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Ombudsman of Russian Federation

The Federal Law "On the Freedom of Conscience on the Religious Associations" and the International Legal Obligations of the Russian Federation 

The Conclusion of the Commissioner on Human Rights in the Russian Federation

The Federal Law &#8220;On the Freedom of Conscience and on the Religious Associations&#8221;, adopted on September 26, 1997, generally conforms to the international legal obligations of Russia, undertaken as a member state of the International Pact on Civil and Political Rights and of the European Convention on Human Rights and Fundamental Freedoms. The preamble of the Law (par. 1-3), just like Articles 28,19 (part 2) and 29 (part 2) of the Constitution of the Russian Federation, confirms the right of everyone to freedom of conscience and to freedom of religion, and also the right of an individual to equality before the law independently of his attitude towards religion and his beliefs.

At the same time, several provisions of this Law come into contradiction with the principles established by the above mentioned international legal documents, and, accordingly, may be contested by the citizens when they appeal to the European Court on Human Rights. In fact, these norms cannot be applied on the territory of the Russian Federation, based on the superiority of regulations established by international agreements over the provisions of domestic legislation, which is specified by the Russian Constitution (Article 15, part 4).

1. In comparison with the general international legal principle of equality of all religions, fixed in the Constitution of the Russian Federation (according to Article 14, part 1, &#8220;no religion can be established as state or obligatory&#8221;, and according to part 2 of the same Article &#8220;religious associations... are equal before the law&#8221;), in the Law on the Freedom of Conscience the privileged status of some confessions is in fact secured.

In the preamble of the Law (par. 4-5) there is a reference to &#8220;the particular role of Orthodoxy in the history of Russia, in the formation and development of its spirituality and culture&#8221; and to the respect towards "Christianity, Islam, Buddhism, Judaism and other religions that constitute an inalienable part of the historical heritage of Russia&#8221;.

Two questions present themselves. Firstly, which religions come under the definition of &#8220;other&#8221; - Catholicism, the Uniat Church or, for example, the pentacostalists and molokans, who can also be considered to be a part of the Russian historical heritage. Secondly, whether it means the disrespect to other religions, which are not mentioned in the Law -Confucianism, Hinduism and so on - that are not a part of this heritage. The current text of the preamble does not provide a clear legal answer to these questions.

2. The Law on the Freedom of Conscience (Article 3 par. 3) indicates that the establishment of any advantages, restrictions or other forms of discrimination, that depend on the attitude towards religion, is prohibited. However, besides the privileged status of some confessions declared in the preamble, norms established by several other provisions of this Law actually lead to the discrimination of some confessions in practice.

The distinction between religious associations and religious groups that is recognized by this Law (Articles 6 and 7), contradicts both the European Convention and the precedents of the bodies of the Council of Europe, which represent important sources of the &#8220;European&#8221; law. According to Article 7 (part 1) of this Law, religious groups, in contrast to religious associations, are not subject to state registration and do not possess the rights of a legal person.

Besides, this Law draws a distinction between "traditional" religious organizations and those organizations that do not possess &#8220;a document that confirms their existence on a specific territory for not less than 15 years&#8221; (Article 9, part 1).

"Non-traditional" religious organizations are deprived of many rights and according to point 3 of Article 27 are not able:

• to appeal to the President of the Russian Federation for the deferment from conscription and for the exemption of their clergymen from military training, and also do not have a right to the substitution of the military service with alternative service for the followers of this confession;
• to establish educational institutions;
• to teach religion to the children outside of the framework of the educational program;
• to house the representation office of a foreign religious association;
  to conduct religious ceremonies in medical institutions and hospitals, boarding
• schools, hostels for aged and handicapped people, and in penal institutions;
• to produce, purchase, export, import and distribute religious literature, publications, audio- and video materials and other religious items;
• to establish any organizations specializing in the publishing liturgical literature and producing the religious items;
• to establish educational institutions and mass media agencies;
• to create institutions of professional religious education for the training of the clergymen and other religious personnel;
• to invite foreign citizens with the aim of engaging in professional religious activities, including preaching.

Part 2 of Article 13, that reads: &#8220;the representation of a foreign religious organization cannot exercise religious and other activities, and the status of the religious association doesn't apply to it&#8221;, is also discriminatory and is contrary to both the European Convention and The International Pact on Civil and Political Rights.

3. According to part 2 of Article 3 of the Law on the Freedom of Conscience &#8220;the right of a person and citizen to the freedom of conscience can be limited by the Federal Law only to the extent that is necessary for the protection of the fundamentals of the constitutional order, morality, health, rights and lawful interests of a person and citizen, for guaranteeing the defense and security of the state&#8221;.

This last provision comes into contradiction with part 2 of Article 3 of the European Convention on Human Rights, that reads: &#8220;the freedom to profess any faith is subject only to those restrictions which are established by the law and are necessary in a democratic society in the interests of public order, social order, health and morality or for the protection of the rights and freedoms of others persons&#8221;. This represents an exhaustive list of the legal restrictions of the right to the freedom of religion that are specified in the Convention. As distinct from some other rights and freedoms, guaranteed, in particular, by Articles 8, 10, 11, the Convention does not envisage any restrictions of the freedom of religion for the reasons of &#8220;state security&#8221;.

4. Article 16 (parts 3 and 4) of the Law on the Freedom of Conscience provides the possibility to perform religious ceremonies in military camps, prisons and places of custody. However, practical guarantees of the realization of these rights are absent. It is not clear what is implied by "taking into account the requirements of military regulations" and "the observance of the requirements of criminal judicial legislation", which this Article refers to.

Taking into consideration the foregoing remarks the Federal Law "On the Freedom of Conscience and on the Religious Associations" can be brought into line with the universally recognized principles and norms of international law and international treaties of the Russian Federation.

 
The Commissioner on Human Rights in the Russian Federation
Oleg Mironov

Ombudsman of Russian Federation

The Federal Law "On the Freedom of Conscience on the Religious Associations" and the International Legal Obligations of the Russian Federation 

The Conclusion of the Commissioner on Human Rights in the Russian Federation

The Federal Law “On the Freedom of Conscience and on the Religious Associations”, adopted on September 26, 1997, generally conforms to the international legal obligations of Russia, undertaken as a member state of the International Pact on Civil and Political Rights and of the European Convention on Human Rights and Fundamental Freedoms. The preamble of the Law (par. 1-3), just like Articles 28,19 (part 2) and 29 (part 2) of the Constitution of the Russian Federation, confirms the right of everyone to freedom of conscience and to freedom of religion, and also the right of an individual to equality before the law independently of his attitude towards religion and his beliefs.

At the same time, several provisions of this Law come into contradiction with the principles established by the above mentioned international legal documents, and, accordingly, may be contested by the citizens when they appeal to the European Court on Human Rights. In fact, these norms cannot be applied on the territory of the Russian Federation, based on the superiority of regulations established by international agreements over the provisions of domestic legislation, which is specified by the Russian Constitution (Article 15, part 4).

1. In comparison with the general international legal principle of equality of all religions, fixed in the Constitution of the Russian Federation (according to Article 14, part 1, “no religion can be established as state or obligatory”, and according to part 2 of the same Article “religious associations... are equal before the law”), in the Law on the Freedom of Conscience the privileged status of some confessions is in fact secured.

In the preamble of the Law (par. 4-5) there is a reference to “the particular role of Orthodoxy in the history of Russia, in the formation and development of its spirituality and culture” and to the respect towards "Christianity, Islam, Buddhism, Judaism and other religions that constitute an inalienable part of the historical heritage of Russia”.

Two questions present themselves. Firstly, which religions come under the definition of “other” - Catholicism, the Uniat Church or, for example, the pentacostalists and molokans, who can also be considered to be a part of the Russian historical heritage. Secondly, whether it means the disrespect to other religions, which are not mentioned in the Law -Confucianism, Hinduism and so on - that are not a part of this heritage. The current text of the preamble does not provide a clear legal answer to these questions.

2. The Law on the Freedom of Conscience (Article 3 par. 3) indicates that the establishment of any advantages, restrictions or other forms of discrimination, that depend on the attitude towards religion, is prohibited. However, besides the privileged status of some confessions declared in the preamble, norms established by several other provisions of this Law actually lead to the discrimination of some confessions in practice.

The distinction between religious associations and religious groups that is recognized by this Law (Articles 6 and 7), contradicts both the European Convention and the precedents of the bodies of the Council of Europe, which represent important sources of the “European” law. According to Article 7 (part 1) of this Law, religious groups, in contrast to religious associations, are not subject to state registration and do not possess the rights of a legal person.

Besides, this Law draws a distinction between "traditional" religious organizations and those organizations that do not possess “a document that confirms their existence on a specific territory for not less than 15 years” (Article 9, part 1).

"Non-traditional" religious organizations are deprived of many rights and according to point 3 of Article 27 are not able:

• to appeal to the President of the Russian Federation for the deferment from conscription and for the exemption of their clergymen from military training, and also do not have a right to the substitution of the military service with alternative service for the followers of this confession;
• to establish educational institutions;
• to teach religion to the children outside of the framework of the educational program;
• to house the representation office of a foreign religious association;
  to conduct religious ceremonies in medical institutions and hospitals, boarding
• schools, hostels for aged and handicapped people, and in penal institutions;
• to produce, purchase, export, import and distribute religious literature, publications, audio- and video materials and other religious items;
• to establish any organizations specializing in the publishing liturgical literature and producing the religious items;
• to establish educational institutions and mass media agencies;
• to create institutions of professional religious education for the training of the clergymen and other religious personnel;
• to invite foreign citizens with the aim of engaging in professional religious activities, including preaching.

Part 2 of Article 13, that reads: “the representation of a foreign religious organization cannot exercise religious and other activities, and the status of the religious association doesn't apply to it”, is also discriminatory and is contrary to both the European Convention and The International Pact on Civil and Political Rights.

3. According to part 2 of Article 3 of the Law on the Freedom of Conscience “the right of a person and citizen to the freedom of conscience can be limited by the Federal Law only to the extent that is necessary for the protection of the fundamentals of the constitutional order, morality, health, rights and lawful interests of a person and citizen, for guaranteeing the defense and security of the state”.

This last provision comes into contradiction with part 2 of Article 3 of the European Convention on Human Rights, that reads: “the freedom to profess any faith is subject only to those restrictions which are established by the law and are necessary in a democratic society in the interests of public order, social order, health and morality or for the protection of the rights and freedoms of others persons”. This represents an exhaustive list of the legal restrictions of the right to the freedom of religion that are specified in the Convention. As distinct from some other rights and freedoms, guaranteed, in particular, by Articles 8, 10, 11, the Convention does not envisage any restrictions of the freedom of religion for the reasons of “state security”.

4. Article 16 (parts 3 and 4) of the Law on the Freedom of Conscience provides the possibility to perform religious ceremonies in military camps, prisons and places of custody. However, practical guarantees of the realization of these rights are absent. It is not clear what is implied by "taking into account the requirements of military regulations" and "the observance of the requirements of criminal judicial legislation", which this Article refers to.

Taking into consideration the foregoing remarks the Federal Law "On the Freedom of Conscience and on the Religious Associations" can be brought into line with the universally recognized principles and norms of international law and international treaties of the Russian Federation.

 
The Commissioner on Human Rights in the Russian Federation
Oleg Mironov