Actual Problems of Russian Legislation on Freedom of Conscience in the First Quarter of the XXI Century.

IntroductionThe necessity of the undertaken research is caused by the gaps in the legal regulation of state-confessional relations, which, in our opinion, are quite definitely visible at the present time.

Some authors point out the existing problems in the legal regulation of these relations. Of interest is the monograph by I. Z. Ayusheeva ^[1], which examines the concept and essence of religious organizations as subjects of civil law in the Russian Federation, and also gives a civil-legal characteristic of the property status and activities of religious organizations.

At the same time, the author pays almost no attention to the specifics of religious studies, focusing on positive law. Although the author failed to completely avoid religious content. Thus, she notes that religious organizations are "earthly analogues of the heavenly version." This assumption is based on the principle of good faith of subjects who operate in the religious sphere. However, the question is legitimate - and what are the analogs of those religious organizations whose founders abuse the right and register religious organizations in order to cover up commercial activities? We believe that critical thinking in the legal assessment of religious phenomena is mandatory, since various abuses in this area often take place (as confirmation, we can cite the monumental study of 2022 undertaken by Deacon Andrey Kuraev ^[2]).

The article by sociologists E. A. Petrova and N. M. Baradina is devoted to the phenomenon of destructive religious sects, cults and non-traditional religious organizations ^[3].

The authors point out that, based on the monitoring, they have typologized and classified the main varieties of sects, cults and non-traditional religious organizations. At the same time, the absence of such legal definitions as "cult" and "sect" at the level of federal legislation is not an obstacle to such research work. A. G. Semashko pointed out the need for legal regulation of the activities of destructive religious organizations ^[4].

The conclusion that the approach to the characterization of the legal status of public organizations and religious organizations is not uniform in the legislation at the moment is contained in the article by Yu. Yu. Vorobyeva ^[5]. She also comes to similar conclusions in another publication with the same name ^[6].Consequently, at the everyday level (as well as in other humanities - sociology, political science, history), the use of the previously mentioned definitions does not cause any difficulties.

Even people who are far from religion intuitively understand what is meant by the terms "church" and/or "sect". Hearing the phrase "we went to church yesterday," even a person indifferent to religion will understand that it is unlikely that we are talking about a Baptist or Pentecostal prayer house here. However, if you ask the average person without special knowledge in the field of law, the question of how totalitarian sects differ from ordinary sects, or how a destructive cult differs from just a cult, there will be much less clarity. These questions will lead us into the realm of assumptions and fictions.Federal Law No. 125-FZ has been in force in Russia since 1997.

However, the legal regulation of missionary activity in Russia at the federal level was implemented only in 2016, after the introduction of Chapter III into Federal Law No. 125-FZ.1 "Missionary activity". This chapter was introduced by Federal Law No. 374-FZ dated 06.07.2016 "On Amendments to the Federal Law "On Countering Terrorism" and Certain Legislative Acts of the Russian Federation regarding the Establishment of additional measures to counter terrorism and ensure public safety." Here, the legal and technical solution of the domestic legislator seems very remarkable. Amendments to the law on freedom of conscience are being made through the amendment of legislation on terrorism, and more than 20 years after the adoption of Federal Law No. 125-FZ. Was it necessary to wait 20 years to settle an issue that undoubtedly requires proper legal regulation? The preamble of Federal Law No. 125-FZ states that the state recognizes the special role of Orthodoxy in the history of Russia, in the formation and development of its spirituality and culture, and also respects Christianity, Islam, Buddhism, Judaism and other religions that form an integral part of the historical heritage of the peoples of Russia.

This preamble causes critical comments from scientists. So, A. A. Isaeva believes that the preamble is formulated incorrectly ^[7]. This remark, in our opinion, is not entirely fair, since the contribution of Orthodoxy to the history of Russia is obvious and can hardly be argumentatively challenged by anyone. But, since the aforementioned preamble is declarative in nature and has not received its logical development in the subsequent codification of legislation, the problem really exists.There are no preferences for Orthodoxy in the text of Federal Law No. 125-FZ.

Moreover, the law does not even specify which jurisdiction is in question, whose particular role is recognized. According to the meaning of the law, it can be assumed that the legislator meant by Orthodoxy "The religious organization of the Russian Orthodox Church" (TIN 7704277940). One of the most authoritative experts in the field of new religious movements in Russia is A. L. Dvorkin.

His book "Sectology. Totalitarian sects. The experience of systematic research" ^[8] is the main textbook for studying courses related to new religious movements by students of religious studies and students of theology. The main information resource on the Internet on this issue is the website of the center in the name of St. Irenaeus of Lyon (https://iriney.ru /). The site has a section "Distortion of Orthodoxy and near-Orthodox sects". But what legal meaning does the term "near-Orthodox sect" have? Who has the right to determine whether this or that organization is truly Orthodox or "near-Orthodox"? What are the legal consequences for recognizing a particular legal entity as a "near-Orthodox sect"? Among the distorting ones (according to the site owners iriney.ru ) the Orthodox faith and/or being "near-Orthodox sects" is cited by priest Anatoly Garmaev.

On the website www.iriney.ru there are a number of materials criticizing this clergyman, and not only his theological (theoretical) views are criticized, but also specific practices ^[9]. At the same time, priest Anatoly Garmaev, until his death in March 2021, was the rector of the local religious organization Orthodox parish of the Church of the Forty Martyrs of Sebaste in Volgograd (INN 3448022450) [1 0]. From the point of view of the scope of rights and obligations available to the named local religious organization, its status does not differ in any way from the legal status of tens of thousands of other local religious organizations. And criticism (even from very media figures of the Russian Orthodox Church) is only an expression of private opinion, which does not entail any legal consequences.

In addition, in the Unified State Register of Legal Entities, you can find information about the following legal entities: Centralized religious organization – Russian Orthodox Autonomous Church (TIN 3310003818); Centralized religious organization True Orthodox Church (TIN 7709429106);Egiderevskaya Russian Orthodox Church (TIN 1615000938); Centralized religious organization "Apostolic Orthodox Church" of the Republic of Buryatia (TIN 0313004211); Centralized religious organization Bogorodskaya diocese of the Ukrainian Orthodox Church (TIN 5031028862); Centralized religious organization Kaluga diocese of the Metropolitan Orthodox Catholic Church (TIN 4025076993); Centralized religious organization Moscow Archdiocese of the Metropolitan Orthodox Catholic Church (TIN 772827516 2). The above list of Orthodox legal entities is not exhaustive, when preparing the article, the author chose legal entities that are active (as of August 2022), although the Unified State Register of Legal Entities contains information about legal entities with similar names that have already ceased their activities.

Despite the fact that the names of these organizations contain the word "Orthodox", from a religious (or theological) point of view, their status is not unambiguous.

It is necessary to distinguish whether a particular legal entity is part of world Orthodoxy (which manifests itself primarily through mutual recognition of the sacraments) or whether we are facing some exotic new model. Since the law allows you to register a legal entity and call it "Orthodox", will this mean that the state legally recognizes the special role of such organizations in the history of Russia? But in the legal field of modern Russia, it is almost impossible to draw a clear and unambiguous legal distinction between traditional Orthodoxy and mimicry under Orthodoxy.

Here it is possible to see the presence of corruption-causing factors that establish unreasonably wide discretion limits for the law enforcement officer or the possibility of unjustified application of exceptions to the general rules, as well as provisions containing vague, difficult and (or) burdensome requirements for citizens and organizations and thereby creating conditions for corruption [1 1, 1 2]. If an organization considers itself Orthodox in the traditional sense, then, at a minimum, it should have a traditional leadership structure, since there are internal regulations of religious organizations (Article 15 of Federal Law No. 125-FZ).

The head of an administrative unit at the level of a diocese (archdiocese, metropolis, patriarchate) in Orthodoxy is a bishop (archbishop, metropolitan, patriarch are bishops, respectively, of the archdiocese, metropolis, patriarchate). According to Chapter XVII of the Charter of the Russian Orthodox Church, "A parish is a community of Orthodox Christians consisting of clergy and laity united at the temple.

The parish is a canonical subdivision of the Russian Orthodox Church, is under the supervision of its diocesan bishop and under the guidance of a priest-rector appointed by him" [1 3]. That is, in traditional Orthodoxy (with reference to the preamble of Federal Law No. 125-FZ), it is the priest who is at the head of each local organization. The study of the management structure in the previously named organizations shows the following.

The "Russian Orthodox Autonomous Church" is headed by the chairman of the Synod of Bishops. The Synod of Bishops is a traditional structure for Orthodoxy, but somewhat strange (from the point of view of the hierarchical structure) that it is headed not by the corresponding bishop, but by a secular "chairman".

In the True Orthodox Church (INN 7709429106), they decided to put the primate as the head. In the Orthodox tradition, "primate" is the unofficial name of the head of the church structure, who has the episcopal dignity. Through the use of informal terminology in official documents, the effect of authenticity is achieved, it is shown that this organization is part of world Orthodoxy, and not a new model. To eliminate any doubts to the contrary, the name of the legal entity indicates the truth of Orthodoxy of this institution. A very simple logic - who is not with us is outside the truth. But does the state, represented by the registration authorities, have the right to determine which of the religious organizations is true and which is not? Of course, in fact, the state does not interfere in theological discussions and does not act as an arbitrator between "true" and "not true" Orthodoxy. Although the state must verify the accuracy of the information provided during the state registration of a legal entity. At the same time, submission of documents containing false information entails refusal of state registration by virtue of subparagraph "X" of paragraph 1 of Article 23 of Federal Law No. 129-FZ dated 08.08.2001 "On State Registration of Legal Entities and Individual Entrepreneurs". A reasonable question arises - why does the state register religious organizations with an indication of "truth" if it has no way to verify it? And is there any abuse of the right (paragraph 1 of Article 10 of the Civil Code of the Russian Federation) on the part of the organization itself? The head of the Egiderevskaya Russian Orthodox Church (INN 1615000938) is the headman.

And the specified church is located in the village of Egiderevo in the Verkhneuslonsky district of Tatarstan. The following is noteworthy here. In modern Russian realities, in order to create a church, it is enough to collect the necessary documents, elect a headman (following the example of Protestant communities), and register an independent legal entity. This organization has nothing to do with the ROC MP, but formally it is Orthodox. The head of the Centralized religious organization "Apostolic Orthodox Church" of the Republic of Buryatia (TIN 0313004211) is the chairman.

It is quite a secular position that a woman can hold. And not only can, but actually takes. Trofimova Pelageya Ermolaevna, Chairman of the Apostolic Orthodox Church of the Republic of Buryatia. From the point of view of law, everything is legal. From the point of view of the canons of traditional Orthodoxy, this is nonsense. A woman cannot head a centralized Orthodox organization, if we talk about traditional Orthodoxy. The centralized religious organization Bogorodskaya diocese of the Ukrainian Orthodox Church (TIN 5031028862) looks like a traditional Orthodox organization according to the documents.

It is headed by Old Valentin Yegorovich, the administrator of the diocese (according to the Unified State Register of Legal Entities). According to the official website, V. E. Starina is a metropolitan [1 4]. In the Orthodox tradition, a metropolitan is the head of a metropolis, i.e. a large diocese, which may include several separate dioceses headed by bishops. The official website of the named metropolis claims that V. E. Starina directs not only the Bogorodsky diocese, but also parishes on the territory of the Russian Federation. This organization is located in Noginsk, near Moscow, in Pharmacy Lane, 3 (according to the Unified State Register of Legal Entities). However, in the help system "DoubleGIS. Noginsk" no religious organization is listed in Pharmacy Lane, 3. The three-storey office building houses a branch of Sberbank, dry cleaning, dentistry, several insurance organizations, a labor exchange, a social insurance fund, a travel agency, a state statistics department, a psychotherapist's office and a family psychologist, as well as a lawyer's office and a professional development center. But it will not be possible to find the diocesan structure at the named address. Many information sites call the Bogorodskaya diocese of the UOC-KP schismatic. In response to a request from RIA Novosti, the Ministry of Justice of the Russian Federation indicated that the Bogorodskaya diocese is not part of any centralized organization, but is independent [1 5]. Here again, a conflict is seen - can a schismatic (based on canonical norms) church, headed by an individual calling himself a metropolitan, claim a "special role of Orthodoxy in Russia"? Although in the extract from the Unified State Register of Legal Entities in relation to the Bogorodsky Diocese of the UOC, affiliation to the CPC is not indicated in any way, and there is no religious building at the registration address (Noginsk, Pharmacy Lane, 3), this organization still conducts religious services.

As follows from the correspondence of the head of the organization V. E. Starina with state and municipal authorities [1 6], as well as from the data of the "DoubleGIS. Noginsk", the church of the Bogorodsky diocese of the UOC is actually located in Noginsk on Zharova Street, 18. The architectural style of this temple, judging by the freely available photos, can be described as a "residential cottage". However, the interior of this building is designed specifically for religious services and is no different from thousands of Orthodox churches in other jurisdictions. But, as follows from the decision of the Noginsk City Court in civil case No. 2-1335/2016, this religious building was built on a plot of land intended for individual housing construction and recognized by the court as an unauthorized construction.

However, despite the court decision that has entered into force, as of August 2022, there is no data on its actual execution.

The centralized religious organization of the Kaluga Diocese of the Metropolia of the Orthodox Catholic Church (TIN 4025076993), according to the author, also cannot be attributed to the traditional. Despite the magnificent name in the Byzantine style, this organization has nothing to do with traditional Orthodoxy, it was established in 2003, and, despite its centralized status, is headed by a modest rector. As of January 2020, this is Alexey Dmitrievich Kurakhtin (TIN 772033017945). And in Orthodoxy, the abbot is the head of a separate parish or monastery, but not of a centralized structure. According to the author, the presence of the attribute "Orthodox" in the name of the organization is capable of misleading third parties regarding the actual status of the specified legal entity. The above considerations also apply to the centralized religious organization of the Moscow Archdiocese of the Metropolitan Orthodox Catholic Church (TIN 7728275162).

According to the Unified State Register of Legal Entities, it is headed by two people who have the same status - "head of a legal entity", without any additional transcription and. Moreover, one of the leaders is also Alexey Dmitrievich Kurakhtin, whose INN is not specified in the extract from the Unified State Register of Legal Entities. It is possible that this is the same person who heads the Kaluga diocese of the Metropolitan Orthodox Catholic Church. If our assumption is correct, then either we managed to find a unique case of a citizen simultaneously heading two completely different Orthodox jurisdictions at once, or there are grounds for concluding that the right was abused (clause 1 of Article 10 of the Civil Code of the Russian Federation). In our opinion, rather the second. Taking advantage of the imperfection of Russian legislation, enterprising citizens register "centralized religious organizations", mimicking a well-known brand. The place of registration of the Moscow Archdiocese of the Metropolitan Orthodox Catholic Church is also noteworthy - Moscow, Tverskaya Street, apartment 25. That is, an apartment in a historic residential building in the very center of Moscow.

From the available data, it is not clear exactly where this organization conducts religious services and what relation it has to Orthodoxy (except for the name). In 2005, the author has already addressed the problem of the legality of the use of the term "sect" in Russian legislation ^[1-7].

In particular, the article noted that the Constitutional Court of the Russian Federation, considering the case on checking the constitutionality of the third and fourth paragraphs of paragraph 3 of Article 27 of Federal Law No. 125-FZ in connection with the complaints of the religious society "Jehovah's Witnesses" in Yaroslavl and the religious association "Christian Church of Glorification", indicated that the state has the right to provide for certain barriers in order not to grant the status of a religious organization automatically, to prevent the legalization of sects that violate human rights and commit illegal and criminal acts. In substantiating this thesis, the Constitutional Court referred to the decision of the European Parliament of February 12, 1996. "On Sects in Europe", Council of Europe Recommendation No. 1178 (1992) "On Sects and New Religious movements", as well as decisions of the European Court of Human Rights of May 25, 1993 and September 26, 1996.In addition, the Resolution of the European Parliament of February 12, 1996

"On Sects in Europe" calls for effective use of existing legal acts and instruments at the national level in order to counter violations of fundamental rights for which sects are responsible, strengthen mutual exchange of information in order to combine information about the phenomenon of sectarianism, calls on States to be vigilant to prevent sects from receiving state aid and ^[18]. Over the past time, the legislation of the Russian Federation regulating the legal status of religious organizations has not changed dramatically.

At the same time, at the level of the subjects of the Russian Federation and at the level of municipalities, a significant number of regulatory and administrative acts have been adopted, in which the concepts of "(totalitarian) cult" and "(destructive) sect" can be found. A detailed analysis of the use of the above terms goes beyond the scope of a scientific article and can become the subject of independent research, so now we will limit ourselves to reviewing the legislation of the subjects of the Russian Federation that are part of the Far Eastern Federal District.

Thus, various variants of the definition of "sect" are found in municipal legal acts of the cities of Artem, Zeya, Komsomolsk-on-Amur, Neryungri, Khabarovsk. At the regional level, these terms are found in the legislation of the Trans-Baikal Territory, the Magadan Region and the Chukotka Autonomous Okrug. In particular, such formulations as "illegal activity of religious sects", "activity of religious sects, often masquerading as public organizations", "destructive sects", "totalitarian religious sects" are used. When analyzing regional legislation, the author used the regional edition of the ConsultantPlus legal reference system as the main tool. Another problem that requires attention, in our opinion, is the observance of the labor rights of citizens working in religious organizations.

Paragraph 3 of Article 24 of Federal Law No. 125-FZ defines that citizens working in religious organizations under employment contracts are subject to the legislation of the Russian Federation on labor. But, as follows from the freely available information, the labor rights of this category of citizens are not always protected.Thus, in the framework of bankruptcy case No. A51-1167/2020 (judicial acts published in the file of arbitration cases - https://kad.arbitr.ru /)

the application of Berestenko A.V. for bankruptcy was considered. The court declared the citizen bankrupt, but one of the creditors (JSC CB "Let's go!") did not agree with the release of her from fulfilling obligations. During the court proceedings, it was established that Berestenko A.V. was not able to repay the debt to creditors in the total amount of 698,391.76 rubles. Berestenko A.V. did not have immovable and movable property, while her daughter was born in 2015. The debtor worked for hire, when making a loan agreement, Berestenko A.V. indicated in the application form that she had a monthly income of 30,000 rubles, including 15,000 rubles from activities as a chorister in the church.

However, according to the written evidence presented in the case materials, the average monthly income of the debtor per month was 4,200 rubles per month for 2017, 5,700 rubles per month for 2018, and 6,768 rubles for 2019. At the same time, the place of work was indicated in the Orthodox parish of the church of St. Nicholas in Vladivostok. The Court of Cassation instance agreed with the arguments of Berestenko A.V. that her actual income was more than indicated in the certificates on form 2-personal income tax and revised the conclusions of the courts of first and appellate instances about the dishonesty of the actions of Berestenko A.V. From the materials of case No. A51-1167/2020, it can be seen that religious organizations are not alien to the optimization of tax payments.

Based on the results of the study , the author came to the following conclusions:

1) The legislation of the Russian Federation should provide for legal definitions of "(totalitarian) cult" and/or "(destructive) sect".

The legal basis for this, in addition to the already mentioned Resolution of the Constitutional Court of the Russian Federation No. 16-P of 11/23/1999, is also the Definitions of the Constitutional Court of the Russian Federation No. 115-O-O of 25.01.2012 and No. 2793-O of 07.12.2017, in which this term is used. 2) The role of religious studies expertise in the Russian Federation should increase, and therefore it will be necessary to adjust the Procedure for conducting state religious studies expertise (approved by Order of the Ministry of Justice of the Russian Federation No. 53 "On State Religious Studies Expertise" dated 18.02.2009) in terms of giving expert bodies the authority to classify a legal entity as "(totalitarian) cults" and/or "(destructive) sects".

3) It seems very expedient to change the model of state-confessional relations in the Russian Federation.

It is logical to fix the mutual rights and obligations of the state and religious organizations in agreements (concordats), following the example of a number of European states (for example, Italy, Spain). Currently, cooperation agreements are often concluded at the regional level between executive authorities and dioceses of the Russian Orthodox Church, but they are of a framework nature and cannot affect the scope of the rights and obligations of the parties, since according to current legislation, the presence or absence of such an agreement does not change the legal status of religious organizations. If such agreements are given an official status, then, for example, social tax deductions can be fixed in them if a citizen decides to support a particular religious organization. Or provide for clearly regulated mutual obligations in terms of cooperation in the field of preservation of cultural heritage monuments.

4) In religious organizations, labor relations are not always formalized in strict accordance with the law. Often religious organizations, using methods of persuasion (more often) or coercion (much less often), try to encourage their adherents to work "for the glory of God", without proper registration of labor relations. Therefore, greater care is required on the part of the State in this area in relation to the protection of the rights of citizens, as obviously weaker subjects in disputes with religious organizations.