|
English Language Page Summer 2003 Volume 6 Number 1 Promoting an enabling legal and fiscal environment for independent funders and their grantees in the New Europe An online version of SEAL is also available at the EFC*s website Sergey Lukashevskiy, Asmik Novikova The Constitution of the Russian Federation stresses the secular nature of the state, declares the equality of all religious organisations before the law (Article 14) (1) and generally guarantees freedom of conscience (Article 19). Under the Constitution, charity activity is encouraged (Article 39). International laws and treaties recognised and ratified by Russia form an integral part of the national legal system and have precedence over domestic legislation, including the Constitution which is otherwise the supreme law of the land (Article 15). The 1997 Law on Religion The main document regulating the activity of religious organisations and ensuring implementation of the freedom of conscience is the 1997 Federal Law on Freedom of Conscience and Religious Associations. It superseded the more liberal Law on the Freedom of Religion adopted in 1990. The essence of the new provisions of the 1997 law is that the level of rights granted depends on the status of the religious association. Religious associations which have existed in Russia for more than 15 years have the full set of rights to carry out public religious and related activities. "Younger" religious associations are deprived of several important rights (such as the right to conduct religious education and produce religious goods). However the law imposes no limitations on their charity activity. The new law reguired religious associations to go through re-registration. Many religious associations which for the first time received official status in the late 1980s were denied the full set of rights by the registration authorities on the basis of the 15 year qualification This prompted the Jehovah s Witnesses community (Yaroslavl) and the Glory Christian Church (Abakan, Khakassia Republic) to file an appeal with the Constitutional Court Based on procedural grounds, the Court avoided considering the constitutionality of the 15-year qualification but ruled that the qualification does not apply to religious organisations which received registration from 1990 to 1997 because the law does not have retroactive force Nor do the limitations established by the law apply to religious organizations which are created in regions and belong to a centralised structure registered at the federal level. At present, the overwhelming majority of religious organisations de jure have the full set of rights granted by the federal law. The 1997 Law on Freedom of Conscience allows religious organisations to engage in charity activities "both directly and by establishing charity organisations" (Article 18) The law establishes this right only as a possibility - no regulating provisions, apart from the aforementioned clarification, are contained in this article or in any other articles of the law. The Legal Framework for Charity The Russian legal system does not have any substantive regulate the charity activities of religious organisations This being the case, matters concerning religious charity are subject to general civil legislation which does not grant any advantages to religious organizations over other non-profit associations Speaking of charity activities of religious organisations, itisimportanttonotethat in this case the religious organization becomes a non-profit organization (Article 2 of the Law on Non Profit Organisations) and its activity is regulated by the Law on Charity and Charity Organisations, the Law on Non Profit Organisations, the Tax Code and the Civil Code. Thus, religious organisations fall within Article 2 of the Law on Non-Profit Organisations This article defines charity as one of the principal means of achieving the main objective of any non profit organisation public welfare In fact, this article sets forth in more concrete terms and ensures the right granted to religious organisations by Article 18 of the Law on the Freedom of Conscience. The Law on Charity Activity and Charity Organisations is a framework law regulating the conduct of charity activity regardless of its subject. The law defines the main participants in charity activity and specifies in detail its goals? Which are set forth more briefly in the Law on Non-Profit Organisations. These two federal laws elaborate on the constitutional provision about the importance of charity activity and supplement the provisions of Article 18 of the Law on Freedom of Conscience However, the practical aspects of the conduct of charity activity are primarily regulated by the Tax Code and the Civil Code The Civil Code defines the rights of organisations and natural persons while the rules of chanty activity are directly laid down by the Tax Code. The new Tax Code, adopted in 2002, abolished the privileges which were previously granted to non-profit organisations The decision of the government, which wanted to limit tax evasion through the setting up of fictitious chanties, has actually put constraints on genuine charity organisations, including religious ones Without characterising the legal system as such, we can, however, say that the legal conditions do not encourage charity activity. Any organisation engaged in charity may run into problems, but in the case of religious organisations an additional factor is policy and implementation of laws regarding relations between the state and religion. The Reaction to Religious Pluralism The period from the late 1980s to early 1990s was marked by the end of the policy of state atheism followed by an upsurge of religious activity. The religious organisations which previously held an official status (Orthodox, Catholic, Muslim, Jewish), the communities which in Soviet times were compelled to exist underground (Hare Krishna, Jehovah's Witnesses, etc) and religions previously unknown in Russia (Mormons, Scientologists, etc) were all granted the right to operate freely (particularly after adoption of the 1990 Law on the Freedom of Religion). There was no visible religious xenophobia and no negative stereotypes. This fact was manifested, among other things, by the readiness of officials of various ranks in various government agencies to cooperate with religious organizations unusual for Russia. Officials, politicians and ordinary citizens, most of whom grew up in conditions of state-imposed atheism and had practically no religious culture, were confronted by problems unavoidably concomitant with religious pluralism: the need to react to the appearance of socially dangerous groups (such as Aum Shinrikyo) and to take a stance on the most radical religious practices and bans of some religious beliefs (such as the ban on blood transfusions imposed by the Jehovah's Witnesses). The absence of even minimum knowledge in the field of religious life resulted in the growth of religious xenophobia. This was helped by the general growth of nationalistic and xenophobic feelings (caused by disappointment with liberal values and reaction to social upheavals) and the position taken by the Russian Orthodox Church (ROC), which came to realise that the religious renaissance did not mean automatic restoration of the role that it played at the time of the Russian Empire - if not as a state religion then as a religious organisation which unites the overwhelming majority of the population. Irritated by the vigorous missionary activity of various non- traditional religions, the ROC was one of the main organisations lobbying for the Law on Freedom of Conscience and Religious Organisations. In its preamble the law emphasises "the special role of the Orthodox religion in the history of Russia and the formation and development of its spirituality and culture". This declaration has no legal consequences per se but it creates a new situation in relations between the state and religion, and does so to a larger degree than the discriminatory provision imposing a 15-year qualification which was disavowed by the above-mentioned ruling of the Constitutional Court. Discrimination Against Religious Groups From the mid-1990s, the policy of the authorities, especially in the regions, began to become discriminatory in relation to many religious beliefs and organisations. In this case it is not federal legislation that is used as a basis for such discriminatory policy, although this legislation does not fully conform to international standards. The regional and local authorities use unofficial levers of administrative influence and rely on regional laws. As of 2001, 35 out of about 50 regulations adopted in 33 regions of Russia contradicted the Constitution of the Russian Federation, specifically such norms of fundamental importance as those established by Article 14 ("Religious associations are separate from the state and equal before the law") and Article 62 ("Foreign citizens and stateless persons in the Russian Federation enjoy rights and bear obligations on a par with citizens of the Russian Federation"). Thus, in 2002 the Law on Missionary Activity on the Territory of the Belgorod Region, adopted at the initiative of the governor of the region, restricted the activity of local Protestant denominations. The restrictions affected the ability to organise open public events which in some way reflect the religious doctrine and beliefs of the organisers. Under the law, adolescent participants in such events were required to have permission from both parents. In practice, even casual observers were regarded by the officials of the regional government agencies as participants in such events. At the same time, representatives of the Orthodox Church freely participated in public events. However, discrimination against religious groups is displayed much more frequently at the level of the administrative decisions of regional and local authorities. Numerous cases have been reported where Protestant organisations or other so-called non- traditional religious organisations (i.e. those which are not historically common with a certain ethnic group) cannot receive plots of land for building places of worship and therefore have to rent buildings for religious services. In some cases they ire ousted from rented premises, banned from holding mass missionary events, and denied adequate protection against attacks and other aggressive acts of radical groups. As a rule, actions of the authorities take the form of secret administrative decisions or evasion of their duties and, therefore, the religious organizations that are victims of discrimination are usually unable to have their rights restored. On the other hand, most court cases initiated for abolishing registration of religious" organisations (mostly Protestant ones) for alleged violations of Russian laws or because they threaten the health of citizens were lost by prosecutor's otficfS and judicial boards. The Impact on Charity Of course, the discriminatory policies of the authorities hamper charity activities. In the course of re-registration of religious organisations carried out under the 1997 law, man^ Protestant organisations had to face a biased attitude on the part of judicial bodies. In 1999, the Moscow branch of the Salvation Army Was denied re- registration because itwasdeemed to be a "paramilitary organisation" (the army- type names of the organisations in the regions, the structure of the Salvation Army's hierarchy, and the uniforms of its members modelled after military uniforms raised no objections from the Ministry of justice of the Russian Federation or its territorial agencies in five other regions). After the problems of the organisation became known, the Moscow Social Service Department cancelled the agreement under which the Salvation Army served free meals to the homeless. At the same time, the owner of the premises rented by the Moscow branch refused to prolong the rental agreement for another year. The charity activity of the Salvation Army in Moscow was suspended. Religious organisations are criticised for combining and indirectly linking their charity activity with missionary work. Such charges are made not only by representatives of, say, the ROC or officials who in this way display "special respect" for the Orthodox religion in the spirit of the preamble to the 1997 law. As mentioned above, under Article 2 of the Law on Non-Profit Organisations, charity serves the goal of achieving public welfare. We believe that this provision is fraught with potential problems for religious organizations because their goals (and, accordingly, the goals of their charity activity) may be declared not to be in conformity with the ideas of public welfare entertained by the public and the state. The prerequisites for this are contained in the Concept of National Security of the Russian Federation and the Doctrine of Information Security of the Russian Federation adopted in 2000, which task the state with counteracting "the negative influence of foreign religious organisations" and "the cultural and religious expansion into the territory of Russia on the part of other states". Russian legislation grants religious organisations the rights required for their normal activity, including the right to engage in charity, but in actual practice these organisations are confronted by lawlessness and discrimination on the part of the regional and local authorities. Moreover, Russian tax laws do not encourage charity activity. This fact is noted and criticised by diverse religious organisations, including the ROC, which is generally patronized by the authorities. (1) Here and below, the documents of international and domestic law (at the federal level) are quoted from Religious Associations. Freedom of Conscience and Religion., Moscow: Yurisprudentsiya, 2002. Back |
Наша кнопка  |
|