Mikhail Shakhov: “Now at the legislative level it is proposed to further tighten the control of centralized religious organizations over the property of local religious organizations”

Doctor of philosophical science, professor, member of the expert council of the State Duma Committee on Public Affairs associations and religious organizations Mikhail Shakhov commented for the Center "Owl" submitted to the State Duma the bill "On amendments to part two of the Civil Code of the Russian Federation and in certain legislative acts of the Russian Federation (clarification of the rules on property for religious purposes).  

The first proposal, which contained in the bill is related to granting the right to speak in as a trustee of a non-profit organization in organizational and legal form of the fund. This is done in order to religious organizations had the opportunity, especially in cases where it is associated with large-scale financial and economic activities, do not independently engage in complex property management operations, and outsource this work specially created NGO. In the current version of the Civil Code only an individual entrepreneur can be a trustee or commercial organization. This amendment seems quite reasonable, it will allow religious organizations to operate more effectively. Relevant The bill also introduces a change to Art. 18 of the Federal Law "On freedom conscience and religious associations.

Second offer The bill clarifies the provision of art. 222 of the Civil Code of the Russian Federation regarding unauthorized buildings. The fact is that in July last year, this article was significantly supplemented by the fourth part, according to which local governments could independently, out of court, recognize buildings as unauthorized and demolish them. The current bill clarifies that out-of-court demolition is not applies to unauthorized structures that are property religious purposes, as well as intended for the maintenance of property religious purpose and (or) forming with it a single monastic, temple or some other cult complex. Such a building can be considered unauthorized and demolished only by court order. That is, the legislator began with the fact that in the summer it expanded the possibilities of demolishing buildings recognized as unauthorized, and now again limited - in relation to the property of a religious destination.

I would like to draw attention for two moments. First, the emergence of a rule on extrajudicial demolition unauthorized constructions is caused by a real problem. Litigation about demolition can drag on for years, and all this time unauthorized construction continues exist and occupy land, sometimes endangering life and public health or otherwise interfere with normal life. That's why there was a need to more quickly resolve the issue of demolition. But right local authorities to decide on the demolition in an out-of-court order is fraught with errors, arbitrariness or even corruption. Therefore, there are arguments in favor of an extrajudicial demolition order, and against such an innovation.

Secondly, extrajudicial demolition is proposed not to apply to religious property and equated to him. This also applies to the worship cross or chapel, arbitrarily constructed by a citizen, a group of citizens, a public or commercial organization, not just religious organizations. demolish an object of religious veneration, even unauthorized construction, is still better on the basis of a court decision. In this case, there is more hope for a fair proceedings. But if we are talking about some unauthorized garages, warehouses, etc. "intended for maintenance of religious property”, it is not clear why they are needed protect against extrajudicial demolition more than any other unauthorized constructed garages or warehouses.

Further, the bill supplemented by Art. 10 of the Federal Law "On freedom of conscience and on religious associations." From the point of view of legal technique, I am not sure that the addition done wisely. Art. 10 is dedicated to the requirements for the content of the Charter religious organization. And in new paragraphs. 3 and 4, which should, according to the authors bill, appear in this article, refers to certain restrictions the rights of religious organizations to make transactions with their property. On In my opinion, it would be more appropriate to place these paragraphs outside of Art. 10, and in Art. 21 of this law (“Property Rights of Religious Organizations”), since disposing of it is possible, as a rule, with the property that belongs to a religious organization on the right of ownership.

Now more important comment. The provisions of the proposed bill paragraphs. 3 and 4 if you take them genesis, go back to a little-known internal church document, which was adopted by the Holy Synod of the Russian Orthodox Church in 2011 and is called Regulation "On the unified procedure for possession, use and disposal of real estate and especially valuable movable property of religious organizations of the Russian Orthodox churches". I do not see this document on the official website of the Russian Orthodox Church, it was published only in the Journal of the Moscow Patriarchate in July 2012. Both terminology and the main restrictions that are proposed to be introduced into the law "On freedom of conscience ...", practically borrowed from this internal church document. The meaning of restrictions that a religious organization cannot sell or rent anything, make other transactions with property without "the written consent of the body of the religious organization authorized by the charter of a religious organization for written approval of such transactions. Transactions made without such consent will be be considered insignificant. It is clear that under this body the developers the bill was conceived primarily by the diocesan bishop of the Russian Orthodox Church, who, according to the model Charter of the parish of the Russian Orthodox Church, is “the highest (leading) governing body of the parish. But how to apply the requirements draft law to those religious organizations whose leaders have the right make deals on your own? The manager will have to give himself written agreement? Or his signature under the transaction will be equivalent to this written consent? Or the authors of the bill simply did not think that there were other religious organizations other than Orthodox parishes?

In fact, one can say that Now at the legislative level, it is proposed to tighten control even more centralized religious organizations over the property of local religious organizations. To some extent, this may be correct in relation to those denominations where there is a rigid hierarchical pyramid and where what performed in parishes, can only be performed with the permission of the ruling bishop. But laws are written for all religious organizations. And for those religious minorities, where there is greater democracy in governance, such restriction of the rights of local religious organizations to dispose of their property hardly as correct. Although, of course, the bill makes a reservation about that such a restriction on the right of a local organization should also be included in its Charter, and not simply imposed indiscriminately on all confessions by virtue of provisions of the law.

Another significant point: bill says, again using terminology borrowed from the aforementioned document of the ROC, that “the real estate of the liturgical destination, including objects of cultural heritage, and especially valuable movable liturgical property owned by a religious organizations may be alienated by a religious organization only in state or municipal property or the property of a religious organization of the corresponding confessional accessories". Then comes an interesting phrase: “Criteria for classifying property religious organization to especially valuable movable property of a liturgical appointments are determined by the internal regulations of the religious organization.” I would like to draw your attention to the fact that in Art. 21 of the law "On freedom of conscience ..." in paragraph 5 states: “On movable and immovable property for liturgical purposes is not may be levied on the claims of creditors. List of types of property liturgical purpose, which cannot be levied on claims of creditors, is established by the Government of the Russian Federation according to proposals of religious organizations.

That is, we already have in the law a mention of liturgical property that cannot be sold with a hammer to cover the debts of a religious organization at the request of creditors. But there it is assumed that the government of the Russian Federation will establish what type of property is liturgical. Well, for example, so that it was impossible to say that the car or some kind of computer equipment - this is also the property of the liturgical appointment, therefore, at the request of creditors, it cannot be sold. But for everything year, starting from 1997, when the law “On freedom of conscience…” was adopted, the government never released the list to which the law refers us. And not so far it is clear how these two provisions will fit together when the types of property liturgical purpose, which cannot be sold for debts, establishes government, and what property is “especially valuable for liturgical destination”, so that it cannot be alienated (sold, donated, etc.) to anyone, other than in state or municipal ownership or in property of a religious organization, determined by the religious organization itself.

In Art. 21 are proposed to be included the definition of property for religious purposes, given in the Federal Law of November 30, 2010 “On the transfer of property of religious organizations to religious organizations appointments...". If we open the law, we will see that in v. 2 it says the following: “For the purposes of this Federal Law, the following basic concepts: 1. Religious property…”, and then the same goes the very definition that is now proposed to be included in the text of the law “On freedom of conscience…”.

This is due to the fact that before Currently, in our various legislative acts there is a discrepancy in terminology. The Property Transfer Law says that the definition of property religious appointment we give, but not universal, but only for the purposes of this law. In other laws, we can see, in addition to the term "property religious purposes" of the concept of "objects of religious purpose", "property used for religious activities" is The tax code, "buildings, structures and structures for religious purposes", also Tax Code, and, again, the already mentioned "property of the liturgical destination." A single definition of what is religious property, nowhere, except in the law "On the transfer of ...", was not. Now this definition is from special law is transferred to the basic law "On freedom of conscience ...". Now definition of religious property will acquire a universal character.