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Liberty of Conscience Institute


Все аналитические обозрения

In the article the author analyses the Russian legislation in force on the freedom of conscience, opposes privileged position of the Russian orthodox religion in the country, suggests some measures to secure freedom of conscience in Russia

Serguey Burianov

In the late 80-es the Russian Federation (RF) started to pursue a course of construction of a democratic law state. In the period of the Russian statehood renovation the real guarantee of human rights and freedoms has gained in importance and should become the essence and purpose of the state. Accordingly respect for a person, recognition of his/her merits, self value, freedom of thought, conscience and behavior are the main preconditions for a successful development of a society.

That is why the most important- if not to say system formatting - right, provided by the whole series of international law documents, officially recognized by the RF is the right for freedom of thought, conscience and religion.

But the scientific research of the right of freedom of conscience in a broad sense did not receive its proper development and practically came down only to freedom of atheism in the "Soviet period" and freedom of religion in contemporary Russia. Freedom of conscience in ethical meaning is the right of a person to think and act according to his believes, his/her moral independence. But during a rather lengthy historical period many questions of world outlooks were tightly connected with the religious outlook, they are solved from the position of religious perception of the world, religious morals. Thus the conception of freedom of conscience (legal including) acquired a more narrow meaning - as the right of an individual to solve independently the problem of whether he/she should be governed in the evaluation of his deeds and thoughts by the sermons of religion, or to renounce them. The further development of events showed, that these distinctions -small as they seem- are able to play almost a fatal role in the newest history of Russia.

The RSFSR Law "On the Freedom of Religion" of October 25, 1990 marked the defeat of military atheism as the state ideology. Its adoption was preceded by abolition of Department 3 (ideological diversions) and the 4th (church) section, which was a part of the Department as well as the Council on the Matters of Religions under the RSFSR Council of Ministers and positions (offices) of the Council in the regions.

The Law gained revenge for the "Soviet period" of confessions existence and lifted various unjustified limitations on the cult activities of religious organizations, simplified the procedure of their registration, lifted bans on their social, economic and other non-religious activities, recognized their rights as those of a juridical person and the right of property, extended the rules of labor legislation, social security and social insurance for the citizens working in religious organizations, including ministers of religion.

The RF Constitution of December 12, 1993 became the next step on the way to the civil society and the legal state. It confirmed as a legal foundation of the state policy on religion such civilized rules as secular state and state education, equality of citizens independently from their attitude towards religion and equality of religious organizations, obligatory character of universally recognized principles and rules of international law and the Russian Federation international treaties (articles 14-15).

According to article 28 "Everybody is guaranteed the freedom of conscience,freedom of religion, including the right to confess individually or together with others any religion or not to confess any religion, to choose freely, to have and distribute religious or other believes and to act according to them". According to article 29: "...2. Propaganda or agitation, inspiring...religious hatred and animosity are not allowed. Propaganda... of religious... superiority is forbidden." As per article 59: "...3. Citizen of the Russian Federation in case his believes or religion contradict performance of military service as well as in other established by the federal law cases has the right for its substitution with alternative civil service."

But this is according to Constitution. In real life mass offensive on the freedom of conscience, encroachment on civil freedoms, clericalization by "specially esteemed" confessions (mainly by Russian orthodox church (ROC) - Moscow patriarchy, and in some federation subjects by Muslim organizations) of organs of power, schools, culture, army are taking place. Information on the violations of the right of a person in the sphere of freedom of conscience, used by the author, contains in the "White book" published in 1997 by the Public committee for defense of the freedom of conscience; in the report "On the Violations of Freedom of Human Being in the Sphere of Freedom of Conscience in the Russian Federation", prepared in 1998 by the Regional Public Organization for Promotion of Freedom of Conscience in the Society together with the Moscow Helsinki group and Christian Social Movement.

The practice of teaching religious and church oriented subjects is introduced in many high educational institutions (including military academies). In several regions, like Kursk and Smolensk areas teaching of God's Law is practiced within the frames of general education programs of state secondary schools.

Clericalization of the army assumed mass character. The Treaty of cooperation between the RF Ministry of Defense and Russian Orthodox Church (ROC) signed in 1994, favored in a substantial way the development of this process. Under the conditions of military discipline religious ceremonies (sanctifying of banners, rockets, submarines etc.) are taking place, which contradicts the RF Constitution and the Federal Law "On the Status of Servicemen".

On August 30, 1996 Minister of interior A.Kulikov signed an Agreement on Cooperation with ROC Patriarch Alexis the Second. It contained the following statement: "There is a persistent necessity of the defense of citizens against spiritual aggression". Neither R F Constitution nor the CC contain such a violation of law. Thus, the point of the matter is the legal activities of religious citizens against whose "spiritual aggression", the militia has to defend the society. According to the logic of the document these citizens are all "non orthodox", because further you can read the following: "History shows, that Russia has always been the country of great culture and high spiritual life, in which orthodoxy is the spiritual foundation of the unique Russian multinational state. Returning of Russian citizens to primordial spiritual values found understanding and support in the bodies of interior".

In 1994-1997 the treaties with the ROC were signed by Federal Frontier Service and Federal Agency of Government Communication and Information.

An opinion - turning into a strong belief - was formed in the law protecting circles, that with the coming into force of the Federal Law "On the Freedom of Conscience and Religious Organizations" of September 19, 1997 the anti-constitutional processes in the sphere of its application adopted the character of state policy.

This Law practically confirmed religious discrimination and legalized "possible participation" of corresponding religious organizations in the activities of state bodies of power.

Laws and by-laws, adopted by more than thirty subjects of the Russian Federation (in excess of powers, fixed by the Constitution), which violate the principle of equality of religious organizations before the law, dividing religious organizations as "traditional" from one side, and "foreign missionaries", "missionary societies", "foreign religious organizations", "sects" from another promote the same idea. The Tula Region law "On the Missionary (Religious) Activities on the Territory of Tula Region" adopted in November 1994 was one of the first and served further on as an example for other regions. The law established considerable limitations on the activities of non orthodox religious organizations, reguired collection of charges for issuing permissions for religious activities, demanded from missionaries to coordinate beforehand their program of propagation activities with local bodies of power. After Tula similar legislative acts were adopted in Tver, Tumen, Kostroma, Kaluga, Tatarstan and other regions. In several regions these legislative acts determined privileged confessions (In the Republic of Tuva, for example, shamanism, buddhism, and orthodox).

In the majority of the subjects of the Federation the Russian orthodox church, supported by the state, and its force structures defends the "canonical territory" from adherents of a different faith and plays its "special role" on the basis of the Federal Law (FL) "On the Freedom of Conscience and on Religious Associations".

Moreover it is not only the rights of the new religious movements and marginal groups that undergo rights encroachments. Catholics and Protestants are also discriminated almost everywhere. For example the Roman Catholic church for many years has been trying to return its cathedrals in Moscow, Smolensk, Orel, Piatigorsk, Kislovodsk and many other cities. Baptists, Christians of Evangelic believes, Adventists regularly come across resistance,petitioning not even for a free return, but for sale or lending of the land and buildings. At the same time the Moscow patriarchy gets enormous land plots and property.

Powers in the regions provoke the propaganda "anti-sects" campaigns. The return to the punitive psychiatry, the use of medicine in the struggle against the heterodoxy also became a reality.

42 participants of the Round Table "The Second Anniversary of the Russian Federation Federal Law "On the Freedom of Conscience and On Religious Associations" presented the concrete grounds for suspension and further revocation of the above mentioned law.

Practically all the participants negatively evaluated the Federal Law. According to the information given by lawyer A.Ptchelintsev the Law contains 16 contradictions to the RF Constitution. But the present practice of its implementation was given an especially negative appraisal. The data on the results of re-registration of separate religious organizations is outrageous: only 20% of the total number were reregistered, only 10 % out of Islamic organizations. What consequences is the above fraught with for these organizations? The Law says that "state re-registration of religious associations, established before the Federal Law came into force, should be done according to the requirements of the present Federal law not later than December 31,1999. After the expiration of the indicated date religious organizations, which were not re-registered could be liquidated by court procedure on the appeal of the body, exercising state registration of religious organizations."

It is clear that underdevelopment and confusion of legal definitions (first of all on such key conceptions as "freedom of conscience" and "freedom of religion") in conjunction with incompetence and malicious intent of the power groups, which are interested in clericalization and privatization of power are the main reasons for the adoption of the present law. Even the procedure of its adoption in the State Duma stirred up outbursts of surprise and anger. But in general (due to reduction of legal aspects of the freedom of conscience exclusively to the activities of religious organizations) adoption of the law "on religion" did not worry anybody.

Today two years have passed since the time when the Federal Law "On the Freedom of Conscience and On Religious Organizations" came into force. It laid the ground for the beginning of a dangerous process of limitations of fundamental human rights and freedoms in Russia. I think there is not a religious confession which was not affected by persecutions and menaces during its application.

The very principle which is in the basis of the Law, allows -if a wish is expressed- to ban judicially any religious association. Division into "believers" and "non believers", declaring special rights for the associations of believers (with concession of a special status of a "religious association") and non-disclosure of the rights of others lead in practice to the establishment of structures, which probably have the monopoly rights on the Truth, with functions of identification of individuals for the purpose of their being believers or non-believers (for example the Expert Council for Exercising of State Religious Expertise under the Russian Federation Ministry of Justice, the statute of activities of which was approved by the Ministry of Justice order of October 8, 1998 # 140). The question on the concession of special religious status and judicial person for the association of identified believers is decided on the grounds of faith availability. How "experts" are going to establish this availability is not clear at all, because faith is a very personal, not always a paraded matter.

More than that methodical recommendations are sent to the leaders of the justice bodies of republics, regions, krajs etc. to be used in the practical activities on realization of the FL "On the Freedom of Conscience and On Religious Organizations" (for example "On Realization by Judicial Bodies of Control Functions in Regard of Religious Associations") Thus it is directly stated that the FL endowed them with special rights of control. "...Prevention and suppression of illegal evidences in the activities of religious associations" are listed among aims and subjects of the control activities.

Concession to the judicial bodies of the rights of control in connection with such aims allows them to control activities of religious associations by passing the criminal and civil legislation in force.

It is evident, that the very existence of the Federal Law and regional laws, which impede the realization by every citizen of his right for "the freedom of thought, conscience and religion" contradicts the RF Constitution.

The application of the FL "On the Freedom of Conscience and Religious Associations" and its local analogues must be immediately suspended and the Law completely repealed. Registration of newly established religious associations must have a notification character and realized in practice on general grounds as public associations.

The religious character of an association may be determined only by each and every person - a member of the association - on the basis of personal apprehension. Any other attempt of identification will be connected only with external display of faith and will be evaluated from the positions of personal experts preferences, which means that it can not be correct. As far as the border between religion and ideology is concerned, it is connected with the level of dependence of a person from his belonging to a certain group. Religion gives the sense of living to a person both within a group and without a group. Ideology gives this sense, or rather its substitute, only in a group. Besides ideology allows scarifying a person for the sake of the idea (for example a person may be killed for the sake of the idea of person's value, to massacre millions for the sake of the idea of peace and prosperity etc.) Religion in principle does not allow such sacrifices - each person has absolute value.

Taking into account the realities of the end of the XXth century (space technology, peaceful atom, clooning, Internet etc.) recognition and respect of the variety of correlation of knowledge and believes of different people becomes the main aspect of the freedom of conscience. But not the Russian version of "special" regulation of activities of religious associations in the interests of narrow groups.

The main aim of such a "law" in contemporary Russia is an attempt to use "respected confessions" in political aims, limitations of rights of other religious organizations and special control over their activities.

The difficulties of realization of constitutional principles of freedom of conscience in Russia are closely connected with Russian history. Orthodoxy is a key factor of the formation of national identity. According to Alexander Griboedov, who said at the beginning of the XIX century: "A Russian feels himself really Russian only in an orthodox church".

Introduction of the Byzantine variation of Christianity played also a very big if not decisive role in the establishment of the Russian statehood, where an individual personality with his rights steps back into the background. This tendency started revealing gradually with the process of consolidation of principalities around Moscow, formation of Moscow state ideology, which in many respects had the features of Byzantine ideology. During the Kievan period of history Byzantinism was not able to incarnate in all sense of that word into the process of formation of all-Russian people conscience, where the church and society had certain freedoms. But the lack of subsequent legal confirmation of personal and political freedoms in the chaos of civil dissension of the tatars invasions prepared the foundation for further incarnation of Byzantivism into Moscow environment. Last hopes of freedom disappear, status of a human being in the state is changing - now this is practically a slave under unlimited monarch will and power, not regimented by any law.

The position of the church is also changing. Separation from Konstantinopol patriarchy, establishment of a narrow-national church abolished all the remnants of "oecumenicality" in the meaning of belonging to the Greek church. But for a deep and wide incarnation into the masses of believers of the state myphologization the justification of its importance was necessary, certainly in the messiah - religious meaning. Thus the elder Felofej's messiah conception "Moscow is the third Rome" was officially announced.

History shows, that the state at all times has had the tendency to invade into the sphere of human conscience. The main feature of this tendency of totalitarism is disregard and disbelief of each of us. It is suggested that we all will certainly abuse our freedom, and that is why it is persistently proposed to us without thinking to refuse the freedom of choice and to rely upon the power which paternally cares for our well-being. And it will be responsible for us, humble and obedient, even before the God. It is suggested to live not according to the laws, but according to the grace and justice (as the power groups understand and interpret those conceptions). Today lucidity and perfection of the declared due must captivate people as before. The utopian type of conscience, based on suppression of the freedom of world outlook, which is the foundation of the contemporary totalitarianism tries constantly to substitute the imperfect criminal and civil legislation with morality. The purpose of the law as a guarantor of human rights becomes dull, and only the obligation to obey the state is understood under the meaning of the law. And this in its turn leads to subordination of legislative and judicial powers to the state ideology, leads to violation of the constitutionall principle of division of powers.

To counterbalance this tendency democracy implies self-restriction by the state of power functions in the name of the freedom of each concrete person and well-being of the society (society, but not the state as self-pressing power). In the legal sphere this principle should be realized in the limitation of regulation of spiritual and moral life of society, thus consciousnessly allowing the risk of the "wrong" world outlook as a lesser evil than the forced "right" one.

First of all it touches the problem of the right of every person to freedom of conscience. In realizing this right a person realizes himself (unlike animals),acquiring and determining the sense of his/her living.

The freedom of conscience includes all the variety of forms of orientation systems (including the one that we call religious), realized personally or/and collectively on the equality basis.

Practical deviation of the Russian Federation from the civil type of the state which realizes itself in clericalization of the institutions of state and bodies of power, unavoidably leads to regulation of spiritual and moral sphere, imposing on the society the "correct"- from the point of view of power groups- world outlook. The power having chosen one of the religions as state ideology does everything in order to remove any alternative. As a result of this the legal mechanism of the limitations of human fundamental rights and freedoms, on the basis of medieval traditions of secularization of power (in order to give it the status of life tutor over juvenile crowd) It is not surprising, that the freedom of conscience as in former times, became the main object of control from the side of the Power.

But secularization of acting power by religion, which claims the state status in cooperation with contemporary electoral mechanisms turns democratic mechanism of elections into formality.

As a result an opinion is being formed in the society, that economic crisis is the product of democracy. But in reality the reason of the crisis lies in deviation from democratic constitutional principles.

The whole idea of democracy was discredited. This is indirectly confirmed by the growing popularity of monarchist ideas in the society, though it is evident monarchy could be hypothetically effective as a result of a matter of luck - a competent monarch. And nobody can guarantee that irremovable heir will be also responsible for his actions. But why mention the monarchists? The country itself is balancing on the brink of a communist revenge. Though electorate votes rather not for communists, but against "democrats".

The Enforcement Forces of the state are used to eliminate the alternative of this new arising ideology in a religious form. The force that forms the unity of people's conscience, the unity of opinions and common aims has for a long time been defended and fastened by religion. Moreover the governing people are well aware of the benefit which religion gives them, as they use it as a tool. Certainly the contemporary rulers of Russia are also educated in this respect. That is why as long as the state considers itself a tutor of the juvenile crowd and allegedly discusses the problem of religion in the interests of that crowd this matter will be decided in favor of control over religion.

Today utilization of religion as a state ideology is catastrophic by its consequences, because it leads to illegitimacy of the power changes if not to its absolutization. And this in its turn is fraught for with incompetence up to complete absence of responsibility. In what other way can we explain the catastrophic economic situation of the state, on which territory almost one third of all world resources is concentrated.?

State ideology, which is used in Russia and many regions of the world is always powerless. The wars are flared up, terrorism is flourishing in the world, mankind is on the threshold of ecological catastrophe, people are seriously perturbed. But we are stubborn in expecting from the state the solution of the problem which it is powerless to solve without overcoming this substitution.

At the present stage of development regulation of the freedom of conscience depends in many respects on the relations between the church and the state. More precisely: Will the State use the Church (religious associations) in political aims, as a state ideology? Will the Church (religious associations) for certain privileges become the ideological security of the State, ignoring the highest general human values and its predestination? Mutual interrelation of these two social institutions determines not only the situation of freedom of conscience in the state, but to great extend the future of Russia as well.

Probably if the rights of associations are considered as derivatives from the right of "everyone" for the freedom of conscience, they will stop being the objects of political speculation and at the same time the necessity of arguments regarding the rightness of the choice of the present constitutional model of church - state relations will be no longer relevant.

The religious confessions have always been competing in winning over the minds and souls of people, claiming to be of universal nature and possessing the ultimate truth.

The tragedy of religions consists on one hand due to the fact that as soon as religions turn into mass organizations governed by church bureaucracy, they deprive a person of his independence in private life and in the sphere of public - legal relations, of public - political interests. They enslave a person instead of liberating him. The mediators - a group or a leader- replace the Most High as objects of worship.

On the other hand the tragedy of religions consists of the confessions attempts to confirm their universality leaning on the compulsory force of the state. But this is the tragedy of the whole society and every individual person.

The actual strategic course of the state is reflected by the limits and the character of the state regulation on the freedom of conscience. Any "special" measures, taken by the state in addition to the acting criminal - legal system of defense of society from abuses of freedom of conscience raze to the ground the object of defense. In this context construction of a legal state and civil society is incompatible with the clericalization of state institutions by any religious confession, by the legislative confirmation of their inequality.

Contemporary Russian history has already shown that deviation from constitutional principles of state temporality, clericalization of state institutes, violations by power of human rights in the sphere of freedom of conscience provoke the growth of national - religious tension. Thus the Russian Federation from the beginning looses its chance for stable development. It is impossible to revive economy in the falling to pieces state without the removal of disintegrating factors, one of which for sure is of a religious - national character.

In general one can draw the conclusion, that the Russian state policy in the sphere of freedom of conscience, in spite of the tragic lessons of the passing millennium has not undergone any serious positive changes and Russia -as not once before- enters another dark period of its history.

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