PRESIDENTIAL STATEMENT
On the basis of part 3, article 107 of the constitution of the Russian federation, I reject the federal law "On Freedom of Conscience and Religious Associations" that was sent to the president of the Russian federation for signature and approval, which had been adopted by the State Duma on 23 June 1997 and approved by the Federation Council on 4 July 1997. The federal law "On Freedom of Conscience and Religious Association," (hereafter called "the federal law") contradicts the foundations of the constitutional structure of the Russian federation and other provisions of the constitution of the Russian federation and generally recognized principles and norms of international law, specifically articles 2, 6, 13, 14, 15, 16, 17, 18, 19, 28, 29, 30, 54, 55, 59 and 62 of the constitution of the Russian federation, articles 18 and 19 of the Universal Declaration of Human Rights, articles 18 and 19 of the International Agreement on Civil and Political Rights, articles 9 and 10 of the Convention of the Council of Europe on Defense of Rights and Basic Freedoms. It is not accidental that despite part 4 article 15 of the constitution of the Russian federation, the text of the federal law eliminated mention of international legal acts as an integral part of the legislation of the Russian federation on freedom of conscience and contains only a reference to the subsidiary use of the provisions of international agreements for purposes of interpreting the legislation of the Russian federation on freedom of conscience (the authors of the federal law themselves excluded international legal agreements of which Russia is a participant). Participation in the Convention on Defense of Rights and Basic Freedoms is a prerequisite for members in the Council of Europe. In accordance with the procedure for entering the Council of Europe in 1996 Russia signed this convention and took upon itself the political obligation to ratify this founding act within one year. At the present time I am preparing the documents for submitting this convention for ratification to the State Duma.
COMMENTARY
The simple enumeration in the Russian president's letter of a series of articles of the Russian constitution which, in his opinion, are violated by the law as adopted is in no way confirmed by appeals to concrete requirements of the law and thus cannot be accepted as a demonstration of contradiction between the law and the enumerated articles of the Russian constitution.
PRESIDENTIAL STATEMENT
Besides, the federal law contradicts a number of other laws of the Russian federation, creating an additional imbalance in the system of Russian legislation that already is seriously disordered by the poorly thought out and chaotic legislative process. On the one hand, the federal law, following the constitution of the Russian federation, characterizes the Russian federation as a secular state, but on the other hand, under the pretext of restricting the activity of false religious organizations it introduces discriminatory rules of registration and reregistration of religious organizations (point 2, article 7, articles 9 and 11, point 5, article 27 of the federal law) of confessions which have grown up in Russia. There is no doubt that the state can and must restrict the activity of pseudoreligious organizations which cause harm to the morality and health of the population, but this does not mean that in doing so the state can trample upon fundamental human rights.
COMMENTARY
The draft law is criticized for trampling upon "fundamental human rights." As examples of such trampling of human rights are offered point 2 of article 7, articles 9 and 11, and point 5 of article 27. An analysis of these items leads to the conclusion that the Russian president considers as "trampling on human rights" the very procedure of registration of religious organizations. In this regard one wishes to note the following. The creation of a religious organization is one basic, but not the only, form of corporate religious profession (article 6 of the draft). Alongside religious organizations there is another form of corporate religious profession, the religious group, which does not require special registration. Thus, the existence of a special procedure for registration of religious organizations cannot be viewed as a restriction of citizens' rights to corporate religious profession. From the moment of state registration of religious organizations they acquire rights of legal entity. As legal entities, religious organizations, on the one hand, become fully qualified participants in the civil marketplace and on the other hand acquire enormous tax and other privileges which essentially distinguish them from other economic entities. In this regard the state must not automatically recognize as religious organizations those associations who simply call themselves such. The state must attentively examine the essence of the belief systems, their rituals, and the social consequences of the activities of newly created organizations. The need for a special procedure of registration of religious organizations is contained also in international legal documents. For example, in its resolution of 29 February 1996 the Europarliament "calls the governments of member states not to grant the status of religious organization automatically" (p. 4). Thus, the provision of the draft law regarding the procedure of registration of religious organizations fully conforms to the recommendations of the Europarliament.
PRESIDENTIAL STATEMENT
Serious concern is evoked by the provisions of the federal law that are deliberately aimed at the restriction of the rights of citizens of the Russian federation, primarily those living outside the Russian federation, as well as persons who are not citizens of the Russian federation. These items contradict articles 2, 6, 15, 16, 17, 18, 19, 28, 29, 30, 55, and 62 of the constitution of the Russian federation, articles 18 and 19 of the Universal Declaration of Human Rights, articles 18 and 19 of the International Agreement on Civil and Political Rights and article 9 and 10 of the Convention of the Council of Europe on Defense of Rights and Basic Freedoms. It is necessary to emphasize that article 2 of the constitution of the Russian federation secures human rights and freedoms as the supreme value of the Russian federation and requires the state and all its agencies to acknowledge, observe, and defend human and civil rights and freedoms . Article 18 provides that human and civil rights and freedoms determine the sense, content, and implementation of the law, the activity of the legislative and executive branches, and local administration and are secured by the judiciary. Articles 19, 28, and 30 of the constitution of the Russian federation guarantee to everyone freedom of religious profession, including the right to profess individually or corporately with others any religion or to profess no religion at all, freedom of choice and dissemination of religious and other convictions, and the right of association irrespective of Russian citizenship, place of residence, and other circumstances. Besides, part 3 of article 62 of the constitution of the Russian federation establishes that foreign citizens and persons without citizenship who are legally on the territory of the Russian federation enjoy the rights secured by the constitution of the Russian federation on an equal basis with citizens of Russia. Moreover in accordance with article 3 of the law of the Russian federation "On the Right of Citizens of the Russian Federation to Freedom of Movement, Choice of Place of Abode and Residence within the Russian Federation" registration of the place of abode and of residence or absence of such cannot serve as the basis for restricting, or condition for enjoying, civil rights and freedoms. Similar standards are secured also in article 18 and 19 of the Universal Declaration of Human Rights, articles 18 and 19 of the International Agreement on Civil and Political Rights, and articles 9 and 10 of the Convention of the Council of Europe on Defense of the Rights and Basic Freedoms. However the provisions of point 4 of article 3, article 6, article 7, article 8, article 9, point 4 of article 11, and point 2 of article 20 of the federal law violate these indicated constitutional and international legal principles and standards, since they contain restrictions of the rights of citizens of the Russian federation, primarily those living outside of the Russian federation, and also persons who are not citizens of the Russian federation. Thus, point 3 of article 8 of the federal law provides that corporate profession and dissemination of belief in the form of religious organization may be carried out only by citizens of the Russian federation who reside permanently in one locality.
Still more seriously are infringed the rights of foreign citizens and persons without citizenship. In accordance with points 4 of article 3, articles 6-9, and point 4 of article 11 they do not have the right to profess and disseminate belief corporately and they can meet their religious needs only on an individual basis.
COMMENTARY
The president of the Russian federation categorically opposes provisions of the federal law that are deliberately aimed at restricting the rights of persons who are not citizens of the Russian federation. In his letter the president of the Russian federation appeals to the provisions of part 3 of article 62 of the constitution of the Russian federation, according to which "foreign citizens and persons without citizenship enjoy in the Russian federation the rights and have obligations on an equality with citizens of the Russian federation." This entirely ignores that according to the same part of article 62 restrictions of the rights of foreign citizens are permitted if the restriction is established by federal law or by the international treaties of the Russian federation. That is, the restriction of individual rights of foreign citizens by the federal law "On Freedom of Religious Professions and Religious Associations" does not contract the constitution of the Russian federation. In accordance with article 17 of the constitution of the Russian federation "the exercise of human and civil rights and freedoms must not violate the rights and freedoms of other persons." Religious activity of foreign citizens frequently has led to the saddest consequences for Russians. The state's task is to defend by all means its citizens from infringements of their rights and freedoms. One of the means of defense of the interests of citizens of Russia is the partial restriction of the rights of foreign citizens. Obviously this is what guided the president of the Russian federation when he restricted the constitutional rights of foreign citizens to labor. In decree no. 2146 of 16 December 1993, justifying the restriction of foreigners in their right to labor, the president of Russia said: "In the interests ... of guaranteeing the priority of the rights of citizens to occupy vacant posts." Further by decree he established a complex procedure for receiving permission for employing foreign citizens in Russia. A number of federal laws also have established certain restriction of the rights of foreign citizens and this fully agrees with the constitution. For example, in accordance with article 7 of the Russian law of 27 December 1991, no. 2124-1 "On Media of Mass Information" the founders of media of mass information cannot be "citizens of another state;" in accordance with part 4 of article 18 of federal law "Concerning Changes and Additions to the RSFSR law 'On banks and banking activity in RSFSR,'" "the bank of Russia has the right to limit the appreciation of capital of credit organizations at the expense of nonresidents." The state resorted to these restrictions of the rights of foreigners because it determined that in these matters the activities of Russians must have priority over those of foreign citizens. Can anyone be persuaded that religious activity is less significant for Russian citizens than banking activity or the activity of media of mass information? The practice of the restriction of the rights of foreigners is used widely in the legislation on freedom of conscience of foreign countries. For example, in accordance with article 3 of the text of the new concordat of 18 February 1984, drawn up between the Italian republic and the Catholic church, "persons who are not Italian citizens cannot be appointed to ecclesiastical duties;" in accordance with article 9 of the law of the republic of Belarus "On Freedom of Religious Professions and Religious Organizations" of 17 December 1992 "only citizens of the republic of Belarus may head religious organizations." Thus, restrictions on foreign citizens to found religious organizations in Russia that are provided in the draft law, first, do not contradict article 62 of the constitution of Russia and, second, completely accord with international practice.
PRESIDENTIAL STATEMENT
There is a serious unconstitutional provision in the federal law in the absence of the principle of equality of religious associations before the law, that is established by article 13 and 14 of the constitution of the Russian federation and by article 19 of the Universal Declaration of Human Rights, article 19 of the International Agreement on Civil and Political Rights and article 10 of the Convention of the Council of Europe on Defense of Rights and Basic Freedoms, which contain the provision that each person has the right to acquire and disseminate freely information (including religious information) without the interference of state agencies and irrespective of state boundaries.
COMMENTARY
There is no proof of a violation either of the constitution of the Russian federation or of international legal acts in reference to the text of the law. The text of the letter makes a technical mistake, by using a vague grammatical construction. After the words "constitution of the Russian federation" are the words "as well as article 19 of the Universal Declaration of Human Rights," which do not agree with the previous text. From the first part of the sentence it seems that the law violates the subsequent articles of the acts cited. But in the case of appeal to international legal acts there arises an ambiguity: the articles of the acts cited deal with freedom to acquire and disseminate information, not freedom of conscience. Nowhere in the cited article is there a reference, within parentheses (as in the president's letter) or in any other form to "religious" information. It seems that information can be of any content, including religious, but the term "information" deals with some other aspect of social life, distinct from the sphere associated with religious professions and functionally distinct from such terms as, for example, religious doctrine, education, preaching, etc. For example, the requirement of objectivity, lack of prejudice, etc., which is totally uncharacteristic of religious preaching, which is based on personal philosophical exclusiveness and contains ethical imperatives or didactic purposes and goals, which are qualitatively distinct from the goals of the objective dissemination of information. Thus in international law and the constitution of the Russian federation these human rights are accounted for at other places and are contained in articles that do not have anything to do with each other. The current affirmations of the president of the Russian federation about the "unconstitutionality" of the provisions of the law are without basis. The text of the letter (page 4) obviously was not examined by linguistic and legal specialists and it contains substantial grammatical and technical errors, which makes it impossible to analyze it effectively.
PRESIDENTIAL STATEMENT
Besides, point 2 of article 13 of the federal law provides that representation of foreign religious organizations may be established only under Russian religious organizations. Such a standard, first, places the representation of foreign religious organizations in direct dependence upon the attitude of Russian religious organizations toward them and, second, gives to Russian religious organizations functions of agencies of state authority with regard to foreign religious organizations, since before state registration of their representation within Russia foreign religious organizations must receive official agreement to their creation from a Russian religious organization. The same point 2 of article 13 of the federal law also violates the principle of the separation of religious associations from the state, which also is declared in the third paragraph of point 2 and the third paragraph of point 5 of article 4 of the federal law, which is secured in article 15 of the constitution of the Russian federation (The president of Russia does not know which article of the constitution deals with religion! But he accuses the deputies of violation of this article. Boris Nikolaevich, religious associations are dealt with in article 14 of the constitution and not 15. Who wrote your letter for you!)
COMMENTARY
It is not clear where these provisions that are called unconstitutional come from. The text of article 13 deals only with rights of Russian religious organizations, insofar as the rights of foreign citizens and foreign organizations cannot be regulated by Russian law, which would be a crude interference in the internal affairs of other states. The law gives the right to any Russian religious organization to have representation of its own foreign fellowbelievers or partners under it, but it does not in any way limit the rights of members of foreign religious organizations that have some interest in activity in Russia to appeal to the embassy of the Russian federation in their own country and to submit a request with a statement of their goals. Besides, there are international agreements which can regulate this sphere. No provisions in the law place foreign religious organizations in dependence upon Russian religious organizations. The president's letter gives a distorted rendition of the text of article 13 of the law, which does not correspond to its plain sense, and the criticism of this article actually is irrelevant to it. In the first paragraph at the top of page 5 of the president's letter there is a mistake, which shows that the text was not examined by professional specialists. The principle of the separation of religious associations from the state is secured not in article 15 of the constitution of the Russian federation, as the president's letter affirms, but in article 14 of the constitution of the Russian federation.
PRESIDENTIAL STATEMENT
The indicated constitutional principle also is violated by the requirement of point 1 of article 9 of the federal law which provides that the decision of a centralized religious organization with regard to confirming the existence of a religious group actually is equated legally with the decision of an local administrative agency. The president of the Russian federation already has expressed frequently the position that it is necessary to guarantee the equality of everyone professing a religion before the law, as well as of religious associations, specifically twice in refusing to sign, in 1993, the law adopted by the Supreme Soviet of the Russian federation "On changes and additions to the RSFSR law 'On Freedom of Religious Professions'" on the basis that it contradicted the constitution of the Russian federation and international legal principles. Besides, after the adoption of the draft of the current federal law on first reading, the head of state sent to the lower chamber of parliament conceptual notes and suggestions, which the deputies nevertheless entirely ignored.
COMMENTARY
In his interpretation of the first point of article 9 the president of the Russian federation ignores and overlook the words "of the same religious profession." This substantially distorts the sense of the indicated article of the law: the confirmation of the centralized religious organization of the membership of the newly formed organization of the same denomination in its apparatus cannot violate the principle of the separation of religious associations from the state. The point deals only with the confirmation of the identity of a religious profession with an organization already known to the state to have existed more than fifteen years, which obviates the need of practical duplication of state confirmation of its activity. Besides, such a confirmation is necessary for assuring the intellectual properties and defense of other believers' rights, inasmuch as the issue concerns newly created religious organizations that use already registered denominations, or belief systems, etc.
PRESIDENTIAL STATEMENT
The preamble of the federal law also secures the inequality of religions, since only Orthodoxy is recognized as an integral part of the all-Russian historical, spiritual, and cultural heritage. Islam is recognized on a par with Orthodoxy, but without indicating its part in the all-Russian heritage, and Buddhism, Judaism, and other traditional religions are recognized as "respected." These provisions do not deal with the remaining religions. Besides, point 3 of article 3 of the federal law contradicts this point of the preamble because it says that preeminence, restrictions, or any other forms of discrimination with regard to attitude toward religion are not permitted. In view of article 28 of the constitution of the Russian federation, which defines freedom of religious professions as the right to profess individually or corporately with others any religion, it is necessary to note both the internal contradiction of the federal law itself and the unconstitutionality of the hierarchy of religions that the preamble establishes.
COMMENTARY
Numerous criticisms of the draft law have evoked the enumeration in the preamble of the traditional religions of Russia. The president of the Russian federation sees the legislative establishment of "inequality of religions" in this enumeration. One cannot agree with this conclusion. In accordance with the constitution of the Russian federation and with the provision of the draft of the federal law "On Freedom of Conscience and Religious Associations" all religious associations are equal before the law. The mention in the preamble of traditional religions is nothing more than paying respect to the religious teachings that have supported the peoples of Russia throughout the entire history of the state. Legislative appeals to the existence of traditional religions of a country have been used widely in states that have deep religious roots. At the same time even many secular states have not been ashamed to declare the existence of traditional national religious beliefs which the majority of the population has professed historically. The constitution of Italy divides all religious into two tiers: Catholic (article 7) and non-Catholic (article 8). Article 9 of the new concordat says: "the Italian republic, acknowledging the value of religious culture and considering that the principles of Catholicism are the historical heritage of the Italian people. . . ." With regard to non-Catholic religions governmental surveillance is maintained and there is the obligation to inform the ministry of internal affairs about the appointment of clergy of non-Catholic cults for their confirmation (article 3, law no. 1159 of 24 June 1929, article 13 of decree no. 289 of 28 Feb. 1930). In Ireland "the state recognizes a special situation of the holy Catholic apostolic Roman church as the maintainer of the religion that is professed by a substantial majority of its citizens. . . ." (part 2 of article 44 of the constitution). In accordance with article 13 of the constitution of Bulgaria the Eastern Orthodox profession is recognized as traditional for the state. Even the Americans, with all their adherence to religious pluralism, respecting the faith of the greater part of the population, permits the oath of the president of the Russian federation (sic.) during his inauguration on the Bible, the sacred book of Christians; the constitution of the state of Massachusetts proclaims that "the encouragement of arts, sciences, and all achievements of literature serves the glory of the Lord God, the good of Christianity, and the welfare of the republic. . . ." The list of states that respect the faith of the majority of their citizens could be extended indefinitely. At the same time one wants to note that all the above enumerated states are secular states and the equality of all religions within them is proclaimed. Thus appeal to the preamble of the draft of the federal law indicating that in Russia there are traditional religions corresponds completely to foreign practice and ought not be viewed as the establishment of the preeminence of some religions above others.
PRESIDENTIAL STATEMENT
The principle of equality of religious associations before the law is also violated by point 5 article 8 and point 1 article 9 of the federal law: the recognition by the state of a religious organization as all-Russian or local is determined by the length of time of its existence of the organization itself. Thus, religious associations that have existed less than fifteen years, according to article 9 of the federal law (point 5 of article 27 of the federal law) are denied the right of legal entity. This provision does not agree with part 2 of article 61 of the civil code of the Russian federation insofar as such a basis as the existence of activity during a period of less than fifteen years cannot be used by the court in making a decision. Besides this, part 2 of article 54 of the constitution of the Russian federation provides that it is impermissible to enact measures of responsibility for actions which at the time of their commission were not considered to be illegal, and the compulsory denial of a legal entity constitutes just such a measure of civil and legal responsibility. The question of their property, fiscal, and other rights and the obligations of the liquidated organizations remains open.
COMMENTARY
There is some confusion caused by the affirmation that the cited recognition contradicts the equality of religious associations before the law: the law is the same for everyone and it does not establish any privileges or restrictions for anyone. The periods of time, whatever they may be, are the same and obligatory for everyone. The very principle of classification of religious organizations deals with specifications that are in accordance with the civil code of the Russian federation and should be regulated by corresponding federal law, which the present law also does. The law does not require the liquidation of already registered religious associations merely because it sets up a longer period of time for state recognition of the religious status of an organization. The basis for denial in judicial procedure can only be violation of the requirements of the new law committed after its enactment.
PRESIDENTIAL STATEMENT
Point 3 of article 4 of the federal law requires the state to give financial, material, and other aid to religious organizations to secure teaching of general education subjects in the educational institutions that are formed by religious organizations. This requirement contradicts, first of all, article 19 of the constitution of the Russian federation, since it places citizens who profess and corporately promote religious views in the form of organization in a favored position with respect to citizens who also are taxpayers and who profess such views individually or in the form of a religious group or of associations within public organizations for other interests (cultural, athletic, and others). This also contradicts point 7 of article 41 of the law of the Russian federation "On Education," according to which nongovermental general educational institutions receive the right to state and/or municipal financing from the moment of their state accreditation provided that they are implementing the basic general education curriculum.
COMMENTARY
It is amazing that even the less controversial provisions of the draft evoke doubt with regard to their agreement with the legislation of the Russian federation. For example, analyzing point 3 of article 4 of the draft, the president of the Russian federation draws the conclusion that the provision of this point regarding the obligation of the state to give financial, material, and other aid to religious associations in providing the teaching of general educational subjects in educational institutions that are created by religious organizations does not comport with the constitution of the Russian federation. However it is necessary to observe that in accordance with point 7 of article 41 of the federal law "On Education" (in the version of 13 January 1996) nongovernmental educational institutions that have received state accreditation already have the right to state and/or municipal financing provided that they are implementing the basic general educational curriculum. The requirements of the draft of the law under discussion in this case do not introduce anything new into Russian legislation.
PRESIDENTIAL STATEMENT
In accordance with point 5 of article 8 of the federal law an organization that has operated on the territory of the Russian federation for at least fifty years may be recognized as an all-Russian religious organization, if it has local religious organizations in at least half of the subject regions of the Russian federation or in no fewer than three "ethno-cultural" elements in three subject regions of the Russian federation. But even under such circumstances the decision about its recognition is made by the government of the Russian federation, which violates article 51 of the civil code of the Russian federation and constitutes interference of the state in the activity of religious organizations.
The list of the provisions of the federal law that are incompatible with the constitution of the Russian federation could be continued. In order to secure the full participation of the Russian federation in the integrative processes not only in Europe but also in the whole world, in light of the multiconfessional nature of the population of the Russian federation, the problem of securing the guarantees of human and civil rights and freedoms in the area of freedom of religious profession, the choice and dissemination of religious convictions, and the equality of religious associations before the law has exceptionally great importance. In order to avoid international isolation of the traditional Russian confessions and to prevent conflicts on religious bases within the country and to avoid charges against the Russian federation of persecution for convictions, as head of state and guarantor of the constitution of the Russian federation and of the human and civil rights and freedoms in regard to the need to bring the federal law "On Freedom of Conscience and Religious Associations" into conformity with the constitution of the Russian federation, with international legal norms, with other laws of the Russian federation, and also to remove the numerous internal contradictions of the law, I submit that it is necessary to make substantial revisions. I call the attention of the deputies of the State Duma and members of the Federation Council to the direct action of the constitution of the Russian federation and its supreme juridical force. In particular, the regulations of part 4 of article 15 of the constitution of the Russian federation include generally recognized principles and norms of international law and the international agreements of the Russian federation, including those dealing with matters of freedom of conscience, in its legal system and guarantee their priority with regard to federal laws. In accordance with the indicated provisions of the constitution of the Russian federal I warn that if at the time of its review by the chambers of the Federation Assembly it is approved in its current version, as guarantor of the constitution of the Russian federation, at the same time as the federal law is signed and approved I also shall publish a letter in which I indicate specifically those of its requirements which may not be implemented because they contradict the constitution of the Russian federation and international agreements of the Russian federation.
COMMENTARY
It is not clear why part 5 of article 8, which talks about the procedure for the recognition by the Russian government of religious organization as all-Russian and which in no way regulate the process of the creation of a legal entity, in the opinion of the president of the Russian federation contradicts the provisions of the civil code of the Russian federation about state registration of legal entities (art. 51, CC RF).
Apparently the president did not have sufficient time for a detailed study of the draft law, which caused such misunderstandings. Thus, having analyzed the text of the draft of the federal law "On Freedom of Conscience and Religious Associations," we can draw the conclusion that its provisions do not contradict the constitution of the Russian federation, the requirements of federal laws of the Russian federation, the bases of the constitutional system of Russia, or the international legal documents. Actually the draft does have several editorial shortcomings, but these blemishes in the draft should not pose impediments for the adoption of the federal law in its current version. (tr. by PDS)
Russian text: Kommentarii spetsialistov