On the controversial issues of the use of the term "sect" in legal acts (on the example of the Central Federal District legislation)

Sekretaryov Roman Viktorovich PhD in Philosophy Associate Professor at the Department of Private Law of Vladivostok State University 690014, Russia, Primorsky Krai, Vladivostok, Gogol str., 41, sq. 5502 rvsvldv@mail.ru Other publications by this author

Introduction

When preparing the article, the author used information from the commercial versions of the ATP "Consultant Plus" and "Consultant Plus. Regional issue". The full names of the legal acts under study and references to the sources of publications in printed form are available in these legal bases, as a result of which we believe it is possible not to specify the details of the relevant legal acts in the bibliographic section.

The author addressed the legal conflicts arising when using the term "sect" in various legal acts in 2005 ^[1] and 2022 ^[2]. However, the study of scientific literature shows that to date there are serious contradictions between various branches of humanitarian knowledge on this issue. In religious studies, history, sociology, and cultural studies, the term "sect" is actively used in relation to some religious organizations, which indicates an objective need for proper formalization of this concept by legal tools. However, Federal Law No. 125-FZ of 26.09.1997 "On Freedom of Conscience and on Religious Associations" (hereinafter — Federal Law No. 125-FZ) does not say anything about sects. At the same time, the Constitutional Court of the Russian Federation previously pointed to the right of the state "to provide certain obstacles in order not to grant the status of a religious organization automatically, to prevent the legalization of sects ..." (Resolution of the Constitutional Court of the Russian Federation No. 16-P of 11/23/1999; https://www.consultant.ru/document/cons_doc_LAW_25180 , accessed 04.10.2023). 

We are convinced that the disclosure of certain essential aspects of the phenomenon of "(religious) sect" is impossible without an appeal to modern scientific English-language (at least) publications. And only by the example of Western civilization this question cannot be solved. There is a significant number of studies devoted to the religious life of China, in which this phenomenon is analyzed.  Of particular interest here are the works of researchers such as David Ownby ^[3](https://doi.org/10.4000/assr.17633 , accessed 04.10.2023; https://journals.openedition.org/assr/17633 , accessed 04.10.2023) and Fenggang Yang ^[4] (https://www.tandfonline.com/doi/full/10.1111/j.1533-8525.2006.00039.x , accessed 04.10.2023).

The first of these researchers, following Dubois, noticed that the use of the terms "sect" or "sectarian" is not always justified in studies of Chinese folk beliefs. Yes, these terms have become generally accepted in Western religious studies, but in the case of Chinese realities, the situation is completely different, because they have many meanings that go beyond the pejorative context given to sects in popular and journalistic use.

In Young's work, the following remarkable concept draws attention to itself, the essence of which boils down to the following. Analyzing post-communist countries, the author points to rather strict rules governing state-confessional relations. However, only the activities of officially registered organizations can be regulated in detail. Other models of the manifestation of religiosity (in Russian realities, these are religious groups whose activities are regulated by Article 7 of Federal Law No. 125-FZ) are much more difficult to control. In this regard, Yang identifies the following levels of religiosity, calling them "markets". The Red Market includes all officially authorized religious organizations, beliefs and religious practices. The black market consists of organizations whose activities, beliefs and practices are officially prohibited (in Russian realities, these are organizations that have been liquidated in court, mainly for reasons of extremist activity). The gray market is religious and spiritual practices with an unclear status (in Russian realities, these are the so—called "new religious movements", in respect of which the relevant court decisions have not yet been made, but which have a non-zero chance of being banned in the future).

V. L. Benin and T. Z. Urazmetov attempted to conduct a contextual analysis and theoretical understanding of destructive religiosity ^[5]. These authors reasonably note that among the problems associated with the intensification of religious tension, religious extremism and terrorism are of the most important importance. It is impossible to disagree with the opinion that "the theory of religion and legal practice should interact to identify the destructiveness of religious associations and ideas." Therefore, the authors attempt to give a scientific definition of the phenomena "sect", "totalitarian sect", "destructive cult" and limit their use as religious categories.

In our opinion, since law mediates real social relations, it is impossible to consider these phenomena only from religious positions. We are convinced that in any case, the legislator (in the Russian Federation, first of all, the federal legislator) should attend to the proper legal regulation of the above—mentioned phenomena.

The relevance of the research we have undertaken seems to be very high, including because the scientific understanding of various aspects of non-traditional religiosity is undertaken by representatives of different branches of humanitarian knowledge, however, without connection with legal realities, the value of such research, in our opinion, is significantly reduced.

Thus, T.S. Pronina and Yu.S. Fedotov devoted their work to the problem of typologization of religious associations ^[6] (https://cyberleninka.ru/article/n/problema-tipologizatsii-religioznyh-obedineniy/viewer , accessed 04.10.2023). The authors consistently, in compliance with historical chronology, present the approaches of sociologists on the discussed issues.

In the introductory part of the article, the researchers justify the use of the term NSD (new religious movements) as a neutral alternative to the terms "sect" and "cult". It is noted that these terms, supplemented with the attributes "totalitarian" and "destructive", have a negative connotation, and this does not contribute to the observance of objectivity in conducting scientific research. We cannot disagree with this statement, since the negative connotations of the terms "sect" and "cult" in Russian realities are well-known.  But analyzing the opinions of the classics of sociology (M. Weber, E. Trelch, R. Niebuhr and other later authors), T. S. Pronin and Y. S. Fedotov do not cite as an example any organization that they include (or are ready to include) in the category of new religious movements! The authors conclude the article with the following conclusion: "the field of activity in the field of typologization of religious associations, as a hundred years ago, is very extensive and practically has no borders."

And here we cannot disagree with respected religious scholars who use sociological tools in their work. At the same time, we see the reason for the presence of such an "extensive field" in the following. Any attempt to classify or typologize religious organizations on the basis of "unconventionality" in relation to the current Russian legal order is doomed to failure in advance. Possible classifications of religious associations are given in the second chapter (articles 6-13.1) Federal Law No. 125-FZ. And attempts to label any legal entity registered in accordance with the requirements of the said federal law as a "sect" or "cult" may lead to a reaction in the form of a lawsuit to refute false information. Of course, we take into account the peculiarities of Russian law enforcement (taking into account our own accumulated experience of judicial representation), but in this case we proceed from the ideal idea of "how it should be", and not from the sobering "how it can actually be".

An attempt to determine the characteristics of sectarianism from a sociological standpoint was made by E. S. Boeva ^[7]. In her opinion, the distinctive features of sectarianism are asociality, totalitarianism, locality and active missionary work. We believe that in one way or another, particular examples confirming these E. S. Battle signs can be found in traditional religious organizations in Russia. However, religious studies analysis is not included in the subject of this study; in addition, we believe that excessively broad generalizations are not correct in the case under consideration, because "there are spots on the Sun". Although we will stop at the last of the signs. In the Belgorod region (part of the Central Federal District) there is a Belgorod Orthodox Theological Seminary with a missionary orientation (official website — http://bel-seminaria.ru , accessed 04.10.2023). In the vast majority of Orthodox dioceses, various missionary activities are periodically carried out in order to improve the skills of missionaries. Proceeding from the logic of E. S. Boevoy, should we attribute the ROC MP to the number of sectarian organizations for the motive of having active missionary work? The answer is obvious — no, by no means. The signs of sectarianism proposed by the mentioned author are not very successful and, in our opinion, do not reveal the essence of sectarianism.

The author of another article, which contains a judgment that a certain organization is a "sect", is P. Bochkov. The article is devoted to the history of the "Orthodox Church of the Mother of God Sovereign", colloquially often referred to as the "Theotokos Center". The author believes that this organization is a non-canonical pseudo-Orthodox group. Without questioning the reliability of the facts given in the article regarding the activities of this organization, we note the following.

According to P. Bochkov, previously the Moscow Theological Academy of Simeon the New Theologian operated in Moscow, which had a state license for educational activities and trained personnel for the Bogorodichny Center. We were unable to find information about the registration of the named academy in the Unified State Register of Legal Entities. But there are data on the state registration of the Centralized religious organization "Orthodox Church of the Mother of God of the Sovereign" (TIN 5027065460) in the Unified State Register of Legal Entities. In addition, P. Bochkov claims that for the adherents of the "Bogorodichny center" of the ROC MP it is "a withered branch of Orthodoxy", "an ugly confessional education, ... the council of the wicked." The author of the mentioned article systematically and consistently calls the supporters of the "Theotokos Center" sectarians, the organization is a sect, and its belief system is heresy. Since the theological or religious studies analysis of the activities of an organization is not part of the author's task, we will not dwell in detail on these arguments of P. Bochkov. But, taking into account more than a decade of experience in teaching the disciplines of "New Religious Movements" and "Modern non-traditional religious movements" in higher education on educational programs in the field of theology and religious studies, we note that it probably makes sense to raise the question more broadly and talk about such a phenomenon as "quasi-religious organizations". At the same time, we think of the concept of a "quasi-religious organization" as much more voluminous in comparison with heretical movements.

In relation to the stated object of research, we are interested in the legal assessment of the phenomena of religious life and state-confessional relations. But from the point of view of law, the situation looks completely different than it seems to P. Bochkov. The legal status of the centralized religious organization "The Orthodox Church of the Mother of God of the Sovereign" (TIN 5027065460) is indistinguishable from the legal status of the religious organization the Russian Orthodox Church (TIN 7704277940). Is such legal regulation optimal? In our subjective opinion, no. Does such regulation comply with generally accepted international standards? Objectively, neither is it. In Western civilization, there are various state-confessional models that provide certain preferences to the "majority religions", as well as providing for a different amount of rights and obligations of specific religious organizations, depending on the historical and cultural context. By the way, not in all countries of the Western world, any interested figures can obtain the status of a religious organization for the movements they promote. You can believe as you please, if the norms of public law and order are not violated. But the presence of an original belief system does not always mean the possibility of obtaining a formal religious status for a particular legal entity, these are the rules. And we will not argue that such rules are bad.

Having substantiated the theoretical basis of the study, we turn directly to the analysis of legal acts of the Central Federal District. Their study (using, we will repeat intentionally, the commercial version of the ATP "Consultant Plus. Regional issue") shows that such concepts as "sect", "totalitarian sect", "cult", "destructive cult" have already been quite widely included in the array of legal acts of the appropriate level.

Here, first of all, the abundance of municipal legal acts regulating youth policy attracts attention. Various municipalities are stamping legal acts with instructions to prevent the influence of religious sects on the receptive minds of the younger generation. However, the author's experience in the executive authorities of Primorsky Krai in 2002-2004 and 2016-2023 suggests a significant probability that there are standard models at the level of specific subjects of the Russian Federation, on the basis of which an appropriate legal framework is adopted in a separate municipality.  And this, we believe, is the right solution that allows us to unify the legal acts of one region and significantly reduce the number of flaws in terms of legal technology, which often affects municipal legal acts.

In the Voronezh region, when approving the regional education development program for 2001-2005, they pointed out the need to "organize work with students, university students, colleges and students of SPTU participating in actions of extremist groups, destructive activities of religious sects." However, the wording used causes a number of serious complaints. So, if some young people are involved in the activities of extremist groups, then it is necessary not to organize work with them, but to bring them to justice under Federal Law No. 114-FZ of 25.07.2002 "On countering extremist activity". Yes, the program mentioned earlier was adopted a year earlier than the law, but nothing prevented us from promptly making the necessary edits to the program.  And it is not clear which activity and which sects are destructive. Should destructive activity (expressed, for example, in calls to abandon TIN) be allowed by traditional religious entities? These are rhetorical questions.

In September 2006, an interdepartmental plan for organizing work with informal youth associations was approved in the Moscow Region. The main message of this plan was directed against the adherents of Satanism. Other "sects" that have a detrimental effect on young people were not named in the text of the document. In our opinion, this has reduced the practical significance of the announced measures, since in order to implement the interdepartmental plan, its executors must have a clear understanding of who exactly they are fighting against, who they are opposing, which measures in this situation will be sufficient from an essential point of view and legitimate from a formal point of view.          A similar program was approved in 2009 in the Krasnogvardeysky district of the Belgorod region. 

Similar programs on youth policy are adopted quite often in the Central Federal District. So, in the Kozelsky district of the Kaluga region, mention of "sects" is found in the youth programs of 2013 and 2019.  Similar programs containing the concept of "sect" without a substantive interpretation were adopted in Bogorodsky district of the Tula region in 2014, in Ukholovsky urban settlement and in Alekseevsky rural settlement of the Saraevsky municipal district of the Ryazan region in 2018 and 2019, respectively. In the Orel region, it was considered necessary to mediate public relations using the term "sect" by the administration of the Livensky district in 2015, and the administration of the city of Mtsensk in 2017.

In 2010, in the Yelets municipal District of the Lipetsk region, the administrative regulations on the provision of the state service "Social services at home for elderly and disabled citizens" were approved. The specified regulations provide, among other things, rules of conduct for recipients of social services. In particular, the recipient of the service should not "allow unauthorized persons to be in his household (apartment) in a state of alcoholic (narcotic) intoxication, holding meetings of members of religious sects." Since there is no legal definition of "religious sects" in the regulations, of course, the following logical questions arise. On what basis does the municipality approve the rules of conduct of citizens who are in their homes? Who and in what order will determine whether citizens belong to religious sects? It is well known that various Protestant organizations often conduct active social activities. If Baptists or Adventists come to an elderly person or a disabled person, help clean up the apartment, bring food and talk about pressing problems, will this be a reason for stopping the provision of the mentioned public service?

In our opinion, such legal regulation is illegal, cynical and immoral. The municipality clearly exceeds its authority by defining the rules for the provision of public services in this way. It is hardly possible to put into practice the administrative regulations in this part, but it is quite suitable as a propaganda tool. Since we could not detect the reaction of the prosecutor's office, we note the obvious flaw of the supervisory authorities in this case.

In 2011, in Ryazan, the protocol instruction of the head of the city indicated not to allow the leasing of municipal institutions to religious associations in order to prevent the penetration of sects of a totalitarian nature into the educational, social and cultural sphere of the region. From a legal point of view, this is a very dubious decision, because it is not clear how, in the opinion of the Ryazan head, "sects of a totalitarian nature" differ from ordinary religious associations? And why should respectable religious associations tolerate infringement of their rights on the grounds of hypothetical penetration of certain "sects of a totalitarian nature" into municipal institutions? Is, according to the head of Ryazan, the ROC MP among those religious associations that are subject to a protocol ban on the conclusion of lease agreements of municipal property?  Or does the named protocol instruction take the ROC MP out of brackets and officials are not prohibited from interacting with this structure? Also, the attribute of "totalitarianism" in relation to sects does not seem to be specific. Apparently, the Ryazan official believes that in Russia there are both "totalitarian sects" and "sects" that are not totalitarian? There are too many questions that arise, which are unlikely to be answered in the Ryazan municipality.

Resolution of the head of the Sergiev Posad urban settlement No. 390-p dated 29.09.2016 approved the regulations for the consideration of citizens' appeals. One of the codes of the regulations provides for the classification of appeals regarding the activities of "totalitarian sects".  However, if Federal Law No. 125-FZ does not disclose this concept, how should the relevant official, whose powers include registration of incoming correspondence, understand that this or that appeal concerns the activities of "totalitarian sects"? And an error in registering incoming correspondence is fraught with the hypothetical possibility of bringing an official to disciplinary responsibility and subsequent court proceedings. At the same time, measures of prosecutorial response may be applied to the head of an urban settlement upon the signing of a municipal legal act containing corruption-causing factors (arbitrary use of concepts not provided for by federal legislation).

It is possible to note the use of the term "sect" in the regulation of relations in the educational sphere. Thus, by order of the Moscow Department of Education in June 2018, 2 million rubles were allocated to one of the higher educational institutions of Moscow for seminars on the topic "The role of education in the prevention of extremism and the involvement of young people in the activities of religious sects and radical groups." Since budgetary funds were allocated for this event, questions arise — what "religious sects" did Moscow officials have in mind when allocating such a grant, how did they check the intended use of the allocated funds, what package of documents were required from grant recipients to prove that preventive measures were carried out exactly on the stated topic?  Consequently, by allocating budgetary funds to finance this expenditure measure, the GRBS (the chief administrator of budgetary funds, see Article 158 of the BC of the Russian Federation) allowed legal uncertainty in its order, without clearly delineating the range of subjects in respect of which it was necessary to carry out preventive measures. The controlling and supervisory authorities (the prosecutor's office and the regional accounting chamber) could well have asked the question — against which specific organizations are these measures directed? How did Moscow officials determine whether this or that organization is a "sect" or not?

We believe that the selection of municipal legal acts presented by us is quite representative, although the number of municipal legal acts adopted in the Central Federal District and including the term "sect" in a negative context can be significantly increased.

As a result of the analysis of the legal acts of the Central Federal District on the regulation of public relations using the term "sect", taking into account the accumulated foreign experience in a comparative legal context, we came to the following conclusions.

1. The term "sect" is currently de facto implemented in Russian legislation on freedom of conscience (Article 2 of Federal Law No. 125-FZ) through regional legislation. This thesis is confirmed, among other things, by the relevant legal acts of the Central Federal District. We came to similar results in 2022, analyzing the legal acts of the Far Eastern Federal District on the declared topic. Consequently, the use of the term "sect" in the corpus of legal acts of regional legislation (in a broad sense) it is systemic, not isolated, in nature.

2. We consider it appropriate to use the term "implementation" to characterize the legal relations mentioned in the article, since the legal grounds for using the term "sect" were, again, given in the Resolution of the Constitutional Court of the Russian Federation dated 11/23/1999 No. 16-P. However, from the point of view of legal technique, the implementation of the internationally recognized term "sect" into Russian legislation at the lowest level in the hierarchy of legal acts on freedom of conscience, i.e. at the level of regional legal acts, without making appropriate amendments to the Civil Code of the Russian Federation, Federal Law No. 125-FZ (and ideally - to the Constitution of the Russian Federation), seems very doubtful.

3. The absence of a legal definition of "sect" in Federal Law No. 125-FZ prevents, in our opinion, the correct use of this term in regional legislation, both in terms of the requirements of legal technology and in essence. Using this term rather in the everyday sense, the regional legislator, in our opinion, often crosses the line of legality. In pursuit of seemingly good goals, he often violates the fundamental rights of the most vulnerable categories of citizens; for example, he makes the receipt of public services in the social sphere by citizens dependent on their religious beliefs, which, in our opinion, violates Article 28 of the Constitution of the Russian Federation.

4. Point changes to the legislation on freedom of conscience, in our opinion, the existing problems with not always correct use of the term "sect" will not solve. We believe that the whole system needs to be changed. The system of state-confessional relations in Russia. Yes, human rights are a great value. But one should not confuse the realization of human rights, including the right to freedom of conscience, with equalization in the religious sphere. It must be recognized that the existing regulation of state-confessional relations is not optimal. At the same time, we are convinced that the hypothetical implementation of our proposal to consolidate the term "sect" at the federal level should not lead to excessive protectionism in favor of the ROC MP on the part of the state. However, this problem already goes beyond the scope of the subject of the undertaken research and needs additional independent study.