CONSTITUTIONAL
COURT
CLARIFIES RULES ON LABELING RELIGIOUS LITERATURE INTRODUCED BY
'YAROVAYA
LAW"
by
Attorney
Sergei Chugunov
Religiia
i
Pravo, 22 December 2017
Late
last year a
sensational event occurred when a court in the city of
Vladivostok ordered the
destruction of religious literature belonging to the Salvation
Army, including
36 Bibles. Let me recount how events developed.
The
prosecutor's
office of the Lenin district of Vladivostok conducted on 23
November 2016 an
inspection of the activity of the Christian religious
organization of the
Salvation Army in Vladivostok. In the course of this inspection,
religious
literature that was discovered by the inspectors at the address
of the
religious organization was copied and photographed, specifically
religious
literature that was in the library on shelves in the pastor's
office (the
office of the head of the organization) including 36 copies of
the Bible in the
Synodal translation and also collections of religious songs in
the worship hall
(premises for conducting worship services). The aforesaid
printed materials had
not been produced by the Christian religious organization of the
Salvation Army
in Vladivostok and therefore they did not have identification
labels with its
denominational name. On the basis of the results of the
inspection, the
prosecutor's office opened a case of administrative violations
of law against
the Christian religious organization of the Salvation Army in
Vladivostok based
on part 3 of article 5.26 of the Code of the Russian Federation
on
Administrative Violations of Law and filed it for consideration
in court. The
organization was accused that it "in its missionary activity
uses and
distributes literature and printed materials without identifying
labels of the
religious organization."
By
order of a
magistrate judge of judicial precinct No. 4 of the Lenin
judicial district of
Vladivostok, A.V. Badeev, of 20 December 2016, in the case of
administrative
violation of law No. 5-855/16, the Christian religious
organization of the
Salvation Army of Vladivostok was found guilty of committing the
violation of
law provided by part 3 article 5.26 of the Code of
Administrative Violations of
Law and was assigned an administrative penalty in the form of a
fine of 30,000
rubles. The court also ordered the confiscation and destruction
of the
literature and printed materials enumerated in the court's
order.
The
decision
concerning destruction of the Bibles evoked such a great public
resonance that
the decision was appealed not only by the Salvation Army itself
or the
initiator of this case, the prosecutor's office. As a result,
with a speed that
is incredibly great for our legal system, in just ten days a
reconsideration of
the decision was conducted. By a decision of Judge I.N.
Novozhilovaia of the
Lenin district court of Vladivostok, of 30 December 2016, the
order of the
magistrate judge was changed: from the operative part of the
order, the part
about destruction of the confiscated items of the administrative
violation of
law was removed. However, the remainder of the magistrate
judge's order stayed
unchanged.
The
decisions in
the case were appealed all the way to the Russian Supreme Court.
But the higher
courts did not find any grounds for changing them. Then
attorneys of the Slavic
Legal Center V.V. Riakhovsky and S.V. Chugunov filed an appeal
in the interests
of the Salvation Army in the Constitutional Court of the Russian
federation on
the incompatibility of the provisions of part 3 of article 17 of
the federal
law "On freedom of conscience and religious associations" and
part 3
of article 5.26 of the Code of the Russian Federation on
Administrative
Violations of Law with article 28 and part 3 of article 55 of
the constitution
of the Russian federation. The reason for the appeal was that
the indicated
rules of the laws contain legal imprecision regarding the
question of just
which materials are subject to identification labeling: all
materials that
potentially may be distributed by a religious organization
within the context
of conducting missionary activity, or materials that are
immediately being
distributed in the context of missionary activity conducted at
that moment for
which the religious organization is being accused of committing
violations of
law.
Several
months
later the appeal was reviewed by the Russian Constitutional
Court and a
decision was rendered regarding it. Since in this case a
determination to
refuse to accept for review a religious appeal had been made, it
could seem
that no positive result would been achieved. However this was
not true. This is
a common practice in the operation of the Russian Constitutional
Court, when a
determination is issued to refuse to consider an appeal, that
is, the court
formally recognizes that the rules being challenged are in
accordance with the
constitution of the RF. But in this same determination the court
gives an interpretation
of the rules being challenged, that is, how these rules should
be applied. This
is what happened this time.
In
its
determination
of 7 December 2017, No. 2793-O the Russian Constitutional Court
explained the following:
"In
the
system of existing legislation, the concept 'identification
labeling,' used in
article 17 of the federal law 'On freedom of conscience and
religious
associations,' means the affixing in any form (printed,
hand-written, or
another form) of the full official name of said organization on
any materials,
both produced by it and also produced by other organizations,
but used by it in
conducting its missionary activity. In those cases where
literature or printed,
audio, and video materials are distributed by the religious
organization in the
context of missionary activity, but created (issued) by another
religious
organization, in accordance with the sense of this article in
the system of
current legislation the existence of two identifying labels is
required: of the
religious organization that immediately published the literature
and created
the printed edition or audio and video materials and the one
that obtained said
materials for use in its missionary activity."
The
most
important part of the court's determination:
"The
consequence
of this is that what is subject to identification labeling is
literature and
printed, audio, and video materials that are produced by a
religious organization
and also that was not issued by the religious organization but
is being
distributed within the context of conducting missionary activity
in its name
outside of places that are specifically designated for
conducting religious
activity, in accordance with point 2 of article 24.1 of the
federal law
"On freedom of conscience and religious associations."
"As
distribution
of religious literature and materials of religious significance
within the context of missionary activity should be understood
not only the
distribution of said materials to specific persons but also
providing free
[i.e., unimpeded—tr.] access to this literature and materials
for an
indeterminate circle of persons."
Further
in its
determination the court points out that in considering such
cases, in each
specific case the question should be investigated whether there
is free access
for an indeterminate circle of persons to the premises in which
the literature
and other printed materials of religious contents is located and
whether in
such premises missionary activity is being conducted without
restrictions and
additional requirements.
Thus
all
religious organizations that were held administratively
accountable for
violation of law provided by part 3 of article 5.26 of the Code
of the Russian
Federation of Administrative Violations of Law, in the event
that they
distributed literature or it was located in places identified in
part 2 of
article 24.1 of the federal law "On freedom of conscience and
religious
associations", have the right to a reconsideration of their
cases.
I
will recall
that part 2 of article 24.1 of the federal law "On freedom of
conscience
and religious associations" indicates the following: