by Germana Carobene — associate professor of Ecclesiastical and Canon Law at the University of Naples "Federico II", Department of Political Sciences; councillor of FOB.
* Contribution subject to evaluation.
TABLE OF CONTENTS:
1. Interventions against Jehovah's Witnesses in the Russian Federation
2. The historical presence of Jehovah's Witnesses in the country
3. Religious freedom in Soviet Union law
4. The laws on freedom of conscience of the 1990s
5. The "anti-extremism" and counter-terrorism legislation
6. Conclusive considerations
1- Interventions against Jehovah's Witnesses in the Russian Federation [⬆︎]
The application of the "anti-extremism" legislation to minority religious groups, defined as hostile to the cultural schemes and subversive of the political order, has led to a progressive institutional stiffening of the persecution in the Russian Federation and heavy discrimination, especially towards Jehovah's Witnesses[1]. Although many of these legislative tools have existed for over a decade, the Russian government only recently has begun to use them in campaigns supported and designed to punish or exclude “non-traditional” religions and movements. In the specific case of the JWs, these measures have taken on the purpose of delegitimizing an entire community, only on the basis of the religious faith pursued, with accusations that vary from missionary activity to offending the religious sentiments of believers. Overall, these interventions are part of a wider process of ideological control over society, aimed at stemming, if not stifling, the forces of political and religious dissent. It is a process that has characterized Russian history since its transformation into a Soviet dictatorship and which offers a new perspective to analyze, even today, the issues of "identity" and "dissent" in this geographical area.
In the Stalinist period, cultural and religious life had been severely limited to the advantage of so-called “Russification” policies, which tended to suffocate ideologies that were not homologated with the political objectives of the new State[2]. The Soviet government has, in fact, pursued a strategy in the balance between regulation and repression. The phase of glasnost and perestroika had outlined a different juridical scheme, more open to pluralism, even religious. The recognition of the Witnesses in the 1990s seemed to have brought Russian law closer to Western schemes for the protection of human rights but, with the beginning of the 21st century, it highlighted a different evolutionary process.
The culminating moment of this legal process was represented by the decision of the Russian Supreme Court which, in 2017, qualified the Jehovah's Witnesses as an extremist organization and forced the liquidation of their assets; the religious community has thus been transformed into a "criminal network" and individual faithful have been made vulnerable to arrest, simply for having talked about their faith with others, therefore, in carrying out the normal activity of evangelization[3]. TThis intervention was, however, the culmination of two decades of growing state hostility towards them. In fact, at the end of the 90s, they were sued by the government of the city of Moscow to deny their legitimacy, in a long trial that ultimately banned the organization tout court. The latest episodes, in chronological order, involved in 2020 two Russian JW citizens who were deprived of citizenship, in consequence of verdicts damaging religious freedom, as also denounced by the UN Working Group on Arbitrary Detention[4].
The banning of Jehovah's Witnesses, the confiscation of all their properties in the country and the imprisonment of the faithful - for the first time since the collapse of the Soviet Union - has therefore highlighted a dangerous dictatorial and xenophobic tendency, to the detriment of the right to religious freedom, constitutionally enshrined. A correct analysis of the current Russian problems cannot, however, disregard two further considerations: the space of religious freedom in the State and the particular position of the JWs within this social structure. Fundamental in this sense is the reference to the Russian law on freedom of conscience and religious associations of 1997 which, read jointly with the rules subsequently adopted, currently seems inspired by the desire to guarantee the "spiritual security" of Russia, according to a concept that frames the role of the Orthodox Church in safeguarding "national values". In the Presidential Decree # 24 of 2000 the administration stated that guaranteeing the national security of the Russian Federation also includes the protection of the cultural, spiritual and moral heritage of historical traditions and norms of social life, the preservation of the cultural wealth of all peoples of Russia, as well as to counter the negative influence of religious organizations and foreign missionaries[5].
It is also necessary to consider that in the logic of absolutism, the persistence of endogenous groups, which profess equality as a moral standard and which practice conduct that does not conform, nor can be approved by the expectations of the regime, constitutes a dangerous and implosive threat to the social order that it tends to build, of compactness of the people on the basis of the ideals defined by the leadership[6]. In the particular Soviet situation, the establishment of a denominational and hierocratic system, even if not aimed at favoring a single religion, and of a correlated jurisdictional regime in which some religions try to assume privileged status (Russian Orthodox Church in primis), has its own reason for being in the need of the post-communist state to find a superior and historically founded legitimacy of its sovereignty, in order to guarantee political stability, to which is added the aspiration of the privileged religions to receive, in exchange for a support of the political system, a special ius protectionis.
Therefore the case of the JWs has implications that transcend the problems of the individual religious group; in this case, the persecutions and condemnations of which they have been, and still are victims, their ban, take on the characteristics of a paradigmatic element of the right to exercise religious freedom in dictatorial systems. Many times the road immediately pursued for convictions is, in fact, based on the reference to the "political" and not religious character of the group, to remove it from the protection otherwise guaranteed at the constitutional level. This has been the treatment of Bibelforschers in Nazi Germany[7] and, for diametrically opposed reasons, in the Stalinist dictatorship and in the current phase of Putin. The accusations were (and are) essentially linked to the legal concept of "betrayal of the Fatherland", of conspiracy with foreign powers, of the will to weaken the armed forces and the effort for national unity: in short, they have always been considered as dangerous subversive elements, a “conspiracy”[8] cult. It is also necessary to consider that the multinational and multireligious reality of the Russian territory and society has constituted a fundamental component of this cultural, religious and political universe within which the Russian Church has placed itself as the center of gravity of this complex system.nFurthermore, this exclusive bond, leading to an actual identification, highlights the fear of facing religious diversity, potentially able to act as a disintegrating factor of the social fabric: this translates into a position of defense of one's traditions and an obstacle towards “foreign” religions, not only for the protection of religious monotheism but also as a guarantee of “national security”.
2 - The historical presence of Jehovah's Witnesses in the country [⬆︎]
As is known, the JW movement is of recent establishment, often referred to as a "cult", linked to Protestantism, more correctly to the Adventists with whom it has many traits in common. It is part of the religious renewal paths of Christianity, especially of Protestant origin, typical of North American history of the late nineteenth century, which quickly spread to our continent as well. They had been present in Russia since 1891 but, like all religious denominations, they were banned after the 1917 Revolution and persecuted in the Soviet Union. The history of the movement in the country has therefore been marked since the 1950s by the aversion, both of governments and of the community. The dictation of their preaching was deemed a threat to political power. The concepts of peace and equality, which had been considered by the Nazis as a "Bolshevik" threat, were, on the contrary, judged by the Stalinists as dangerous for the stability of Communist power.
Added to this, both in Germany and in the USSR, was the hostility of the dominant Churches (in one case Catholics and Protestants, in the other by the Patriarchate of Moscow) towards such preaching. Extremism of faith: this is how we could summarize the motivation that allowed the authorities, first Soviet and then Russian, to systematize the widespread hostility towards the group. The accusation of constituting a political organization, even "disguised" with revolutionary or in any case subversive intentions of the established state order, was linked to the other charge, perhaps even more serious, of connection to a foreign, enemy power and therefore to be part of an international conspiracy.
Again, the group's proclaimed pacifism, pushed to the extreme, was seen as indicative of an attempt at destabilization, within totalitarian states that used force and the army to hold power. Their opinions were therefore in opposition to the interests of the dictatorship and this led them to consider the religious aspect of their organization as secondary, almost a cover "of convenience", compared to the international ties with the top of the movement. It is known by now the particular story of the “purple triangles”, a visible symbol of the JWs that led to concentration camps by Nazi Germany[9]. In the decisions issued against the Denomination, reference was always made to the anti-patriotic spirit, to neutralism and to pacifism, perceived as a deliberate offense to the honor of the German people. In this way they were perceived as an element of extraneousness with respect to the constituting "national community of people" and, therefore, dangerous. However, their tragedy fits fully into the European corpus of the history of deportations. Nevertheless, they were also victims (still little known) of the Stalinist dictatorship, characterized by a systematization of violence, with thousands of arrests, incarcerations and deportations, accused of not joining the "Soviet system". As in Hitler's Germany, more than on religious motivations, the accusations were centered on their lack of fidelity to the ideals of the state, denial of political leadership[10], categorical refusal to participate in patriotic ceremonies and to serve the state, through the use of weapons, clandestine press activities and refusal to enroll children in communist youth organizations[11]. A slight improvement for the life of believers was recorded only after the 1960s of the last century, but until the implosion of the USSR there were several cases of trials, but within a framework of segregation common to all communities.
Following the entry into force, in 1990, of the law on "freedom of conscience and religious organizations", the Ministry of Justice was able to register its statute and so on February 28, 1991 the religious organization of Jehovah's Witnesses was officially registered in Ukraine. However, starting in 1995, the Committee for the Salvation of Youth from Totalitarian Cults, a non-governmental organization aligned with the Russian Orthodox Church, began to denounce the leaders of the community, arguing, in particular, that they oppressed followers with exorbitant demands, putting their families in an economically precarious situation and fomenting hatred of "traditional" religions. These requests, rejected five times, were finally accepted in 1998 and concluded by noting that, even if the community acted in violation of Russian and international laws, there was no crime. However, this resulted in the initiation of a civil action against the Congregation, with the request for its dissolution and the prohibition of activities. In 2001, a new series of proceedings began and three years later, in 2004, the Moscow District Court decided to grant the prosecutor's requests to dissolve the applicant community and to permanently ban its activity[12]. After 2009, and the first official recognition, however, new and dangerous episodes of violence began to occur[13].
Invested in the case, the ECHR intervened with a 2010 judgment[14]. Accused of interference with consciences, violation of privacy, sectarianism, religious extremism, incitement to social isolation and behaviors that undermine the harmony of society, according to the Russian authorities, Jehovah's Witnesses would represent a "threat to the defense of the rights and the interests of society and public safety". The ECHR pointed out, however, that the refusal to grant recognition under the 1997 law revealed an interference with the religious organisation's right to freedom of association and also its right to freedom of religion, as the "law on religions" limited the faculty of a religious association, without legal personality, to carry out a whole series of activities and to modify the articles of its Statute[15]. Consequently, it found an interference in the rights of the applicant community, pursuant to the combined provisions of Articles 9-11 of the Convention. In 2015, the Russian Federation also blocked www.jw.org, the official website of Jehovah's Witnesses, making its advertising within the state a crime.
The culmination of these judicial proceedings was reached with the aforementioned intervention of the Supreme Court which, at the request of the Ministry of Justice, in 2017, defined this religious group as an "extremist organization". Its members were thus prohibited from doing business and the seizure of assets was envisaged. Already in the months following this decision the places of prayer had been searched by the police and many faithful arrested. In 2019, the UN Working Group on Arbitrary Detention categorically condemned the arrests of Jehovah's Witnesses and called on the Russian Federation for the immediate release of the faithful illegally detained. In 2020, the European Union also expressed concern over recent reports of torture and other ill-treatment suffered by many of Jehovah's Witnesses. As an OSCE member, the EU reiterated that Russia is required to stop the ongoing persecution and protect the victims, ensuring that all - including Jehovah's Witnesses - enjoy human rights peacefully including the right to freedom of religion and belief. It is also important to remember that they are, so far, the only religion to which Russian extremism legislation has been applied.
3 - Religious freedom in Soviet Union law [⬆︎]
Russian history highlights a particular approach to the religious phenomenon, in a profoundly different sense compared to the contexts of the various European countries[16]. It is known that the conversion to Christianity, before the year 1000, represented for the first Russian state, the so-called Kievan Rus', a fundamental historical turning point since it meant entry into the Eastern Christian ecumene and, more generally, in the group of European states. The model that was emerging was linked to the theocratic one of Constantinople and, in this sense, the Orthodox Christian faith modeled the more traditionalist Russian ideology on a different relationship between religion, state and nation, developing parallel geopolitics. The ideas of the so-called Slavophiles, still in the present age, perceive, in fact, "the Church, society and the State as one and believe that the Church, as the mystical body of Christ, includes in itself the nation, the people and culture, having the Christian mission at their center”[17].
The "oriental" vision of a Christian nation as a single community was therefore already structured in the Byzantine and early traditions. This connoted Russian theological philosophical thought, giving rise to the concept of the Nation-Church and developing the doctrine of Moscow as the "Third Rome", which led to the elevation of the metropolitan seat to the rank of Patriarchate, strengthening the prestige of the Church[18]. If this union has kept its importance over time, it has nevertheless undergone a long period of "captivity" since 1721, with its abolition by Peter the Great. It was only with the beginning of the twentieth century that the Orthodox Church felt the need to get out of this impasse and to re-establish the "relationship of harmonious collaboration, that symphony between Imperium and Sacerdotium, which Russia had inherited from the Byzantine world"[19]. Following the revolutionary events of 1905, there were further and important consequences for the internal structure of the synodal Church and the idea began to emerge that the Russian Church should definitively break away from the state administration[20]; the fall of Tsarist Russia meant the end of the Orthodox state model, heir to the Byzantine Empire and its theocratic tradition. Paradoxically, it was only in the midst of the October Revolution that the Church achieved what Peter I had denied two centuries earlier, with the restoration of the Patriarchate.
The rise to power of the Bolsheviks, however, radically changed the course of historical events since the Marxist ideology, on which the new political power was based, was absolutely convinced of the need to completely eradicate religious sentiment in man[21]. According to this approach, the disappearance of religion was perfectly framed within a program of radical renewal of society and restructuring of consciences. The Orthodox Church, completely deprived of its assets, was enslaved to the government, also by virtue of a "lexical trick": the affirmation, in fact, that church and religion are private affairs did not have the same semantic meaning attributed by Westerners, given that the concept of “private” was not envisaged in the communist ideology and everything was nationalized, put under the state control. Russian communism subsequently developed this vision to its extreme consequences and imposed a concept of revolutionary class fight, which fatally degenerated into genuine persecution. Religious practice was allowed only in the context of religious associations, limited in fact only to adult citizens, gathered as a community, supervised by the State[22].
The establishment of Soviet power led, in 1918, to the promulgation of a decree on the separation of the Church from the State which recognized freedom of conscience for all citizens, understood both as the right to profess a religious faith but above all not to profess it at all and to make atheistic propaganda. The socialist state was not, therefore, simply separatist, so neutral or indifferent, but adopted an explicit discriminatory and repressive policy towards all religious faiths, including the Orthodox[23]. If during the period of the Second World War the government had referred to the patriotism of the Russian Orthodox Church, in the post-war phase of the 1950s and 1960s the persecutions toward them began again, leading to total state control over the country's religious life. Thus began a particularly difficult period, which led to multiple attempts to separate the various churches, favored by the Soviet government which, in the division of the Orthodox Churches, saw the possibility of annihilating the Patriarchal one. Furthermore, the 1977 Constitution, establishing the obligation to respect the 'rules of socialist coexistence', had transformed the right to atheism into a duty of the Soviet bonus civis, in the sense that this must actively contribute to curing believers from the disease of religious faith.
4 - The laws on freedom of conscience of the 1990s [⬆︎]
The adherence to new legislative models on the subject of freedom of conscience only started with the political opening desired by Gorbaciov, since the process of détente that began in 1985 with his appointment as party secretary and, in particular, in the phase of perestroika, with the approval of a law, that of 1990, which guaranteed the perfect equality of all religious denominations and the full exercise of the right to freedom of conscience[24]. It also imposed a complete semantic distortion, which has led to its definition as the true freedom of man, free from any mystical or ideological influence, exemplification of a concrete political religious separation. This norm therefore defined freedom as a right that could be exercised individually or together with others; ample space was given to religious organizations which were legally granted the right to obtain legal personality, in an equal position.
However, the subsequent phase of the so-called 'religious awakening' did not bring about major upheavals in the discipline and guarantee of this phenomenon, especially due to the particular balance given by the Orthodox Church, within the political and social structure. The liberal tendencies of the law determined, in fact, an increase in foreign missionary activity and the birth of new and dynamic religious movements, including the JWs, immediately arousing some concern within the Russian Orthodox Church which begun to press for a stricter law[25]. The weakness of the “rule of law” has gradually become an endemic feature of the system, which has now become the so-called “dictatorship of the law”. The Russian legislative approach, in fact, leverages on principles and ideas that are not only those of the liberal European tradition of the protection of human rights, but are still culturally anchored to the tsarist and socialist past, even if, after the collapse of the Soviet Union, it had to establish new standards of human rights protection.
The 1993 constitutional text and subsequent adhesions to international organizations, such as the Council of Europe, introduced a conceptually new noyau of rights compared to the past, at least on a theoretical level, and this allowed the country to comply with the requirements of freedom of religion, opinion and information of the liberal West. The constitutional provision stated, in Articles 14 and 28, that the Russian Federation is a secular state that guarantees freedom of religion and belief[26], as well as the ideal of separation of the Church-State[27]. Furthermore, it is declared that it is the people and not the party, the Soviet, the collective that is the holder of sovereignty and the only source of power. The implosion of the communist ideology of the same years no longer made it possible to identify secularism in the exclusion of religious phenomena from the social life of the country but imposed, at least, at a tendential level, to qualify it as a principle of neutrality / indifference of political power.
In 1996, by joining the Council of Europe, Russia undertook, inter alia, to adapt the 1990 law on religious freedom to European standards. The reform was thus approved by the Duma, the Russian Parliament, in 1997, but on the contrary, it seemed wanting to bring the protection of religious freedom back to the period of the Church's submission to temporal power[28]. The recognition of the "particular role of orthodoxy in the history of Russia, in the formation and development of its spirituality and culture" is immediately evident from a first reading of the Preamble and it becomes clear that it respects "Christianity, Islam, Buddhism, Judaism and other religions which form an integral part of the historical heritage of the peoples of Russia”[29]. With this law, the tradition at the center of Orthodox theology thus becomes a political category also through the reference to the symbiotic relationship between “Russian” and “Orthodox”[30].
The approval of this law, and the endorsement by the highest hierarchies of the Orthodox Church, therefore highlighted the desire of the same to place itself in a position of supremacy over all the other denominations existing in the country that, after the collapse of the regime, had acquired greater force of penetration, without worrying, however, about the ensuing situation of enslavement to temporal power and which carried the role of the Church centuries back in history[31]. The rights of the "others" Orthodox, non-Orthodox Christians and those belonging to the "new religious denominations" are thus severely limited. This law has therefore clearly ensured innumerable advantages to the Patriarchate of Moscow, eager to strengthen ties with political power, strengthening its position of dominance and avoiding an opening towards religious minorities, unlike what was foreseen in the previous legislative document. It also favored the representatives of power who dreamed of a single national ideology of the "Slavophile" type, capable of bringing together 'orthodoxy', 'national spirit', and 'autocracy', taking a dangerous step back in time. Limits on freedom of religion have been established when necessary, among other things, in order to "guarantee the defense and security of the State", in evident contrast with the specific term of article 9.2 of the ECHR. It should also be considered that alongside this legislation there is the coexistence of a plurality of norms since there are more than eighty federal and thirty national laws governing the activities of religious associations[32].
In 1999 the Constitutional Court ruled in 1999 that the State has the right to provide limitations in order not to automatically assign the status of religious organizations and not to allow the legalization of "cults" that violate human rights or commit illegal and criminal acts, as well as to the power to hinder missionary activity[33].
From a formal point of view, therefore, in Russia religious freedom is still currently in force. It applies to the four “respected / traditional” religions (non-Orthodox Christianity, Islam, Buddhism and Judaism)[34] and to the other “religious organizations” that register with the authorities. What is highlighted is the implementation of an inverse process to that of secularization and a clear governmental orientation for Orthodoxy as a state religion which is reflected in a wide range of possibilities recognized to it within the army, the education system and on the occasion of participation in public events. It claims the role of a new ideology, a kind of special Orthodox thinking. However, this bond of union between Church and Nation, between Orthodox religion and traditional national values, seems to be in clear contrast with the secular and separatist regime outlined by the constitutional legislator[35].
This law, in the years following its approval, has been continually subject to discussions and amendments. In 2004, in order to make some improvements and to provide a precise legal definition of missionary activity, the Department of the Russian Parliament, which deals with religious and social organizations, considered four proposals of amendments[36], which, however, were not accepted, given the religious stability that the country enjoyed in those years. A subsequent attempt to modify it was made in 2007, with the declared intention of protecting atheism, which was also wrecked[37]. The amendments to this rule, introduced with a series of federal laws that followed one another until 2016, also established numerous cases in which, through a judicial procedure, it is possible to order the prohibition of religious activities, if not the dissolution of the organizations themselves and widening the scope of the restrictions to which religious groups must submit. In 2013, the unavailability of stay and residence in the Russian Federation for citizens or foreigners engaged in subversive activities[38], not defined, however, with sufficient clarity and therefore such as to allow easy arbitration and discrimination was foreseen.
Currently all religious communities, without legal status, have had to inform the state about their existence and activities. Still, another amendment required religious organizations, which receive foreign funding, to report information to the Ministry of Justice about their budget plans, activities and leadership. The government therefore has the right to inspect, without any warning, the financial activities of the latter or if there is a suspicion of illegal activity or related to extremism[39].
5 - The "anti-extremism" and counter-terrorism legislation [⬆︎]
Since the beginning of the new century, the legislation on religious organizations has been grafted on to the law on combating extremist activities that has granted the authorities the power to censor religious freedom and expression and to criminally prosecute a wide spectrum of religious activities, defining a whole federal list of prohibited extremist materials[40]. Since 2012, the intensification of the fight against extremism in Russia has therefore manifested itself through a series of interventions aimed at suppressing political opposition and, progressively, also at non-traditional religious groups[41]. This situation has also been felt in Europe and, in fact, in the same year the Parliamentary Assembly of the European Council adopted a further resolution for violation of fundamental human rights in Russia, emphasizing the impediments to the normal development of civil society[42] ; that document was, however, absolutely ignored[43].
In 2013, a law introduced substantial changes to art. 148 of the Criminal Code and art. 5.26 of the Code of Administrative Offences which, although with slightly different formulations, include liability and punishability of up to six years for public actions that express a clear lack of respect for society and implemented with the intention of offending the religious feelings of believers. However, the ambiguity of these normative formulations, which are undoubtedly anomalous in a secular state, is highlighted. Anti-extremist legislation of 2014, although formally dictated for the need to combat the phenomenon of terrorism, has also allowed dangerous interference in the sphere of religious practices[44]. It has, in fact, introduced to Art. 282.1 and 282.2 the criminal liability for inducing, recruiting or otherwise involving a person in extremist organizations. This is how the concept, absolutely indefinable at a legal level, of the inductor for participation, distinguished from the mere member/adept was inserted[45]. The law frames as extremist activity the propaganda of the exclusivity, superiority or inferiority of a person, on the basis of his religious affiliation or his attitude to religion. It is also noted that the government authorities are extremely suspicious of religious practices that may seem incompatible with the order: just think of the refusal to serve in the military. Sometimes the unknown nature of some denominations or their links to foreign orders could be arbitrarily linked to alleged terrorist or subversive activities: paradigmatic is the reference to Jehovah's Witnesses. The ambiguous notion of "extremist", used by the Russian legislature, allows the authorities the right to interfere in the observance of religious rules and to prosecute believers. The policy of government in the religious sphere is perfectly embedded in a process of ideological control of society, albeit in a different sense than that exercised during the communist period.
The most recent anti-terrorism law, passed in 2016, further aggravated the situation of unorthodox Christian Churches and other faiths. In it, in fact, it is forbidden any pastoral or missionary activity for those who have only a tourist visa, for unregistered organizations, for foundations that do not have an immediate religious purpose. In addition, propaganda activities (catechisms, training, liturgical celebrations) carried out in private apartments have been prohibited. Religious denominations are obliged to sign an employment contract in order to invite a person to Russia for religious activities. They also prohibit missionary activities in public places (as they could violate security and public order, engage in extremist activities, separate a family, violate the person or rights and freedoms of citizens, harm the morality and health of citizens, including the use of drugs, inciting citizens to disobey their statutory obligations). Finally, foreigners wishing to engage in religious activities will not be able to receive a humanitarian visa to enter the country. The Orthodox continue to maintain a position of privilege but only from the perspective of the Church institution, functional and assertive to political power.
Among the most significant criticisms of these anti-terroristic regulations, defined as the "Yarovaya package", is that of the United States Commission on International Religious Freedom which stresses that the provisions of the law, under the pretext of tackling terrorism, would grant the government radical powers to reduce civil liberties, including the introduction of broad restrictions on religious practices, which would make it very difficult for religious groups to operate[46]. These measures would allow the Russian authorities to further crack down on smaller religious communities that are critical of the government and the President and to imprison dissidents.
The accusation of "extremism", related to its extremely broad definition, may include in this case the peaceful promotion of the "superiority of one religion over another", thus also leading to the banning of religious texts, or even to the obligation to dissolve religious groups, as happened in the case of Jehovah's Witnesses. Numerous cases of accusation are based on the ambiguous definitions contained in the law, in particular, where it defines, for example as "dangerous" the propaganda of exclusivity, superiority or inferiority of a person on the basis of his religious affiliation, which does not seem only aimed at preventing hate speech on the basis of religious motivations. On the contrary, an attitude of suspicion is highlighted, which is reflected in the use of the adjective "non-traditional" and the term "cult" (in Russian, sekt), which are firmly rooted, in a negative sense, in the official vocabulary. The most worrying elements of these laws and their application are essentially linked to the considerable and arbitrary interference of the State in the internal organization and doctrines of religious communities and in the creation of discrimination between the religious communities themselves.
The very recent amendment of the Russian Constitution of 2020, wanted by Putin, approved by the Constitutional Court, by the Parliament and by the citizens themselves, with a referendum petition, in addition to the extension of the prime minister's mandate, inserted an explicit reference to God in the constitutional text, accepting the explicit requests of the current Patriarch. The art. 67 was integrated with the addition of the formula:
“the Russian Federation, unified by a millenary history, preserving the memory of the ancestors who transmitted to us the ideals and faith in God as well as the continuity in the development of the Russian state, recognizes the 'historically established state unity”[47].
6 - Conclusive considerations [⬆︎]
The examination of this legislative evolution makes it possible to highlight how the substantial profile of significant legal interest is linked not so much to the (omitted) recognition of individual and collective rights of freedom, as to the emergence, in increasingly stronger forms, of a real totalitarian ideology. Its characteristics as a way of thinking are, inter alia, the anti-pluralistic intolerance (which obviously involves dissent as an expression of plurality of orientation) and a millenarian tension, not as a charge of spirituality but of nihilistic destruction[48]. The Churches are suppressed or aligned, that is, concretely, ideologised, obliged to respect the line drawn by the propaganda, with evident and important repercussions in the juridical sphere. The right to freedom of religion, which includes the right to express one's belief in community with others, includes the expectation that believers can associate freely, without arbitrary state intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society. The duty of neutrality and impartiality of the state should therefore be incompatible with any governmental power to assess the legitimacy of religious beliefs.
Even the European Court, in its intervention in favor of Jehovah's Witnesses v. Russia made it clear that any interference must correspond to an "urgent social need"; therefore, the notion "necessary" does not have the flexibility of expressions such as "useful" or "desirable", principles that could mark a decisive, more incisive and interventionist change of European organizations in the future geo-political balance of our continent. This has imposed an expansion of the European concept of freedom of religion which could have had interesting repercussions in domestic law, consolidating this fundamental right and extending it to all religions, not only rooted but also in the process of being structured in the country.
With reference to Russia, however, it is noted that these important legal reflections, due to political pressure, could remain only in the speculative theoretical sphere. In fact, in 2015, the Russian Supreme Court ruled that the country could set aside an ECHR ruling, in the event of a conflict with the fundamental principles and norms of the Constitution, and this resolution was transformed into Federal law in the same year[49]. The following year the Russian Constitutional Court thus established for the first time the inapplicability of a judgment of the ECHR[50], affirming the supremacy of the constitutional rule over the supranational decision, whose interpretation seemed to conflict with the Federal Constitution. The logical consequence was the impossibility of executing, in the specific case, the intervention of the European Court[51].
The danger of such a legal approach is evident. As is well known, according to international law[52], a State cannot invoke the provisions of its domestic law to justify the non-execution of a treaty. The application of this norm implies that the conventional bonds cannot yield, even if in individual and specific cases, in the face of the (conflicting) constitutional norms of a Contracting State, even of norms that define its constitutional identity. The state would have the only remedy, to safeguard its constitutional identity, to withdraw from the treaty. This hypothesis, however, is not feasible for those multilateral documents which, for the matter dealt with, have assumed strategic political importance in the context of relations between States of the same geographical area[53]. For the purposes it pursues, this trend cannot, moreover, be confused with the so-called doctrines of 'counter-limits', on the basis of which the constitutional embankment placed on supranational law was essentially designed to safeguard a standard of protection of rights humans not known or not applied at the supranational level[54].
What seems to emerge from this impasse is that the national supreme and constitutional courts may experience difficulties in establishing a dialogue with the European Court of Human Rights and, above all, in accepting interference in the so-called domestic jurisdiction. The emergence of increasing tensions between the defense of the constitutional identity of the Contracting States and the fulfillment of the obligations deriving from the ECHR should, however, lead to the necessary identification of new instruments. This could also be implemented through the amendment of the Convention, which ensures a stable dialogue between Courts, providing the Strasbourg judge with full and effective awareness of the functioning of an internal system, before assessing its compatibility with the conventional system, to avoid dangerous and arbitrary implosions of the European system of protection of human rights, deriving from the failure to implement the decisions of the European judge[55].
The particular juridical position of Jehovah's Witnesses in the Russian Federation, in a juridical framework of freedom so strongly compromised, therefore takes on a further symbolic value in which the defense of freedom of religion must be placed as an insurmountable limit to dictatorial tendencies. The Soviet state had tenaciously pursued a political strategy that attempted to establish a relationship between regulation and repression. After the 1991 registration, with the easing of state pressures, however, the will to control of the dominant Church emerged, associated with the general attitude of mistrust towards the new "cults" that characterized European history at the end of the 20th century, due to the originality of their message, which cannot be framed in the schemes of traditional religions. The current political phase is, however, linked to a more centralized form of state control with greater restrictions on individual and collective freedoms. The characteristics of the JW movement have, therefore, highlighted in even more evident forms the difficult balance between the protection of religious freedom and the defense of the state from the centripetal forces, potentially implosive, that can act within the state structure
It is well known that secularism is based on two fundamental principles: the inviolability of human rights, which constitute the prodrome of political power and therefore of the state and, secondly, the importance of a culture and institutions that guarantee effectiveness of pluralism. The analysis of the particular Russian history and of the guarantees of freedom of the Witnesses constitute, in this sense, an important perspective because they question the European model of recognition and guarantee of religious pluralism if not subordinated to a real and effective control by supranational bodies that can guarantee the effectiveness of rights[56].
Published in the telematic journal Stato, Chiese e pluralismo confessionale (https://www.statoechiese.it), fascicolo n. 16 del 2020 ISSN 1971- 8543
Notes
[1] ⬆︎ Hereinafter, for the sake of brevity, JW.
On March 12, 2020, more than thirty European countries expressed their severe condemnation of the persecution and torture suffered by the JWs in Russia. See Permanent Council meeting of the Organization for Security and Co-operation in Europe (OSCE): https://www.osce.org/permanent-council/448555? download=true. In general on the country see Cigliano, Giovanna. 2013. La Russia contemporanea. Un profilo storico, Carocci: Roma.
[2] ⬆︎ In general, on the position of the Russian Orthodox Church and on the so-called synodal period that characterizes its history in the country over a long period of time, see Zernov, Nicholas. 1963.The Russian Religious Renaissance of the Twentieth Century, Darton: Longman and Todd.; Vasil’eva, Ol’ga. 1998. Russia martire. La Chiesa Ortodossa dal 1917 al 1941, Milano: La Casa di Matriona; Kalkandjieva, Daniela. 2015. The Russian Orthodox Church, 1917-1948: From Decline to Resurrection. New York: Routledge. Kolarz, Walter. 1961. Religion in the Soviet Union. New York: St. Martin's Press, in particular pp. 338-344, in which it is emphasized that, until 1991, there are no documents on the JWs, and the most recent text by Baran, Emily B. 2014. Dissent on the Margins. How Soviet Jehovah’s Witnesses Defied Communism and Lived to Preach About It. Oxford: Oxford University Press.
[3] ⬆︎ On April 20, 2017, the Supreme Court of the Russian Federation closed the Administrative Center of Jehovah's Witnesses as well as all 395 local religious organizations of the group on charges of "extremism" (in https://coscienzaeliberta.it/coscienza-e-liberta/rivista- n-54/documenti-corte-suprema-della-federazione-russa-sentenza-20-aprile-2017-n-54-anno- 2017/). Following the decision, Jehovah's Witnesses have been subjected to arrests, imprisonment, discrimination and ill-treatment. Prayer meetings in private homes were banned and there were frequent raids during services; witnesses were fired from their jobs, questioned and tried, many buildings destroyed. On November 14, 2017, the Plenum of the Supreme Court of the Russian Federation established, with resolution #44, that one can be "deprived of parental authority by a court" if one involves one's children in a religious organization banned as an "extremist". In 2017 D. Christensen, a Danish citizen and therefore a citizen of the European Union, was arrested by armed agents of the Federal Security Service during a raid in a religious function. Christensen was the first Jehovah's Witness to be detained following the ban imposed on the religious group and is still in prison; in 2019, his decision was confirmed to six years imprisonment, a harsh ruling, just for being a Jehovah's Witness. On June 23, 2020, the Supervisory Court had decided to commute the residual penalty to a fine, thus establishing the de facto release of the prisoner, but the Chief Prosecutor of the same prosecutor’s office defined the decision illegitimate and requested its cancellation. Russian human rights activists and the United States Commission on International Religious Freedom have recognized him as a "prisoner of conscience". In addition to the criminal trials, some 90-100 properties belonging to Jehovah's Witnesses have been confiscated by the Russian state, while another 100 properties are currently under trial. Russian authorities have also threatened to deprive Jehovah's Witnesses of their parental rights. On the interventions of the international community regarding the persecution of JWs, see https://jw-russia.org/news/about/faq/6.html, with references to the relevant documents. See also Resolution of the UN Working Group on Arbitrary Detention regarding 18 believers (in https://jw-russia.org/docs/21.html), with the intervention of the UN Working Group on Arbitrary Detention which condemned Russia for the third time in a year for violating international law, imprisoning eighteen Jehovah's Witnesses.
[4] ⬆︎ In 2020 two Russian citizens, both JWs, were deprived of their citizenship in two separate and subsequent proceedings, pursuant to article 282.2 of the criminal code, only because of their religion, F. Makhammadiyev (https://jw-russia.org/news/2020/05/6.html), e K. Bazhenov (https://jw-russia.org/news/2020/05/9.html). The authorities, formally following the law, apply the same measures to terrorists and peaceful believers. The international community considers their accusations unjust and illegal and has called them "prisoners of conscience".
[5] ⬆︎ Ministry of Foreign Affairs of the Russian Federation (http://www.mid.ru/en/foreign_ policy/official_documents/-/asset_publisher/CptICkB6BZ29/content/id/589768).
[6] ⬆︎ The relationship of dictatorial political powers (understood in a general sense) with religious phenomena can be constructed according to a model that can be defined with the expression "religions of politics": it frames a particular form of sacralization of politics which, "after having conquered its autonomy from traditional religion, it claims for itself the prerogative of defining the meaning and the fundamental purpose of human existence: Gentile, Emilio. 2001. Le religioni della politica, Roma-Bari: Laterza, in particular p. 206.
[7] ⬆︎ In 1937 the SS security service had issued a document on "sectarian movements" in which their dangerous elements were indicated: education of the adherents to accept and cultivate "self-centered opinions", becoming indifferent to the problems of the State and the people; the infiltration of Marxist and Communist elements; maintaining relations with Freemason, Jewish and international circles; the refusal to take the oath and to do the Hitlerian salute; conscientious objection; refraining from participating in activities organized by the Nazi party; denial of public events; the refusal to work in the war industry. We do not have much documentation on the Soviet gulags, but there is still a strong testimony of the German Communist's autobiography relating to the years 1937-1945 and her experience in the Soviet "re-education" camps and in the German concentration camp of Ravensbruck. Part of her story is also dedicated to the JWs in the German camp and the two years she spent with them: Buber-Neumann, Margarete. 2008. Under two Dictators. Prisoner of Stalin and Hitler. London: Pimlico.
[8] ⬆︎ GARBE, DETLEF. 2008. Between Resistance and Martyrdom. Jehovah’s Witnesses in the Third Reich, Madison- London: The University of Wisconsin Press. He underlined the existence of a strong prejudice against them, considered as a "cult" and not as a religious denomination.
[9] ⬆︎ See VERCELLI, CLAUDIO. 2011. Triangoli viola. Le persecuzioni dei testimoni di Geova nei Lager nazisti, Roma, Carocci; CANONICI, GUY. 1998. Les Témoins de Jéhovah face à Hitler, Paris, Albin Michel; GRAFFARD, SYLVIE, and TRISTAN, LEO, Les Bibelforschers et le nazisme (1933-45). ces oublié de l’histoire, Paris: Tirésias; MILTON, SYBIL. 2004. Testimoni di Geova, ed. CAVAGLION, ALBERTO. Dizionario dell’Olocausto, Torino: Einaudi.
[10] ⬆︎ The typical and obligatory Nazi salute "Heil Hitler!" was refused because it meant attributing a saving value to a human being and constituted a serious infringement of the integrity of the Christian identity: it was an act of blasphemy. For the Nazis this greeting obviously had not only a formal profile but represented adherence to the ideals of Nazism, mandatory for all. This was one of the causes of detention, even in JW’s concentration camps.
[11] ⬆︎ The situation was disliked by the Moscow government, in particular by the Ministry for State Security. [MGB, later KGB]. With a Memorandum of 1951 it was communicated to Stalin, at that time General Secretary of the Communist Party of the Soviet Union that: "in order to definitively suppress all anti-Soviet activities of the Jehovists operating in clandestinity, the MGB of the USSR considers it necessary to confine in the Irkutsk and Tomsk oblasts, the Jehovists and their families”. Since the identity of most of the Witnesses was known, permission was sought to deport around nine thousand of them from six different republics of the Union to Siberia, and so, on April 8, 1951, over six thousand Witnesses from Ukraine were transferred to Siberia with a procedure reminiscent of that of the Jews of Germany in November 1938. In addition to Ukraine, the deportation involved Moldova, Belarus, Lithuania, Latvia and Estonia. About 9,500 units, according to the MGB program. The purpose was to isolate the Witnesses from Soviet Society, concentrating them in a place where they could not convert. With reference to those detentions, Solzhenitsyn's account of a revolt in the Kengir gulag in 1953 is significant: “Jehovah's Witnesses, adhering to their rules of life, refused to take up arms, to work on the fortifications, to stand guard. They sat for a long time, their heads close together, in silence. (They were used to wash dishes)": Solženicyn, Aleksandr Isaevič. 1973. Архипелаг ГУЛаг (trad. it. Arcipelago Gulag), Paris: Seuil (p. 243). There is not much historical research on these events, most of the documentary sources are represented by the Yearbooks of the JWs, with interviews to witnesses.
[12] ⬆︎ A Resolution of 2002, adopted by the Parliamentary Assembly of the Council of Europe, on the observance of the obligations and commitments by the Russian Federation, declared that "the Assembly is saddened by the problem of the Salvation Army and Jehovah's Witnesses in Moscow, but welcomes the decision of the Russian authorities to ensure that the problem of the discriminatory and harassing treatment to which the local religious communities are subjected is resolved ": Resolution Parliamentary Assembly of the Council of Europe, n. 1277, April 23, 2002 (in www.osce.org/it/resources/documents? page=2&filters=%20im_taxonomy_vid_1%3A%2815%29).
[13] ⬆︎ As witnessed by a report of the Congregation, in the decade 2009-2019, the repressive action in the country was systematically resumed. The application of the anti-extremism law since 2016 and the confirmation of the dissolution by the Russian Supreme Court on April 20, 2017, have resulted in an increase in cases of denounciation and incarceration of people accused of illegal worship. With 746 homes searched and 300 people accused of infringing Article 282 of the Criminal Code, 147 people have been jailed for "organizing extremist activities" since 2017 and many are still in prison (see https://www.jw.org/it/news/sviluppi-legali-diritti-umani/sviluppi-legali-per-area-geografica/russia/in-prigione-russia-infografica/).
[14] ⬆︎ See ECHR, Jehovah’s Wtnesses of Moscow v. Russia, 302/02, 10 June 2010 (in http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-99221&filename=001-99221.pdf&TID=cnscmzszbt). For a comment see LAPI, CHIARA. 2011. La difficile posizione giuridica dei Testimoni di Geova in Russia di fronte alla Corte di Strasburgo, in (Stato, Chiese e pluralismo confessionale).
[15] ⬆︎ See ECHR, The Moscow Branch of The Salvation Army c. Russia (https://www.icnl.org/research/library/russia_moscow-branch-of-salvation-army-v/) and ECHR, Church of Scientology Moscow c. Russia (https://hudoc.echr.coe.int/fre#{%22itemid%22:[% 22001-80038%22]). For a comment on the latter, see CAROBENE, GERMANA. 2008. L’affaire di Scientology. La qualificazione in via giudiziaria di una confessione nel contesto ‘europeo’ della libertà di religione, in Stato Chiese e pluralismo confessionale
[16] ⬆︎ ZEN'KOVSKIJ, VASYL, VASYLOVYCH. 1953. History of Russian Philosophy, New York, Routledge and Kegan Paul Ltd., stressed that the theocratic theme of Christianity developed in Russia not in the sense of a primacy of spiritual over temporal power, as it took place in the West, but in the direction of an appropriation of the ecclesiastical mission by the state power. It was not a movement in the direction of Caesaropapism: the Church itself went to meet the State in order to introduce the grace of consecration into it (in particular, p. 163 and following.)
[17] ⬆︎ The Slavophile movement, born in Russia in the first half of the 19th century, is a movement of great importance in the history of Russian religious philosophical thought. It expressed in consciousness the millennial nature of Russian thought, soul, history and national consciousness. See CODEVILLA, GIOVANNI. 2011. Chiesa e Impero in Russia. Dalla Rus' di Kiev alla Federazione Russa. Milano: Jaca Book; STROYEN, WILLIAM. 1967. Communist Russia and the Russian Orthodox Church, 1943-1962, Washington: Catholic University of America Press; TIMASHEFF, NICHOLAS SERGEYEVITCH. 1942. Religion in Soviet Russia, 1917-1942. New York: Sheed & Ward. Interesting, in a general sense, the reflections of FERRAI, SILVIO. 2007. “Tra geo-diritti e teo-diritti. Riflessioni sulle religioni come centri transnazionali di identità”. Quaderni di diritto e politica ecclesiastica: p. 3 and following. It is interesting to underline that the Patriarchate of Moscow is the only institution that has maintained its jurisdiction over almost the entire territory over the centuries (with the exception of Georgia alone), so much so that it is defined as an ethnarch of the Russians: see also BORDEAUX, MICHAEL. 1970. Patriach and Prophets: Persecution of The Russian Orthodox Church Today. New York: Praeger.
[18] ⬆︎ Cf STRÉMOOUKHOFF, DIMITRI. 1953. “Moscow the Third Rome: Sources of the Doctrine”. Speculum 28/1 : 84-101 (DOI: 10.2307/2847182). In the history of the Orthodox Church a close connection of the Tsar-Patriarch has thus emerged: it was the presence of the Tsar that determined the institution of the Patriarchate in 1589 which survived until its abolition by Peter the Great in 1721. The Bolshevik revolution strengthened the democratic tendencies within the Russian Orthodox Church with the consequence of focusing attention on the re-establishment of the Patriarchate, the sole guardian of the Russian identity (which was thus restored with the Council of 1917). It is interesting to note that we are currently witnessing a reaffirmation of the ideology of the "Third Rome" which has followed a long historical journey in the country, both in the "Slavophile" and in the Bolshevik vision. This has given rise to a "Pan-Slavist messianism that aspires, as in the past, to bring the Orthodox cross of salvation to all the Slavs of the territories of the former Soviet empire", articulated in the sense of an appropriation of the ecclesiastical mission by the State power: CODEVILLA, GIOVANNI. 2009. “Ortodossia e linguaggio sui diritti umani in Russia. Nuovo legame tra religione e politica”. In Stato, Chiese e pluralismo confessionale and, in general, by the same Author. 2008. Lo zar e il Patriarca. I rapporti tra trono e altare in Russia dalle origini ai giorni nostri. Milano: La Casa di Matriona. Cf. also ELLIS, JANE. 1990. The Russian Orthodox Church: Conformity and Dissent. London: Routledge; RAMET, PEDRO (ed). 1988. Eastern Christianity and Politics in the Twentieth Century. Durham: Duke University Press.
[19] ⬆︎ See CODEVILLA, GIOVANNI. 2019 La Chiesa Ortodossa Russa e le riforme dell’inizio del XX secolo, in Stato, Chiese e pluralismo confessionale (https://doi.org/10.13130/1971-8543/11817). WERTH, NICOLAS. 1993. “Le pouvoir soviétique et l’Église orthodoxe de la collectivisation à la Consitution de 1936”. Revue d’études Est-Ouest: 3-4: 41-49 (and in https://www.persee.fr/doc/receo_ 0338-0599_1993_num_24_3_2626); ROPS, DANIEL. 1964. “L’Église orthodoxe et l’URSS”. Revue de Deux Mondes: 3-13 (and in https://www.jstor.org/stable/44591128?seq).
[20] ⬆︎ On the particular relationship of the Orthodox Church with Stalin's regime, see Walters, Philip .1986. “The Russian Orthodox Church and the Soviet State”. The Annals of the American Academy of Political and Social Science: 135-145 (https://www.jstor.org/stable/1045546).
[21] ⬆︎ In the Communist Party Program of 1903 it is stated that every Communist must be an atheist (point 13): see CODEVILLA, GIOVANNI. 2019. Il terrore rosso sulla Russia ortodossa (1917- 1925), Milano: Jaka Book.
[22] ⬆︎ See BERDJAEV, NICOLAS. 1937. The Origin of Russian communism, ZENKOVSKY, SERGE A. 1957. “The Russian Church Schism: Its Background and Repercussions”. The Russian Review. 16, 4: 37-58 (https://www.jstor.org/stable/125748; DOI: 10.2307/125748).
[23] ⬆︎ See CURTIS, JOHN SHELTON. 1953. The Russian Church and the Soviet State, 1917- 1950. Boston: Little Brown. ANDERSON, PAUL B. 1944. People, Church and State in Modern Russie. New York: McMillan. ALEXEEV, WASSILJI. 1953. The Foreign Policy of the Moscow Patriarchate. 1939-1953. New York: Research Program on the U.S.S.R.. Towards the end of the 1920s the anti-religious campaign reached its climax when Stalin, having obtained absolute power, decided on a particularly offensive maneuver against religions. This campaign continued towards the end of the 1930s, coinciding with the "great terror". It was only after the German attack on the USSR that Stalin decided to ease the pressure against the worship practice for reasons of an international nature (to favorably impress the Allies) and national (considering the strong religiosity of the Russians, which had not been eradicated).
[24] ⬆︎ On October 1, 1990 the Supreme Soviet of the Soviet Union approved the law "On freedom of conscience and religious organizations", followed by that of the Russian Soviet Federative Socialist Republic (RSFSR) "On the freedom of religious professions", promulgated on 25 October of the same year. The law of October 1, 1990 was the final result of the draft drawn up by the Local Council of the Russian Orthodox Church; of primary importance was also the participation of the Church in the drafting of the law of October 25, which still remains the only legislation valid on Russian territory as regards the religious sphere. These two new systems introduced notable changes in freedom of faith, as they put an end to the religious intolerance which had marked Russia since the time of Peter the Great and which had intensified brutally during the years of the Bolshevik regime. From this moment the Russian Orthodox Church was able to regain its own autonomy in various sectors of its sphere of influence; in fact, it was allowed to organize schools for the religious education of children, to found religious education institutes and charities, to profess its faith freely and in any place. The distinction that both laws introduced between the notion of freedom of conscience and freedom of religious profession was also significant. While the first concept designates the freedom of choice in matters of faith that every citizen holds, the second indicates the freedom to have and profess one's own religious beliefs. The community, therefore, was no longer forced to believe in a religion imposed by the state which, in turn, had to be neutral and should not in any way subsidize the action of any religious association, much less instigate atheistic propaganda. With this legislation, therefore, a great step forward was made because in addition to regulating the religious aspect, it aimed to defend the rights of people by eliminating discrimination between citizens of the Russian Republic and foreigners, thus ensuring the equality of all religious associations before the law (art.10): see CAROBENE, GERMANA. 1991. La recente legge sovietica sulla libertà di coscienza e organizzazioni religiose, in Dir. Eccl., 2-3, pp. 428-452; CODEVILLA, GIOVANNI. 1998. Stato e Chiesa nella Federazione Russa. La nuova normativa nella Russia post comunista, Milano: La Casa di Matriona.
[25] ⬆︎ In Orthodox language, the activity of acquiring new followers by Churches other than the Orthodox, in a canonical territory foreign to them and addressed to people of ethnicity other than those traditionally belonging to them, it is presumed to be the result of deception or in any case of an offense, i.e. the violation of the prohibition of missionary activity sanctioned by orthodoxy, a prohibition which, moreover, cannot be said to be implemented by the Constitution of the Russian Federation.. As is known, the juridical concept of proselytism was not conceivable in imperial Russia where there was a prohibition of apostasy for the faithful of the state religion: see CODEVILLA, GIOVANNI. 2008. Lo Zar e il Patriarca. I rapporti tra trono e altare in Russia dalle origini ai giorni nostri, Milano: La Casa di Matriona, in particolar p. 145 and following.
[26] ⬆︎ Art. 14 states: “The Russian Federation is a secular state. No religion can be established as a state religion or as a mandatory one. Religious associations must be separated from the state and must be equal before the law ”. The art. 28 reads: "Everyone is guaranteed freedom of religion and conscience, which includes the right to profess any religion individually or collectively, to choose not to profess any religion, and to freely choose and disseminate religious and other beliefs and act in accord with these". The art. 19 guarantees equal rights regardless of religion or belief, adding that "all forms of violation of human rights on a social, racial, national, linguistic or religious basis are prohibited". The art. 29 states that "acts of propaganda or agitation that arouse social, racial, national or religious hatred and hostility are prohibited" and that spreading ideas relating to supremacy is also prohibited for the same reasons. The art. 30 guarantees, instead, the right of association.
[27] ⬆︎ In the Constitution, the religious issue is dealt with very clearly and seeks to normalize the relationship between state and spiritual power. In fact, in the first chapter, which deals with the foundations of the constitutional system, art. 13, while recognizing the plurality of religious denominations, denies each of them the possibility of establishing itself as a state ideology and affirms the equality of all social associations before the law. In the Preamble of the law, however, it is sanctioned that the legislator takes a position of manifest benevolence towards the Russian Orthodox Church finally mentioning in a truly vague and indefinite way the other religions traditionally existing in the Russian Federation: CODEVILLA, GIOVANNI. 1998. Stato e Chiesa nella Federeazione Russa. La nuova normativa nella Russia postcomunista, Milano, La Casa di Matriona, p. 37; POSPIELOVSKY, DIMITRY. 1984. The Russian Church Under the Soviet Regime 1917-1982, New York: St Vladimir Seminary Press.
[28] ⬆︎ ANDERSON, JOHN. 1994. Religion, State and Politics in the Soviet Union and Successor State, Cambridge, Cambridge University Press; DURHAM W. COLE Jr. and HOMER,LAUREN B. 1998. Russia's 1997 Law on Freedom of Conscience and Religious Associations: An Analytical Appraisal, in Emory International Law Review, vol. 12, 1, pp. 101-246; SHTERIN, MARAT. 2000. Church-State Relations and Religious Legislation in Russia in the 1990s, in Religious Transitions in Russia, KOTIRANTA, MATTI OTIRANTA (ed.), Helsinki, Alexander Institute: 218-250; MEDVEDEV, ROI, 2002. Post Soviet Russia: A Journey Throught the Yeltsin Era, New York: Columbia Univiversity Press.
[29] ⬆︎ An arbitrary interpretation of the norm has led to argue that the concept of "traditional" can only be attributed to orthodoxy, Islam, Judaism and Buddhism: FAGAN, GERALDINE. 2012. Believing in Russia. Religious Policy after Communism, London-New York: Routledge.
[30] ⬆︎ In fact, it states that 'Russian' associations can only be defined as those that had assumed legal status in the territory for at least fifty years, that is, during Stalin's dictatorship, in a period in which the very survival of the churches was linked to acceptance of clandestinity. It was also established that the right to establish a community for religious reasons is linked to the physical presence of believers on the territory and thus a group formed in a certain territorial area will not be able to carry out its missionary work outside of it. A foreign association may have the right to its own representation, but not the right to carry out any type of religious activity. Local associations, of any religion, must attest to their presence in the territory for at least fifteen years, that is, since the time of Brežnev. In the absence of such recognition they cannot carry out any type of activity and, if they fail to obtain a new registration, they must be “liquidated by criminal law.” It also establishes different categories of religious entities: religious groups, local religious organizations and centralized religious organizations. The "religious groups" have in fact only the right to perform religious rites and ceremonies, hold worship services and teach religious doctrines. They are not registered with the government and therefore have no legal personality; they cannot open a bank account, build, buy or rent premises, nor publish or import religious material. To be recognized as a local religious organization, a group must demonstrate that it has existed as such for at least 15 years; to be made up of no less than 10 people (over the age of 18), who permanently reside in a given area. A "local religious organization", on the other hand, can open a bank account, purchase, own and rent buildings for religious purposes, acquire, import, export and disseminate religious literature, enjoy tax relief and other benefits, and so on. Furthermore, these associations can create affiliated local religious organizations, without any waiting period. After fifty years of existence and activity in the country, they may include the word "Russia" or the adjective "Russian" in their official title. See CAROBENE, GERMANA. 2008. L’affaire di Scientology. La qualificazione in via giudiziaria di una confessione nel contesto ‘europeo’ della libertà di religione, in Diritto e Religioni, 1, 2008, pp. 774-791, in particolar p. 776 and following.
[31] ⬆︎ BARAN, EMILY B. 2006. Negotiating the limits of religious pluralism: the Anticult Movement in the Russian Orthodox Church, 1990-2004, in The Russian Review, vol. 65: 637-656, and EAD. 2007. Contested Victims: Jehovah’s Witnesses and The Russian Orthodox Church, in Religion, State and Society, vol. 35: 264-278. Of the same author, also see Faith on the Margins: Jehovah’s Witnesses in The Soviet Union and Post- Soviet Russia, Ukraine, and Moldova, 1945-2010 (https://core.ac.uk/download/pdf/210603655.pdf). See also RICHARDSON, JAMES T. and VAN DRIEL, BAREND. 1994. New Religious Movements in Europe: Developments and Reactions, in Anti-Cult Movements in Cross-Cultural Perspective (A. SHUPE and D.G. BROMLEY eds.), New York: Garland.
[32] ⬆︎ They deal with various issues: the principle of non-State interference in the activities of religious organizations; a ban on federal and local officials from collecting religious affiliation information or entering such information on government employees personal files; the prohibition for the Federal Security Service to seek confidential assistance from members of the clergy; a ban on state agencies from investigating or participating in the life of registered religious organizations to interfere in their activities; finally, the ban on disseminating offensive advertisements against the faithful of a religious organization. At the state level, more than thirty laws concern various aspects of the activities of religious associations. In February 2001, the Human Rights Ombudsman recognized that many articles of this legislation did not respect Russia's international human rights obligations and that some of its provisions led to discrimination against different religious faiths and should have been subject to amendment.
[33] ⬆︎ Russian Constitutional Court, order of 23 November 1999. In the interpretation of the Supreme Court, the State has the right to hinder missionary activity (including the problem of proselytism) if this is incompatible with the respect for freedom of thought, conscience and religion and with other constitutional rights and freedoms and precisely is accompanied by the offer of material or social advantages in order to recruit new members to the Church, by the illicit influence on people who are in conditions of need or poverty, from psychological pressure, or the threat of resorting to violence and the like. The other religions are therefore relegated to practice and spread their faith in the exclusive sphere of "ethnic reserves" in a system in which "religious affiliation coincides with ethnicity and which can only be transmitted by inheritance", with obvious impossibility insertion for new religious movements, such as the JWs. In the document Conception of National Security of the Russian Federation it is indicated that the protection of national security includes the defense of the cultural, moral and spiritual heritage. This last point was also reiterated in the Information Security Doctrine of the Russian Federation, approved by Putin in 2000. As always the reference to the Foundations of the social conception of the Orthodox Church, approved by the Council of Bishops in 2000 is important, in which it is emphasized that the Russian Orthodox Church, being part of the only Church of Christ, must have a juridical and public status superior to that of other denominations; it is a supreme sacred reality as well as a significant historical force in the creation of the Russian state. See also ŠKAROVSKII, MICHAIL. 2003. La Croce e il potere, Milano: La Casa di Matriona.
[34] ⬆︎ It is important to underline that the concept of "traditional religions" was only coined in 1905; in the past Islam and Judaism were "recognized" and merely tolerated religions. This concept was not contained in any state document but only in the documents of the Orthodox Church.
[35] ⬆︎ The insistence with which the Russian Church proposes the theme of Orthodox patriotism, in which the religious ideal is confused with the political one, in which the flag of Orthodoxy is at the same time the emblem of the earthly and celestial kingdom. This restores the identification between the Church and the Nation that has been established in Moscow since the end of the 15th century, when the fullness of rights was acquired by belonging to both. There is, in fact, in today's Russia, a resurgence of the idea of the Third Rome that arose in Moscow and since then never shooted, which had re-established itself in the nineteenth century in the Slavic version of the Russian people as a theophorous or Westernist people, and then Bolshevik, of Russia that brought exclusively worldly good and happiness. Both of these visions give Russia a historic mission and today restore life and vigour to a pan-Slavic messianism that aspires, as it once did, to bring the orthodox cross of salvation to all the Slavs of the territories of the former Soviet empire, to those scattered throughout the world, as well as to other peoples willing to accept it.
[36] ⬆︎ See FAGAN, Believing in Russia, cit., in particolar p. 121 and following, but also SIMONS, GREG and WESTERLUND, DAVID. 2016. Religion, Politics and Nation-Building in Post-Communist Countries, London-New York: Routledge.
[37] ⬆︎ CODEVILLA, GIOVANNI. 2007. Il progetto di legge Tjul’kin per modificare la legislazione sulle associazioni religiose, in Stato, Chiese e pluralismo confessionale. The author observes how the project of secularism, outlined in the bill has nothing in common with the semantic meaning that the West attributes to this term where secularism means independence from any form of religious pressure or ideology. In the Russian language, the term secularism/svet is synonymous with secular, mundane and does not have in itself the Enlightenment concept of secularism.
[38] ⬆︎ Published in SOVA Center, July 3, 2013, in www.sova-center.ru/misuse/news/lawmaking/2013/7/d27442/.
[39] ⬆︎ Amendments to the Religious Freedom Act 2015 (March, July and November) and 2016, published in Spanish and Russian (http://licodu.cois.it/?page_id=1443). If previously a religious organization in order to be able to register permanently as such and obtain the rights that were due to it had to certify its presence in Russia for at least fifteen years to the competent authorities, The recent changes, wanted by Putin, have eliminated, for those that want to register for the first time, the obligation to repeat the act annually for fifteen years. However, these amendments increase the restrictions on religious groups and, further now, all religious communities without legal status have had to inform the State about their existence and activities. In the past a group had to inform the State of its existence only if it wanted to become a religious organization, but with these last changes, it must in any case, and must communicate its presence. As a result, at least once every three years, any group must report accurate information to the Department of Justice about its membership, the names and addresses of its members, the religion to which it belongs and who it intends to engage with its activities.
[40] ⬆︎ Politically, this phase coincides with the rise to power of Putin, the current president of the Russian Federation. MONIAK-AZZOPARDI, AGNIESKA. 2004. Les religions et l’Etat en Russie. Une relation équivoque, in Le Courrier des Pays de l’Est, 5: 28-38 (in https://www.cairn.info/revue-le-courrier-des-pays-de-l-est-2004-5-page-28.htm); ROUSSELET, KATHY. 2000. L’Église orthodoxe russe et le territoire, in Revue d’études comparatives Est-Ouest, 35, 4: 149-171 (in https://www.persee.fr/doc/receo_0338- 0599_2004_num_35_4_1681?q=orthodoxe). he European Commission for Democracy through Law, also known as the Venice Commission, the Council of Europe's advisory body, said in a 2012 opinion that the way the "extremism law" is applied is problematic because of its broad and inaccurate wording, especially with regard to the "basic notions" defined by the legislation such as definitions of "extremism", "extremist actions", "extremist organizations" or "extremist materials" as it confers too broad discretionality interpretation and application of the rule, thus lending the side to possible arbitrariness. Reassurances from the authorities that the negative effects would be avoided thanks to Supreme Court guidelines, the interpretation of the Russian Institute for Comparative Legislation and Law or Good Faith, did not seem sufficient to meet the relevant international requirements: see Venice Commission, Opinion on the Federal Law on Combating Extremist Activity in the Russian Federation, Council of Europe, 20 June 2012 (http://www.venice.coe.int/webforms/documents/?opinion=660&year=all). On the legislative situation in general CURANOVIĆ, ALICJA. 2012. The religious factor in Russia’s foreign policy, London: Routledge.
[41] ⬆︎ The law that has most affected "foreign" religious denominations is Federal Law #121 FZ of 20 July 2012 which has regulated the activities of nonprofits organizations, which, if they receive donations from abroad, have an obligation to register as "foreign agents". The term "foreign agent", in Russian "inostrannyj agent", still remains linguistically closely associated with the action of foreign spies in Russia during the Cold War, thus assuming an extremely negative connotation.
[42] ⬆︎ Resolution 1896, 2012, The Honoring of Obligations and Committements by the Russian Federation, PACE, October 2, 2012 (in http://assembly.coe.int/ASP/Doc/XrefHTML.asp?File-ID=19116&Language=EN).
[43] ⬆︎ As well as the United Nations Recommendation for the Blasphemy Act introduced in 2016, Amendments to the law on protecting the feelings of believers, SOVA Center, May 13, 2013 (in www.sova-center.ru/misuse/news/lawmaking/2013/05/d27066).
[44] ⬆︎ The law of banning recognition of the scriptures of world religions as extremist, SOVA Center, November 23, 2015 (in www.sova-center.ru/misuse/news/lawmaking/201015/11/d33297/).
[45] ⬆︎ With reference to the dangerous material is, however, specified that the Bible, the Koran, the Tanakh and the Kangyur and the concepts contained in them cannot be recognized as extremist material.
[46] ⬆︎ See for all Commission Reports on Russia and the detention of Jehovah's Witnesses in the country, up to 2020 (https://www.uscirf.gov/countries/russia). See also "Statement by the Bulgarian EU Presidency on the Situation of Jehovah's Witnesses in the Russian Federation", Organization for Security and Cooperation in Europe, 10 May 2018 (https://www.osce.org/permanent-council/381820).
[47] ⬆︎ The Constitutional Court ruled that the mention of God in the Fundamental Charter is not in contrast with the secular character of the State and with freedom of conscience. Indeed, it affirms that the insertion in the text of the Charter of a reference to faith in God does not mean denying the secular character of the State proclaimed in art. 14 and the guarantee of freedom of conscience guaranteed in art. 28, as for the way it is formulated it is not associated with confessional affiliation, it does not declare the mandatory nature of certain religious beliefs and does not place citizens, in contrast with art. 19 (part II) of the Constitution, in a position of inequality on the basis of faith and their specific orientation, and it is intended only to underline the need to take into account, in the implementation of state policy, the historically significant socio-cultural role that the religious component has played in the formation and development of Russian statehood (decision of March 16, 2020).
[48] ⬆︎ See FISICHELLA, DOMENICO. 2012. Totalitarismo. Un regime del nostro tempo, Roma: La Nuova Italia Scientifica.
[49] ⬆︎ See Resolution of the Russian Supreme Court no. 21 P, 14 July 2015; Federal Law #7 FKZ of December 14, 2015 amending the “Federal Constitutional Law on the Constitutional Court of the Russian Federation #1 FKZ of 21 July 1994 ". The new law establishes, in fact, that the Constitutional Court, acts "At the request of the federal executive authority which has competence for protecting the interests of the Russian Federation in litigations before an inter-State body on the protection of human rights and freedoms" (art. 1, par. 1), may decide that decision of an international court cannot be enforced in the territory of the Federation.
[50] ⬆︎ Russian Supreme Court, April 19, 2016 #12 P/2016.
[51] ⬆︎ This ruling originated from the application of the Federal Law of the Russian Federation #7 KFZ of 2015. In 2016, therefore, the Ministry of Justice of the Russian Federation, exercising the faculty conferred by the new legislation, was able to introduce an appeal before the Constitutional Court concerning the possibility of implementing the decision of the Strasbourg Court: see ECHR, Anchugov v. Russia (in https://tinyurl.com/yd4tktuq).
[52] ⬆︎ See art. 27 Vienna Convention on the Law of Treaties.
[53] ⬆︎ As has been underlined, these are, in fact, genetically international agreements, but with a para-constitutional function, aimed at triggering movements of progressive 'para-federal' integration, through a progressive thickening of the powers of the supranational level to the detriment of those of the state, without however the latter (and above all its citizens) being placed in a position to decide abruptly to renounce its sovereign prerogatives. This area would include treaties such as those establishing the European Union.
[54] ⬆︎ We are faced with what the Russian constitutional doctrine defines as "sovereign democracy": see BOWRING, BILL. 2015. What’s in a word: ‘sovereignty’ in the Constitutional Court of the Russian Federation, in Russian Journal of Communications: 328-338. See also the Venice Commission, based on what was stated in its Final Opinion on the Amendments to the Federal Constitutional Law on the Constitutional Court (opinion #832/2015, 13 June 2016). This opinion criticizes two aspects of the aforementioned Federal Law #7 KFZ of 2015: the attribution to the Constitutional Court of the identification of all the means of execution of an international decision, where its role should be limited to establishing whether or not a possible means of execution is in conformity with the Constitution (paragraph 25); the possibility given to the Constitutional Court to rule on the conformity with the Constitution of a decision of the Strasbourg Court in which just satisfaction is granted to the injured party.
[55] ⬆︎ The mechanism was conceived within the framework of the Draft revised agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, in art. 3, par. 6, in which the Court of Justice of the European Union was given sufficient time to assess the compatibility of EU law with ECHR obligations, in the event that the Court of Justice had never had occasion to rule on a matter.
[56] ⬆︎ On the role of European organizations see Diritto e religione in Europa. Rapporto sulla giurisprudenza della Corte Europea dei diritti dell’uomo in materia di libertà religiosa, ed. MAZZOLA, ROBERTO. 2012. Bologna: Il Mulino; LICASTRO, ANGELO. 2014. Unione europea e “status” delle confessioni religiose. Fra tutela dei diritti umani fondamentali e salvaguardia delle identità costituzionali, Milano: Giuffrè.
