eurel     Données sociologiques et juridiques sur la religion en Europe et au-delà


  • 22 October 2014

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

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

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

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

  • 2 October 2014

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

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

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

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

D 14 novembre 2014    AMikhaïl Chakhov

CNRS Unistra Dres Gsrl

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