RUSSIA: Can homes now be freely used for worship meetings?
A Constitutional Court ruling may reduce fines for using private homes for meetings for worship. This largely relies on officials, one Christian lawyer stating that when he and his colleagues attempt to resolve cases "some [inspectors] work with common sense, others do not".
Glamozdinova argued that the house is also occupied as a dwelling by an acquaintance who also tends the crops on the plot, and the congregation uses the room for only four hours per week. The fine was upheld on appeal at both district and regional courts, but the Constitutional Court has now ruled that Glamozdinova's fine is subject to review because the law had been incorrectly applied in her case (see below).
The Court stated, however, that religious use of residential premises must take into account the rights and legitimate interests of residents and neighbours, and the requirements of health and safety and environmental protection legislation. The Court also stated that it would be "unacceptable" for a dwelling to lose the features of residential premises and acquire those of a religious or administrative building (see below).
This November 2019 Constitutional Court ruling may lead to fewer fines being imposed on religious organisations and individuals, but this will depend on Federal Service for State Registration, Cadastre and Cartography (Rosreestr) and other officials (who sometimes refer cases to Rosreestr) consciously taking a more nuanced approach.
Christian lawyer and human rights defender Vasily Nichik described in December how he and his colleagues meet Rosreestr inspectors and "present all the same arguments as in the courts" in an attempt to resolve cases. "Unfortunately, some [inspectors] work with common sense, others do not," he told Forum 18 (see below).
"Some words in the ruling do not have regulatory certainty," Nichik observed, "which leaves ample room for interpretation by state officials" (see below).
After previous Constitutional Court rulings affecting freedom of religion and belief, legal uncertainty remained and police and prosecutor's offices often fail to apply the Constitutional Court's rulings. These Constitutional Court rulings have nevertheless been used in court by defence lawyers and some judges to acquit those charged by prosecutors (see below).
Following the November 2019 Constitutional Court ruling, Rosreestr told Forum 18 that "when Rosreestr employees conduct inspections of compliance with land legislation on land plots used by religious organisations, the position of the Constitutional Court .. will be taken into account". It added that the ruling "has been sent to all territorial divisions of Rosreestr", and that, during inspections, staff will analyse whether a dwelling has lost the "signs of residential premises", as stipulated by the Constitutional Court (see below).
The ruling applies to all homes (the most common type of building used for meetings for worship), lawyer Sergei Chugunov explained to Forum 18, despite the Constitutional Court's focus on residential premises standing on "personal subsistence cultivation" plots. The ruling seems unlikely, however, to affect other types of premises, such as commercial buildings given or rented to religious associations to use for worship (see below).
The number of such fines relating to places of worship – 21 known fines in January to October 2019 – is relatively low, but has increased since 2016. One lawyer compared the legal situation to fining a driver whose passengers drink tea because a road is not designated for drinking tea (see below).
November 2019 Constitutional Court rulingBoth individuals and religious organisations risk being fined if they allow religious meetings, such as for worship, to take place on land not designated for this purpose – for instance, plots designated as being for "individual residential construction". Lawyers hope, however, that a November Constitutional Court ruling will help clarify Russia's confusing legal framework on meetings for worship outside officially-recognised religious buildings, and help both individuals and religious communities avoid fines.
On 14 November, the Constitutional Court stated that the provision of residential premises to religious organisations for worship and/or for use as a legal address "does not constitute a violation of the law and cannot serve as the basis for prosecuting citizens under Administrative Code Article 8.8" ("The use of a land plot not for its intended purpose in accordance with its belonging to a particular land category and/or authorised use").
The Court's examination of the constitutionality of Land Code Article 42 ("Duties of owners of land plots and persons who are not owners of land plots relating to the use of land plots") and Administrative Code Article 8.8, Part 1 resulted from the case of Olga Glamozdinova, a Seventh-day Adventist in Rostov Region.
Glamozdinova argued that house is occupied as a dwelling by an acquaintance who also tends the crops on the plot, and the congregation uses the room for only four hours per week. The fine was upheld on appeal at both Bagayevskaya District Court on 16 October 2017 and Rostov Regional Court on 21 November 2017.
In September 2018, Glamozdinova's Seventh-day Adventist Church voluntarily liquidated itself, as only a few elderly women remained; the younger people have all left as it is hard to live in the village. The remaining Adventists sometimes pray together in various houses.
Glamozdinova's lawyers, Vladimir Ryakhovsky and Sergei Chugunov of the Moscow-based Slavic Centre for Law and Justice, argued before the Constitutional Court that the Land Code and Administrative Code Article 8.8 Part 1 ("The use of a land plot not for its intended purpose in accordance with its belonging to a particular land category and/or authorised use") violated the Constitution's Articles:
- 28 ("Everyone shall be guaranteed the freedom of conscience, the freedom of religion, including the right to profess individually or together with other any religion or to profess no religion at all, to freely choose, possess and disseminate religious and other views and act according to them");
- 35 Part 2 ("Everyone shall have the right to have property, possess, use and dispose of it both personally and jointly with other people");
- 55 Part 3 ("The rights and freedoms of man and citizen may be limited by the federal law only to such an extent to which it is necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, for ensuring defence of the country and security of the state").
The Court reiterated that, as the Religion Law states, "worship services, religious rites, and ceremonies may be performed unhindered" in dwellings, and noted that this is "consistent with the purpose of residential premises, which are called upon to satisfy not only the material requirements of citizens, but also their spiritual interests as an integral element of personal development and fulfilment, including the spiritual needs of believers, realised on the basis of freedom of religion".
The Court also pointed out that registration of a religious organisation at a residential address is permissible, as it "does not necessarily mean the transformation of a dwelling into the administrative (official) premises of a religious organisation, and therefore does not inevitably lead to the improper use of the land under it".
The Court noted, however, that religious use of residential premises must take into account the rights and legitimate interests of residents and neighbours, and the requirements of health and safety and environmental protection legislation. The Court also stated that it would be "unacceptable" for a dwelling to lose the features of residential premises and acquire those of a religious or administrative building.
Consequences of November 2019 Constitutional Court rulingIn the short term, the November 2019 ruling can now be used to review Glamozdinova's and other cases in which the Land Code and Administrative Code Article 8.8, Part 1 ("The use of a land plot not for its intended purpose in accordance with its belonging to a particular land category and/or authorised use") were not applied in line with the constitutional and legal meanings clarified by the Constitutional Court judges.
In the longer term, state officials and law enforcement "must", the Court ruled, "proceed from the totality of factual circumstances that indicate the transformation of a dwelling into a religious or administrative (official) building" – that is, establish whether the premises have completely lost the characteristics of residential premises and have acquired "the signs of a religious or administrative building".
The Federal Service for State Registration, Cadastre and Cartography (Rosreestr) is responsible for inspections, and fines both religious organisations and their members under Administrative Code Article 8.8, Part 1 ("The use of a land plot not for its intended purpose in accordance with its belonging to a particular land category and/or authorised use") for conducting or permitting worship on land which been classified as being for residential (or other) and not religious use.
The Constitutional Court ruling may lead to fewer fines being imposed on religious organisations and individuals, but this will depend on Rosreestr and other officials (who sometimes refer cases to Rosreestr) consciously taking a more nuanced approach.
When the Constitutional Court has previously issued rulings or clarifications of legal issues affecting religious communities (for example, on public event notification in December 2012 and on the definition of "missionary activity" in March 2018), it has been clear from Forum 18's subsequent analyses of court verdicts that police and prosecutor's offices, at least, often fail to apply the Constitutional Court's stipulations. Where the Constitutional Court's rulings have been more consistently helpful to religious communities and believers has been in court, where they may be invoked in defence arguments and cited by judges as grounds for acquittal.
On 28 November 2019, Rosreestr told Forum 18 that "when Rosreestr employees conduct inspections of compliance with land legislation on land plots used by religious organisations, the position of the Constitutional Court .. will be taken into account". It added on 3 December that the ruling "has been sent to all territorial divisions of Rosreestr", and that, during inspections, staff will analyse whether a dwelling has lost the "signs of residential premises", as stipulated by the Constitutional Court.
The ruling applies to all homes (the most common type of building used for meetings for worship), lawyer Sergei Chugunov explained to Forum 18 on 25 November, despite the Constitutional Court's focus on residential premises standing on "household farm plots". The ruling seems unlikely, however, to affect other types of premises used for meetings for worship, such as commercial buildings given or rented to religious associations.
In his evaluation of the Constitutional Court ruling, lawyer Vasily Nichik noted: "It is necessary to petition the state to lift the ban on transferring premises from residential to non-residential status for the activities of a religious association," as well as to simplify the process of changing the permitted use of a plot to "religious", and allocate land with the purpose of "religious use" in accessible locations.
March 2018 Constitutional Court rulingIn March 2018 the Constitutional Court defined "missionary activity" more closely, but this has had only a limited impact on the cases brought by prosecutors.
As Mikhail Shakhov, Deputy Head of the Duma Committee on the Development of Civil Society, Public and Religious Associations' Expert Group on improving legislation in the field of freedom of conscience and religious associations, told "Nezavisimaya Gazeta" on 20 November 2019, inconsistency and opportunities for arbitrary official actions remain.
"Our law says quite clearly that missionary activity is the activity of a religious association aimed at turning a person who is not a member or participant of the organisation into a member or participant," Shakhov noted, yet "the law does not explain anywhere who members or participants are, or how one differs from the other".
Main message of 2019 Constitutional Court ruling "is positive""The fact that the court indicated that the premises, as well as the land, can be used to satisfy spiritual needs, is important, because so many religious organisations today do not have their own religious buildings and structures for worship," Slavic Centre lawyer Vladimir Ryakhovsky told "Nezavisimaya Gazeta" on 20 November 2019. "They are forced to use for this purpose residential premises belonging to their parishioners .. I think that the Constitutional Court has put an end to this dispute."
"The main message of the [Constitutional Court] ruling is positive", lawyer Vasily Nichik agreed in his blogpost of 20 November. He nevertheless expressed concerns over the "absolute ignorance" of the law shown by the Presidential Administration's Constitutional Court representative Mikhail Krotov at the Court's hearing on 8 October. He said that the right to worship in a residential building as enshrined in Religion Law Article 16 applies only to family members, implying that religious organisations do not have this right.
"Even a schoolchild can see that Article 16 is in Section III, which lists the rights given to a religious organisation," Nichik remarked. "If our legislators say such things, it is not surprising that sometimes laws are adopted that contradict each other, creating a conflict of law, because only without knowing the laws can one say such a thing."
Numbers of fines risingThe number of such fines relating to places of worship – 21 known fines in January to October 2019 – is relatively low, but has increased since the introduction of the so-called Yarovaya "anti-terrorism" legislation in July 2016.
Among other things, these amendments imposed serious restrictions on unclearly defined "missionary activity", banned changing the status of premises from residential to non-residential for religious purposes, and required religious communities to display their full legal name on premises they use.
The number of fines for meeting for worship on land not designated for religious use (such as in homes) increased sharply after the July 2016 changes. One lawyer compared the legal situation to fining a driver whose passengers drink tea because a road is not designated for drinking tea.
The post-July 2016 rise in cases under Administrative Code Article 8.8, Part 1 ("The use of a land plot not for its intended purpose in accordance with its belonging to a particular land category and/or authorised use") "appeared rather unexpectedly", the Slavic Centre for Law and Justice noted on 15 November 2019, with no change in land legislation.
"We think that this was a conscious strategy, invented by someone, in order to suppress the activities of religious minorities, especially Protestants, who have been the most affected by this problem," the Slavic Centre for Law and Justice commented. "Moreover, this practice has spread not only to residential premises, but also to other buildings and premises in which religious organisations conduct their services, in particular administrative ones."
Christian lawyer Vasily Nichik called this "a new practice of interpretation of the Land Code". He noted in his 20 November blogpost that Article 16 of the Religion Law provides "a guaranteed right to the unhindered conduct of worship services, rites, and ceremonies on residential premises".
Rosreestr fines both religious organisations and their members under Administrative Code Article 8.8, Part 1 ("The use of a land plot not for its intended purpose in accordance with its belonging to a particular land category and/or authorised use") for conducting or permitting worship on land which been classified as being for residential (or other) and not religious use.
Why the need to use homes for worship meetings?Even if religious communities have for many years used a building as a place of worship, complex, sometimes contradictory, and often inconsistently applied laws can create problems for them.
In July 2019, officials barred a Baptist community in Novorossiysk from using its church "for religious purposes", despite the fact that it has worshipped on the same site for two decades.
Disputes over religious property – whether over acquisition, retention, or restitution – remain unresolved in many parts of Russia. Problems caused by the authorities for communities attempting to build new places of worship can range from repeated refusals to legalise claims to land, to the withdrawal of building permission while construction is underway. The communities affected have included a Buddhist monastery, a mosque, and a Hare Krishna temple.
Both owners and tenants who start to use a building without ensuring that all necessary official approvals have been secured may face prosecution under Administrative Code Article 9.5, Part 5 ("Bringing an object of capital construction into commission without permission").
An amendment to the Administrative Code in August 2019 increased penalties for this to 20,000 to 50,000 Roubles for officials, and 500,000 to 1 million Roubles for legal entities. A fine of 50,000 Roubles is equivalent to just over one month's average wages for those in work.
The Pentecostal Union's legal department warned its member congregations on 22 July and 5 August 2019 to check all documents carefully even when only renting premises, and if doing the building themselves, to make sure they have received all official permits "from the start of construction to its completion", in order to avoid "the high probability of significant material punishment".
If the authorities decide that appropriate permissions for construction have not been obtained, then they may lodge a civil suit to have a place of worship demolished as an "unauthorised structure".
Many registered religious communities with legal status cannot acquire their own places of worship, which forces them to use residential or commercial property for their meetings.
"Today, religious associations have dozens, if not hundreds, of prayer houses and religious buildings located in private houses and residential complexes and on dacha plots," Igor Yanshin and Yevgeny Shestakov wrote on the Svoboda Verit (Freedom to Believe) website on 1 February 2018.
Unregistered groups which do not want or have legal status are designated as "religious groups" under the Religion Law. They must notify the authorities of their existence and provide the names and addresses of all their members, as well as addresses where any meetings take place. Without legal status they cannot buy or rent property on their own behalf, or have it legally transferred to them, and therefore rely on private individuals allowing them to use space for meetings for worship - normally residential or commercial premises.
Informing the authorities draws state officials' attention to private houses used for meetings for worship and may lead to fines. This happened in December 2017 to Aleksandr Yakimov, who hosted meetings for worship of his New Generation Protestant church in a room of his house. Prosecutors used his submission of the religious group's details to the Justice Ministry to establish his status as pastor and his house as the address where meetings for worship were regularly held.
Not informing the authorities, however, leaves group leaders open to prosecution under Administrative Code Article 19.7 ("Failure to provide or late provision of information to a state body").
"When it comes to the question of giving religious organisations the chance to have places of worship in locations which would be convenient for people and consistent with the requirements of the law, the state wants no part of it," Christian lawyer and human rights defender Vasily Nichik told Forum 18 on 11 December 2019. "It has always been so and it is still so today."
Some cases from 2018-19As noted above, Administrative Code Article 8.8, Part 1 is only one part of the problem. After a prosecutor's office inspection of the Protestant organisation Youth With A Mission in Rostov-on-Don, the organisation was referred to Rosreestr. Rosreestr fined Youth With A Mission 432,397 Roubles and its president Olga Gorina 324,298 Roubles under Administrative Code Article 7.1 ("Unauthorised occupation of a land plot"). They challenged the fines unsuccessfully at Railway District Court on 6 March 2018 and Rostov Regional Court on 30 May 2018. Gorina also unsuccessfully appealed at the supervisory level on 29 October 2018.
Rosreestr imposed the fines as the legal ownership of the land plot had not been entered in the Unified State Registry of Property, and Youth With A Mission did not have land title documents. Gorina argued that she had done everything possible to draw up the correct documents, but registration of the organisation's right to the land had been refused.
According to the court verdicts, the plot and the buildings on it had passed by means of a series of incomplete leases since the late 1990s through a series of owners, the last of whom formally gave the plot to Youth With A Mission, without properly registering their land rights.
On 29 March 2018, Youth With A Mission was fined 354,620 Roubles and Gorina was fined 236,413 Roubles under Article 8.8 Part 1 after Rosreestr accused them of using a house on land designated for "individual residential construction" for "prayer and religious gatherings", three times a week. The defence argued that worship is permitted on residential premises under Religion Law Article 16, Part 2, but Judge Vladislav Sedykh of Railway District Court decided that Youth With A Mission had contravened the Land Code.
Judges disagree over whether the provisions of the Religion Law free a defendant from responsibility under Administrative Code Article 8.8, Part 1 ("The use of a land plot not for its intended purpose in accordance with its belonging to a particular land category and/or authorised use"). Lawyers hope the Constitutional Court's November 2019 ruling will help resolve this.
On 14 August 2019, for example, Kulunda District Court in Altai Region found that Andrey Vins, the owner of a land plot designated for "personal subsistence cultivation", should not have been fined 10,000 Roubles on 16 July for allowing meetings for worship in his house of the unregistered Council of Churches Baptists. On 12 August, the same Judge, Oksana Klimenko, also acquitted the community's leader, Yury Pivnev, who had received an identical fine on 10 July. The defendants argued that the house was lived in, the land was used to grow fruit trees, and the services were for family and friends. The judge noted that premises for religious groups are provided by participants, that property law proceeds from the principle that owners can do anything which does not violate the rights of others, and that Religion Law Article 16 permits religious worship on residential premises.
On 10 April 2019, Izobilny District Court in the Stavropol Region, however, upheld the 10,000 Rouble fine imposed on Andrei Shelamov, the owner of a plot designated for "individual residential construction", on which he had allowed a Baptist Union religious group to hold meetings for worship in his house. Shelamov pointed out that services only take place at certain times in one room, that his family lives in the house, and that he was providing worship space as a member of the religious group. The judge decided, however, that these arguments were "untenable, based on a misinterpretation of the norms of the law".
Number of cases not fully knownThe numbers of cases involving religious communities and believers under Administrative Code Article 8.8, Part 1 ("The use of a land plot not for its intended purpose in accordance with its belonging to a particular land category and/or authorised use") is not publicly known. As Rosreestr imposes fines directly, there is no public record unless people choose to challenge them in court. In some instances, they may appeal to Rosreestr itself and have a punishment overturned without ever entering the court system.
Christian lawyer and human rights defender Vasily Nichik described to Forum 18 how he and his colleagues meet Rosreestr inspectors and "present all the same arguments as in the courts" in an attempt to resolve cases. "Unfortunately, some [inspectors] work with common sense, others do not".
There were 59 such fines imposed on religious associations or their members between the beginning of 2017 and the middle of 2019, of which 39 were challenged, Rosreestr told Forum 18 on 3 December 2019. Of these 39 appeals (both to the courts and to Rosreestr itself), 9 were successful and 30 were unsuccessful.
Rosreestr refused to give details of the religious communities or courts involved, and did not respond to Forum 18's request to break the figures down further by year.
Between 2012 and 2015 there were four cases, in 2016 seven cases, in 2017 there were 23 cases, and in 2018 there were 10 cases. From January to October 2019 there have been 21 cases.
All but one of the 2018-19 fines are known to have been appealed against in court.
Of these 31 cases, 10 (from six investigations) occurred in Rostov Region, four (from three investigations) in Altai Region, five in Sverdlovsk Region, two each in Tula (one investigation) and Astrakhan Regions, and one each in Moscow, Irkutsk, Primorye, Samara, Ulyanovsk, Stavropol and Tyumen Regions and the Republic of Khakasiya.
Forum 18 also observed a considerably higher incidence of Article 8.8, Part 1 cases in Rostov Region in 2017.
Religious affiliations were: unregistered Baptist – 9; Baptist Union – 6; Methodist – 1, other Protestant including Pentecostal – 11; Muslim – 2; New Apostolic Church – 1; Church of Jesus Christ of Latter-day Saints – 1.
Nine of these cases involved registered religious organisations, while another three involved official representatives of religious organisations (subject to higher fines than ordinary citizens). The majority of fines punished private individuals, including some leaders of unregistered religious groups.
Five initial appeals were successful, although one fine was reinstated after being sent back by a higher court for re-examination. Another community had its fine reduced by half. The results of two initial appeals are not yet known. One district court returned the case against an individual to Rosreestr for reconsideration – it is unknown whether Rosreestr persisted in imposing the fine. One case was resolved out of court.
The fines imposed can be a considerable burden, especially for individuals on low incomes (such as pensioners), smaller religious associations with no support from a larger association, or for religious groups. In addition to any fine, an appeal incurs legal costs.
Even if a fine is overturned, Rosreestr may challenge the judge's ruling, setting off a chain of re-examinations and further appeals which may take months and still not end in the defendant's favour. This results in increased legal costs for any defendant, with no guarantee that these costs can be reclaimed even if the appeal is successful. (END)
Full reports on freedom of thought, conscience and belief in Russia
For more background see Forum 18's survey of the general state of freedom of religion and belief in Russia, as well as Forum 18's survey of the dramatic decline in this freedom related to Russia's Extremism Law.
A personal commentary by Alexander Verkhovsky, Director of the SOVA Center for Information and Analysis http://www.sova-center.ru, about the systemic problems of Russian anti-extremism legislation
Forum 18's compilation of Organisation for Security and Co-operation in Europe (OSCE) freedom of religion or belief commitments
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