PROSECUTORIAL INSPECTIONS IN CONNECTION WITH "YAROVAYA LAW" HAVE BEGUN. WHAT IS TO BE DONE?
Religiia i pravo, 7 August 2016
Dear Friends:
From several regions information has begun arriving about prosecutorial inspections connected with the verification of compliance with statute No. 374-FZ, during which something like the following picture occurs:
Siloviki [security agents] block the entrances and exits of the premises where a worship service is being conducted, and they do not permit anyone to leave until they get personal data from everyone in attendance. In and of themselves, the actions are disputable, but in view of the struggle with terrorism, they may even be justified. "Actionable information," which law enforcement agencies possess (or do not possess), is difficult to challenge, because we do not know about it.
Then they produce demands to provide lists of members of the local religious organization on the premise that if there exists in the charter of the local religious organization a provision about membership, then there should be statements or some kind of documents confirming the membership of those in attendance at the service; otherwise missionary activity is going on. And the rental contract for the premises supposedly should specify that the local religious organization also is conducting missionary activity in addition to conducting a religious event.
What is to be done?
By points:
1. We will not display resistance to the personnel of law enforcement agencies.
2. We will present personal identification (these are legal demands).
3. We may take advantage of the provision of article 51 of the Russian constitution and not report anything other than personal names (this is legal). At this stage, giving an explanation is your right but it is not obligatory.
4. We follow the "Ryakhovsky line" and we evaluate what occurs in order first of all to give a correct juridical assessment.
According to article 24.1 of the federal law of 6 July 2016 No. 374-FZ, "On introducing changes into federal law 'On combating terrorism' and individual legislative acts of the Russian federation with regard to establishing additional measures of combating terrorism and ensuring public security" (the "Yarovaya Law"):
Missionary activity, for purposes of the present federal law, is defined as activity of a religious association intended to disseminate information about its belief system among people who are not members (followers, supporters) of said religious association in order to draw such persons into the membership of the religious association, conducted immediately by religious associations or by citizens and/or legal entities authorized by them publicly, with the use of mass media, the Internet telecommunication network, or by other legal means.
Thus, according to our line, missionary activity should satisfy the following criteria:
1. It is activity of a religious association;
2. It is activity of authorized persons of a religious association;
3. During this activity there occurs public dissemination of information about the beliefs of the religious association;
4. Information is disseminated among people who are not members (adherents) of the religious association;
5. Information is disseminated with the goal of
drawing
outsiders into the activity of the religious association.
[tr. note: these five criteria constitute what is referred to
above as the "Ryakhovsky line"]
Membership is established in accordance with the charters of a majority of local religious organizations in the RF. Membership entails specifications (statement of joining, of exclusion, of participation in voting, etc.).
There must be 10 members who submitted their personal information at the time of registration of the local religious organization. These are 100% of the membership, whom you have already identified, and to do more than this is simply not reasonable.
The issue of the rest of the people is their personal affair. If they want it, let them define membership.
But it is important to remember two important principles when making decisions: a) simple systems are the most stable; b) "a hare may well do without pockets."
And it is important to remember that it is possible to require from a religious organization an account of its legal activity (in particular compliance with the charter), but it is not legal to require from citizens presentation of personal and family private information.
Because such information, which is confidential information and a kind of religious secret with respect to personal religious affiliation, is protected by law:
--articles 23 and 24 of the Russian constitution with regard to the guarantee of the right of the inviolability of private life and personal and family privacy;
--article 28 of the Russian constitution with regard to the right of each person freely to select religious convictions or not to confess any religion;
--point 5 of article 3 of the federal law "On freedom of conscience and religious associations" with regard to the right not to disclose one's attitude toward religion;
--article 6 of the federal law "On the Federal Security Service" with regard to prohibiting reporting to agencies of the Federal Security Service about their receiving information about the private life of anybody without the voluntary consent of the citizen, with the exception of cases provided by federal laws;
--subpoint 7 of point 1 of article 15 and subpoint 9 of point 1 and point 3 of article 17 of the federal law "On governmental civil service of the Russian federation" with regard to the prohibition of disclosure of information comprising state or other information classified by federal law, as well as information acquired as the result of performance of official duties of civil service, including information pertaining to private life and health of citizens or dealing with their honor and dignity;
--subpoint 3 of point 1 of article 42 of federal law "On state civil service of the Russian federation" with regard to prohibition of developing and including in the personal file of a civil servant private information about his religious convictions;
--subpoint 8 of point 1 and point 3 of article 14 and point 2 of article 29 of the federal law "On municipal service in the Russian federation" with regard to prohibition of disclosing or using for purposes not connected with municipal service of information pertaining to compliance with federal laws of information of a confidential character, including following dismissal from municipal service, and also restriction of collection and preservation of information about personal religious privacy of a municipal servant;
--subpoint 7 of point 1 of article 17 of federal law "On service in customs agencies of the Russian federation" with regard to the duty of personnel of a customs agency to protect state or other secrets classified by law as well as nondisclosure of information discovered in the course of performance of the responsibility of office, including that dealing with the personal life, honor, and dignity of citizens;
--point 1 of article 40.4 of the federal law "On the procuracy of the Russian federation" with regard to the duty of the prosecutor to keep strictly a state or other secret classified by law;
--point 5 of article 86 of the Labor Code of the RF with regard to prohibition of an employee to get and develop personal information of a worker regarding membership in public associations;
--subpoint 2 of point 1 of article 152.1 of the Civil Code of the Russian federation "Protection of the image of a citizen" and article 152.2 "Protection of private life of a citizen" of the Civil Code of the RF with regard to prohibition, without the consent of a citizen, of collection of any information about personal and family life;
--point 3 of article 25 of federal law "On archival work in the Russian federation" with regard to restriction on access to archival documents containing information about personal and family privacy of a citizen and his personal life for a term of 75 years from the day of the creation of said documents.
Events of a local religious organization are not closed to participation and they may be attended by nonmembers.
The parliament indicated to us, in point 1 of article 24.1 of the federal law of 6 July 2016 No. 374-FZ ("Yarovaya's Law"), that missionary activity comprises dissemination of information about the beliefs of a religious association among person who are not members or adherents.
Nobody prevents all the rest (of those who are not the 10 who were recorded in the Uniform State Register of Legal Entities upon registration) from being simply adherents.
Russian law and the charter of a local religious organizations do not provide a definition of "adherence."
Therefore, to the question of who are you and what are you doing at the worship service, our people may honestly answer that they are adherents of the teaching of the local religious organization.
In addition, one may (and should) raise the question to personnel of the prosecutor's office and law enforcement agencies: is it legal for them to demand information regarding personal and family privacy, since the citizen is not obliged to report his own attitude toward religion, which is guaranteed by article 23 and 24 of the constitution of the RF with regard to guaranteeing the right to inviolability of private life and personal and family privacy; and by article 28 of the constitution of the RF with regard to the right of each person to freely choose religious convictions or not to profess any religion and by point 5 of article 3 of the federal law "On freedom of conscience and religious associations" with regard to the right not to reveal one's attitude toward religion.
5. In composing a document (protocol), the leader of a local religious organization should write the qualification sentence: "I categorically disagree with all accusations stated in the protocol, and I consider the conclusions drawn to be without basis and illegal. I will state my position subsequently in written form after consultation with an attorney."
Other persons (not the leader of the local religious organization) may state the following in the explanation (if you have not decided to use the provision of article 51 of the Russian constitution):
"I categorically disagree with what is stated in the protocol. I am an adherent of such-and-such local religious organization, but I consider the attempt to receive from me information pertaining to my personal and family privacy and my attitude toward religion, which violates my constitutional rights, to be without basis and illegal."
6. It is important to obtain from law enforcement agencies a written statement, which should indicate the charges being made and the requirements of performing certain actions. Do not pay any fines right away (which would be an admission of guilt). Do not turn over any documents right away (substantiating the necessity of preparing them). Scan everything immediately and send them to the Slavic Legal Center with a description of the situation, which will take up your case and help in finding an optimal resolution.
It is possible to send for action immediately to my address: [email protected].
In an emergency, you may phone 8-909-935-82-78.
I hope that this was useful information!
Your Christian attorney,
Konstantin Andreev
(tr. by PDS, posted 8 August 2016)
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