COMMENTS ON SURVEY OF JUDICIAL PRACTICE REGARDING ARTICLE 5.26 OF THE CODE OF ADMINISTRATIVE VIOLATIONS OF LAW
by Mikhail Olegovich Shakhov
On 26 June 2019, the presidium of the Supreme Court of the Russian Federation approved the Survey of Judicial Practice in Cases of Administrative Violations of Law specified by article 5.26, "Violations of legislation on freedom of conscience and freedom of religious confession and on religious associations," of the Code of Administrative Violations of Law of the Russian Federation.
A review of the published survey forces us to draw the conclusion that in it, unfortunately, the most controversial problems of the interpretation and application of norms of legislation regulating missionary activity did not find expression. Experts have already frequently called the attention of the state and society both to the imperfection of the wording of the law and to the arbitrary and incompetent application of the provisions of legislation in several concrete judicial actions. However, one gets the impression that the authors of the survey either do not know about the existing problems or intentionally are avoiding all "sharp corners."
The survey does not reflect judicial practice connected with the most important question of distinguishing between missionary activity and dissemination of personal religious convictions. There are known, but not considered or even mentioned in the survey, a number, albeit few, of judicial decisions when cases regarding citizens who were disseminating personal religious convictions were terminated for lack of elements of an administrative violation of law. Courts came to the conclusion that in the absence of a religious association into which the dissemination of religious convictions is intended to draw members (participants), such dissemination cannot be considered to be missionary activity. Much more often, other courts have drawn the opposite conclusion, finding missionary activity in the dissemination by a citizen of religious convictions in the absence of evidence of the existence of a religious association of which this citizen is a member and into which he was allegedly trying to attract new participants. Especially acute legal indeterminacy exists when the person being held administratively accountable is charged with drawing new persons into a religious group by means of missionary activity. In some judicial cases, alleged participants in a religious group explicitly denied its existence and the intent to create it, citing the right guaranteed in part 1 of article 3 of the federal law "On freedom of conscience and religious associations" to profess collectively and to disseminate one's own religious convictions without the creation of a religious association. Nevertheless, courts have concluded, on the basis of the very fact of regular religious meetings of several persons, that there exists "a religious group, without notification of a competent body of government about the start of its activity" and about the conduct of missionary activity in the interests of this group, in violation of the requirements of legislation.
One of the reasons for the contradictions in judicial practice associated with religious groups is the absence in the legislation of a formally defined moment of the creation of a religious group. Only indirectly, the act of notification about the start of activity (part 2 of article 7 of the federal law "On freedom of conscience. . . " can be considered to be the moment of its creation. But in such a case, religious groups that have "not given notification about the start of their activity" simply cannot exist in nature except in the case when citizens themselves call themselves participants (members) of such a group that possesses the indicators of a religious association specified by law. We recall for comparison that the moment of the creation of a public association that is not registered as a legal entity is defined by law clearly as the conduct of a founding meeting. In circumstances of such formal legal indefiniteness, law enforcement may consider any citizens who are exercising the right of collectively professing and disseminating religious convictions without the creation of a religious association to be a "religious group" and then charge them with violation of the rules of conducting missionary activity. That actually has happened in judicial decisions that, alas, are not mentioned in the survey. Moreover, the case of the American citizen D.D. Ossewaard escaped the attention of composers of the survey; he was ruled to be guilty of violating the rules on missionary activity conducted by a foreign citizens, despite the fact that he specifically denied the very fact of the existence of a religious group. In his appeal filed in the Russian Constitutional Court, D.D. Ossewaard pointed out that the legal imprecision of the law permits any assembly of citizens who gather for joint profession and dissemination of faith to be considered a religious group, which contradicts articles 28 and 30 (part 2) of the Russian constitution. In its determination of 28 February 2019, the Constitutional Court did not in any way fill in the legal gap with respect to the moment and indicators of the creation of a religious group, declaring that "resolution of questions about whether the plaintiff is a member of some religious association and whether it is missionary activity on the territory of the Russian Federation that he is performing . . . or it is simply public dissemination of his religious convictions . . . does not enter into the competence of the Constitutional Court." And so, the Russian Constitutional Court saw the existence of a problem and declined to resolve it on a formal pretext. How did the compilers of the survey of judicial practice reflect this urgent problem? They were simply silent about it. But experts, conducting independent monitoring of judicial practice connected with missionary activity, can cite a whole series of judicial decisions where the key issue is just this resolution of the question of whether a religious association exists, in the absence of which the law does not allow considering dissemination of religious convictions to be missionary activity.
Further. Specialists know very well about the legal imprecision of the terms used in the federal law "On freedom of conscience. . ." "participant," "member," and "follower" of a religious association. The law does not at contain any wording that permits establishing precisely what are the specific characteristics and differences of a "member" and a "participant." As to the term "follower," it seems to be an entirely incorrect use from the point of view of the rules of the Russian language: it is possible to be a follower of Orthodoxy or Islam, but it is impossible to be a "follower of an Orthodox parish or a local religious organization." But the inclusion of the term "follower" in the federal law "On freedom of conscience. . ." alongside the terms "participant" and "member" opens up broad possibilities for evading the provision of point 3 of article 2 of said law, according to which "nothing in the legislation on freedom of conscience and freedom of religious confession and on religious associations should be interpreted in the sense of diminishing or infringing the rights of man and citizens to freedom of conscience and freedom of religious confession, guaranteed by the constitution of the Russian Federation or flowing from international agreements of the Russian Federation." Our esteemed law enforcers sometimes manipulate the term "follower" just for such an interpretation of the norms of the law, which diminishes the right to freedom of religious confession.
The compilers of the survey reproduce the provision of the determination of the Russian Constitutional Court of 13 March 2018, according to which "the essential indicator of missionary activity is the public dissemination by citizens and their associations of information about a specific religious teaching among persons who are not its followers, which draws them into membership, including in the capacity of participants of a specific religious association." Since there is not in the survey a comment on this wording, we will comment on it. The law does not contain the concept "follower of religious teaching," although it would be more correct than its use of the expression "follower of a religious association." The law does not contain wording about persons who are being involved as "followers of religious teaching" "including in the capacity of participants of specific religious associations." The law says that activity that is considered missionary activity is aimed at involving said persons as participants (members, followers) of a religious association. And nothing else and not "including." According to the letter of the law, missionary activity draws a person only into a specific religious association. If a person is persuaded to adopt the Orthodox faith or Islam, but is not drawn into a specific religious association, this is not missionary activity. This may seem strange, but it is no more absurd than all the rest of the contents of the infamous "missionary amendments." And here the law enforcer begins to "correct" the flaws of the lawmaker, as the result of which any proclamation of religious teaching is turned into missionary activity or proclamation intended to make a person a follower of this religious teaching. In this way law enforcement comes to precisely that which right-thinking specialists tried to avoid in the course of work on the draft of the "missionary amendments," when any dissemination of religious convictions is considered to be missionary activity, or as the Constitutional Court said it does not have to be accompanied by drawing someone into a specific religious association.
The absence of a formal definition in the law of the terms "member" and "participant" of a religious association also gives rise to the possibility of a restrictive interpretation of the law. Missionary activity is defined as being carried out among persons who are not participants (members, followers) of a particular religious association, for the purpose of drawing said persons into being participants (members, followers) of a religious association. If a person is persuaded to join a political party, then becoming its member is accompanied by a number of formally defined actions—submitting an application, consideration at a meeting, adopting of a decision about reception, inclusion in a list of members, and issuing a party ticket. For religious organizations, the question of becoming participants (members) may be resolved in the charter documents. But this is not always done, by any means. In the model charter of the most widespread local religious organization in Russia, the parish of the Russian Orthodox Church, there is no mention about participants or members of a given religious organization. How is it possible to determine formally whether a specific citizen is a "participant of the parish" or not? And just what kind of dissemination of information about Orthodox faith addressed to this citizen should be considered not simply as description of religious teaching but "is intended to make him a participant of a parish"? And if there are no formal criteria, how should the law enforcer resolve the question of whether missionary activity occurred and whether there was a violation of its rules? As we see in the Ossewaard case, for a court sometimes the very fact of regular religious preaching, not accompanied by the suggestion to join any religious association, is sufficient.
With regard to administrative responsibility for the production or distribution by a religious organization, within the context of missionary activity, of literature and printed, audio, or video materials without an indication of its complete official name or with incomplete or deliberately false identification markings, the survey of judicial practice cites the determination of the Russian Constitutional Court of 7 December 2017. In this determination, the Constitutional Court decided the question of what is a publication and audio and video material of religious constitution by citing a list approved by order of the government of the Russian Federation of 31 March 2001. But both the Constitutional Court and the compilers of the survey do not mention that this list was approved not as a universal list but with a narrowly defined goal—to indicate materials that are exempt from value added tax in accordance with article 149 of the tax code. In the composition of this list, the suggestions of religious organizations were taken into account, which naturally were interested in including in it the largest possible number of materials. The use of a regulatory act in the area of taxation as having universal application in other spheres of legal relations seems to us not quite correct. It is clear that the compilers of the survey could not criticize or demean the act of the Constitutional Court. But, like in the case of the aforementioned determination of the Constitutional Court of 13 March 2018, it is regrettable that the position of the Constitutional Court, that is not quite correct, in our view, regarding these problems is additionally multiplied in the survey of the Supreme Court, which will be taken by courts as a guide to action.
In summing up this brief commentary on the survey of judicial practice, it should be concluded that despite the compilers' consideration of 550 judicial actions, the survey does not reflect the extremely substantive and ambiguously resolved problems of the application by courts of the norms of article 5.26 of the Code of Administrative Violations of Law of the Russian Federation and corresponding norms of the federal law "On freedom of conscience. . . ," associated with the conduct of missionary activity. (tr. by PDS, posted 7 July 2019)
Mikhail Shakhov is the president of the Guild of Experts on Religion and Law and professor of the department of state-confessional relations of the presidential Russian Academy of Economics and State Service
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