CONSTITUTIONAL
COURT STUDIES CONDUCT OF CHURCH SERVICES IN RESIDENTIAL BUILDING
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
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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