Russian Constitutional Court and Religion (Krylova)

The State Duma and the Council of Federation almost unanimously passed the Law on freedom of conscience and religious organizations in 1997. This is the indication of the fact that the idea of religious freedom isn’t popular with Russian parliamentarians. The presidential administration played an active role in this process, lobbying the interests of Russian Orthodox Church. The authorities seemed to try to obtain new ideological foundation based on traditional values. It looked like the spirituality of orthodox patriotism offered the country by the Moscow Patriarchate was in demand. The influence of Russian Orthodox Church (ROC) on the government was obvious and nobody tried to question it. The democratic values of perestroika time were changed by anti-western feelings of nationalist type. The sharp criticism of the bill by president Yeltsin, showing its contradiction to the Constitution of Russia and international law were not taken into consideration. In the result even tougher version was passed.

No one of the leading politicians opposed the discriminatory law. The Russian society influenced by press campaign didn’t object to the limitation of religious minorities’ rights. The problems of religious freedom were not of interest to it. The majority of the population perceived the law as the rightful measure directed against the foreign missionaries and sects and approved of it. The freedom of conscience was understood as the freedom for the believers of dominant religions: orthodox Christianity in Central Russia and Islam in regions populated by Moslems.

The different religious organizations, which at the period of the discussion of the law wanted mostly to be included into "traditional religions", couldn’t unite and oppose its passage. Many of them became aware of the potential problems the law could bring up but hoped the Constitutional Court would help. The violations of religious freedom were so obvious that highly professional judges couldn’t miss them. It seemed that after a complicated legal procedure the contradiction of the law to the constitution and its violation of the rights of citizens would be proved.

This way of opposing the law was discussed by lawyers before it was passed. They hoped that though it demanded certain time it might be leading to a desired result. Three years have passed since the law became active. The Constitutional Court has taken two decisions. Have been the hopes justified?

We’ll start with the legal aspects of the case hearings in the Constitutional Court. The article 125 of the Russian constitution limits the right of citizens to appeal to the Court. The priority is given to inquiries on correspondence of laws to the constitution from the president, the Council of the Federation, the State Duma, the government, the Supreme Court, the Arbitrary Court, the legislative and executive bodies of the subjects of the Russian federation. Citizens and legal persons can appeal to the Constitutional Court only if the application of the law in a concrete case leads to violation of constitutional rights and freedoms. Private persons have no right to question constitutional issues in theory. The consideration of a concrete case allows the Court not to extend its decisions to more general issues.

Thus it was necessary to find the cause for the appeal. The warnings of the attorney’s office to the Pentecostal community in Khakasia and that of Jehovah’s Witnesses in Yaroslavl became such a cause. They were registered in 1992 and at the moment of registration hadn’t existed yet for 15 years as was demanded by the article 27 of the law. Thus the plaintiffs questioned only the parts 3 and 4 of this article.

According to these parts, if local religious organizations, i. e. those, which acted in one subject of the Federation, couldn’t prove their 15 years of existence, they had the rights of a legal person only under condition of their annual registration until they reached the demanded age. Until that time they were deprived of many rights, including those of producing, acquiring and distributing religious literature and materials, educating children privately, carrying on religious rituals in hospitals, orphanages, homes for the aged, correction facilities. They also couldn’t open educational institutions, including those for training their own staff, and invite foreign citizens for religious activity. Such limitations made virtually impossible the activity of thousands of religious organizations.

The Pentecostal community from Khakasia got the warning on their religious activity from the attorney’s office, which considered illegal their religious meetings in the local house for the aged and sermons at the colony for teenage criminals. The distribution of religious literature, the work of biblical school and the international religious conference with participation of foreign missionaries were also considered illegal. Jehovah’s witnesses from Yaroslavl were also warned by the local attorney’s office about the distribution of religious literature and invitation of foreigners. The warnings clearly demonstrated that the new law made illegal the basic activity of the organizations. They were explicitly founded for this kind of activity and did it well, judging by the letters of support they got.

The decision on complaints of the Pentecostals and Jehovah’s witnesses was taken for consideration by the Constitutional Court on November 23, 1999. By this time the plaintiffs were registered as being part of centralized religious organizations. It had to do with another idea of the new law, which took for, granted a strict vertical hierarchical structure of each religious organization. The believers had to make a local organization, which was supposed to establish a centralized one. It’s a well-known fact that not all religions have such a structure. But the authorities seemed to like it. In centralized organizations it’s enough to control the leaders, and the rest would follow them obediently. This statute of the law artificially strengthened old religious centers and created new ones used as a kind of "an umbrella" for the sole purpose of registration. In this sense the law was objectively to the advantage of many religious leaders who stood up against it as discriminatory. Probably, it was one of the reasons why the real opposition to it was so insignificant.

Now let’s compare two figures. 15 years before the law was passed there were less than 5000 religious organizations in Russia. In the beginning of 1998 there were more than 17000. And it was mostly non-orthodox organizations, which registered based on the law of 1990. To avoid the regulation on 15 years of existence, many autonomous organizations entered into existent centralized ones in order to register without problems. Jehovah’s witnesses had such a structure long before the law was passed but the All-Russia Union of Christians of evangelical faith (Pentecostals), the Khakassian organization was the part of, surprisingly increased due to the discriminatory law.

Registration of plaintiffs as the part of centralized organizations was used as a pretext for the Constitutional Court decisions. Referring to the "normative unity" of some statutes of the law, the Court pointed out that organizations founded before the law was passed and also belonging to the structures of centralized religious organizations have all the rights and don’t need to register each year to confirm it. Simultaneously, the statutes of the law the plaintiffs complained about were recognized as not conflicting with the constitution.

This decision of the Constitutional Court can be called "Solomonian". The Court avoided the estimation of the law in principle but did it rather elegantly from the legal point of view. Formally, the plaintiffs are satisfied but the possibility of religious discrimination potentially stays. The discriminatory aspects of the law were clearly formulated but the Court interpreted them in such a way that the meaning of them has changed towards a certain category of religious organizations. But the legality of the decision is purely a theoretical problem, as it can’t be questioned in court.

Evidently, even such a limited decision on controversial 15 years period of existence much improved the legal position of many registered organizations. At the same time, the Court elegantly avoided the recognition of discriminatory nature of certain norms, pointing out that they were not checked in regard to other religious organizations.

But even then the Court was afraid that its decision might be considered too radical by the authorities. Therefore it dropped a curtsy towards them.

Recognizing the religious pluralism, the Court nevertheless pointed out that the state has all the rights under certain conditions to curb the missionary activity and not let sects into the country. It’s difficult not to agree that "sects violating human rights and committing illegal and criminal acts" can’t be legalized. However in case of Russia similar definitions are used against new religious movements which are accused by the press without any legal proofs. It’s difficult to question the right of the state " to stop the missionary activity (in regard to the problem of proselytism), if it violates the respect for the freedom of thought, conscience and religion of others and also towards different constitutional rights and freedoms. Especially when it’s accompanied by offering material or social advantages with the sole purpose of recruiting new members or by influencing people who are in need and in poverty or by making psychological pressure and threats of violence, etc." However in this case certain categories of organizations are hinted at. The term "recruiting" is applied by anti-cultists to new religious movements, "missionary activity" and "proselytism" are referred derogatorily to Protestants and Catholics. It’s obvious that the conditions mentioned by the Court have the evaluating nature and will be interpreted by officials based on certain attitudes towards different religions. In case of Russia it can cause numerous violations of religious rights and freedoms. As a rule, when the limitations in Russia are followed by "ifs" the latter are not paid attention to. In our case it means that the state has an unconditional right " not to admit" and "make an obstruction".

The ideological position of the members of the Constitutional Court is clearly obvious in their references to the statement of the European Parliament of February 12, 1996 "On Sects in Europe" and recommendation of the Council of Europe "On Sects and New religious Movements" (1992). The Court did not mention the numerous decisions of the European Court, presented by the Jehovah’s Witnesses and confirming their religious rights.

There’s a wide spread opinion that the decision of the Constitutional Court of November 23, 1999 was as positive as the Court could only take under circumstances. Why is it so? The answer to this question doesn’t belong to the legal dimension. The decision clearly demonstrates that the Court in reality was fulfilling the task of the recognition that the law didn’t conflict with the constitution. Its discriminatory nature and contradictions to international law were left aside.

It’s clearly confirmed by the other example. The Constitutional Court declined to consider in essence the suit of the Jesuit's Order and interpreted it in such a way that its meaning was drastically changed.

The Ministry of Justice registered the Jesuits in 1992. A few members of the Order (there are about 40 of them, including Russian and foreign citizens) carry on an educational activity being the founders of the Saint Thomas College.

In spite of the fact that the Order first appeared in Russia 200 years ago the Ministry of Justice refused to register it under the new law, referring to the fact that the structure of the Order didn’t meet the requirements of it. Besides the International Order of Jesuits doesn’t have the right to establish religious organizations on the territory of the Russian Federation. According to the article 13 of the law, foreign organizations have the right only to send their representatives who are forbidden to carry on religious activity.

As it was mentioned above, the new law foresees a unitary structure for all confessions on the territory of Russia: a local organization can be established by no less than 10 citizens of Russia who permanently live in one place. Its activity can be realized only in this place. Three and more local organizations can found a centralized religious organization.

The Order of Jesuits didn’t meet these requirements. Its structure stayed unchanged during 5 centuries and was submitted to canonical rules. Its "regions" founded by a decree of the General Superior belong to a unitary organization and can’t be divided into parishes. That’s why the Russian "region" couldn’t get registered as a local branch of the Apostolic Administration. It would have contradicted to canonical rules. The borders of the "region’s" territory don’t coincide with territorial units of a state where it is present. The "region" includes all Jesuits who work on the territory of the country.

Nowhere in the world and especially in Russia the Order is numerous. Its members follow strict rules; monastic vows and high educational level are the musts. After a break of many years it officially renewed its activity in Russia only in 1992 and the majority of its Russian members went abroad to complete its theological education. That’s why there is no place in Russia where 10 Jesuits, being Russian citizens, live permanently and would want to register as a local branch of Jesuits according to the new law. Hence they can’t register as a centralized organization.

The choice offered by discriminatory law didn’t have many options. Jesuits could register as representatives of the International Order and have no right to act as a religious organization. To fulfil all the demands of the law and sacrifice canonical structure. It meant stopping to be the part of the Order and consequently the Catholic Church. And finally to be deprived of the registration of 1992 and rights of a legal entity. It meant that the activity of the independent Russian "region" of the Society of Jesus" was no longer possible.

In their suit Jesuits raised the question of contradiction to the constitution of those parts of the law which demanded one structure for all religious organizations, banned foreign organizations from religious activity and limited the rights of the foreigners to establish religious organizations. Understanding the importance of the registration the Order couldn’t set aside the inner regulations of the Catholic Church and its canonical rules. Besides, the final documents of the meeting of 1989 in Vienna of the members of OSCE guaranteed the right of a religious organization to behave in accordance with its own hierarchical and institutional structure. Russia was supposed to respect these documents.

The Jesuit’s suit went to the Constitutional Court when those of Pentecostals and Jehovah’s witnesses were not yet under the consideration. Nevertheless, it was not added to the other two, as it was supposed to be done according to the law "On Constitutional Court" and was declined. The Jesuits’ rights were obviously violated but the Secretariat of the Court denied it and reproached them for demanding a preference, stating that registration of legal entity in any country is regulated by national laws.

The Jesuits didn’t agree to this decision and insisted on considering their suit directly by the Constitutional Court. It was done in April 13, 2000.

The Constitutional Court pointed out that the solution of the problem raised by the plaintiffs doesn’t need a final statement but issued the decision on the main thesis of the suit. Referring to the constitutional and legal meaning of the appealed norms, the Court decided that the organizations registered earlier couldn’t be refused a new registration if the new law changed a list of those who have a right to be founders. Thus the registered organizations can keep its previous hierarchical and institutional structure. The discriminatory measures against them are limited. The unitary principle of establishing religious organizations introduced by the law can’t be used against them. The Court, however, omitted of its consideration such questions as the deprivation of foreigners of their right to found organizations and the right of the latter to carry on religious activity. And, of course, the Court didn’t consider the contradiction of discriminatory statutes of the law to the constitution.

Nevertheless, the Constitutional Court decision of April 13, 2000 on Jesuit’s suit and the decision of November 23, 1999 have made the rules of registration much easier. The Court discovered the "constitutional-legal meaning" of considered statutes made them mandatory. Now it excludes any other interpretation of them in legal practice and limits the possibility of violating the rights of organizations registered before 1997. The literal interpretation of the law is replaced by its interpretation by the Constitutional Court. It stops the application of the discriminatory statutes by the legal bodies.

But the question remains -- why the Constitutional Court avoided recognizing the law, conflicting with the constitution of Russia and international law, unconstitutional? In both cases the plaintiffs wanted the essence of their suits to be considered. Their rights were definitely violated by discriminatory norms, contradicting to the constitution and European convention on human rights. The limitations applied to them couldn’t be considered necessary in a democratic society to defend its social calm and order, its health and morals or rights and freedoms of other persons.

It would be idealistic to think of the Constitutional Court as the high office of the servants of law capable to ignore the political situation in Russia. Moreover, to a certain extent, the Court itself facilitated establishing discriminatory norms. It had a real possibility to prevent the limitation of religious rights but didn’t do it. In 1994 - 95 the number of subjects of the Russian federation passed clearly discriminatory laws in the campaign of changing the democratic law "On the freedom of faith". The inquiries of the State Duma were sent to the Constitutional Court in regard of the correspondence to the constitution of the acts of Tulskaya and Tumenskaya oblasts. The Constitutional Court didn’t take the inquiry for consideration under the pretext of the recall of the signatures of two deputies who were not reelected. Thus the Court didn’t show the intention to defend the freedom of conscience but, on the opposite, avoided showing a clear attitude to this problem. And it was definitely a signal.

This policy was followed after the law was passed. The efforts applied by the lawyers of religious organizations were awarded by decisions on particular issues. We shouldn’t underestimate this fact which helped many to register and go on with their activity. But overestimation of it would also be wrong. The problems of violation of religious freedom were not solved and couldn’t be.

Now let us consider the essence of the questions stated in the Constitutional Court. All the battles there concerned the confirmation of the status of a legal person and the possibility to go on with religious activity. But even the decisions of the Constitutional Court are slow to be put into practice. The Jesuits are not reregistered until now. This time the Ministry of Justice is not happy with the fact that the head of the organization is a foreigner.

In reality the forms and methods of discrimination of religious organizations in Russia cover much more than attorney’s warnings and refusals to reregister. We don’t mean gratuitous housing, assistance in restoration works, making agreements on cooperation with ministries and even tax exemptions on tobacco and oil sales. Solely the Russian Orthodox Church enjoys all this. The everyday life of each religious organization depends on permissions to build churches, rent houses, spread faith and invite priests from abroad without refusals to give them visas. In these cases the possibilities of discrimination are limitless. And they are not motivated by illegal activity of an organization or references to the discriminatory statutes of the law. The mass media also might have a hand in it when it incites religious intolerance and gives bad names to blacklisted organizations. The police passport checks and the appeals of attorneys and legal bodies to court, demanding to liquidate an organization on some thought up pretext also shouldn’t be underestimated. Even if the case will be finally won, it takes a long time and demands a lot of efforts. The TV and press will discredit the organization and no authorities will compensate the moral and material damages. It is more difficult to act in Russia than just to get a status of a legal person. It’s not only new religious movements with "bad reputations" that are discriminated against. In many regions traditional long known religions are also not accepted.

I don’t think that the role of the law in the real discrimination of "non-traditional" religions is really big. They are not numerous and don’t play an important role in our society. The same goes for other religions, which the Russian Orthodox Church might think to be real rivals. Legally, the law can be recognized as conflicting with the constitution only by the Constitutional Court. But appellations to it are not numerous -- only three in three years, though discrimination by the law is not so rare. The courts of general jurisdiction can in theory make decisions based directly on the constitution not the law. But there are quite a few of such cases.

Evidently, it might be explained not only by the difficulty and long duration of legal procedures. Unfortunately, in Russia the faith in law is mostly lost. Conflict with authorities in many cases is ripe with irreversible consequences and always with serious expenses. It’s easier to make certain concessions but obtain a necessary permission and reach a consensus. This tradition makes an illusion of solving certain problems but the question of freedom of conscience is not one of them.

The discriminatory law is one of the indications of the discriminatory religious policy of the state. The Constitutional Court being one of the parts of the state machine can’t avoid seeing it. The clericalization of the Russian State goes hand in hand with the policy of return to the totalitarian past. In this sense the law is just one of the means of solving political tasks. It was passed by the votes of not only Communist Party members but of those who were considered to be supporters of democratic values. It’s not surprising that being discriminatory and contradicting to the constitution and international law it’s not recognized as such by the Constitutional Court. In the consciousness of the Russian society, including that of the judges, it’s not Law that prevails but ideological priorities of the state policy.

And the Constitutional Court isn’t going to oppose this policy.

The problems of Religious Freedom in the Decisions of the Russian Constitutional Court