“Anti-missionary” law must be repealed as unconstitutional

Lawyer of the Slavic Legal Center, Candidate of Legal Sciences, member of the expert council of the State Duma Committee of the Russian Federation on Affairs of Public Associations and Religious Organizations Konstantin Andreev analyzed for the SOVA Center the recently adoptedamendments regulating missionary activity within the framework of the Irina Yarovaya-Viktor Ozerov bill .

On June 24, 2016, in the third reading, the State Duma nevertheless adopted the law “On Amendments to the Federal Law “On Countering Terrorism” and certain legislative acts of the Russian Federation in terms of establishing additional measures to counter terrorism and ensure public safety.”

To say that the law adopted at the end of the Duma’s work caused bewilderment among experts is to say nothing. In fact, in the approved version, this legal act contradicts the interests of the Russian Federation, since it violates the fundamental rights of its citizens (at least several million law-abiding Russians professing various forms of Protestantism) and does not comply with the current Constitution of the Russian Federation.

Thus, the adopted law makes additions to the law “On Freedom of Conscience and Religious Associations” in the form of Chapter III ¹ , which contains a definition of missionary activity: “ Missionary activity is recognized as the activity of a religious association aimed at disseminating information about its faith among persons who are not members (members, followers) of a given religious association, in order to involve these persons in the composition of the participants (members, followers) of the religious association, carried out directly by religious associations or their authorized citizens and (or) legal entities publicly, with the help of the media, information and telecommunication the Internet or other legal means.”

Thus, missionary activity , in essence, is the “ spread of religious beliefs” known to Russian law, the right to which is guaranteed by Art. 28 of the Constitution of the Russian Federation and Art. 3 of the Law “On Freedom of Conscience and Religious Associations”.

In 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 to act in accordance with them.

Moreover, the constitutional norm implies the formula “to everyone,” which includes both citizens and religious associations. The law adopted by the State Duma, citing “ dissemination of religious beliefs” and “missionary activity” as synonymous concepts, gives this right only to religious associations, but not to citizens.

In this regard, natural questions arise:

1) If a citizen spreads his “religious beliefs,” will this constitute “missionary activity” ?

2) If a citizen “spreads religious beliefs” and calls for sharing them, including his religious practice, which includes attending services of a certain religious association, is he at the same time a missionary of this religious association, if he himself is not a member of it, but associates himself with him?

3) Why does the legislator connect the individual freedom of religion of a citizen with his membership in a religious association? What if a citizen wants to take advantage of his freedom of religion, spreading his beliefs, but does not consider himself a member of the association, or does not want to commit himself to formal membership, but wants to attend the services of a religious association?

4) If the dissemination of information about one’s religion among persons who are not participants (members, followers) of a particular religious association is not carried out for the purpose of involving these persons in the participants (members, followers) of this religious association, how can this be determined? So, at what point does preaching the Gospel, which is a fundamental part of the practice of most Protestant denominations, cease to be the propagation of religious beliefs and become a missionary activity? Should the person to whom the sermon is directed immediately express a desire to become a member of a religious association, or can he make such a decision years later? What if a religious association does not have the goal of making a person a member of its organization, only a follower of its religion as a whole?

5) If disseminating information about one’s faith involves distributing publicly available religious texts (for example, the Bible), is this already “missionary activity” or not yet? For Protestants, it is important first of all to spread the “Word of God” .

6) And if a religious association disseminates information (for example, about the Christian faith), and the persons who receive this information decide to become members of another (similar) religious association, will “missionary activity” take place or not?

7) Who will control and determine whether there was “missionary activity” and by whom in a particular case (citizen or member of an association) missionary actions were carried out and what? How will such control correspond to the right of citizens to legally protected “religious secrets” [1] and the right to private life guaranteed by the Constitution of the Russian Federation?

8) What is the difference between the dissemination “publicly, through the media, of the information and telecommunications network “Internet” ? Distribution through the media and the Internet - is it always public or not? So, by analogy with Art. 280.1 of the Criminal Code of the Russian Federation implies punishment for “public calls for the implementation of actions aimed at violating the territorial integrity of the Russian Federation,” and a separate offense for the same acts committed using the media or electronic or information and telecommunication networks (including the Internet) . Does this norm mean that a religious association that has an “official page” on the Internet is engaged in missionary activities? But Russian legislation does not have the concept of “an official resource of an organization on the Internet.” It all depends on who is the tenant of a particular domain name. What if a domain name was acquired by an individual who is not a member of a religious association, but sympathizes with it and disseminates information about it on a voluntary basis and according to his inner conviction?

9) What does it mean to distribute “by other lawful means”? If a believer crosses himself at the entrance when entering an elevator, or displays religious paraphernalia in or on top of his clothes (hijab, headscarf, priest’s cassock, wearing a cross) – will this be “missionary activity ”? And at what point will this be determined to have been committed by him as a member of a religious association? Did the “missionary activity” occur at the time of the demonstration or after a neighbor who saw a priest in a cassock became a member of a religious association? What if a neighbor becomes a member of another religious association, but with similar teachings?

The adopted law sets out Part 3 of Art. 17 of the Housing Code of the Russian Federation as follows: “It is not allowed to carry out “missionary activities” in residential premises, except for the cases provided for in Article 16 of the Federal Law of September 26, 1997 No. 125-FZ “On Freedom of Conscience and Religious Associations.”

Part 2 art. 16 of this Federal Law, which implies that worship services, other religious rites and ceremonies are freely performed: in buildings and structures owned by religious organizations or provided to them by other property rights for the implementation of their statutory activities; in premises owned by religious organizations or provided to them by other property rights for the implementation of their statutory activities.

And who will determine what is “religious rite and ceremony” and what is “missionary activity” ? Thus, for Protestants, both a rite and a religious ceremony is the public preaching of the Gospel and a call to repentance and acceptance of faith. These are features of the doctrine of most Protestant denominations.

In order for a religious association to carry out “missionary activities” in a residential building, in accordance with the text of the law, it is enough to have a lease agreement with the owner of the premises. If the owner of the premises disseminates his religious beliefs, which are similar to the beliefs of a religious association, it is obviously not possible to establish when he does this individually and when on behalf of the association. In addition, the owner-tenant may sympathize with a religious association, but not be a member of it.

In this regard, the provision of Art. 22 of the adopted law, which supplements Part 3 ² of Art. 17 of the Housing Code of the Russian Federation: “The transfer of residential premises to non-residential premises for the purpose of carrying out religious activities is not allowed.” Suppose a citizen transferred his house, which has the status of a residential premises, into the ownership of a religious organization. It is possible to carry out religious (including missionary) activities in such a house in accordance with Art. 16 “On freedom of conscience and religious associations”, but it cannot be transferred to non-residential.

Art. 24 ² of the adopted law defines the procedure for carrying out “missionary activities” : “Citizens carrying out “missionary activities” on behalf of a religious group are required to have with them the decision of the general meeting of the religious group to grant them the appropriate powers, indicating the details of written confirmation of receipt and registration of the notification of creation and the beginning of the activities of the specified religious group, issued by the territorial body of the federal state registration authority.”

“Missionary activity” on behalf of a religious organization may be carried out by the head of a religious organization, a member of its collegial body and (or) a clergyman of a religious organization.

Other citizens and legal entities have the right to carry out “missionary activities” on behalf of a religious organization if they have a document issued by the governing body of the religious organization and confirming the authority to carry out “missionary activities” on behalf of the religious organization. This document must contain the details of a document confirming the fact of making an entry about a religious organization in the unified state register of legal entities and issued by the federal state registration body or its territorial body.

The above rules do not apply to “missionary activities” provided for in paragraph 2 of Art. 24 ¹ of this law.

It is not clear what to do in this case with the rights of citizens who do not belong to either a religious group or a religious organization, but they spread religious beliefs and call for becoming a member of a particular denomination, obviously implying the local church. However, they do not act on behalf of a specific religious organization and no one has authorized them, but they have, for example, the conviction that a person “to be saved” needs to start attending the services of a specific church. This belief is the internal religious belief of a citizen, the unhindered dissemination of which is guaranteed to him by the Constitution of the Russian Federation.

Meanwhile, the law in question connects the rights of citizens with the activities of a religious organization. And, in fact, there is an attempt to introduce a kind of religious “serfdom.” Can a religious organization be held responsible for all the actions of citizens who, to one degree or another, associate their faith with the faith professed by the religious organization? Obviously not. The charter of every religious organization states that the organization is not responsible for the obligations of its members, and the members are not responsible for the obligations of the organization. Otherwise, it would be necessary to declare that the members of a religious organization are one and the same, but this cannot be. Even the Family Code of the Russian Federation, which provides for the special status of spouses, nevertheless makes a distinction between citizens who have entered into marriage, which the adopted law does not do.

The adopted law creates a similar problem for foreign citizens and stateless persons legally located on the territory of the Russian Federation, who now have the right to legally carry out “missionary activities” only: on behalf of a religious group - only on the territory of the subject of the Russian Federation in which the territorial body of the federal body is located state registration, which issued written confirmation of receipt and registration of notification of the creation and commencement of activities of the specified religious group; if you have the document specified in paragraph 1 of this article; on behalf of a religious organization - only on the territory of a constituent entity or territories of constituent entities of the Russian Federation, in accordance with the territorial scope of activity of the specified religious organization if a document is available.

Foreign citizens who entered the territory of the Russian Federation at the invitation of a religious organization, in accordance with Art. 20 of this law has the right to carry out missionary activities only on behalf of the specified religious organization on the territory of a constituent entity or territories of constituent entities of the Russian Federation in accordance with the territorial scope of its activities, provided there is a document.

Why is the right of foreign citizens and stateless persons to disseminate their religious beliefs, guaranteed by the Constitution of the Russian Federation, connected with belonging to a religious association? For any Protestant, it is important to daily testify to one’s faith and spread one’s beliefs. It turns out that the constitutional right of a foreign citizen or stateless person to spread his faith who finds himself on the territory of Russia while traveling to another region (for example, on a train or plane) is no longer valid, and upon arrival is associated with a “serf” religious association, to to whom is it attributed?

Art. also causes serious concern. 11 of the adopted law, which supplements the Code of the Russian Federation on Administrative Offenses with Part 3, implying liability for the implementation of activities by a religious organization without indicating its official full name, including the release or distribution within the framework of missionary activities of literature, printed, audio and video materials without marking with the indicated name or with incomplete or deliberately false labeling.

If everything is more or less clear about product labeling, then what about “carrying out activities by a religious organization without indicating its official full name” ? How and where exactly is a religious organization required to indicate its official full name? For example, when holding a service in a rented building, should there be a banner on the door, or should priests attach appropriate badges (stickers) to vestments during the ceremony, indicating the full name of their local religious organization (or perhaps a centralized religious organization, or both)?

The above significant shortcomings of the adopted law reveal, in essence, its inconsistency as contrary to the Constitution of the Russian Federation.

[1] Andreev K.M. The concept and features of religious secrecy within the framework of the implementation of constitutional freedom of religion. – M.: Jurisprudence, 2015. – 232 p.