Where there are two or three, there is the Ministry of Justice among them

We are publishing a legal analysis of the recently adopted amendments to the law “On Freedom of Conscience and Religious Associations” prepared by lawyer, chairman of the board of the Guild of Experts on Religion and Law, expert of the SOVA Center Inna Zagrebina.

On July 3, 2015, the State Duma of the Russian Federation adopted the Federal Law “On Amendments to the Federal Law “On Freedom of Conscience and on Religious Associations.” In terms of regulating the activities of religious groups (other innovations will remain outside the scope of this article), this law was adopted in pursuance of the ruling of the European Court of Human Rights (hereinafter referred to as the ECHR) in the case “Kimlya and others v. Russia”, which entered into force on March 10, 2010.

This resolution established that the requirement of Part 1 of Art. 9 of the Federal Law of September 26, 1997 No. 125-FZ “On Freedom of Conscience and Religious Associations” on the need to confirm the existence of a religious group that has not had confirmation of membership in a centralized religious organization for at least 15 years does not comply with the provisions of the Convention on protection of human rights and fundamental freedoms. According to the ECtHR, this norm did not meet the criterion of necessity in a democratic society, which is one of the conditions for the lawful restriction of human rights and freedoms.

Since in accordance with Part 4 of Art. 15 and part 1 art. 17 of the Constitution of the Russian Federation, the generally recognized principles and norms of international law, along with international treaties of the Russian Federation, are an integral part of its legal system, they must be taken into account by the federal legislator when regulating public relations.

On this basis, the norm of 15 years of “experience” for religious groups should have been abolished, which was done. However, legal regulation of the activities of religious groups, in our opinion, has only become more stringent.

Let's start in order. In accordance with Art. 28 of the Constitution of the Russian Federation, everyone is guaranteed freedom of conscience, freedom of religion, including the right to profess individually or together with others any religion or not to profess any, to freely choose, have and disseminate religious and other beliefs and act in accordance with them.

Clause 1 Art. 3 of the Federal Law of September 26, 1997 No. 125-FZ “On Freedom of Conscience and Religious Associations”, as well as Art. 28 of the Constitution guarantees freedom of conscience, while adding the right to create religious associations.

According to Art. 6 of this law, a religious association in the Russian Federation is recognized as a voluntary association of citizens of the Russian Federation, other persons permanently and legally residing in the territory of the Russian Federation, formed for the purpose of jointly professing and spreading faith and having the following characteristics corresponding to this purpose: religion; performance of divine services, other religious rites and ceremonies; teaching religion and religious education of its followers.

Religious associations can be created both in the form of religious groups and in the form of religious organizations.

In accordance with paragraph 1 of Art. 7 of the Federal Law “On Freedom of Conscience and Religious Associations” a religious group is recognized as a voluntary association of citizens formed for the purpose of jointly professing and spreading faith, carrying out activities without state registration. The right of citizens to profess and spread their faith without state registration is an essential feature that distinguishes a religious group from a religious organization. State registration is a right, not an obligation, of a religious association.

State registration is associated exclusively with the acquisition of legal capacity of a legal entity, and it cannot in any way be considered as a permit to operate. Otherwise it would conflict with Art. 28 of the Constitution of the Russian Federation. The right to joint worship guaranteed by this article is directly applicable and is not linked to any registration.

By virtue of 2 of the same art. 7 of the law in the new version, all religious groups without exception will be required to submit notifications to the body authorized to make a decision on the state registration of a religious organization at the place where the religious group operates about the beginning and continuation of its activities. It should be noted that this norm does not imply a right, but an obligation of religious groups. The obligation, in turn, must be supported by a measure of state coercion, which in itself violates the constitutional principle of freedom of conscience.

Notifications will have the right to be submitted by the leaders (representatives) of a religious group, as well as, if the religious group is part of the structure of a centralized religious organization, the governing body (center) of the centralized religious organization.

It should be noted that the notification will have a specific form approved by the body authorized to make a decision on state registration of a religious organization. But it must necessarily contain the following information:

1. about the basics of religion;

2. about places of worship, other religious rites and ceremonies;

3. about the leader (representative), citizens belonging to a religious group, indicating their surnames, first names, patronymics, and place of residence.

The latter demand caused well-founded indignation among both lawyers and many clergy, who had not yet forgotten the repressions against believers during the Soviet period.

The requirement to provide lists of citizens belonging to a religious group, not only indicating their surnames, first names, patronymics, but also addresses, in our opinion, directly contradicts the constitutional principle of privacy set out in Art. 23 of the Constitution. And also comes into conflict with Art. 24 of the Constitution, according to which the collection, storage, use and dissemination of information about the private life of a person without his consent is not allowed.

There is also a contradiction with paragraph 5 of Art. 3 of the Federal Law “On Freedom of Conscience and Religious Associations”, according to which no one is obliged to report their attitude to religion.

Moreover, it is not at all clear how the leader of a religious group or a body of a centralized religious organization can force all citizens attending a particular religious group to provide such complete personal information about themselves.

It should be noted that this requirement is also incompatible with the Federal Law of June 27, 2006 No. 152-FZ “On Personal Data”. In accordance with paragraph 1 of Art. 3 of this law, any information relating to an individual identified or determined on the basis of such information (subject of personal data), including his last name, first name, patronymic, year, month, date and place of birth, address, family, social, property status , education, profession, income, and other information are personal data.

In accordance with paragraph 1 of Art. 6 of the above law, the processing of personal data can be carried out by the operator with the consent of the subjects of personal data. Moreover, persons gaining access to personal data must ensure the confidentiality of such data, and in accordance with. clause 4 art. 9 of this law, the processing of personal data is carried out only with the written consent of the subject of personal data.

Please note that this law classifies information about religious affiliation as a special category of personal data; therefore, by virtue of clause 1 of Art. 10 processing of special categories of personal data is not permitted.

Consequently, in the case of collecting and providing personal data of members of a religious group without their consent, the persons who committed this offense will grossly violate the rights of citizens and, as a result, will be held liable in accordance with the legislation of the Russian Federation.

It is also puzzling that when registering a religious organization, only a list of founders is required, whereas in the case of a religious group, the state is interested in knowing all the participants, which significantly worsens the situation of religious groups. The conclusion suggests itself: this norm was introduced with the aim of pushing religious groups to acquire the status of a legal entity for subsequent more complete control and supervision of their activities.

After the introduction of mandatory notification, it is logical to think about what will happen to those who did not notify, and how “home” groups, and even just home gatherings of believers over tea, which are not inherently religious groups, can protect themselves. Unfortunately, due to innovations, the definition of the term “religious group” in the law no longer carries the correct legal load. Today, all gatherings of believers outside places of worship, without exception, fall under the existing interpretation. For example, fellow believers gathered at someone’s house to pray in the evening during the week - this is a religious group. Several believing families gathered for joint communication - also a religious group, etc.

It is not entirely clear how government authorities will behave if such a group of citizens is discovered. But if citizens are held accountable for such “offenses,” in our opinion, it is necessary to go to court to protect their rights so that judicial practice in matters of private life of citizens remains positive.

If a religious group acts without notification, apparently, its actions (inaction) will be qualified under Art. 19.7 of the Code of Administrative Offenses of the Russian Federation, according to which liability for failure to submit or untimely submission to a state body (official), body (official) exercising (carrying out) state control (supervision), municipal control, information (information), the submission of which is provided for by law and is necessary for this body (official) to carry out its legal activities, or submit to the state body (official), body (official) exercising (carrying out) state control (supervision), municipal control, such information (information) incompletely or in a distorted form entails:

• warning or imposition of an administrative fine on citizens in the amount of one hundred to three hundred rubles;

- for officials - from three hundred to five hundred rubles; for legal entities - from three thousand to five thousand rubles.

Meanwhile, in order to avoid misunderstandings and confusion between religious groups operating without the status of a legal entity, and home groups that are the ministry of a religious organization, in the current situation, it would be advisable for religious organizations to indicate in the protocols that one of the items is holding services on certain days at specific addresses. And give the minister of the home group a package of documents, including a copy of the registration certificate of the religious organization, a copy of the charter, an extract from the above protocol, as well as a document confirming the clergyman’s membership in the religious organization. Otherwise, this fact will have to be proven in court.

It is at least somewhat encouraging that a religious group will be required to provide notification of the continuation of its activities at least once every three years from the date of the last notification. Still not every year. But, as they say, horseradish is not sweeter than radish.

Let us pay attention to one more incident. According to paragraph 1 of Art. 7 of the Federal Law “On Freedom of Conscience and Religious Associations”, premises and property necessary for the activities of a religious group are provided for the use of the group by its participants.

This provision makes it difficult to fulfill the requirement to indicate in the notification all places of worship, ceremonies and rituals. In fact, if you strictly follow the letter of the law, it turns out that it is necessary to list all the addresses of the place of residence of the members of the religious group, as well as the real estate they have, including dachas, where worship services can also be held in the summer.

The question arises: what to do if the group suddenly changes the meeting place, and the address is not indicated in the registration? What about rituals? Is it really necessary to include in the notification all the cemeteries and crematoria of a particular city, where burial rituals can also be held, just in case? And if, nevertheless, these places are not indicated, will there be legal liability for this too?

In conclusion, I would like to note that already at this stage it is completely clear that these innovations will become the subject of numerous lawsuits more than once, and will also push many religious groups to go “underground”, as was the case in Soviet times.

Only one question remains: why is this necessary?