Doc. 9393

25 March 2002

Russia’s law on religion

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Kevin McNamara, United Kingdom, Socialist Group

Summary

The new Russian law on religion, which entered into force on 1 October 1997, has caused some concern, both as regards its contents and its implementation. Some of these concerns have been addressed, notably through the judgments of the Constitutional Court of the Russian Federation and the re-registration exercise of religious communities on the federal level successfully completed by the Ministry of Justice, but other concerns remain.

Most reported problems concern the lack of uniformity in the implementation of the law. While no religious community has alleged systematic discrimination or harassment by the state, in some regions, difficulties plainly persist. Some local officials seem to discriminate against or harass faiths which are in a minority in a certain locality (though not systematically), or display a preferential attitude towards the Russian Orthodox Church.

Moreover, some regional and local departments of the Ministry of Justice have refused to (re)register certain religious communities, despite their registration at the federal level. The federal Ministry of Justice does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law, preferring to force religious communities to fight these local departments over registration in the courts, rather than taking remedial action within the Ministry.

Therefore, the Assembly should recommend to the Russian authorities that the law on religion be more uniformly applied throughout the Russian Federation, and that the federal Ministry of Justice becomes more pro-active in resolving disputes between its local/regional officials and religious organisations, before these disputes are brought before the courts.

The Assembly should further recommend that, in cases of differences between local authorities and other officials and religious communities within the Russian Federation, an independent, non-judicial control body be established on which religious communities would be represented, with a view to mediating, and resolving problems.

I.               Draft resolution

1.       The new Russian law on religion entered into force on 1 October 1997, replacing and abrogating a 1990 Russian law – generally considered very liberal - on the same subject. The new law caused some concern, both as regards its contents and its implementation. Some of these concerns have been addressed, notably through the judgments of the Constitutional Court of the Russian Federation of 23 November 1999, 13 April 2000 and 7 February 2002, and the re-registration exercise of religious communities on the federal level successfully completed by the Ministry of Justice on 1 January 2001, but other concerns remain.

2.       The law itself, while seeming to pose an acceptable basis of operation for most religious communities, could still be ameliorated. Although the Russian Constitutional Court has already restricted the application of the so-called “fifteen-year rule”, which initially severely limited the rights of religious groups which could not prove their existence on Russian territory for at least fifteen years before the new law entered into force, the total abolition of this rule would be considered as an important improvement of the legislative basis by several of these groups.

3.       Most reported problems concern the lack of uniformity in the implementation of the law. While no religious community has alleged systematic discrimination or harassment by the state, in some regions, difficulties plainly persist. One of the reasons mentioned for these difficulties is that some subjects of the Federation have adopted their own laws on religion, which are not always in conformity with the federal law. The Presidential Administration is reportedly looking into this problem.

4.        Another problem seems to be posed by local officials, who, in certain cases (but not systematically), discriminate against or harass certain religious communities, in particular faiths which are in a minority in a certain locality. Sometimes a preferential attitude by local officials is displayed towards the Russian Orthodox Church, and other religious communities are obliged by these officials to obtain the agreement of the local representative of the Orthodox Church before they can realise their projects (such as the renting/building of a church or mosque). Sometimes complaints by religious communities filed with the competent authorities, such as the prosecutor’s office in the case of physical attacks or church torchings, are not followed up, and the communities in question are forced to take their complaints to court themselves.

5.        Moreover, some regional and local departments of the Ministry of Justice have refused to (re)register certain religious communities, despite their registration at the federal level. The federal Ministry of Justice does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law, preferring to force religious communities to fight these local departments over registration in the courts, rather than taking remedial action within the Ministry. The case of the Moscow branch of the Salvation Army deserves particular attention in this respect, and should lead to an internal disciplinary inquiry by the federal Ministry of Justice into the workings of its Moscow department. The Moscow Department of Justice tried to close down this branch of the Salvation Army (despite federal registration), for allegedly failing to re-register by the law’s deadline. The Constitutional Court ruled in favour of the Salvation Army on 7 February 2002.

6.       Therefore, the Assembly recommends to the Russian authorities that:

i.       the law on religion be more uniformly applied throughout the Russian Federation, ending unjustified regional and local discrimination of certain religious communities, and local officials’ preferential treatment of the Russian Orthodox Church;

ii.       the federal Ministry of Justice become more pro-active in resolving disputes between its local/regional officials and religious organisations, before disputes are brought before the courts, by taking remedial action within the Ministry in case of corruption and/or incorrect implementation of the law on religion, thus rendering it unnecessary to take such cases to the courts;

iii.       when the courts close down a religious community in conformity with the law on religion, no property be forfeited until all legal avenues have been exhausted (including national and international judicial appeal mechanisms);

iv.       in cases of differences between local authorities and other officials and religious communities within the Russian Federation, an independent, non-judicial control body be established on which religious communities would be represented, with a view to mediating, and resolving problems;

7.        The Assembly further calls on the authorities of the Russian Federation to take into account the principles contained in Recommendation 1412 (1999) on illegal activities of sects when dealing with issues concerning religion.

II.       Explanatory memorandum

      by Mr McNamara, Rapporteur

A.       Introduction

1.        The new Russian law on religion was adopted by the State Duma on 19 September 1997, approved by the Federation Council on 24 September 1997, and signed by President Yeltsin on 26 September 1997. It entered into force on 1 October 1997, replacing and abrogating a 1990 Russian law – generally considered very liberal - on the same subject.

2.        On 6 November 1997, Mr Atkinson and others tabled a motion for a recommendation on the law (Doc. 7957), asking for the law to be annulled. The motion was referred to the Committee on Legal Affairs and Human Rights for report, which appointed me rapporteur, and to the Political Affairs Committee and the Committee on Culture and Education for opinion.

3.        On 16 April 1998, I presented a first introductory memorandum1 on the subject to the Committee on Legal Affairs and Human Rights, following an exchange of letters2 with Mr Zorkaltsev, Chairman of the State Duma Committee on Public Unions and Religious Organisations. My memorandum contained a short summary of the content of the law and an explanation of the state of proceedings. It was the wish of the rapporteurs already at the time to visit Moscow, but, unfortunately, this visit had to be postponed several times at the request of the Russian authorities.

4.        The two rapporteurs for opinion, Mrs Gatterer (Political Affairs Committee) and Mr Roseta (Committee on Culture, Science and Education), accompanied me on my visit to Moscow on 16 to 18 October 20013, which was well organised by the Secretariat of the Russian parliamentary delegation. It is my intention to have my report on Russia’s law on religion debated during the April 2002 part-session of the Assembly, in conjunction with the report by the Monitoring Committee on the honouring by Russia of her commitments and obligations.

B.       The new law on religion

5.        The new Russian law on religion was adopted in response to a perceived threat to Russia’s traditional religious faiths and Russian society, coming from the multiplication of “non-traditional” congregations in Russia in the 1990s, many of which were of American origin. When the law entered into force in 1997, it was widely criticised as being discriminatory, since it established two categories of religious denominations which enjoyed different rights: religious organisations and religious groups.4 The very limited rights of religious groups, which did not belong to a centralised religious organisation and could not prove their existence on a given territory of the Russian Federation for at least fifteen years, gave rise to particular concern.

6.        Article 27.3. of the law, the “fifteen-year rule”, was challenged in the Constitutional Court of the Russian Federation. The Court ruled on 23 November 1999 that religious organisations established before the law came into effect, and religious groups which were attached to a centralised structure did not need to offer documentary proof of 15 years’ existence to exercise the (wider) rights accorded to religious organisations in the new law. The emphasis thus shifted to whether or not religious organisations had already been registered (under the old law) when the new law came into force.

7.        In accordance with the original version of the law, all religious communities were required to re-register with the Ministry of Justice by 31 December 1999. Failure to re-register could lead to the “liquidation” of the religious community in question. Following the judgement of the Constitutional Court, and amid reports that re-registration proceedings were not proceeding as planned, the State Duma extended the deadline for re-registration of religious communities from 31 December 1999 to 31 December 2000. At the same time, however, the Duma amended the law to make the “liquidation” of unregistered religious organisations obligatory for the Ministry of Justice.

C.       The law's implementation

8.        On 1 January 2001, 20.200 religious communities had been registered in the Russian Federation, 479 of which were registered as «central» religious organisations, 19.005 as parish congregations, 118 as higher education seminaries, 334 as monasteries and 264 as religious «offices». The majority of the registered communities were Russian Orthodox (10.913 in all); 3.048 were Muslim, 1.323 evangelical Christian, 975 Baptist, 563 Adventist, 278 Old Believers', 258 Roman Catholic, and 197 Jewish communities. However, «minority» religious denominations were also represented, in the form of 330 Jehovah's Witnesses congregations, a number of Orthodox Church congregations (e.g. Free Russian Orthodox Church, Russian Orthodox autonomous Church, etc.), and 51 charismatic church congregations.

9.        None of the representatives of different religious denominations we met in Moscow in October voiced any complaints about the handling of the re-registration exercise by the federal Ministry of Justice. It seems that, in order to take advantage of the abrogation of the 15-year rule for religious groups attached to «central» religious organisations, some groups which would perhaps rather have remained independent, were forced to join a «central» (if loose) religious organisation in order to be able to keep their legal identity. However, this does not seem to have caused major problems.

10.        Unfortunately, the situation is very different on the regional and local level. While no-one we met complained of a pattern of discrimination or harassment, in some regions and in some localities, difficulties plainly persist. One of the reasons mentioned even by the Russian authorities for these difficulties was that some subjects of the Federation (especially some Republics) had adopted their own laws on religion, which were not always in conformity with the federal law. However, the Presidential administration was looking into these disparities5.

11.        On a more practical level, it seems that the federal Ministry of Justice is unable (or unwilling?) to control some of its local departments, which has led to some abuses regarding registration. The most acute problem has apparently been posed by the Moscow Department of Justice, which has refused to re-register the Moscow branch of the Salvation Army (and, incidentally, has also refused to transfer the title of property held by the Moscow branch to the “central” religious organisation of the Salvation Army, which has been re-registered by the federal Ministry of Justice).

12.        According to the representatives of the Salvation Army we spoke to, the Salvation Army applied in late 1998 for the renewal of its registration in the city of Moscow. The re-registration process proceeded well until January 1999, when the problems started. It has been alleged by several sources that corruption might be at the root of the problem in this case, as it has apparently also been in other Moscow cases. It was suggested that if the Salvation Army changed its lawyers, its case might proceed more expeditiously and successfully. The Salvation Army fought for its re-registration in the Moscow courts, without success; one of the court judgements even found this renowned Christian religious and charitable organisation, which feeds more than 7.000 homeless a month in Moscow, to be a “foreign paramilitary organisation aiming at the violent overthrow of the Russian Federation”. The city government filed suit to have the Moscow branch liquidated in September 2001, and won its case on 6 December 2001.

13.        The Salvation Army appealed to the Constitutional Court of the Russian Federation, which ruled in its favour on 7 February 2002. The Court found that a religious organisation registered prior to the adoption of the 1997 law on religion may not be liquidated purely for failing the re-register by that law's deadline of 31 December 2000. Legal rulings made in relation to the Moscow branch of the Salvation Army which followed a divergent interpretation, are now “subject to reconsideration”. An appeal by the Salvation Army to the European Court of Human Rights is still pending, but might now have been overtaken by events.

14.        Jehovah’s Witnesses have also encountered some problems, especially in Moscow, where the city has been trying to “liquidate” the Moscow branch via criminal and civil court cases, attempts which have, however, so far failed. It was reported that some Jehovah’s Witnesses congregations had also been the target of local attacks, but the cases looked random, and when the congregations filed complaints, they were looked into by the competent authorities. Representatives of other “minority” religious denominations complained of similar, localised, problems. However, according to the representative of the Pentecostal Union, it was very difficult, if not impossible, to get the prosecutor’s office to react when abuses took place, even when clergymen were physically attacked or churches set on fire. The authorities simply asked the Union to take such cases to court.

15.        Interestingly, the refusal of some local departments of the Ministry of Justice to register a congregation, or of a local official to permit the handing back/ building and/or renting of a church, mosque or prayer house, often seemed to be based on a desire to allow the “dominating” religion in the locality to guard its “canonical territory”. Thus, for example, a Muslim congregation might be prevented from building a mosque in a traditionally Russian Orthodox town (or vice-versa), or a local official might ask the applicant to first obtain permission from the local Orthodox bishop or imam. The desire of some local authorities and officials to translate their own attitude (to, for example, the Russian Orthodox Church) into official practice, obviously poses some problems if it is left unchecked. It is unacceptable for local officials to send people e.g. to the Russian Orthodox Church for approval on any course of action in the religious field before giving their own approval.

16.        Some representatives of different religious organisations were concerned about an ongoing “Orthodoxation” of Russia. According to them, the Russian Orthodox Church was being allowed by the state to play a special, dominant role in public and political life. In practice, for example, Russian Orthodox priests had the seemingly exclusive right of access to schools, military garrisons, hospitals and prisons. The Russian Orthodox Church appears to equate Russia with Orthodoxy, and Orthodoxy with Russia.

17.        In fact, it is very difficult to discern the extent to which, in practice, the state influences religious life in Russia. The Jewish and the Muslim communities have split (we saw only one of the two rival Chief Rabbis and one of the two rival Chief Muftis), and it seems that – at least regarding the Jewish community – the state was involved in the affair. As regards an alleged “Orthodoxation” of Russia, this does not seem to be systematic state policy, but rather a question of relations between individuals and the local representatives of the Russian Orthodox Church, and the claims of the Orthodox Church.

D.       Newest developments

18.       In February 2002, two new draft laws concerning religion were proposed by Duma members. The first draft law, “on traditional religious organisations”, was unveiled at a press conference on 5 February 2002 by the Vice-Chairman of the Duma’s Committee on Religious and Social Organisations, Mr Aleksandr Chuyev. However, since this bill has not been co-ordinated with the Presidential Administration, it is reportedly unlikely to be passed. This draft law would create several different categories of “traditional religious organisations”, allotting state preferences to some of these, apparently to Orthodoxy, Islam, Judaism and Buddhism. The bill would thus risk discriminating against other faiths, deemed “non-traditional” in Russia, and might thus clash with Russia’s law on religion, and even with the Russian Constitution.

19.        More worrying is a recent bill presented by the Ministry of Justice, “on the struggle against extremist activity”, which is due to come before parliament soon. The bill defines extremist activity as “socially dangerous acts aimed at violent change to the constitutional order of the Russian Federation, the violent seizure or retention of power, the violation of the sovereignty or territorial integrity of the Russian Federation, the creation of illegal armed units, the violation of the rights and freedoms of citizens on account of their race, nationality, language, or attitude to religion or convictions, and incitement of national, racial or religious hatred, as well as public appeals to commit socially dangerous acts with these aims”.

20.        This bill contains several amendments to the law on religion currently in force. Inter alia, religious organisations as a whole could be ruled as extremist and banned, if the organisation, its subdivisions, leaders or members were shown to have conducted extremist activity, either at the direction or with the knowledge of at least one of its ruling organs. Responsibility for monitoring compliance with the law would shift from the prosecutor’s office to the Ministry of Justice (the registering organ). The Ministry of Justice would obtain the right to “request the management documents of a religious organisation and to send its representatives to its religious rites, ceremonies and other events”, and financial organs would obtain the right to “monitor a religious organisations’ sources of income”. The bill would furthermore create a federal organ for monitoring religious affairs, with a view to “administering assistance to religious organisations”.

21.        From the point of view of the rule of law, and respect for the freedom of religion, this bill poses severe problems. So far, the Russian parliament has, in religious affairs, proved itself to be respectful of these values, and it can thus be hoped that neither of the two draft laws in question will be passed.

E.       Conclusions and recommendations

22.        In conclusion, I think it is fair to say that Russia’s law on religion in its current form, while far from perfect, poses an acceptable basis of operation for most religious denominations. No religious community alleged systematic discrimination or harassment by the state. The re-registration exercise completed by the federal Ministry of Justice early this year went relatively smoothly.

23.        However, the law could and should still be ameliorated. Although the Russian Constitutional Court has already restricted the application of the 15-year rule, the total abolition of this rule would constitute a considerable improvement of the legislative basis. It goes without saying that the legislative basis should not be worsened by the adoption of two draft laws concerning religion, currently being floated.

24.        In addition, the implementation of the law is not uniform throughout the country. The federal Ministry of Justice does not seem able (or willing?) to control its regional and local departments in accordance with the requirements of the rule of law, preferring to force religious communities to fight these local departments over registration in the courts, rather than taking remedial action within the Ministry. The Federal authorities should take a stronger line with regional and local governments and authorities (even if they are in powerful and influential positions, like the Moscow City Government). The Federal Minister of Justice should seek to curb the illegal activities of local bureaucrats and investigate allegations of corruption in his regional and local departments. The case of the Moscow branch of the Salvation Army seems the most glaring in this respect. An internal disciplinary inquiry by the federal Ministry of Justice into the workings of its Moscow department would also seem long overdue.

25.        The Moscow Department of Justice had tried to close down this branch of the Salvation Army (despite federal registration), for allegedly failing to re-register by the new law’s deadline. The Constitutional Court ruled in favour of the Salvation Army on 7 February 2002. The Court found that a religious organisation registered prior to the adoption of the 1997 law on religion may not be liquidated purely for failing to re-register by that law's deadline of 31 December 2000. This ruling is very important, and shows that, as a general rule, no property should be sequestrated on failure of registration until such time as all legal avenues have been pursued, up to and including appeals to the Russian Constitutional Court and the European Court of Human Rights. Nobody should be prejudiced by actions of the state until all forms of judicial remedy have been exhausted. Nevertheless, religious groups or organisations which feel themselves threatened, should, if they wish, be allowed to transfer title to that property to a body which has already been registered and is operating under the present law.

26.        Practically all representatives of religious communities we spoke to complained about the conduct of local officials, who often discriminated against or harassed certain non-dominant denominations. There also seems to be some general distress of all the faiths not having equal access to state institutions, like schools, prisons, hospitals, the army, etc. While the Russian Orthodox Church is probably the strongest religion in Russia, there should be equality of access for other duly registered religious faiths.

27.        The Russian authorities are aware of the problem of local discrimination and harassment, and have floated the idea of a state-sponsored permanent monitoring body to check that local authorities comply with federal legislation in this area. This non-judicial body might create regional bodies to hear cases at first hand. Religious representatives6 would prefer such a body to be independent, and would wish such a body – should it be created – to react more speedily to complaints.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 7957 and Reference No 2238 of 7 November 1997; Doc 8351 and Reference 2373 of 30 March 1999

Draft resolution adopted unanimously by the committee on 18 March 2002

Members of the committee: Mr Lintner (Chairperson), Mr Magnusson, Mrs Gülek, Mr Marty (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andican, Mr Arabadjiev, Mrs Van Ardenne-Van der Hoeven, Mr Attard Montalto, Mr Bindig, Mr Brejc, Mr Bruce, Mr Bulavinov (alternate: Mr Khripel), Mr Chaklein, Mrs Christmas-Mřller (alternate: Mrs Auken), Mr Clerfayt, Mr Contestabile, Mr Davis, Mr Demetriou, Mr Dimas, Mr Engeset, Mr Enright, Mrs Err, Mr Fedorov, Mrs Frimansdóttir, Mr Frunda, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty, Mr Jansson, Mr Jaskiernia, Mr Jurgens, Mr Kastanidis, Mr Kelemen (alternate: Mr Pokol), Mr Kostytsky, Mr S. Kovalev (alternate: Mr Shishlov), Mr Kresák, Mr Kroll, Mr Kroupa, Mr Lacăo (alternate: Mrs Aguiar), Mrs Libane, Mr Lippelt, Mr Manzella, Mrs Markovic-Dimova, Mr Mas Torres, Mr Masseret (alternate: Mr Hunault), Mr McNamara, Mr Michel, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pellicini (alternate: Mr Budin), Mr Penchev, Mr Piscitello, Mrs Postoica, Mrs Roudy, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic, Mr Stoica (alternate: Mr Coifan), Mrs Stoisits, Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mr Tepshi, Mrs Tevdoradze, Mr Uriarte (alternate: Mrs Posada), Mr Vanoost, Mr Vera Jardim, Mr Volpinari, Mr Wilkinson (alternate: Mr Lloyd), Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Ms Coin, Ms Kleinsorge, Mr Ćupina

APPENDIX

PROGRAMME

of the visit of the Rapporteurs on the new Russian law on religion

to Moscow on 16-18 October 2001

Tuesday 16 October 2001

4 pm       Arrival of the Rapporteurs, transport to Hotel

8 pm       Dinner with NGOs (Hotel National)

Wednesday 17 October 2001

9 am       Departure from Hotel National

9.30 – 10.30 am       Meeting with representatives of the Salvation Army and of Jehovah’s Witnesses (Institute for Religion and Law)

11 – 12 am       Meeting with the Chairman of the State Duma Committee on the affairs of public unions and religious organisations, Mr Zorkaltsev

12.30 – 1.30 pm       Meeting with the Chairman of the Commission on questions of religious associations with the Government of the Russian Federation, Mr Sebentsov

1.30 – 2.30 pm       Working lunch with Mr Sebentsov (State Duma, Red Room)

3.15 – 4.30 pm       Meeting with the Chairman of Russia’s Mufties Council,

5 – 6.15 pm       Meeting with the Chief Rabbi of Russia, Mr Shayevich

7 – 8.30 pm       Meeting with representatives of different religious organisations (Institute for Religion and Law)

Thursday 18 October 2001

9 – 10 am        Meeting with the Russian Orthodox Church, Head of Department Mr Vsevolod Chaplin

10.30 – 11.15       Meeting with the Deputy Minister of Justice of the Russian Federation, Mr Sidorenko, and Head of Department Mr Tomarovsk

12 – 1 pm       Meeting with the Presidential Administration of the Russian Federation, Deputy Head of Department of Interior Politics, Mr Abramov

1 pm       Departure for the airport

1 AS/Jur (1998) 22.

2 Published ibid, AS/Jur (1998) 17 rev. and continued in AS/Jur (1998) 34.

3 The programme is reproduced as an Appendix to this memorandum.

4 When reference is made to "religious organisations" and "religious groups" it is in the framework of the meaning of the Russian law on religion. To avoid confusion, "religious communities" and "religious denominations" have been used when all other cases are included.

5 The results of this undertaking are not yet clear. In this connection, the Keston Institute has pointed out that the Supreme Court had rejected a case against controversial parts of the law regulating missionary activity in the Belgorod Region.

6 The Russian Orthodox Church is opposed to the creation of such a body.