consist of at least 10 Russian Federation citizens; and, second, it must have existed in Russia for at least 15 years.[18] If the religious entity cannot satisfy the 15-year requirement, it may only enjoy the limited rights afforded to religious groups. It must also annually re-register with the government until the 15-year requirement is satisfied.[19]

The Law provides that three local religious organizations registered in the above-mentioned manner can form a centralized religious organization.[20] A registration of a centralized religious organization could be carried out either at the local or at the federal level, depending on the location of local religious organizations that constitute it. If all of the local religious organizations are situated in the same subject of the Russian Federation, the justice department of the corresponding subject performs registration of a centralized religious organization.[21] If the local religious organizations are located in different subjects of the Russian Federation, they must apply for registration as a centralized religious organization at the federal level.[22] A benefit of registering as a centralized religious organization is that under its auspices a local religious body can attain religious organization status without satisfying the 15-year requirement. However, according to the Law of 1997, a centralized religious organization must conform to a specific structure. It has to include at least three local religious organizations, each of which has at least 10 Russian citizens residing in the same locality.[23]

Finally, under the Law, a centralized religious organization may not use “ Russia” or “Russian” in its name unless it can prove that it has been present in Russia for at least 15 years.[24]

The Role of the Russian Federation Constitutional Court in Russia’s Legal System

The Constitutional Court (“the Court”) is a new structure in Russia’s judiciary system, created on May 6, 1991, by the Russian Supreme Soviet. It replaced the Soviet Committee on Constitutional Supervision (“Committee”).[25] The Court differs considerably from the Committee. The Committee interpreted the law according to socialist doctrine, displayed poor legal reasoning and craftsmanship, and often used sweeping generalizations to skirt difficult issues. By contrast, the Court gives deference to fixed constitutional norms and international legal standards, and has proved capable of complex legal reasoning. The Committee was also heavily dependent on the Parliament, whereas the Court acts independently from the legislature.

Initially, the Court had very broad powers. By definition, it was “the highest judicial body of constitutional review in the Russian Federation, exercising judicial authority by means of constitutional judicial proceedings.”[26] This definition proved deficient when the Court began meddling in the political domain during the 1993 crisis. In 1993, when the Russian Parliament challenged the President’s power, the Court sided with Parliament. Immediately after the President’s victory over the rebellious Parliament, Court activities were temporarily suspended. With the implementation of the Russian Constitution of 1993, which limited the Court’s powers, the Court resumed its regular courtroom functions.

The 1993 Constitution redefined the Court’s role in order to curb its potential for entanglement in the political sphere. The Constitution of 1993 defines the Court as a “judicial body of constitutional review, autonomously and independently exercising judicial authority by means of constitutional judicial proceedings.”[27] Under the Constitution, the Court’s guiding principles are “independence, collegiality, glasnost, adversarial procedure, and equality of the parties.”[28] These principles continue to shape Court procedure today.

American and Russian scholars hope that the Court will “assert constitutionality”[29] and “lead in building a legal culture”[30] by creating “a comprehensive legal constitutional doctrine”[31] that “correspond[s] to the modern social, economic, political, and legal realities.”[32] Boris Yeltsin, former President of the Russian Federation, also emphasized the importance of the Constitutional Court. He said that "the proper implementation of the Russian Constitution, strengthening of the tenets of the constitutional structure, and protection of the rights and freedoms of an individual largely depend on the activities of the Court. The judges through their decisions can influence Russian people towards greater respect for the rule of law and justice."[33]

Since the Constitutional Court is a new structure within Russia’s judiciary system, the scope of its operations is still somewhat unclear. For example, Russian scholars argue whether the Court’s decisions should possess precedential force over all Russian Federation territory (the practice of the precedent is new for Russia).[34] If the Court’s precedent were firmly established as supreme, the Court would be able to limit unconstitutional activities of administrative structures and citizens. Naturally, some are uncomfortable with this. However, most scholars agree that the Court’s decisions have binding effect on the entire country and government.[35] Indeed, the Court considers its decisions as binding precedents to follow in future decisions. This gives hope that democratic methods will soon become the norm in Russia.[36]

The Jehovah’s Witnesses and Christian Church of Praise Case of November 23, 1999

On November 23, 1999, the Court ruled on a case[37] filed by the Jehovah’s Witnesses and the Christian Church of Praise. This decision gave new legal and constitutional meaning to Article 27.3. Article 27 states, in part, that religious associations “which do not possess a document proving their existence [in Russia for] at least 15 years are to enjoy the rights of a legal person on the condition of re-registration every year until the expiration of the indicated 15-year period. During this period, these religious [associations] are not to enjoy rights stipulated in Articles 3.4, 5.3, 5.4, 13.5, 16.3, 17.1, 17.2, 18.2 (as applicable to educational institutions and mass media), 19, and 20.2 of this federal law.”[38]

In compliance with the Law of 1997, the Jehovah’s Witnesses and the Christian Church of Praise filed for re-registration. However, they were unable to prove continuous presence in Russia for the requisite 15 years, so they were denied registration. The best remaining alternative for these religious associations was to remain non-registered entities possessing the status of a legal person but denied most of their rights. According to Article 27.3, the organizations lost the following rights: the right of replacing military service with alternative civil service for their members; the right of priests not to be drafted; the right to establish educational entities (including ones preparing professional clergy); the right to have foreign representation; the right to perform religious services in hospitals, orphanages, and prisons; the right to buy and export religious literature, audio, and video recordings; the right to establish educational organizations and mass media; and the right to invite foreign citizens to perform religious and missionary activities.[39]

Both religious organizations filed a complaint with the Constitutional Court, claiming that Article 27.3 violated their freedom of conscience because it deprived them of basic religious rights they had enjoyed before re-registering.

The Court avoided directly confronting the constitutionality of the Law as a whole. Instead, it broadly interpreted Article 27.3 in conjunction with other provisions of the Law and the constitution to preserve the Law’s constitutionality.

According to Article 9.1, the Law provides two ways of establishing a local religious organization.[40] Groups seeking the rights and status of a religious organization may prove that they are part of a centralized religious organization, or they may present evidence of 15 years' presence in Russia. The Court held that Article 9.1 provides an alternate approach to Article 27. Therefore, reasoned the Court, Article 27 is constitutional and does not violate the rights of organizations that do not satisfy the 15-year requirement.

The Court next addressed the question whether a centralized religious organization had to comply with the 15-year requirement. It was decided that any centralized religious organization registered in Russia before 1997 did not have to satisfy the 15-year requirement in order to qualify for religious organization status. The Court held that such a religious association “ceased to be a religious group and became a religious organization possessing a status of a legal person and, according to the Russian Federation Civil Code Article 51.2,[41] was considered to be established.”[42] A registered religious organization possessing legal status before the Law of 1997 “has all the civil rights that promote its legal activities and carries certain obligations in connection with these rights and, therefore, it has all the rights prescribed to the religious organizations by the Law.”[43] If, in this instance, a government agency overseeing registration were to deny religious organization status based on the 15-year rule, it would be violating the constitutional guarantee of freedom of religious association and the legal equality principle.[44]

This ruling significantly liberalized the registration process for religious associations that were registered in Russia before 1997. It also tempered the seemingly arbitrary reach of the Law of 1997, at least for organizations that were registered before 1997. However, the Court did not declare the Law of 1997 as a whole unconstitutional. Instead, the Court deliberately interpreted Article 27 in ways that avoided a ruling of unconstitutionality.

The Jesuit Case of April 13, 2000

The Court’s decision in the Independent Russian Region of the Society of Jesus (“IRRJS” or “Jesuits”) case addressed another important interpretive question concerning the Law of 1997.[45] IRRJS was registered in Russia in 1992 and enjoyed broad rights under the religious freedom law of 1990. However, with passage of the 1997 Law, IRRJS had to register with the Ministry of Justice in accordance with much stricter provisions.

IRRJS was denied its registration for several reasons. First, IRRJS was established by a foreign religious organization (the Roman Catholic Church of the World Society of Jesus), which, according to Article 13.2, could create only a representative body in Russia. Representative entities may not carry out religious activities because they do not possess religious organization status. Because IRRSJ was, technically, a foreign representative body, it did not qualify for religious organization status.

Second, the organizational structure of the Jesuits did not comply with Articles 8.3 and 8.4. According to Article 8, a local religious organization can be established by at least 10 citizens of Russia, 18 years of age, permanently residing in one locality.[46] At the same time, a centralized religious organization consists of three local religious organizations.[47] The Ministry of Justice determined that IRRSJ did not conform to the required structure and that its registration would be possible only if it altered its structure according to the Law. The Roman Catholic Abbot’s decree that created IRRSJ was also pronounced void because, under the Law, religious organization could only be established by the citizens of Russia.[48] Third, the Ministry of Justice denied registration to IRRSJ because it had used “Russian” in its official name, contrary to the 15-year rule.[49]

IRRSJ appealed this case to the Constitutional Court. In its decision, the Court focused its discussion on Articles 8,[50] 9,[51] 13,[52] and 27[53] of the Law. Ultimately, the Court decision followed the November 1999 case precedent, which established that religious organizations registered before the Law of 1997 possessed all the rights of a registered religious organization. The Court here held that IRRSJ could not be deprived of rights that it had enjoyed earlier because it was lawfully registered in Russia in 1992. In other words, the retroactive enforcement of the 15-year requirement of organizations registered before 1997 would violate the Jesuits’ constitutional right of freedom of conscience and religion.

The Court also eliminated the structural requirement for organizations registered before the Law of 1997. Such organizations could be organized according to “any organizational form prescribed by Article 8” without jeopardizing religious organization status.[54] Finally, the Court allowed religious entities, registered before the 1997 Law, to retain “ Russia” or “Russian” as part of their official name.

This decision also freed religious organizations registered before 1997 from governmental control over their structure and choice of official name. However, here, as in the previous decision, the Court decision did not affect organizations registered after 1997. Here also the Court went to great lengths to interpret Articles 8, 9, 13, and 27 broadly in such a way as to be consistent with the Constitution.

The Moscow Branch of the Salvation Army Case of February 7, 2002

The Constitutional Court’s most recent interpretation of the Law of 1997 came out of the Moscow Branch of the Salvation Army (“MBSA”) case. Article 27.4 prescribed a deadline (December 31, 1999, subsequently extended to December 31, 2000) by which all religious organizations had to be re-registered or else face liquidation.[55] MBSA failed to re-register before the deadline because it was unable to pass quickly enough through administrative red tape. MBSA’s initial application was denied because “its registration documents did not conform to the required standard.”[56] Despite multiple appeals, MBSA was unable to clear up the problem on time. When MBSA appealed to the Moscow Municipal Court on July 5, 2000, the Municipal Court affirmed the earlier decision. MBSA’s subsequent complaint to the Moscow City Court on November 28, 2000, was also to no avail. After failing to meet the registration deadline, MBSA was ordered to be liquidated.

MBSA appealed the decision to the Constitutional Court, claiming that liquidation had been unconstitutionally invoked against it. Diligent efforts were made to meet the deadline, but MBSA found it impossible to traverse the administrative red tape in time. MBSA argued that bureaucratic efforts to hinder re-registration and bring about the liquidation of religious organizations went against principles of civil society and constitutional guarantees of freedom of conscience, religion, and association.[57] The Constitutional Court ruled in favor of MBSA and established a groundbreaking constitutional principle, which greatly buttressed the importance of religious freedoms in the Russian Federation. From now on, “legislative initiatives pertaining to establishment, formation, and registration of the religious organizations should not distort the meaning of freedom of religion, right for association, and freedom of activity of public associations. Possible limits concerning these and other constitutional rights should be just and in accordance with the constitutional purposes.”[58]

The Court held that a religious organization registered in Russia before 1997 could not be liquidated for failing to jump unnecessary bureaucratic hurdles.[59] It further held that the government could liquidate an organization only if the organization has clearly ceased its activities in the Russian Federation for three years and has failed to inform the registering organ about this.[60] An organization can also be liquidated if it carries out activities incompatible with the Constitution (e.g., terrorist activities) or incompatible with Article 14.2 of the Law (conditions for dissolution). Therefore, ordering MBSA’s liquidation based on Article 27.4 was unconstitutional because it violated MBSA’s right to freedom of religion. Interestingly, the Court did here what it had done in the two earlier cases: it applied its protections only to organizations registered before 1997, and interpreted broadly to avoid striking down the Law as unconstitutional.

Conclusion

Although it is a new structure within Russia’s judicial system, the Constitutional Court has proved to be of critical importance. The Court has successfully enforced compliance with constitutional norms and has thus become a guarantor of the Constitution. It has also demonstrated the ability to rise above politics and power to carry out this duty. The Court has shown its loyalty to Russia’s Constitution and its genuine respect toward the world’s democratic norms, such as the doctrines of the European Court of Human Rights.[61] In the cases discussed above, the Court has proved that it will stand up in defense of constitutional standards, such as freedom of conscience, religion, and religious association. This is an extremely important precedent that sets the tone for future constitutional decisions. Religious entities registered in Russia before 1997 now enjoy the following guaranteed rights:

The question remains, however, why the Court has not yet held the Law of 1997 unconstitutional. One reason might be the Court’s belief that the Law is not too restrictive. In the Christian Church of Praise decision, the Court said the following about the government’s role in regulating religious affairs: "The government has the right to put certain limits on registration, so that the status of a religious organization is not received by any religious association automatically, for the purposes of prevention of legalization of sects that infringe upon human rights and carry out illegal and criminal activities [and] for the purposes of limiting missionary activities (proselytism issue) if they are not compatible with the respect for the freedom of thought, conscience, and religion of others (e.g., accompanied by offering material and social benefits in order to recruit new members, usage of the illegal means of persuasion . . . psychological pressure, threat of violence, etc.)"[62] Perhaps the Court considers some of the Law’s stricter provisions as necessary filters against dangerous and illegitimate religious movements.

Joseph Brossart provides another explanation. It might “strike people of other cultural backgrounds,” he remarks, that the Law of 1997 has withstood constitutional attacks. After all, it plainly appears to “violat[e] the letter and the spirit of the Constitution.”[63] In reality, however, such reasoning ignores the fact that every legal system is “a synthesis of universal notions of rights with concrete historical conditions and commitments.”[64] As is the case in other countries, Russia’s historical experience is complex and deep-rooted. This heritage may include norms that are so culturally important as to justify a departure from the literal meaning of the Constitution. Thus, in formulating case decisions, the Constitutional Court may be partly influenced by historical and cultural norms.

In addition, the Court may sustain the Law because its internal inconsistencies afford the Court very broad interpretive power. The Law was created in the midst of political tensions, and some of its provisions are internally inconsistent.[65] President Yeltsin vetoed an earlier draft of the Law due to criticism and pressure from the international community and from the Catholic Church. The Law that was adopted was a compromise between the will from within Russia and international pressures from afar. This compromise resulted in several internal inconsistencies in the 1997 Law.

Another explanation might be that courts typically rule on only the challenged provisions of a law, without striking the law as a whole. In general, the courts gradually interpret the law in a constitutional way. It seems plausible that the Russian Federation Constitutional Court focused only on the constitutionality of the provisions at issue and did not deem it appropriate to consider the broader question of the Law’s constitutionality.

* Marina Thomas is 2003 Summer Research Fellow, BYU International Center for Law and Religion Studies.

[1] See Moscow Helsinki Group “Freedom of Conviction, Conscience, and Religion”; Human Rights in the Regions of the Russian Federations, All Russia Report 2000, “Freedom of Conviction, Conscience, and Religion”; John Witte, Jr., “Soul Wars: The Problem and Promise of Proselytism in Russia,” 12 Emory Int’l Law Rev. 1 (1998); T. Jeremy Gunn, “Caesar’s Sword: The 1997 Law of the Russian Federation on the Freedom of Conscience and Religious Associations,” 12 Emory Int’l Law Rev. 43 (1998), W. Cole Durham, Jr., and Lauren B. Homer, “Russia’s 1997 Law on Freedom of Conscience and Religious Associations: an Analytical Appraisal,” 12 Emory Int’l Law Rev. 101 (1998); Galina Krylova, “The Problems of Religious Freedom in the Decisions of the Russian Constitutional Court,” CESNUR, Center for Studies on New Religions, August 29-31, 2000, http://www.cesnur.org/conferences/riga2000/krylova.htm

[2] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No 125-F3 (last updated on March 26, 2000, No. 45-F3), Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 47.

[3] John Witte, Jr., “Soul Wars: The Problem and Promise of Proselytism in Russia,” 12 Emory Int’l Law Rev. 1 (1998); Lev Simkin, “State and Church in Russia,” in Church and State in Post-Communist Europe (Cole Durham and Silvio Ferrari, eds., 2003 forthcoming), 266.

[4] See Aleksii II, Patriarch of Moscow and All Russia, “Address of the Patriarch to the Councils of the Moscow Parishes at the Episcopal Gathering,” December 12, 1996, 6 Tserkovno-Obschestvennyi Vestnik 7, December 26, 1996; Harold J. Berman, “Freedom of Religion in Russia: An Amicus Brief for the Defendant,” 12 Emory Int’l Law Rev. 313 (1998).

[5] Joseph Brossart, “Legitimate Regulation of Religion? European Court of Human Rights; Religious Freedom Doctrine and the Russian Federation Law ‘On Freedom of Conscience and Religious Organizations,’” 22 B.C. Int’l & Comp. L. Rev. 297, at 311 (1999).

[6] For more information, see footnote 4.

[7] See constitutional review of paragraphs 3 and 4 of Article 27.3 of the September 26, 1997, Federal Law “On Freedom of Conscience and Religious Associations” in connection with the Jehovah’s Witnesses and Christian Church of Praise case ruled on by the Constitutional Court on November 23, 1999, No. 16-P, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 238; the Jesuit case ruled on by the Constitutional Court on April 13, 2000, discussing an alleged violation of constitutional rights and freedoms by Articles 8.3, 8.4, 8.5, 9, 13, 27.3, and 27.4 of the Federal Law “On Freedom of Conscience and Religious Associations,” No. 46-O, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 247.

[8] Lev Simkin, “State and Church in Russia,” at 267.

[9] See Moscow Helsinki Group, “Freedom of Conviction, Conscience, and Religion”; Human Rights in the Regions of the Russian Federations, All Russia Report 2000, “Freedom of Conviction, Conscience, and Religion”; John Witte, Jr., “Soul Wars: The Problem and Promise of Proselytism in Russia,” 12 Emory Int’l Law Rev. 1 (1998); T. Jeremy Gunn, “Caesar’s Sword: The 1997 Law of the Russian Federation on the Freedom of Conscience and Religious Associations,” 12 Emory Int’l Law Rev. 43 (1998); W. Cole Durham, Jr., Lauren B. Homer, “Russia’s 1997 Law on Freedom of Conscience and Religious Associations: An Analytical Appraisal,” 12 Emory Int’l Law Rev. 101 (1998); Galina Krylova, “The Problems of Religious Freedom in the Decisions of the Russian Constitutional Court,” CESNUR, Center for Studies on New Religions, August 29-31, 2000, http://www.cesnur.org/conferences/riga2000/krylova.htm.

[10] Constitution of the Russian Federation, December 12, 1993, Article 14.2, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 42.

[11] Lev Simkin, “State and Church in Russia,” at 265.

[12] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No 125-F3 (last updated on March 26, 2000, No. 45-F3), preamble, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 47.

[13] Constitution of the Russian Federation, December 12, 1993, Article 14.2, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 42.

[14] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No 125-F3 (last updated on March 26, 2000, No. 45-F3), Article 8.2, Article 8.3, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 51.

[15] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No. 125-F3 (last updated on March 26, 2000, No. 45-F3), Articles 7.1, 7.2:

Article 7.1: A voluntary association of citizens, formed for the goals of joint confession and dissemination of their faith, carrying out its activities without state registration and without obtaining the legal capabilities of a legal personality, is recognized as a religious group in this federal law. Premises, and property necessary for the activities of a religious group, are to be provided for the use of the group by its participants.

Article 7.2: Citizens forming a religious group with the intention of eventually transforming it into a religious organization are to inform the local authorities about its creation and the beginning of its activities.

[16] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No. 125-F3 (last updates March 26, 2000, No. 45-F3), Article 27.3, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 60.

[17] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No. 125-F3 (last updates March 26, 2000, No. 45-F3), Article 8.1, Article 11.2, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 51.

[18] See footnote 17, Article 8.3, at 51; Article 27.3, at 60.

[19] See footnote 17.

[20] See footnote 17, Article 8.4, at 51.

[21] See footnote 17, Article 11.2, at 53.

[22] See footnote 17, Article 11.3, at 53.

[23] See footnote 17, Article 8.4, at 51.

[24] See footnote 17, Article 8.5, at 51.

[25] Herbert Hausmaninger, “From the Soviet Committee of Constitutional Supervision to the Russian Constitutional Court,” 25 Cornell Int’l L.J. 305, at 332 (1992); B. C. Yebzeev, ”Introductory Article,” Commentary on the Decrees of the Constitutional Court of the Russian Federation, Vol. 1, Jurist, Moscow, 2000, at 8.

[26] B. C. Yebzeev, “Introductory Article,” Commentary on the Decrees of the Constitutional Court of the Russian Federation, Volume 1, Jurist, Moscow, 2000, at 10.

[27] Federal Constitutional Law on the Constitutional Court of the Russian Federation, adopted by the State Duma, June 24, 1994, adopted by the Federation Council, July 12, 1994, Chapter 1, Article 1, http://ks.rfnet.ru/english/ksengl.htm.

[28] Herbert Hausmaninger, “Towards a “New” Russian Constitutional Court,” 28 Cornell Int’l L.J. 349, at 369 (1995).

[29] Herbert Hausmaninger, “From the Soviet Committee of Constitutional Supervision to the Russian Constitutional Court,” 25 Cornell Int’l L.J. 305, at 306 (1992).

[30] See footnote 29, at 337.

[31] B. C. Yebzeev, “Introductory Article,” Commentary on the Decrees of the Constitutional Court of the Russian Federation, Volume 1, Jurist, Moscow, 2000, at 27.

[32] See footnote 31.

[33] B. C. Yebzeev, “Introductory Article,” Commentary on the Decrees of the Constitutional Court of the Russian Federation, Volume 1, Jurist, Moscow, 2000, at 10.

[34] H. Gadzhiyev, Decisions of the Constitutional Court of the Russian Federation as the Source of Law, Law and Life, 2000 No. 26, electronic version of the printed magazine, http://www.pravogizn.h1.ru/KSNews/PIG_4.htm.

[35] See footnote 34; B. C. Yebzeev, “Introductory Article,” Commentary on the Decrees of the Constitutional Court of the Russian Federation, Volume 1, Jurist, Moscow, 2000, at 21.

[36] H. Gadzhiyev, Decisions of the Constitutional Court of the Russian Federation as the Source of Law, Law and Life, 2000 No. 26, electronic version of the printed magazine, http://www.pravogizn.h1.ru/KSNews/PIG_4.htm.

[37] The constitutional review of paragraphs 3 and 4 of Article 27.3 of the September 26, 1997, Federal Law “On Freedom of Conscience and Religious Associations” in connection with the Jehovah’s Witnesses and Christian Church of Praise case ruled on by the Constitutional Court on November 23, 1999, No. 16-P, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 238.

[38] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No 125-F3 (last updated on March 26, 2000, No. 45-F3), Article 27.3:

Article 3.4: right to replace military service with alternative civil service and right of the priests not to be drafted; Article 5.3: right to establish educational entities; Article 5.4: right to teach religion at school outside the official curriculum; Article 13.5: right to have foreign representation; Article 16.3: right to perform religious services at the hospitals, orphanages, and prisons; Article 17.1: right to buy and export religious literature, audio, and video recordings; Article 17.2: right to establish organizations that publish religious literature; Article 18.2: right to establish mass media and educational organizations; Article 19: right to establish educational institutions to prepare professional clergy; Article 20.2: right to invite foreign citizens to perform religious and missionary activities within religious organizations.

[39] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No 125-F3 (last updated on March 26, 2000, No. 45-F3), Articles 16.3, 27.3, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 57, 60.

[40] Article 9.1: No fewer than ten citizens of the Russian Federation may be founders of a local religious organization, joining together as a religious group which must have confirmation from the organs of the local government that it has existed on the given territory for no less than fifteen years, or confirmation from a centralized religious organization of the same creed that it forms part of its structure.

[41] Civil Code of the Russian Federation, Part I, November 30, 1994, No 51-F3, Article 51.2, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 89. Article 51.2: Legal person is considered to be established at the time of its registration with the government.

[42] The constitutional review of paragraphs 3 and 4 of Article 27.3 of the September 26, 1997, Federal Law “On Freedom of Conscience and Religious Associations” in connection with the Jehovah’s Witnesses and Christian Church of Praise case ruled on by the Constitutional Court on November 23, 1999, No. 16-P, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 243.

[43] See footnote 42, at 244.

[44] Constitution of the Russian Federation, December 12, 1993, Article 28, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 43.

[45] See the Jesuit case ruled on by the Constitutional Court on April 13, 2000, discussing an alleged violation of constitutional rights and freedoms by Articles 8.3, 8.4, 8.5, 9, 13, 27.3 and 27.4 of the Federal Law “On Freedom of Conscience and Religious Associations, No. 46-O, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 247.

[46] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No. 125-F3 (last updated on March 26, 2000, No. 45-F3), Article 8.3, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 51.

[47] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No. 125-F3 (last updated on March 26, 2000, No. 45-F3), Article 8.4, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 51.

[48] See footnote 47, Articles 8 and 9, at 51-52.

[49] See footnote 47, Article 8.5, at 51.

[50] Article 8.3: A religious organization consisting of ten or more participants who are at least 18 years old and who are permanently residing in one locality or in one urban or rural settlement is recognized as a local religious organization.

Article 8.4: A religious organization consisting in accordance with its charter of no fewer than three local religious organizations is recognized as a centralized religious organization.

Article 8.5: A centralized religious organization, the structures of which have been active on the territory of the Russian Federation on a legal basis for no fewer than 50 years as of the moment when the said religious organization files its application for state registration to the registering organ, has the right to use in its names the words 'Russia,' 'Russian' and derivatives of these.

[51] Article 9.1: No fewer than ten citizens of the Russian Federation may be founders of a local religious organization, joining together as a religious group which must have confirmation from the organs of the local government that it has existed on the given territory for no less than fifteen years, or confirmation from a centralized religious organization of the same creed that it forms part of its structure.

Article 9.2: Centralized religious organizations are formed when there exist no fewer than three local religious organizations of the same creed, in accordance with the internal procedures of the religious organizations if these do not contradict the law.

[52] Article 13.1: A religious organization is designated as foreign if it has been created outside the confines of the Russian Federation and according to the laws of a foreign state.

Article 13.2: The right to open a representative body in the Russian Federation may be granted to a foreign religious organization. A representative body of a foreign religious organization may not engage in liturgical or other religious activities, and does not receive the status of a religious association as established by this federal law.

[53] Article 27.3: Religious organizations which do not possess a document proving their existence on the corresponding territory over the course of at least 15 years are to enjoy the rights of a legal person on the condition of re-registration every year until the expiration of the indicated 15-year period. During this period these religious organizations are not to enjoy the rights stipulated in Articles 3.4, 5.3, 5.4, 13.5, 16.3, 17.1, 17.2, 18 (as applicable to educational institutions and mass media), 19, and 20.2 of this federal law.

[54] See the Jesuit case ruled on by the Constitutional Court on April 13, 2000, discussing an alleged violation of constitutional rights and freedoms by Articles 8.3, 8.4, 8.5, 9, 13, 27.3 and 27.4 of the Federal Law “On Freedom of Conscience and Religious Associations, No. 46-O, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 247.

[55] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No. 125-F3 (last updated on March 26, 2000, No. 45-F3), Article 27.4, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 60.

[56] Slavic Legal Center, Russian Federation Constitutional Court Decision in the Moscow Branch of the Salvation Army case, discussing an alleged violation of Constitutional Rights and Freedoms by Article 27.4 of the Federal Law “On Freedom of Conscience and Religious Associations,” February 7, 2002

[57] Constitution of the Russian Federation, December 12, 1993, Articles 28 and 30, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 43-44.

[58] Slavic Legal Center, Russian Federation Constitutional Court Decision in the Moscow Branch of the Salvation Army case, discussing an alleged violation of Constitutional Rights and Freedoms by Article 27.4 of the Federal Law “On Freedom of Conscience and Religious Associations,” February 7, 2002

[59] See footnote 58.

[60] “On Freedom of Conscience and Religious Associations,” Federal Law, September 26, 1997, No. 125-F3 (last updated on March 26, 2000, No. 45-F3), Article 8.9

[61] Joseph Brossart, “Legitimate Regulation of Religion? European Court of Human Rights; Religious Freedom Doctrine and the Russian Federation Law ‘On Freedom of Conscience and Religions Organizations,’” 22 B.C. Int’l & Comp. L. Rev. 297, at 301 (1999).

[62] The constitutional review of paragraphs 3 and 4 of Article 27.3 of the September 26, 1997 Federal Law “On Freedom of Conscience and Religious Associations” in connection with the Jehovah’s Witnesses and Christian Church of Praise case ruled on by the Constitutional Court on November, 23 1999, No. 16-P, Institute of Religion and Law, “Religious Associations: Freedom of Conscience and Religion; Normative Acts and Judicial Decisions,” Moscow, Jurisprudence, 2001, at 242.

[63] Joseph Brossart, “Legitimate Regulation of Religion? European Court of Human Rights; Religious Freedom Doctrine and the Russian Federation Law “On Freedom of Conscience and Religions Organizations,”” 22 B.C. Int’l & Comp. L. Rev. 297, at 320 (1999).

[64] See footnote 63.

[65] See Lev Simkin, “State and Church in Russia,” at 266.

 

Copyright © 2012 The International Center for Not-for-Profit Law (ICNL)
ISSN: 1556-5157