Appendix 2
METHODOLOGICAL RECOMMENDATIONS
on the implementation by agencies of justice of several provisions of the
federal law "On Freedom of Conscience and Religious Associations"
The department on affairs of public and religious associations has studied and summarized inquiries from agencies of justice regarding the implementation of several provisions of the federal law as adopted "On Freedom of Conscience and Religious Associations," which have arrived at the Ministry of Justice in accordance with the letter of instruction from the Ministry of Justice of Russia of 16 October 1997.
At the present time the practice of the juridical implementation of the law has not been accumulated and the regulatory acts (rules of registration, rules of the conduct of state religious academic investigation, Regulations on procedure for opening and registering representations of foreign religious organizations) which the law provides for have not been adopted. In this regard the present explanations have been prepared on the basis of existing legislation, the commentary to the law, and the drafts of pertinent normative legal acts worked out by the Ministry of Justice and the Commission on Matters of Religious Associations under the government of the Russian Federation and organized in the form of answers to questions that have arisen.
1. How many persons should constitute a religious group for giving notice of is creation to agencies of local administration?
The law does not establish a minimum number for the religious group, but in accordance with point 3 or article 8 at the time of its registration by the state as a local religious organization it must have at least ten participants.
2. What are the requirements for the document that attests the existence of a religious group for at least fifteen years? What can serve as sufficient proof of this period?
The law does not regulate the procedure for entry of religious groups into the records of agencies of local administration, nor of providing attestation, nor its form. In this regard it is worthwhile to conduct in accordance with the pertinent normative legal act of the constituent element of the Russian federation. As regards proof of length of the existence of the religious group, it should be submitted to the agencies of local administration by the group itself in the form of information about state registration and the local records of the former Council on Religious Affairs of the Council of Ministers of USSR, archival materials, court decisions, testimonial evidence, and other forms of proof.
3. Should all religious organization at the time of registration and reregistration present proof of fifteen-year existence?
The sense of article 9 of the law is that proof of fifteen-year existence should be presented only by local religious organizations that do not have proof of membership in an appropriate centralized religious organization. The requirement of fifteen years of activity does not extend to centralized religious organizations.
4. What is meant by the requirement that participants of religious organizations "live on the territory of the Russian federation permanently and legally"? May foreign citizens be founders of a religious organization?
According to point 1, article 6, and point 1, article 8, alongside citizens of RF participants of a religious association and organization my include other people who reside in RF permanently and legally. By "other people" foreign citizens are understood as well as people without citizenship who have received permission for permanent residence and rights of inhabitation in the Russian federation in accordance with established procedure. In accordance with point 1, article 9, only citizens of RF may be founders of a religious organization.
5. May a foreign citizen head a religious organization?
The sense of point 1, article 8 is that foreign citizens and persons without citizenship may be participants in a religious organization and, consequently, they may be its leaders, if they "permanently and legally reside on the territory of RF." Foreign citizens and persons without citizenship who reside temporarily in RF my not head a religious organization. At the same time, according to point 2, article 20, religious organizations have the right, by established procedure, to invite foreign citizens for engaging in professional religious activity within the given organization, but the above stated provision of the law extends to them as well.
6. What is to be understood by the phrase " the founder (founders) is unauthorized"?
This phrase is understood to refer to noncompliance with the previous requirements of the law regarding founders of religious organizations (underage, lack of citizenship in RF, exceeding the authorization for local and centralized organizations established by law, etc.).
7. May a local religious organization in accordance with article 19 create an institution of professional religious training?
Local religious organizations have the right to establish educational institutions, registered as nongovernmental educational institutions. As regards institutions of professional religious training, according to point 6, article 8 they are formed by centralized religious organizations.
8. What kinds of religious organizations may form centralized organizations? May a centralized organization form a local organization?
The authorization of a centralized religious organization in the formation of other religious organizations is confirmed in point 6, article 8 of the law. A local religious organization, as an association of citizens, is formed exclusively by the citizens, by their voluntary choice. In its turn, no fewer that three local organizations of a single religious confession have the right to create a centralized religious organization. An association (association or union) of religious organizations of diverse confessions is a noncommercial organization, according to point 2, article 121, part one of the civil code of RF, and it does not have religious status, inasmuch as it cannot manifest the principal sign of a religious association, joint profession of faith.
9. May a local religious organization be liquidated by decision of the superior centralized organization?
No, inasmuch as according to point 1, article 14 of the law and point 2, article 61 of part one of the civil code of RF a legal entity may be liquidated by decision of its founder (founders) or by a legal entity authorized to do so by the charter. Besides, in accordance with the canonical regulations of religious associations that have a hierarchical structure, for example the Orthodox or Catholic churches, where the formation of local organizations (parishes) is conducted with the blessing of a ruling bishop, the withdrawal of such blessing is reflected juridically in the cancellation by the registering agency of the certification of the confessional identity on the part of the centralized organization and thus entails the cessation of the activity of the local religious organization as a structural subdivision of the given centralized organization and deprives it of the right to use in its name the identifiers of the centralized religious organization.
10. Where is the registration of a local religious organization carried out if its superior office is located outside of RF? Is a document required that confirms the existence of a foreign centralized religious organization on its respective territory for at least fifteen years?
In accordance with point 2, article 11 of the law, registration of all local religious organizations is conducted by territorial agencies of justice and in this case the documents provided for in point 6 of this article should be presented to the registering agency. Confirmation of a foreign religious organization is not equivalent to confirmation of a centralized religious organization and the local organization being formed may not be registered as a legal entity if it has not operated for at least fifteen years. At the same time, if the centralized religious organization, with a religious center abroad, was registered on the territory of RF, then it is not itself a foreign religious organization, according to the sense of point 1, article 13, and it has the right to provide the appropriate confirmations to its structural subordinates on the territory of RF.
11. May local religious organization that have not undergone reregistration create centralized organizations?
No, inasmuch as they must acquire beforehand the status of a local religious organization by means of state reregistration.
12. In what form is the information about the fundamentals of doctrine of a religious organization to be submitted?
According to point 5, article 11, information about the fundamentals of doctrine are submitted by each religious organization in the extent established by the law. In cases of registration of local religious organizations that are members of a centralized organization with a common doctrine, for example, the Russian Orthodox church, the submission of a "standard" text is possible.
13. From article 10 of the law it does not follow that a religious organization must indicate in its charter the territory of its activity. How then is the territorial scope of its activity to be reckoned?
According to point 2, article 52, part one of civil code RF and article 10 of the law, the charter of a legal entity indicates its location and the territorial limits of its operations are not specified. At the same time, it is not forbidden to establish this in accordance with the institutional and hierarchical structure of a religious organization. According to the sense of the law, the territorial scope of the activity of a local religious organization is the territory of the corresponding city, village, or other settlement (p. 3, art. 8) and of the centralized organization, the territory of the constituent elements of the Russian federation where its local member organizations exist (p. 3, art. 11).
14. May residences be the legal address of a religious organization?
According to point 3, article 288, part one and point 2, article 671 part two of civil code of RF, a residence may be used only for residence of citizens and it is not permitted to locate an organization there. In accordance with point 2, article 16, divine services, religious rituals, and ceremonies may be conducted in residences, but according to the sense of point 1, article 7, premises for these purposes may be provided only by participants of the religious group.
Use of a residence as a legal address is not permitted. At the same time the religious organization must inform the registering agency that the law established as the oversight agency, of the place of its actual location.
15. May a local religious organization which had formerly registered its charter as an autonomous organization, join an existing centralized organization and upon reregistration present certification of its membership in it?
Yes. In doing so, according to point 3, article 27, it must submit an appropriate addition to its charter and indicate in it its members in the given centralized organization.
16. What is the procedure for reregistration of religious organizations? What constitutes the annual reregistration of a religious organization that does not have a document confirming its fifteen-year existence?
According to article 27 of the law, religious organizations which had previously registered their charters must present them in accordance with the law and by 31 December 1999 must undergo state reregistration. In this matter it is necessary to view the procedure as making an amendment and addition to the charter and to conduct this in accordance with point 11, article 11 of the law. In the process, according to point 3, article 27 of the law, religious organizations for whom there is basis of liquidation or prohibition upon their activity may not be reregistered.
As regards the procedures for the annual reregistration of religious organizations that do not have certification from a centralized religious organization or proof of their fifteen-year existence, this has not been established by the law. But in this regard the law does not require that such a religious organization annually recompile and present to the registering agency all of the document enumerated in article 11. In this matter we suggest it is possible that the religious organization, after the initial reregistration, may annually inform the registering agency about the continuation of its activity to the extent of the information included in the state register. If the registering agency does not have any claims based on the law against the activity of the indicated organization, it may extend the term of the certificate or issue a new one with the previous registration number. At the same time we suggest that the requirement of article 27 for an annual reregistration of previously registered religious organization and the restrictions of their rights within this period violates article 54 of the constitution of RF by which a law that establishes or extends liability does not have retroactive effect.
Department on affairs of public and religious associations
(tr. by PDS)