CONSTITUTIONAL COURT STUDIES CONDUCT OF CHURCH SERVICES IN RESIDENTIAL BUILDING
RAPSI, 8 October 2019
The problem of the owner's use of land designated for locating individual households for the conduct of church worship services, rituals, and ceremonies was discussed at a session of the Russian Constitutional Court, a RAPSI correspondent reports from the courtroom.
Divine services in village of Veselyi
Judge-rapporteur Liudmila Zharkova described for the court how the plaintiff, a resident of Rostov oblast, Olga Glamozdinova, is a parishioner of the Church of Seventh-Day Adventist Christians in the village of Veselyi and as the owner of a residential building and a parcel of land of a quarter acre in January 2017 she provided to the aforesaid church, on the basis of a contract, the use of the property without charge for conducting worship services, rituals, and ceremonies for four hours per week.
"Glamodzinova's address was entered into the Uniform State Register of Legal Entities as the legal address of the religious organization. In September 2017, the district department of the office of Rosreestr for Rostov oblast held her administratively accountable and fined her 10,000 rubles for use of land for unintended purposes," Zharkova said, explaining that courts of two instances confirmed the legality of Rosreestr's order.
Vladimir Riakhovsky, who represented Glamozdinova's interests, reported that his client is asking for verification of the consistency with the Russian constitution of the paragraph of the second article 42 of the Land Code of the RF and part 1 of article 8.8 of the Code of Administrative Violations of Law of the RF, which establish the responsibility of owners and non-owners for the use of land for other than designated purposes. In the opinion of the defense, the norms being challenged are not consistent with articles 28, 35 (part 2) and 55 (part 3) of the Russian constitution, inasmuch as they violate her right to freely own and dispose of her property and also her right to freedom of conscience and religious confession.
"The right of a religious organization to conduct worship services in a residential building is explicitly provided by the federal law 'On freedom of conscience and religious associations,' which speaks of the contradiction of land legislation with other normative acts. There exists legal ambiguity. In addition, worship services of the Seventh-Day Adventists are conducted once a week and during the rituals the members of the religious community do not bother the neighbors," Riakhovsky declared.
Charitable contributions are also a ritual
A representative of the legislative branch, specifically the Russian State Duma, Marina Bespalova, asked the Constitutional Court to recognize that the norms being challenged do not contradict the Russian constitution. She specified that the Ministry of Economic Development of the RF defines the forms of permissible use of parcels of land. "There is agricultural, animal husbandry, medical care, and religious use. And the choice of permissible use must be formulated in accordance with the procedure established by law," Bespalova explained.
A representative of the Russian president, Mikhail Krotov, called the Constitutional Court judges' attention to the rights of third parties. "It is one thing when a family decides to pray. But what if collective prayers are conducted on a continual basis? How do the neighbors view this? The question arises as to how they are conducted. Muslims, for example, offer sacdrifices. Many religions have singing. Imagine if 15 to 20 people gather in the neighborhood and begin to sing. Bulgakov once wrote about this, although he took a household as an example," Krotov explained.
A representative of the Russian prosecutor general, Tatiana Vasiliev, pointed out that a change in the functional designation of a building on a parcel of land entails also a change in the functional designation of the land itself. She emphasized that legislation clearly states this principle. In Vasilieva's opinion, the norms being challenged do not contradict the Russian constitution.
An advisor of the minister of justice of the RF, Maria Melnikova, turned to the norms of the law "On freedom of conscience and religious associations." She cited an article to which the attorney for the plaintiff appealed, which says that members of religious associations may conduct worship services in residential premises provided to them. "But here it is necessary to pay attention to a reference in the article, which says that a religious organization may use a parcel of land provided to it only in accordance with existing legislation. In this case the residence was provided for use to a legal entity. In accordance with the Housing Code of the RF, a legal entity may use residential premises only for the organization of citizens residing in them," Melnikova explained the position of the Ministry of Justice. She also noted that the plaintiff's land had been in an untidy condition for many years, that is, it was not being used in accordance with its designated purposes and consequently the land inspector made a legal decision about incurring administrative accountability for its misuse. (tr. by PDS, posted 9 October 2019)
CONSTITUTIONAL COURT DISCUSSES SACRIFICES AND THE RIGHT TO "HOUSE CHURCHES"
by Karina Savvina
Regnum, 8 October 2019
On October 8, 2019, the Constitutional Court discussed sacrifices and the right to "house churches." The occasion of this was an appeal by a resident of Rostov oblast. She had been fined because she let a religious organization into her own home for four hours a week for worship services. The authorities do not consider that this fine was a violation of the rights of the owner of the house to religious confession and the Council on Human Rights under the president, on the contrary, noted an "alarming tendency" throughout the country.
Olga Glamozdinova, a parishioner of the Church of Seventh-Day Adventist Christians of the village of Veselyi of Rostov oblast, owns a dacha on a lot of a quarter acre. The land is designated for private farming. She permitted her Church of Seventh-Day Adventist Christians to conduct worship services in the house once a week. In January 2017, at the demand of authorities, she concluded a contract for free use of the property by the organization. In addition, Glamozdinova also agreed to enter the address of this house in the Uniform State Register of Legal Entities as the legal address of the religious organization. In September 2017 the district department of the office of Rosreestr for Rostov oblast held her administratively accountable and fined her 10,000 rubles for use of a land parcel for other than its designated purpose. Courts confirmed the legality of this decision.
Now Glamozdinova requests that article 42 of the Land Code of the RF and part 1 of article 8.8 of the Code on Administrative Violations of Law of the RF be ruled to be unconstitutional. She is convinced that they are not consistent with articles 28, 35 (part 2) and 55 (part 3) of the Fundamental Law, since they lead to the violation of her constitutional right freely to own and dispose of her property and also the right to freedom of conscience and religious confession.
"We perceived a kind of alarming trend. It turns out that in various parts of the country, law enforcers have begun using the category of intended use of land and buildings for restricting the rights of citizens. The issue is freedom of religious confession. In various parts of the country a definite practice is mounting up, including in arbitration. This really is a serious matter. Appeals are coming to us. The latest example was in April of this year that was not a fine but an impounding of a building of a church of the small religious organization 'Orthodox Church of the Mother of God,'" the lawyer for the Council on Human Rights under the president, Ivan Shablinsky, declared. In this case the organization built a small church building and it was registered as a building for conducting worship services.
"But the basis (for holding accountable) was that in 1996 this decrepit boiler house, which had been allotted to the organization, did not have such a status," Shablinsky explained. The legal registration of the status of the building for this organization did not save it. That is, the reason was something in this trend. I will not try to evaluate it, but it is a fact. There have been more than a dozen such instances. And throughout the country thousands of apartments, tens of thousands, are being used by various small religious organizations for worship services. This is a real practice."
This trend also was noted by lawyers for the plaintiff, who included in the materials for the Constitutional Court a dozen such cases, but this list was not exhaustive. For example, in the speech of the lawyer Vladimir Riakhovsky, today in Sverdlovsk oblast a case also is being considered where a citizen may be held accountable because 10 to 15 persons conducted some religious rituals in his home. The lawyer thinks that such a situation of law enforcement practice simply "leads to a dead end."
"In most cases, a 'worship service' for such religious organizations is a meeting of 5 to 10 people. It turns out that in the opinion of a law enforcer such a use of a residence is illegal," attorney Sergei Chugunov said.
He decided to recall the "centuries-old Russian tradition" of house churches. This practice is actually continuing, and the list of parts of the federation where citizens are being punished for worship services in their own home is rather extensive. This happens, in Chugunov's opinion, despite the law on freedom of conscience, specifically article 16. In addition, he pointed out that services are conducted quite peacefully in other buildings like hospitals and old-folks homes, and there are chapels on the territories of various governmental institutions.
"In not one of these cases is there land with a religious designation. There cannot be land with a religious designation under a Moscow city court," he declared.
According to the aforementioned article 16, religious organizations may not only establish and maintain liturgical buildings for worship services, but also "conduct unhindered worship services and other ceremonies and rituals in residences." As Riakhovsky emphasized, residences may not, by definition, be located on land with a religious designation, and therefore the situation in his view is more than obvious. "This rule is a dead letter, no?" he wondered.
Nevertheless, the lawyers of the prosecutor general's office, the Ministry of Justice, the State Duma, and the president did not agree that the rules being challenged are unconstitutional. Thus, the Ministry of Justice especially emphasized that when Olga Glamozdinova provided her home to the congregation for worship services, she automatically provided them the land under it. Which, of course, according to the law may be used only for a garden.
The Council on Human Rights expressed the exact opposite opinion: what was happening within the house did not violate the intended purpose of the land around it. Even the article of the administrative code by which the plaintiff was punished refers to the environmental section regarding ecological damage. But religious rituals do not harm the environment in any way, Shablinsky insists. "Such a situation evokes our alarm," he acknowledged.
The Council on Human Rights asks the Russian Constitutional Court to explain the legal constitutional meaning of the challenged provisions. In the opinion of council members, the rules themselves do not prevent use of residences in agreement with the will of the owners, but the court's explanations should help in ending the use of these rules for violating the constitutional rights of citizens.
The representative of the State Duma in the Constitutional Court, Marina Bespalova, also refused to consider the rules to be unconstitutional. She called attention to the agreement, signed by the plaintiff in January 2017, when she permitted her church to use her address for legal purposes. According to the documents, the organization was given the whole house completely, and not one room, while point 1.4 states that the plaintiff is providing her residence for the "address of the location of the permanent administrative body of the local religious organization."
In Bespalova's view, this presumes the actual location at this legal address of the religious organization, and not only periodic worship services there. Moreover the same agreement requires ensuring fire safety for the legal entity and the keeping of a log and provision of emergency exits and "personnel training."
"The agreement was signed by the legal entity, the administration. A seal was affixed here. I have just one remark: switch the premises from residential to nonresidential. This is a small procedure and there are no more problems. The procedure is simple. . . . Sure it requires public hearings. But for liturgical, religious organizations, the procedure also is simplified. Nothing prevented it. Simply either ignorance (and ignorance of the law is no excuse) or some other reason," Bespalova suggested.
However the attorney Chugunov objected to her. He agreed that the agreement "simply was downloaded from the internet by legally illiterate people" and submitted on the Ministry of Justice's demand without disputes among themselves they do not need. No administrative activity was conducted in the building. Indeed, the decisions of the courts finding Glamozdinova a violator of law say that the land was used, contrary to intended purposes, "for conducting worship services, rituals, and ceremonies."
"It is for this that she was held accountable and not for providing an address that was entered in the register nor for other provisions of the agreement," the lawyer emphasized.
The presidential representative to the Constitutional Court, Mikhail Krotov, did not see a contradiction between the Fundamental Law and the rule being challenged. Moreover, they are needed for, among other things, ensuring freedom of religious confession, since freedom, as is known, ends at that place where an other's freedom begins. And the other well may turn out to be an adherent of another confession.
Krotov recalled that owners of parcels of land, according to the Land Code, are required to use them in accordance with the designated purposes, as well as objects of capital construction also located on the land and the city planning regulation, and a residence must be used without violation of the permissible uses for the land. When desired, and consistent with technical regulations, the status of both the land and the buildings can be changed. A residential building erected on land for private gardening may be used only for "satisfaction of domestic and other needs associated with living in it."
"And naturally, the family living in the house has the right to use the residence for worship services," Krotov admitted, citing article 16 of the law on freedom of conscience.
"However the case being considered today is too controversial to draw an unambiguous conclusion about the violation of the legal rights and interests of third parties, the rights of neighbors. If the religious rituals and ceremonies are conducted on a regular basis, with the participation of persons who are not registered in that house and who do not belong to the usual family circle," he added.
He suggested imagining a situation where two neighboring parcels of land of an eighth acre each are occupied by a Muslim and a Christian congregation. "And where does the right to conduct worship services begin? For example, among the Muslims it is customary to offer sacrifices. Doesn't this violate the rights and legal interests of other representatives, of neighbors? Probably it is still not a coincidence that the classification code specifies that if a parcel of land is designated for religious use, then this issue also will be resolved so that there not be a conflict situation, that it not arise," Krotov is sure.
Regular worship services in apartment buildings do not seem any better, the president's lawyer suggests.
"Fifteen or twenty people come to an apartment and we start. . . . We have already seen something like this; the cinematographer showed us this splendidly, how it happens. Sure, not an example of a religious organization, but in Bulgakov it is described," Krotov cited a scene of choral singing in the home of Professor Preobrazhensky from the film "Heart of a Dog" by Vladimir Bortko.
Mikhail Krotov also allows that an individual family might "worship itself" at home or conduct a one-off ritual—"God forbid a funeral, or a baptism." Krotov clarified that the law does not forbid such a thing. It is another matter to give access to a house or apartment for an on-going religious organization to which people who are not living at the address come also. "Of course, this raises great doubt," the president's representative thinks.
Krotov concluded that providing a building or land for regular ritualistic ceremonies for an unrestricted circle of persons acquires a public character, which is also indicated by a sign placed on the building, as does information in the Uniform State Register of Legal Entities. "As represented, in the event of an actual location of houses of worship in buildings and structures, there occurs a clear substitution of one form of permitted use of land by another," Krotov said.
Attorney Sergei Chugunov called attention to the references to family prayers. In reply to Krotov he cited another case of practice that also pertains to the appeal under consideration.
"Besides the administrative case, the prosecutor also issued a warning about the impermissibility of using residential premises for religious purposes. To which the pastor of that religious organization said to him: 'I am a person with many children. And if my children, with their families and children, visit there will be more than 50 of us, and we all are parishioners of a single church. So now am I not able to gather my family and celebrate a holiday and worship together?' To which he was given the reply: you can gather and you can celebrate and you will sing your songs—and we will hold you accountable for noncompliance. That's it, the practice of the application of the rules being challenged," the lawyer noted.
Now the parties of the proceedings in the Olga Glamozdinova case must await the decision of the Constitutional Court. (tr. by PDS, posted 11 October 2019)
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