The Law on Freedom of Conscience prohibits the establishment of advantages, restrictions or other forms of discrimination based on attitudes towards religion. Citizens of the Russian Federation are equal before the law in all areas of life, regardless of their religious affiliation. Obstruction of the exercise of the right to freedom of conscience and freedom of religion, including those associated with violence against the individual, with deliberate insult to the feelings of citizens, with the propaganda of religious superiority, damage to property is prosecuted in accordance with the law. Namely, supervision over the implementation of the legislation of the Russian Federation on freedom of conscience, freedom of religion and religious associations is carried out by the bodies of the Russian prosecutor's office.

Violation of Russian legislation on freedom of conscience and freedom of religion entails criminal, administrative and other liability in accordance with the legislation of our country

The rights of convicted persons to freedom of conscience and religion are also protected in our country. Namely, Article 14 of the Criminal Executive Code of the Russian Federation "Ensuring freedom of conscience and freedom of religion for convicts" indicates that "Convicted persons are guaranteed freedom of conscience and freedom of religion. They have the right to profess any religion or not to profess any religion, freely choose, have and disseminate religious beliefs and act in accordance with them. The exercise of the right to freedom of conscience and freedom of religion is voluntary, and the rules of the internal order of the institution executing the sentence should not be violated, as well as the rights of others should not be infringed. Persons sentenced to restraint of liberty, upon their request, may be given permission to visit places of worship outside the correctional centers.

One of the main international acts in this area is the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, adopted by Resolution 36/55 of the UN General Assembly of November 25, 1981, Art. 6 of the Declaration consolidated the basic content of freedom of conscience and religion. In Art. 2 of this document states that: “Intolerance and discrimination on the basis of religion or belief means any difference, exclusion, restriction or preference based on religion or belief and with the aim or effect of the elimination or derogation of the recognition, enjoyment or exercise on the basis of equality of human rights and fundamental freedoms "



Federal Law of September 26, 1997 N 125-FZ (as amended on July 6, 2016) "On freedom of conscience and on religious associations" Art. 4 part 2. The right of a person and citizen to freedom of conscience and freedom of religion may be limited by federal law only to the extent that it is necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of man and citizen, to ensure defense country and state security.

3. Establishment of advantages, restrictions or other forms of discrimination depending on the attitude towards religion is not allowed.

Art. 4 h. 6 The separation of religious associations from the state does not entail restrictions on the rights of members of these associations to participate on an equal basis with other citizens in the management of state affairs, elections to government bodies and local self-government bodies, the activities of political parties, political movements and other public associations.

The current legislation of the Russian Federation establishes, in particular, the following restrictions on such a right: foreign citizens and stateless persons do not have the right to be a member of the founders of a local religious organization (clause I of article 9 of the commented law); members (participants) of a religious association can only be those foreign citizens and stateless persons who permanently and legally reside on the territory of the Russian Federation (clause I of article 8 of the commented law); professional religious, including preaching, activities of foreign citizens in a religious organization can be carried out only at the invitation of the relevant religious organization (Article 20 of the commented law); foreign citizens cannot be involved in labor activities in the Russian Federation as highly qualified specialists for preaching or other religious activities, including the performance of divine services, other religious rituals and ceremonies, teaching religion and religious education of followers of any religion (clause 1.2 of article 13.2 Of the Law on the Legal Status of Foreign Citizens in the Russian Federation).

The boundaries of freedom of conscience, as they are defined by international legal documents that have legal force for the Russian Federation, are:

a) Fundamental rights and freedoms of others.

b) Restrictions prescribed by law necessary to protect public safety, order, health or morality, taking into account the nature of specific rights.

The criteria for the boundaries of freedom of conscience in international legal documents are defined in the most general form. This means that the jurisprudence of each state must develop more definite criteria and guidelines to determine the boundaries of freedom of conscience, based on the fact that freedom of conscience is a systemic right and any restrictions in this area must not only be justified, but also take into account the essence of this right.

The Constitution of the Russian Federation confirmed as a legal basis for the church policy of the state such civilized norms as the secularity of the state and state education, the equality of citizens regardless of their attitude to religion and the equality of religious organizations, the obligation of universally recognized principles and norms of international law and international treaties of the Russian Federation (Art. 14 and 15). In accordance with Art. 28 “everyone is guaranteed freedom of conscience, freedom of religion, including the right to profess, individually or jointly with others, any religion or not to profess any religion, to freely choose, have and disseminate religious and other beliefs and to act in accordance with them”. In accordance with Art. 29 “... 2. Propaganda or agitation inciting ... religious hatred and enmity is not allowed. Propaganda of ... religious ... superiority is prohibited. " According to Art. 59 "... 3. A citizen of the Russian Federation in the event that his convictions or religion is contrary to military service, as well as in other cases established by federal law, has the right to replace it with an alternative civilian service"

Part 2 of article 55 deserves attention, according to which "laws that abolish or diminish the rights and freedoms of man and citizen should not be issued in the Russian Federation." However, the actual application of this norm directly depends on the development of the principles of the corresponding rights and freedoms. With regard to the right to freedom of conscience in the Russian Federation, this rule does not work.

And here is how he formulates the grounds for limiting human rights (including freedom of conscience), part 3 of Article 55: “Human and civil rights and freedoms can be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional order , morality, health, rights and legitimate interests of others, ensuring the country's defense and state security "

The realization of the right to freedom of conscience is associated with the understanding (or lack thereof) of this very purpose and essential content more than any other right.

It so happened historically that the criteria for the boundaries of freedom of conscience, determined by each specific state, are associated with real state-church relations. The science considers state-church relations as “a set of historically emerging and changing forms of relationships between state institutions and institutional religious formations (religious associations, religious parties, religious movements, international confessional centers)” 11. They are based on legislatively enshrined ideas about the place of religion and the church in the life of society and the state at a certain stage of development.

Legal guarantees of freedom of conscience and their limitations are contained in a number of international legal documents, among which the following should be highlighted.

On December 10, 1948, by resolution 217 A (III) of the UN General Assembly, the Universal Declaration of Human Rights was adopted and proclaimed, which served as a guideline in resolving issues in one way or another related to freedom of conscience, in accordance with Article 18 of which “everyone has the right to freedom of thought , conscience and religion; this includes the freedom to change one's religion or belief and the freedom to practice one's religion or belief, either alone or in community with others, publicly or privately, in teaching, worship and the performance of religious and ritual orders. ” And according to article 29, paragraph 2 of the Universal Declaration of Human Rights, “in the exercise of his rights and freedoms, each person should be subject only to those restrictions that are established by law solely for the purpose of ensuring due recognition and respect for the rights and freedoms of others and meeting the just requirements of morality, public order and general welfare in a democratic society ”1.

The International Covenant on Civil and Political Rights was adopted and opened for signature, ratification and accession by resolution 2200 A (XXI) of the UN General Assembly on December 16, 1966, entered into force for the USSR on March 23, 1976.

Hereinafter, one should take into account the statement contained in the note of the Ministry of Foreign Affairs of the Russian Federation to the heads of diplomatic missions dated January 13, 1992, according to which “the Russian Federation continues to exercise its rights and fulfill its obligations arising from international treaties concluded by the USSR” 2.

In accordance with Art. 18 of the Covenant: “1. Everyone has the right to freedom of thought, conscience and religion. This right includes the freedom to have or accept a religion or belief of one's choice and the freedom to practice one's religion and beliefs, either alone or in community with others, in public or private, in worshiping, performing religious and ritual practices and teachings. 2. No one should be subjected to coercion that diminishes his freedom to have or accept a religion or belief of his choice. 3. The freedom to profess religion or belief is subject only to restrictions established by law and necessary to protect public safety, order, health and morality, as well as the fundamental rights and freedoms of others ”3

Summarizing the international practice of regulating the activities of religious associations in democratic states, we can conclude that it is aimed at strictly limiting the possibility of state interference in the internal life of churches, or at least has such a tendency.

1. The Russian Federation guarantees freedom of conscience and freedom of religion, including the right to profess, individually or jointly with others, any religion or not to profess any religion, to perform services, other religious rituals and ceremonies, to carry out religious education and religious education, to freely choose and change, have and disseminate religious and other beliefs and act in accordance with them, including by creating religious associations.

Foreign citizens and stateless persons legally present on the territory of the Russian Federation enjoy the right to freedom of conscience and freedom of religion on an equal basis with citizens of the Russian Federation and bear responsibility established by federal laws for violation of the legislation on freedom of conscience, freedom of religion and religious associations.

2. The right of a person and citizen to freedom of conscience and freedom of religion may be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of man and citizen, to ensure the country's defense and security state.

3. Establishment of advantages, restrictions or other forms of discrimination depending on the attitude towards religion is not allowed.

4. Citizens of the Russian Federation are equal before the law in all areas of civil, political, economic, social and cultural life, regardless of their attitude to religion and religious affiliation. A citizen of the Russian Federation, in the event that his convictions or religion is contrary to the performance of military service, has the right to replace it with an alternative civilian service.

(see text in previous edition)

5. No one is obliged to disclose his attitude to religion and may not be subjected to coercion in determining his attitude to religion, to professing or refusing to profess religion, to participation or non-participation in worship services, other religious rituals and ceremonies, in the activities of religious associations, in teaching religion. It is prohibited to involve minors in religious associations, as well as to teach minors in religion against their will and without the consent of their parents or persons replacing them.

6. Obstruction of the exercise of the right to freedom of conscience and freedom of religion, including those associated with violence against a person, with deliberate insult to the feelings of citizens in connection with their attitude to religion, with the promotion of religious superiority, with the destruction or damage of property, or with the threat of such actions are prohibited and prosecuted in accordance with federal law. Holding public events, posting texts and images that offend the religious feelings of citizens, near objects of religious veneration are prohibited.

7. The secret of confession is protected by law. A priest cannot be held liable for refusing to testify due to circumstances that became known to him from confession.

Each state can be characterized by the degree of freedom of its citizens. Today, this is a key principle in the activities of many countries. However, there were times when personal freedom simply did not exist. At the same time, a person's life was subjected to strict regulation by the state authorities. Of course, this state of affairs did not suit anyone. Therefore, the period of the New Time is considered to be revolutionary, since people began an active struggle for their rights and freedoms. In the 21st century, the rights and freedoms of people in many states are ensured and supported.

The Russian Federation is no exception in this matter. The daily life of its citizens is based on constitutional principles developed and confirmed over the years. At the same time, provisions on freedom of conscience and religion are of great importance. They guarantee fundamental human rights, and also directly affect his life. But freedom of conscience and freedom of religion are not only separate norms of the basic law, but a whole system of normative regulation of specific legal relations in society.

Constitution and its norms

It should be remembered that freedom of conscience and freedom of religion are, first of all, constitutional and legal provisions or principles on the basis of which the life of an individual and society of the Russian Federation as a whole is built. In this case, the fundamental law is of key importance. It is he who gives life to the presented categories. The Constitution is an act of supreme legal force, which enshrines the provisions on the political and legal structure of the country. The principles of the Constitution also have supreme force and are the basis for rule-making in each separate area. If we are talking about rights, then all normative legal acts without exception should not violate the constitutional possibilities of society, which include freedom of conscience and freedom of religion.

Principles of the constitutional status of an individual

Human activity in all cases must be carried out within the framework of the law. Anything that goes beyond the created boundaries will be an offense. The main provisions that regulate human activities are constitutional principles. They show the range of possibilities that each of us possesses. At the same time, they relate to different areas of human life. Those basic provisions that directly coordinate the existence of society are called the principles of the constitutional status of an individual. They are classic and in some way basic provisions of the main law. These principles include the following: equality, freedom of speech, non-limitation of rights, guarantee of powers, freedom of conscience and freedom of religion.

What is freedom of conscience and religion?

The current legislation of the Russian Federation enshrines many key principles for the life of the population. In addition, the Constitution, as we know, guarantees freedom of conscience and freedom of religion. In most cases, people do not understand what these concepts are. Despite the fact that the presented possibilities of individuals are presented in a single constitutional norm, they are completely different legal constructions. Freedom of conscience is the ability to have any kind of belief that no one can influence. And freedom of religion is an opportunity to practice any of the existing religions.

Identity of concepts

For a long time, the right to freedom of conscience and religion was identified in the form of a single legal authority. At the same time, it was believed that the terms are absolutely equal. However, this statement is false. The problem is that freedom of conscience characterizes a person's ability to have his own thoughts and beliefs about any events and phenomena that surround him. That is, each of us has every right to criticize the current government, legislation, the state of the economy, etc. When we talk about freedom of religion, we mean the unlimited opportunity to be an adherent of any religious belief. In addition, this principle protects the rights of subjects. Indeed, in accordance with it, no one can be oppressed for their religious views, etc. Taking into account the presented features, we can say with confidence that freedom of conscience and religion are completely different concepts.

The history of the formation of principles

The development of freedom of religion and conscience has been going on for a long time. The latter principle originated during the European Reformation. The ideologists of this movement argued that the Catholic Church, with its convictions and hierarchy, was completely unnecessary for society. Further, the provision on freedom of conscience is reflected in the English and which was invented in France. Of course, the UN is of key importance in this list. It is she who is the main international legal act that enshrines the presented principle. With regard to freedom of religion, for a long time this provision has developed as part of the opportunity to have your own convictions. However, scientists have found that already in ancient Rome there were the makings of the principle of freedom of religion. In addition, its formation was also facilitated by the English Act of Tolerance, the provisions of the Warsaw Conference, the Russian decree "On strengthening the principles of religious tolerance," the abolition of the Pale of Settlement in the Russian Empire, etc.

Russian legislation on freedom of conscience and religion

If we talk about our state, then today it has developed a whole system of relevant regulations that regulate the issues mentioned in the article. According to the existing regulatory system, the issues presented are coordinated by the provisions of different legal areas, namely:

  • provisions of the Constitution;
  • The Civil Code of the Russian Federation;
  • applicable federal law.

First of all, Russian legislation on freedom of conscience and religion is enshrined at the level of the Constitution, namely in Article 28. According to its provisions, everyone is guaranteed the right to have their own convictions, etc. Moreover, freedom of religion is characterized by the fact that a person is given the opportunity to freely choose, to spread beliefs of the corresponding nature.

Federal Law "On freedom of conscience and on religious associations"

As mentioned earlier, in the Russian Federation there are relevant legislative acts that govern civil powers in the field of religion and internal ideology. This is the Federal Law "On freedom of conscience and on religious associations." After the Constitution, this act can be called the main coordinator of the relevant legal relations. This federal law enshrines specific forms of guaranteeing freedom of conscience. Its action is based on the fact that the Russian Federation is a secular state, in which there should not be a dominant or prevailing religion. Therefore, complete freedom of religious activity is permitted. It should be noted that the aforementioned law also regulates the activities of such an interesting subject as religious associations.

Features of associations of a religious nature

The presented law on freedom of conscience contains norms that regulate the activities of certain social groups. These are religious associations. Such formations are groups that exist on a voluntary basis. At the same time, the members of the associations must permanently reside in the territory of the Russian Federation and use their formation for the general preaching of a certain faith. In addition, a religious association is considered as such if it exists for the following purposes, namely:

Performing rituals and ceremonies;

Religious teaching;

Confession of faith, etc.

At the same time, the activity of religious associations can be stopped by the decision of the relevant state authorities if it contradicts the current legislation of Russia or violates the rights and freedoms of citizens.

Guarantees for the realization of freedom of conscience and religion

The norms of the Constitution and current legislation establish a number of provisions that ensure the human rights referred to in the article. First of all, freedom of conscience and freedom of religion are guaranteed by the provisions of the Constitution. It contains the following supporting norms:

  • freedom of conscience and religion cannot be limited by anyone, except for state necessity;
  • there can be no advantages or discrimination in religion;
  • people may not disclose their religious attachments;
  • confession is protected by law and is a secret.

In addition, the federal law "On freedom of conscience and on religious associations" also contains a number of guarantees. For the most part, the provisions of the normative act repeat the constitutional ones, however, there are some peculiarities. For example, according to the Law, a person can change military service to alternative service if it contradicts his religious beliefs.

Responsibility for violation of freedom of conscience and religion

Guaranteeing human capabilities implies the existence of several levels of legal protection, which manifests itself in the responsibility of different industry orientations. In this case, the very violation of the right to freedom of conscience and freedom of religion and the negative consequences that it causes play an important role. The first provision on responsibility is enshrined in the Constitution, namely in part 5 of Article 3. According to its norm, activities aimed at hindering a person's exercise of the right to freedom of conscience and religion, involving the use of violence, are prosecuted by federal law. In accordance with this rule, there are forms of administrative and criminal liability. In the first case, the offense is provided for by Article 5.26 of the Code of Administrative Offenses of the Russian Federation. With regard to criminal responsibility, the main role here is played by the rule of Article 148. It persecutes activities that are aimed at obstructing or violating the right to freedom of conscience and freedom of religion.

Separation of church and state

Freedom of conscience and religion exists rather ambiguously in states where the church is not separated from political power. In such countries, the principles presented in the article are essentially identical. An example of this is Sharia law, which is based on both legal and religious provisions. Thus, in a state where the church is also a political force, in fact, fundamental human freedom of conscience and religion is not ensured. The article of the Constitution in such a country will not play any role or have legal force. This is an extremely negative factor, since it clearly shows the infringement of natural human rights.

Conclusion

So, in the article we tried to consider constitutional rights, freedom of conscience and religion. In conclusion, it should be noted that these principles are an important element on the way to building a new European society, which will not be shackled by ideological prejudices.

1. The Russian Federation guarantees freedom of conscience and freedom of religion, including the right to profess, individually or jointly with others, any religion or not to profess any religion, freely choose and change, have and disseminate religious and other beliefs and act in accordance with them. Foreign citizens and stateless persons legally present on the territory of the Russian Federation enjoy the right to freedom of conscience and freedom of religion on an equal basis with citizens of the Russian Federation and bear responsibility established by federal laws for violation of the legislation on freedom of conscience, freedom of religion and religious associations. 2. The right of a person and citizen to freedom of conscience and freedom of religion may be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of man and citizen, to ensure the country's defense and security state. 3. Establishment of advantages, restrictions or other forms of discrimination depending on the attitude towards religion is not allowed. 4. Citizens of the Russian Federation are equal before the law in all areas of civil, political, economic, social and cultural life, regardless of their attitude to religion and religious affiliation. A citizen of the Russian Federation, in the event that his convictions or religion is contrary to the performance of military service, has the right to replace it with an alternative civilian service. (harm. Federal Law of 06.07.2006 No. 104-FZ) 5. No one is obliged to disclose his attitude to religion and may not be forced to determine his attitude to religion, to profess or refuse to profess a religion, to participate or not to participate in religious services , other religious rites and ceremonies, in the activities of religious associations, in teaching religion. It is prohibited to involve minors in religious associations, as well as on the teaching of minors in religion against their will and without the consent of their parents or persons replacing them. 6. Obstruction of the exercise of the right to freedom of conscience and freedom of religion, including those associated with violence against a person, with deliberate insult to the feelings of citizens in connection with their attitude to religion, with the promotion of religious superiority, with the destruction or damage of property, or with the threat of such actions are prohibited and prosecuted in accordance with federal law. Holding public events, posting texts and images that offend the religious feelings of citizens, near objects of religious veneration are prohibited. 7. The secret of confession is protected by law. A priest cannot be held liable for refusing to testify due to circumstances that became known to him from confession. Paragraph 1 I. The right to freedom of conscience is historically the first right to be proclaimed as an inalienable, natural human right2. The ideas of religious tolerance were expressed by ancient philosophers. Thus, Teptullian argued that "religion should be accepted voluntarily, and not by violence" 3. Freedom of conscience received a solid theoretical foundation in the scientific works of J. Locke, who denied any state interference in the field of faith. For the first time, the right to freedom of conscience was legislatively enshrined in the English bills of religious freedom (18th century). The content of the right to freedom of conscience is disclosed in a number of international acts, including Art. 18 of the Universal Declaration of Human Rights of 10.12.1948 and Art. 18 of the International Covenant on Civil and Political Rights, according to which the right to freedom of thought, conscience and religion includes the freedom to have, accept or change a religion or belief of one's choice and the freedom to practice one's religion or belief, either alone or in community with others, publicly or in private, in worship, in the performance of religious and ritual ceremonies and teachings. The norms of the current legislation of the Russian Federation provide for the term “the right to freedom of conscience and freedom of religion”. In accordance with Art. 28 of the Constitution of the Russian Federation and the commented paragraph, the content of this subjective right includes the following powers: to choose, have and change religious and other beliefs. In this case, we are talking about the religious self-determination of the individual, which is a guarantee of pluralism inherent in a democratic society (paragraph 42 of the ECtHR judgment of 24.02.1997 in the case “Bessarabian Church v. The Republic of Moldova”). Thus, everyone has the right to be a believer, atheist, agnostic; have the right to change their beliefs based on the right to freely choose their beliefs; disseminate religious and other beliefs (for example, through sermons, publications in the media); to act in accordance with religious and other beliefs (for example, to perform religious rites and (or) participate in them; observe the prohibitions provided by the internal regulations of religious organizations with regard to food, appearance, behavior, the right to order the burial of one's body, taking into account one's religious beliefs) ; profess, individually or in association with others, any religion, or not profess any religion. The specific term "profess a religion" appears to be identical with the powers to "disseminate religious beliefs" and "to act in accordance with religious beliefs." The above powers are exercised freely, i.e. at the sole discretion of the copyright holder. Coercion to exercise such powers is not allowed (see the commentary to paragraph 5 of this article). At the same time, some of these powers may be limited in accordance with the established procedure (see the commentary to paragraph 2 of this article). Some authors try to distinguish between the right to freedom of conscience and the right to freedom of religion. For example, A.E. Sebentsov interprets the right to freedom of conscience as belonging to everyone the right to freedom to choose their attitude to religion, including the right to be a believer or non-believer, the right to choose, have, change their beliefs about religion; the right to freedom of religion, according to the same author, is the right of a person to freely follow their religious convictions, to perform rituals and ceremonies arising from them, to openly declare their faith (to profess faith) 4. The right to freedom of conscience and freedom of religion can be realized by each person both individually (through prayer, fasting, etc.) and jointly with others (for example, through participation in the creation of a religious association; participation in liturgical, charitable and other religious activities). associations). 2. An approximate list of powers that make up the content of the right to act in accordance with religious and other convictions (to profess one's own religion) is given in Art. 6 of the UN General Assembly Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief of 25.11.1981 and includes the following freedoms: “a) to worship or assemble in connection with religion or belief and to create and maintain places for these purposes; b) establish and maintain appropriate charitable or humanitarian institutions; c) produce, acquire and use in an appropriate volume the necessary items and materials related to religious rites or customs or beliefs; d) write, issue and distribute relevant publications in these areas; (e) Provide teaching on matters of religion or belief in places suitable for this purpose; f) solicit and receive voluntary financial and other donations from individuals and organizations; g) train, appoint, elect or appoint by succession appropriate leaders according to the needs and norms of a particular religion or belief; h) observe days of rest and celebrate holidays and ceremonies in accordance with the prescriptions of religion and belief; i) to establish and maintain links with individuals and communities in the field of religion and belief at the national and international levels. " 3. In accordance with the commented point “freedom of conscience and freedom of religion are guaranteed in the Russian Federation”. This provision is consistent with the provision of Art. 28 of the Constitution of the Russian Federation, according to which "everyone is guaranteed freedom of conscience, freedom of religion." The corresponding obligation of the Russian Federation is provided for by Art. 1.9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The commented provision means that the state, on the one hand, bears the obligation not to hinder (without the existence of legal grounds) the exercise of the right to freedom of conscience. On the other hand, the state must create certain conditions for the realization of this right and ensure its protection. 4. The subjects of the right to freedom of conscience in the Russian Federation are its citizens, as well as foreign citizens and stateless persons. By virtue of Part 3 of Art. 62 of the Constitution of the Russian Federation, foreign citizens and stateless persons in the Russian Federation enjoy the rights and bear obligations on an equal basis with the citizens of the Russian Federation, except for cases established by federal law or an international treaty of the Russian Federation. It should be noted that, according to the literal meaning of the commented paragraph, the right to freedom of conscience and freedom of religion, on an equal basis with Russian citizens, is enjoyed only by those foreign citizens and stateless persons who are legally present on the territory of the Russian Federation. At the same time, such a narrowing of the circle of rightholders does not correspond to the very essence of the right to freedom of conscience and freedom of religion, which belongs to the category of natural, inalienable rights of every person. Accordingly, the Constitution of the Russian Federation guarantees freedom of conscience, freedom of religion to everyone (Article 28), including foreign citizens and stateless persons illegally staying on the territory of the Russian Federation. For example, they have the right to choose, have and change religious and other beliefs, participate in the performance of religious rituals, etc. The subjective right to freedom of conscience and freedom of religion belonging to a foreign citizen (stateless person) may be limited by federal law. The current legislation of the Russian Federation establishes, in particular, the following restrictions on such a right: foreign citizens and stateless persons do not have the right to be a member of the founders of a local religious organization (clause I of article 9 of the commented law); members (participants) of a religious association can be only those foreign citizens and stateless persons who permanently and legally reside in the territory of the Russian Federation (cl. I Art. 8 of the commented law); professional religious, including preaching, activities of foreign citizens in a religious organization can be carried out only at the invitation of the relevant religious organization (Article 20 of the commented law); foreign citizens cannot be involved in labor activities in the Russian Federation as highly qualified specialists for preaching or other religious activities, including the performance of divine services, other religious rituals and ceremonies, teaching religion and religious education of followers of any religion (clause 1.2 of article 13.2 Of the Law on the Legal Status of Foreign Citizens in the Russian Federation). In paragraph 81 of the judgment of 05.010.2006 on the case “Moscow branch of the Salvation Army against Russia”, the ECHR noted that “it does not find any reasonable and objective justifications” for the difference in the approaches of the Russian legislator to determining the scope of the rights of Russian and foreign citizens “in the fact that concerns their ability to exercise the right to freedom of religion through participation in organized religious communities ”. As noted above, only individuals can be subjects of the right to freedom of conscience and freedom of religion. At the same time, it is noted in the decisions of the ECHR that this subjective right, guaranteed by Art. 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, can be carried out “on behalf of believers by a church or other religious entity as a representative of its participants” (paragraph 29 of the ECHR judgment in the case of Bessarabian Church v. The Republic of Moldova; paragraph 72 of the ECHR judgment of 06/27/2000 in the case “Cha'are Shalom Ve Tsedek” \ p. 2 of the ECtHR judgment of 05/05/1979 in the case “X. and the Church of Scientology v. Sweden”, etc.). Clause 2 I. According to the commented clause, the right of a person and citizen to freedom of conscience and freedom of religion may be limited by federal law only to the extent necessary for the following purposes: to protect the foundations of the constitutional order; morality, health, rights and legal interests of man and citizen; ensuring the country's defense and state security. The admissibility of limiting subjective civil rights for the above purposes is provided for by Part 3 of Art. 55 of the Constitution of the Russian Federation. The provision of the commented item is based on the norms of international acts. So, according to paragraph 3 of Art. 18 of the International Covenant on Civil and Political Rights, the freedom to profess religion or belief is subject only to restrictions established by law and necessary to protect public safety, order, health and morality, as well as the fundamental rights and freedoms of others. A similar norm is provided for in paragraph 2 of Art. 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which the freedom to manifest one's religion or belief is subject only to those restrictions which are provided by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals or for the protection of rights, and freedoms of others. The list of purposes of limiting the right to freedom of conscience and freedom of religion, provided for by the commented paragraph, differs in its content from the similar list established by the above international acts. On the one hand, the commented paragraph contains such goals not specified by international acts as “protection of the foundations of the constitutional system”, “ensuring the country's defense” and “ensuring the security of the state”. On the other hand, the commented paragraph does not provide for the possibility of limiting the right to freedom of conscience and freedom of religion “in the interests of public safety” and “to protect public order”. The European Court of Human Rights examines the established paragraph 2 of Art. 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the list of grounds for restricting freedom of religion is exhaustive (paragraph 75 of the ECHR judgment in the case “Moscow Branch of the Salvation Army against Russia”; paragraph 86 of the ECHR judgment of 05.04.2007 in the case “Church of Scientology in St. Moscow against Russia "). As a result, the admissibility of the restrictions on the right to freedom of conscience and freedom of religion envisaged by Russian legislation is called into question in order to protect the foundations of the constitutional order, to ensure the country's defense and state security. Thus, in paragraph 73 of the judgment of 12.02.2009 in the case "Nolan and K. v. Russia", the ECHR notes that paragraph 2 of Art. 9 of the Convention "does not allow restrictions on the basis of national security." From this, according to the position of the ECHR, it follows that the “national security interests” provided for by Russian law could not serve as an excuse for the restrictions on the applicant's freedom of religion. 2. Let us note that the cited international acts allow for the restriction of the right to profess religious or other convictions. Accordingly, the possibility of limiting the right to choose, have and change religious and other beliefs is not provided for by international acts. Thus, the sphere of religious self-determination of the individual cannot be subject to any restrictions on the part of the state (see Art. commentary to clause 2 of Art. 4). Thus, in paragraph 23 of the decision of 12.05.2009 in the case “Masaev v. Moldova”, the ECHR notes that “the state does not have the right to determine what a person believes, or to take coercive measures in order to force him to change his beliefs”. 3. The European Court of Human Rights, in its decisions on the restriction of the right to freedom of conscience, emphasizes that “the right to freedom of religion ... faith means legitimate ”(paragraph 78 of the judgment of the ECHR of 26.10.2000 in the case“ Hasan and Chaush v. Bulgaria ”). The decisions of the ECHR emphasize that “in exercising its regulatory power” in the field of freedom of conscience and “in relations with different religions” the state must be “neutral and impartial” (paragraph 44 of the ECHR judgment in the case “Bessarabian Church v. Republic of Moldova”.) ... Thus, the state, as a rule, should refrain from assessing the essence of religion (creed) in terms of its compliance with the requirements of the law. However, in exceptional cases, such an assessment is still permissible. According to the resolution of the Constitutional Court of the Russian Federation of October 30, 2003 No. 15-P "In the case of checking the constitutionality of certain provisions of the Federal Law" On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation "in connection with a request from a group of State Duma deputies and complaints from citizens S.A. Buntman, K.A. Katanyan and K.S. Rozhkov ”, restrictions on constitutional rights must be necessary and proportionate to the constitutionally recognized goals of such restrictions. At the same time, according to the said resolution, “the public interests listed in Article 55 (part 3) of the Constitution of the Russian Federation can justify legal restrictions on rights and freedoms only if such restrictions meet the requirements of justice, are adequate, proportionate, proportionate and necessary to protect constitutionally significant values , including the rights and legitimate interests of others, are not retroactive and do not affect the very essence of constitutional law, i.e. do not restrict the limits and application of the main content of the relevant constitutional norms ”. 4. The restrictions on the right to freedom of conscience and freedom of religion listed in the commented paragraph may be established exclusively by federal law. This requirement of the commented point logically follows from the provision of cl. "In" Art. 71 of the Constitution of the Russian Federation, according to which the regulation and protection of human and civil rights and freedoms are under the exclusive jurisdiction of the Russian Federation. Normative legal acts that are not federal laws cannot establish the mentioned restrictions. In this regard, the determination of the Cassation Board of the Supreme Court of the Russian Federation dated May 15, 2003 No. KASOZ-166 was declared invalid and not subject to application from the date of the determination of clause 14.3 of the Instruction on the procedure for issuing, replacing, recording and storing passports of a citizen of the Russian Federation, approved by order of the Ministry of Internal Affairs Russia of 15.09.1997 No. 605, in the part that excludes the right of citizens whose religious convictions do not allow them to appear in front of strangers without hats, to submit personal photographs with the image of a person in full face in a headdress for obtaining a passport of a citizen of the Russian Federation. The Supreme Court of the Russian Federation indicated that the inclusion in the bylaw of a norm obliging citizens to act in contradiction with their religious beliefs violates their constitutional and legal status, does not comply with Art. 55 of the Constitution of the Russian Federation and clause 2 of Art. 3 of the commented law, according to which restrictions on the right to freedom of conscience and freedom of religion can be established only by federal law. 5. Restrictions on the right to freedom of conscience and freedom of religion (in terms of the right to profess religion together with others) are provided for, in particular, paragraph I of Art. 9, paragraph 5 of Art. 11 of the commented law, according to which one of the conditions for state registration of a religious group that does not have confirmation of membership in a centralized religious organization is the presence of a document issued by a local government that confirms the existence of a religious group on the territory of the municipality for at least 15 years. At the same time, the ECHR recognized these provisions of the law being commented on as inconsistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms, noting that “the provisions on the time limits for consideration and waiting times obviously contradict the OSCE commitments to grant religious groups legal status at least a basic level ... The wording of this commitment in the Vienna Concluding Document (Principle 16.3) means that the specific form of legal entity depends on the legal system, but the ability to obtain any of these forms is vital to comply with OSCE principles. The refusal to register religious groups that do not meet this 15-year requirement obviously violates the latter ”(ECtHR judgment of 01. 10.2009 in the case "Kimlya and Others v. Russia"). Paragraph 3 In accordance with the commented paragraph, the establishment of advantages, restrictions or other forms of discrimination depending on the attitude towards religion is not allowed. This provision of the commented item is based on Part 2 of Art. 19 of the Constitution of the Russian Federation, according to which any form of restriction of the rights of citizens on the basis of religious affiliation is prohibited. In Art. 136 of the Criminal Code of the Russian Federation contains a legal definition of discrimination. Discrimination - violation of the rights, freedoms and legitimate interests of a person and a citizen depending on his gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership of public associations or any social groups ... This article of the Criminal Code of the Russian Federation establishes criminal liability for discrimination. The prohibition of discrimination depending on the attitude towards religion is also stipulated by international acts. So, according to paragraph I of Art. 2 of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief of 25.11.1981 “no one shall be discriminated against on the basis of religion or belief by any state, institution, group of persons or individuals”. By virtue of Art. 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms “the enjoyment of the rights and freedoms recognized in this Convention must be ensured without any discrimination on the basis of sex, race, color, language, religion, political or other beliefs, national or social origin, membership of national minorities, property status, birth or any other characteristics ”. Clause 4 I. In accordance with the commented clause, citizens of the Russian Federation are equal before the law in all areas of civil, political, economic, social and cultural life, regardless of their attitude to religion and religious affiliation. This provision is based on Part 2 of Art. 19 of the Constitution of the Russian Federation, according to which the state guarantees the equality of human and civil rights and freedoms, regardless of attitude to religion or beliefs. The equality of citizens before the law, regardless of their attitude to religion and religious affiliation, is also provided for by the norms of special legislation that determines, respectively, the civil, political, economic, social and cultural rights of citizens (Article 3 of the Labor Code of the Russian Federation; Article 8 of the Fundamentals of the Legislation of the Russian Federation on Culture from 09. 10.1992 No. 3612-1; h. 2 tbsp. 7 of the Federal Constitutional Law of December 31, 1996 No. 1-FKZ "On the judicial system of the Russian Federation"; clause 3 of Art. 4 of the Federal Law of 27.07.2004 No. 79-FZ "On the State Civil Service of the Russian Federation", etc.). It is important to note that the principle of equality of citizens before the law, regardless of their attitude to religion, does not exclude the possibility of a differentiated approach to determining their legal status. So, in a number of cases, the scope of subjective rights and obligations of citizens provided for by the current legislation depends on their attitude to religion. First of all, this concerns the clergy. The concept of "clergyman" is not disclosed in the norms of the current legislation and is determined by the internal regulations of religious associations (see the ruling of the Judicial Collegium for Civil Cases of the Moscow City Court dated January 18, 2007 in case No. 33-23489). For example, the clergy of the Russian Orthodox Church includes males (bishops, priests, deacons) who have undergone a special act (rite) of ordination to a sacred degree - ordination (ordination). To designate persons whose professional or main activity is associated with religious associations, the commented law uses, in addition to the concept of "clergyman", also the concepts of "minister of a religious association", "religious personnel". The content of these concepts is not disclosed in the law. The main features of the civil status of clergy in the Russian Federation are as follows. The law prohibits: interrogating clergymen as witnesses about the circumstances that became known to them in confession (clause 3, part 3 of article 69 of the Code of Civil Procedure of the Russian Federation; clause 4 of part 3 of article 56 of the Code of Criminal Procedure of the Russian Federation); to prosecute a clergyman for refusing to testify due to circumstances that became known to him from confession (paragraph I of the commented article); use (on a contractual basis) the confidential assistance of a clergyman to the federal security services, the bodies carrying out operational-search activities, as well as the foreign intelligence agencies of the Russian Federation (Article 19 of the Federal Law of 03.04.1995 No. 40-FZ "On the Federal Security Service" ; Article 17 of the Federal Law of 12.08.1995 No. 144-FZ "On operational-search activities"; Article 19 of the Federal Law of 10.01.1996 No. 5-FZ "On foreign intelligence"); persons holding positions in religious organizations (including clergy) should be members of the Board of Directors of the Bank of Russia (Art. 19 of the Federal Law of 10.07.2002 No. 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia)"). F Clergymen included in the general or reserve list of candidates for jurors are excluded from these lists if they submit a written application about the presence of circumstances that impede the performance of the duties of a juror (Article I of the Federal Law of 20.08.2004 No. assessors of federal courts of general jurisdiction in the Russian Federation "). t Order of the Ministry of Health and Social Development of Russia of November 24, 2004 No. 280 "On the approval of the clarification" On the procedure for including the periods of work of clergy in religious organizations and participation in religious rituals in the total length of service "provides the right of clergymen to include periods of service in religious organizations in the total length of service and participation in religious rituals prior to the entry into force of the Law on Freedom of Religion, which endowed religious organizations with the rights of a legal entity-employer. / 3935 "On the assessment of the pension rights of citizens from among the clergy." 2. According to the commented paragraph, a citizen of the Russian Federation, if his convictions or religion is contrary to military service, has the right to replace it with an alternative civilian service. Art. 59 of the Constitution of the Russian Federation. According to the ruling of the Constitutional Court of the Russian Federation dated May 22, 1996 No. 63-0 "On refusal to accept for consideration the request of the Belovsky City People's Court of the Kemerovo Region as not complying with the requirements of the Federal Constitutional Law" On the Constitutional Court of the Russian Federation41 "and the resolution of the Constitutional Court of the Russian Federation dated November 23, 1999 No. 16-P the right to replace military service with alternative civilian service is an individual right, i.e. related to freedom of religion in its individual, not collective aspect, which means that it should be ensured regardless of whether a citizen is a member of any religious organization or not. At the same time, the state is far from indifferent to the nature of the attitude of religious organizations towards the fulfillment of their military duty by their participants (members, followers). It is no coincidence that, for state registration of local religious organizations, founders submit to the appropriate territorial body of justice information on the fundamentals of doctrine and the corresponding practice, including restrictions on members and employees of the organization in relation to their civil rights and duties, including military duty (p. 5 tbsp. 11 of the commented law). Thus, according to clause 6 of the foundations of the doctrine and practice of Orthodox religious organizations of the Russian Orthodox Church (Moscow Patriarchate), "the Orthodox faith does not contradict military service." The attitude of the Russian Orthodox Church to military duty is also enshrined in such an internal regulation as the "Fundamentals of the Social Concept of the Russian Orthodox Church" (adopted by the Council of Bishops of the Russian Orthodox Church in 2000), according to which "while recognizing war as evil, the Church still does not forbid her children participate in hostilities, if it is a question of protecting neighbors and restoring trampled justice "(Section VlII" Fundamentals of the Social Concept of the Russian Orthodox Church "). Other confessions also expressed their attitude to military duty and military service. For example, according to the Basic Provisions of the Social Program of Russian Muslims, adopted by the Council of Muftis of Russia in 2001, “the defense of the Fatherland, the interests of the state, concern for its safety is one of the most important duties of a person before Allah, a noble and worthy business of a real man ... Muslim organizations we are ready to assist state bodies in preparing young people for service in the Armed Forces, considering it the duty and duty of a citizen of the Russian Federation. " At the same time, some religious organizations adhere to the principles of pacifism. Thus, the doctrine of Jehovah's Witnesses does not allow the followers of this organization to “undergo military service, wear military uniforms and take up arms” (paragraph 150 of the ECHR judgment of June 10, 2010 in the case “Religious community of Jehovah's Witnesses in Moscow and against Russia”), It should be noted that not all religious organizations approve of military service by their clergy. Thus, according to the internal regulations of the Russian Orthodox Church, priests cannot use weapons, participate in hostilities or undergo military training in conditions of an armed conflict (in particular, use hand-to-hand combat or other types of martial arts). This prohibition is established, in particular, by Canon 83 of the Holy Apostles, according to which "a presbyter, or deacon, who exercises in military affairs ... may he be expelled from the sacred office." Prior to the entry into force of the Federal Law of 06.07.2006 No. 104-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Reduction of the Term of Military Service upon Conscription" fees. During this period, the commented paragraph contained a provision according to which, at the request of religious organizations, by the decision of the President of the Russian Federation, clergymen, in accordance with the legislation of the Russian Federation on military duty and military service in peacetime, were granted a deferral from conscription and exemption from military duties. Accordingly, until February 6, 2008, the Decree of the President of the Russian Federation of January 14, 2002 No. 24 “On granting priests a deferral from conscription” was in force, providing for a deferral from conscription to up to 300 clergymen. Currently, the current legislation does not contain provisions that provide clergymen with the right to a deferment from military service and exemption from military fees. At the same time, the possibility of granting this category of citizens this right on the basis of the decree of the President of the Russian Federation is still provided for in paragraph 2 of Art. 24 of the Federal Law of 28.03.1998 No. 53-F3 "On conscription and military service", according to which the right to deferment from conscription may be granted to any categories of citizens on the basis of decrees of the President of the Russian Federation. It seems advisable to issue such a decree. 3. The procedure for passing the alternative civilian service is determined by the Federal Law of 25.07.2002 No. PZ-FZ "On Alternative Civilian Service" and the Decree of the Government of the Russian Federation of 28.05.2004 No. 256 "On approval of the Regulations on the procedure for passing the alternative civilian service." Alternative civilian service is a special type of labor activity carried out on the basis of an employment contract. The time spent in the alternative civil service is counted in the total length of service and in the length of service in the specialty. Citizens undergo alternative civilian service in the bodies and in positions, the list of which is approved by order of the Ministry of Health and Social Development of Russia dated February 15, 2011 No. 135n "On approval of lists of types of work, professions, positions in which citizens undergoing alternative civilian service can be employed, and organizations where the passage of an alternative civilian service is envisaged. " Alternative civilian service is allowed in the organizations of the Armed Forces of the Russian Federation, other troops and military formations. The travel expenses of citizens undergoing alternative civilian service to the place of this service are reimbursed in the manner prescribed by the RF Government Decree of 05.10.2004 No. 518 "On Approval of the Rules for Reimbursement of Expenses Associated with the Exercise of the Right to Free Travel of Citizens Underlying Alternative Civilian Service" ... The term of alternative civilian service is 1.75 times longer than the term of conscription military service established by the Federal Law “On Military Duty and Military Service” (Article 5 of the Federal Law “On Alternative Civilian Service”). The European Court of Human Rights did not accept for consideration the complaint in which the extension of the term of alternative civilian service in comparison with the term of military service was interpreted by the applicant as “discrimination on the basis of a person's beliefs that do not allow him to carry a weapon”. In its decision, the ECtHR noted that such an increase in the term is "a way to confirm the convictions' convictions and is intended to prevent cases of refusal to perform military service for personal gain and convenience" (ECtHR judgment of 06.12.1991 in the case "Autio v. Finland") 5. Citizens who have completed alternative civilian service are enrolled in the reserve of the Armed Forces of the Russian Federation (clause I of article 24 of the Federal Law "On Alternative Civilian Service"). In development of the provision of the commented point of clause 53 of the Instruction on the organization of training citizens of the Russian Federation in basic knowledge in the field of defense and their training in the basics of military service in educational institutions of secondary (complete) general education, educational institutions of primary vocational and secondary vocational education and training centers, approved By order of the Minister of Defense of the Russian Federation and the Ministry of Education and Science of Russia dated February 24, 2010 No. 96/134 provides that “in the event that certain citizens refuse to participate in firing and study of military hand-held small arms for religious reasons, the head of the educational institution shall decide (head of the educational center) on the basis of a well-grounded statement of the parents (legal representatives), which must be submitted to the head of the educational institution (head of the training center) before the start of the training camp ”. Clause 5 I. By virtue of the commented clause, no one is obliged to disclose their attitude to religion. The Law on Personal Data (Art. 10) prohibits the processing of special categories of personal data related to religious beliefs, except for the cases, an exhaustive list of which is established by Part 2 of Art. 10 of this law. In particular, the processing of publicly available personal data is allowed; processing by a religious organization of the personal data of the members (participants) of the corresponding religious organization to achieve the legitimate goals stipulated by its constituent documents, provided that the personal data will not be disseminated without the written consent of the subjects of personal data. 2. In connection with the above provisions of the commented paragraph and Art. 10 of the Law on Personal Data, the question arises about the permissible limits of application of paragraph 3 of Art. 32 of the Law on Non-Commercial Organizations regarding the requirement for religious organizations to provide the justice authorities with information on the personal composition of the governing bodies of religious organizations. Such information is provided by non-commercial, including religious, organizations to the justice authorities in order to monitor the activities of these organizations by the latter. In accordance with the order of the Ministry of Justice of Russia dated March 29, 2010 No. 72 "On Approval of Reporting Forms for Non-Commercial Organizations", information on the personnel of the governing body of a religious organization includes information about a person acting on its behalf without a power of attorney, and information on the personnel of the collegial governing body of a religious organization. organization (including last name, first name, patronymic, citizenship, identity document data, and other information). The appointment (election) of a person to a position in a religious organization indicates that he has certain religious beliefs. In this regard, information on the personal composition of the governing bodies of religious organizations belongs to the category of personal data related to religious beliefs. Provided for part 2 of Art. 10 of the Law on Personal Data, an exhaustive list of cases where processing of special categories of personal data is allowed, does not establish the possibility of collection by state bodies of personal data related to religious beliefs in order to monitor the activities of religious organizations. Accordingly, when exercising powers in the sphere of control over such activities, the judicial authorities have the right to require that religious organizations provide only publicly available personal data concerning the religious beliefs of members of their governing bodies. Publicly available personal data includes, for example, such information about the head of a religious organization and members of its governing collegial body, which are included in the Unified State Register of Legal Entities. 3. Special legislation prohibits: to receive, process and attach to the personal file of a civil servant personal data on his religious beliefs not established by federal laws (clause 3, part I, article 42 of the Federal Law "On the State Civil Service of the Russian Federation"); collection and entry into the personal file of a customs officer of information about his religious affiliation (p. 2 tbsp. 24 of the Federal Law of 21.07.1997 No. 114-FZ "On Service in the Customs Authorities of the Russian Federation"); a private detective - to collect information related to the religious beliefs of individuals (clause 3, part I, article I of the RF Law of 11.03.1992 No. 2487-1 "On private detective and security activities in the Russian Federation"). At the same time, in order to realize the rights based on the attitude to religion (religious affiliation), the citizen must inform about his religious convictions. For example, in order to exercise the rights granted by law to clergymen, citizens must declare their affiliation with clergymen and submit supporting documents. To exercise the right to replace military service with alternative civilian service, a citizen whose religious beliefs are contrary to military service must, in accordance with Art. 11 of the Federal Law "On Alternative Civilian Service" to substantiate this circumstance (submit a motivated application to the draft board, indicate persons who agree to confirm the reliability of the arguments that military service contradicts the applicant's religious beliefs, submit other materials, etc.). At the same time, according to the ruling of the Constitutional Court of the Russian Federation dated 17.10.2006 No. 447-0 "On the complaints of citizens Mikhail Aleksandrovich Zhidkov and Oleg Sergeevich Pilnikov about violation of their constitutional rights by Article 11 of the Federal Law" On Alternative Civil Service "" from the requirement to substantiate the existence of beliefs and religion, interfering with the passage of military service, the duty of the conscript follows only "to present the appropriate arguments"; such a duty can be considered as contrary to Article 29 (part 3) of the Constitution of the Russian Federation, according to which no one can be forced to express their opinions and beliefs or to renounce them, since the process of justifying the existence of beliefs is not caused by coercion of a citizen, but by his own initiative - to replace military service by conscription with an alternative civilian service. ”4. No one may be forced to determine his attitude to religion, to profess or refuse to profess a religion, to participate or n non-participation in divine services, other religious rituals and ceremonies, in the activities of religious associations, in teaching religion. This provision of the commented point corresponds to the provision of paragraph 2 of Art. 18 of the International Covenant on Civil and Political Rights, according to which no one should be subjected to coercion that diminishes his freedom to have or accept a religion or belief of his choice. A similar rule is contained in Part 3 of Art. 29 of the Constitution of the Russian Federation, according to which "no one can be forced to express their opinions and beliefs or to renounce them." The corresponding prohibition applies to all forms of coercion, including the physical restraint of citizens at a divine service (prayer meeting); illegal influence on the psyche of followers of a religious association using special means (hypnosis, coding, etc.). In this regard, the decision of the ECHR of 25.05.1993 in the case "Kokkinas v. Greece" is of certain interest. In this decision, the ECHR points out the need "to distinguish between Christian witnessing and inappropriate proselytism." Christian witness, according to the ECHR, "corresponds to true evangelism ... as an essential mission and responsibility of every Christian and every church." Inappropriate proselytism, from the point of view of this court, “represents a distortion and deformation” of Christian witness and can be expressed “in activities related to the offer of material or social benefits for the purpose of recruiting new members into the church or in putting undue pressure on people in in need or in distress; it can entail the use of violence. " The ECtHR recognized “inappropriate proselytism” as incompatible with “respect for the freedom of thought, conscience and religion of others” and punishable under state law. In 2009, the Ministry of Justice of Russia developed and submitted for public discussion a draft Federal Law "On Amendments to Certain Federal Laws in Order to Counteract the Implementation of Illegal Missionary Activities." The bill established a ban on missionary activities accompanied by “the offer of material, social and other benefits in order to involve citizens in a religious association, or the threat of violence, psychological pressure, manipulation of consciousness, ie. carried out against the will of the persons to whom it is directed ”. In this part, the draft law was generally in line with the findings of the ECHR contained in the ECHR judgment in the case “Kokkinas v. Greece”. However, the bill was not supported. 5. The commented point prohibits the involvement of minors in religious associations against their will and without the consent of their parents or persons replacing them. The above provision is based on the provision of Art. 63 CK RF, according to which parents have the right and are obliged to bring up their children. Minors include children under the age of 14 (clause I, Art. 28 of the Civil Code of the Russian Federation). The person who replaces the parents is the guardian or adoptive parent of the young child. The involvement of a child in a religious association is allowed with the consent of both parents, since in accordance with paragraph 2 of Art. 65 CK RF, all issues related to the upbringing and education of children are decided by parents by their mutual consent, based on the interests of the children and taking into account the views of the children. Taking into account the opinion of a child who has reached the age of 10 is mandatory, unless it is contrary to his interests (Article 57 CK RF). Parents' consent (disagreement) to the involvement of a young child in a religious association can be given both orally and in writing. Judicial practice in cases of involving a child in a religious association indicates that parents' consent to such “involvement” is presumed; the absence of parental consent (one of the parents) must be proven. According to the ruling of the Supreme Court of the Russian Federation of 22.07.1999 No. 4-B99-103, when resolving cases of involving a child in a religious organization without parental consent, the courts should not enter into a discussion of the essence of the corresponding religion; the membership of one of the parents in a religious association does not in itself constitute a basis for the transfer of a child to the upbringing of another parent. 6. The commented paragraph prohibits teaching religion to minors against their will and without the consent of their parents or persons replacing them. In accordance with Art. 63 CK RF, parents have the right to choose the form of education for their children, taking into account the opinion of the child. The priority of parents in resolving the issue of teaching children religion follows from the provisions of Art. 5 of the Convention against Discrimination in Education of 12/14/1960, art. 13 of the International Covenant on Economic, Social and Cultural Rights of 16.12.1966 and other sources of international law, according to which "parents and legal guardians have the right to provide religious and moral education of their children in accordance with their own convictions." Clause 6 I. Illegal obstruction of the exercise of the right to freedom of conscience and freedom of religion may be expressed in the illegal closure of an Orthodox church, church, synagogue, mosque, other cult worship, disruption of worship, prohibition of a religious ceremony, illegal denial of state registration of a religious organization, etc. etc. In development of the provisions of the commented paragraph, the legislation establishes the following prohibitions: political parties are prohibited from using symbols that offend or defame religious symbols, as well as symbols that offend religious feelings (cl. 3 tbsp. I of the Federal Law of 11.07.2001 No. 95-FZ "On Political Parties"); it is prohibited to use the name of a political party that offends religious feelings (clause 5 of article 6 of the Federal Law "On Political Parties"); it is prohibited to place bookmakers and sweepstakes in buildings, structures, structures in which religious and religious organizations are located (part 2 of article 15 of the Federal Law of December 29, 2006 No. amendments to some legislative acts of the Russian Federation "); the use of religious symbols, objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation is not allowed in advertising; it is not allowed to interrupt with advertising and combine with advertising by the creeping line method of religious television programs (part 6 of article 5, part 4 of article 14 of the Federal Law of 13.03.2006 No. 38-F3 "On Advertising"); the name of a non-profit organization must not offend the religious feelings of citizens (subparagraph 3 of paragraph I of article 23.1 of the Law on Non-Profit Organizations). 2. For violation of the prohibitions provided for by the commented paragraph, criminal, administrative and civil liability is established, respectively. Criminal liability is provided for unlawful obstruction of the activities of religious organizations or the performance of religious rites (Article 148 of the Criminal Code of the Russian Federation); for desecration of the bodies of the dead or the destruction, damage or desecration of burial places, grave structures or cemetery buildings intended for ceremonies in connection with the burial of the dead or their commemoration (Article 244 of the Criminal Code of the Russian Federation). Administrative liability arises in accordance with Art. 5.26, 28.3 of the Code of Administrative Offenses of the Russian Federation for obstructing the exercise of the right to freedom of conscience and freedom of religion, including the acceptance of religious or other beliefs or renunciation of them, joining or withdrawing from a religious association; for insulting the religious feelings of citizens or desecrating objects, signs and emblems of ideological symbols that they venerate. o Insult to the religious feelings of citizens can be carried out by disseminating information discrediting the honor, dignity or business reputation of individuals or legal entities in connection with their attitude to religion, confession, religious convictions. In this case, the guilty person can be brought to civil liability by imposing on him the obligation to refute defamatory information, compensation for moral damage. For example, a person who uses in advertising religious symbols, cultural heritage objects, including churches, is brought to civil liability (part 6 of article 5 of the Federal Law "On Advertising"). 3. The internal regulations of religious organizations include provisions dealing with issues of offensive or disrespectful attitude to the doctrine. Thus, in the resolution of the Council of Bishops of the Russian Orthodox Church of 12/16/2010 "On the attitude of the Russian Orthodox Church towards intentional public blasphemy and slander against the Church" it is noted that in the case of "public blasphemy" (that is, "an offensive or disrespectful act, the words or intentions in relation to God or shrine ")" the dignity of the Church should be subject to legal protection as inseparable from the aggregate, collective dignity of all its members. " The resolution emphasizes that international acts, in particular the Outcome Document of the Review Conference on the Implementation of the Durban Declaration and Program of Action to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance of 24.04.2009, “confirm the need to consider cases of blasphemy, including blasphemous actions as humiliation of human dignity (defamation) of a religious community, a community of individuals united by one religious faith. " However, Russian legislation does not provide for such a concept as “the dignity of a legal entity,” including a religious organization. Only the “business reputation” of a legal entity (Article 152 of the Civil Code of the Russian Federation) is subject to legal protection, to which judicial practice mainly refers to business reputation. 4. The issues of application of the commented point have been repeatedly considered by the State Duma of the Federal Assembly of the Russian Federation. [y7! In particular, by decree of 18.03.1998 No. 2294-11GD "On the activities of some Russian television companies" the State Duma of the Federal Assembly of the Russian Federation proposed to the Government of the Russian Federation to issue a written warning to the NTV television company for showing the feature film directed by M. Scorsese "The Last Temptation of Christ" in violation of Art. 3 of the Law on Freedom of Conscience and on Religious Associations, which prohibits obstruction of the exercise of the right to freedom of conscience and freedom of religion, associated with willful insult to the feelings of citizens in connection with their attitude to religion. [y7! In another resolution of the State Duma of the Federal Assembly of the Russian Federation of 12.02.2003 No. 3627-III GD "On the Appeal of the State Duma of the Federal Assembly of the Russian Federation" To the Prosecutor General of the Russian Federation V. V. Ustinov in connection with the exhibition "Caution: Religion!" "Contains an appeal to the Prosecutor General of the Russian Federation V.V. AD Sakharov (Moscow) exhibition "Caution: Religion!", Which, according to the State Duma, "humiliates the feelings of believers and insults the Russian Orthodox Church." The term “confession” used by the legislator should be distinguished from the lexically similar concepts of “religion”, “confession of religion.” In Christianity (primarily Orthodoxy and Catholicism), confession is understood as the sacrament of repentance for sins. are available in Judaism and Islam.7 Confession involves the communication by a citizen of information about his personal life, therefore, the provided comment The notion of "secret of confession" is derived from the clause fixed in Part I of Art. 23 of the Constitution of the Russian Federation of the concept of "secret of personal life." The norms of the legislation of the Russian Federation provide for the following prohibitions guaranteeing the secrecy of confession: it is forbidden to interrogate clergymen as witnesses about the circumstances that became known to them during confession (clause 3, part 3 of article 69 of the Code of Civil Procedure of the Russian Federation; clause 4 of part 3 of article 56 of the Code of Criminal Procedure of the Russian Federation ); it is prohibited to hold a clergyman accountable for refusing to testify due to circumstances that have become known to him from confession (paragraph 7 of the commented article). Certain guarantees of the secrecy of confession are also contained in the internal regulations of religious organizations. For example, according to the internal regulations of the Russian Orthodox Church - rule 120 of the Nomokanon at the Great Trebnik (1625) 8 - a clergyman who has violated the secret of confession is entitled to strict penance.

The right to autonomy of a religious association is one of the basic principles for the realization of freedom of conscience. However, today, in the context of global threats to society (threats of terrorism, threats to security), the absoluteness of this right cannot but correlate with the right of the state to certain restrictions on the rights of religious associations and individual believers. Article 18 of the "Universal Declaration of Human Rights" contains the following provision: “Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change one's religion or belief, and the freedom to practice one's religion or belief, either alone or in community with others, in public or private, in the teaching, worship and performance of religious and ritual practices. " 1 .

It is important to emphasize that the right to religious freedom is not created or granted by the state, this right is given from birth to every person, and belongs to the category of so-called natural rights ( jus naturale). Freedom of conscience in its legal meaning is the acquisition, first of all, of Western European civilization, which was formed thanks to the historical processes of religious conflicts, wars and, ultimately, the necessary public dialogue. Before the European religious wars (which gave rise to the right to religious freedom), no one of course had an absolute religious right. Then the principle "Whose power, that and faith" ( C uius regio, eius religio - the principle established in 1555 (the so-called Peace of Augsburg) as a result of the wars between the Protestant princes of Germany and the Catholic Emperor Charles V). In the process of religious wars, the need was born to negotiate and resolve conflicts peacefully. Thus, the absolute right of freedom of religion began to take shape, and today religious and ideological freedom is already an integral and indisputable set of human rights.

Today, in determining the normative legitimacy of freedom of religion and belief, the latter does not depend on how the state is actually structured. Moreover, the material norm that establishes religious freedom is virtually unlimited in nature. Thus, the "Universal Declaration of Human Rights" does not formulate any restrictions on religious freedom. However, practically all international legal acts and national legislation, incl. Russian, in this area contain restrictive provisions in the exercise of the right to freedom of conscience. The same US Constitution, which is traditionally considered a model of liberalism, including with regard to freedom of conscience, does not contain explicit restrictions on freedom of conscience, but at the same time recognizes that it is not an absolute right, which under certain conditions can be limited.

To the extent that legislation on freedom of conscience and religious associations facilitates the exercise of religious activity and the exercise of the right to freedom of conscience, such restrictions undoubtedly have a right to exist, since they do not act as restrictions on freedom of religion and belief as such, but only regulate activities believers and religious associations. Restrictions can be imposed only on the expression of religious beliefs, and not on the rights themselves to have or accept any religious beliefs, which include creed, church structure, membership, organizational issues, etc. These categories can be divided as religious and ideological views of church members and religious associations, on the one hand, which turns them into an expression of convictions, however, on the other hand, they can be subject to restrictions both by the state and by the religious association itself, if they begin to have an adverse effect on rights third parties according to the well-known formula "My freedom ends where the freedom of another person begins."

Restrictions on the exercise of the rights to freedom of religion can be imposed primarily and only when they do not meet a set of legal requirements. Restrictions must be prescribed by law, which are legally established rules of law. Also, they should be aimed at maintaining public safety and order, health, morality, morality and protect the rights of third parties. According to the wording of the UN Human Rights Committee 2, restrictions should be directly related to the specific need on which they are based and proportionate to them. Restrictions cannot be applied in a discriminatory manner or applied in a discriminatory manner. Restrictions cannot satisfy the criterion of necessity if they reflect the will of a state that is not neutral and impartial towards believers. Interference with freedom of religion and belief is not necessary if the interests that the state seeks to protect are not directly and truly threatened, but in order to achieve the goals for which the restriction is being introduced. They must be clearly defined (defined).

In other words, is personal freedom of thought, conscience, religion and belief an absolute right? The permissible limitation of religious rights is provided for by paragraph 3 of Article 18 of the International Covenant on Civil and Political Rights and paragraph 2 of Article 9 of the European Convention on Human Rights. The states parties to these Conventions are under the absolute obligation not to interfere with the rights of freedoms through ideological suggestion, at the same time, the states, in turn, are obliged not to allow religious associations and individuals to use any form of suggestion that is forced or manipulative nature. This is necessarily emphasized also by paragraph 2 of Article 18 of the International "Covenant on Civil and Political Rights" and paragraph 2 of Article 12 of the "European Convention on Human Rights" to your will. But even this absolute protection by the state of the internal dimension of religious freedom from suggestion is not, in turn, also absolute. For example, the question remains open - how can a balance be struck between the right to promise religions and convince others of one's religious views, on the one hand, and the absolute right of every person to prevent intrusion into one's inner religious freedom on the other? When exactly is the state in law and is obliged to intervene in the situation and set the goal of protecting freedom and worldview?

The European Court of Human Rights takes the position that internal religious freedom is protected only if the offender (or association) commits actions of a manipulative or coercive nature.

An example of the restriction of religious freedom is the one arising from the right of parents, as legal representatives of their children, to provide them with a religious and moral upbringing in accordance with their own convictions. This right of parents to convert to the faith by, for example, baptism, or by performing rituals in non-Christian religions, also imposes in a sense - restrictions on the absolute right of children to accept the religion of their choice. Such a limitation can also be made by the state. So, in the light of the legal concept, which today has prevailed among the Russian law enforcement officer, the state appears in the image of the “best parent”. This concept is being implemented today in Russia, for example, in juvenile technologies. Legislatively in Russia there is a latent conflict between the right of the family and the right of the “best parent” - the state represented by such quasi-judicial bodies as guardianship and guardianship authorities. Their recommendations may relate to both the methods of upbringing and the fixation of the family and the minor, as being in a "socially dangerous situation", if, in the opinion of the guardianship, the parents "involve" children in the activities of "non-traditional religions", or as it is customary to call "sects" ... The signal for such a legal understanding and law enforcement in the fall of 2012 during a meeting with the Governor of the Samara Region Nikolai Merkushkin and the local community was publicly expressed by the Guarantor of the Constitution, the President of the Russian Federation. This was followed by similar statements in the regions 3.

According to paragraph 2 of article 18 of the International Covenant on Civil and Political Rights 4 and paragraph 2 of article 9 of the European Conventionon the protection of human rights and fundamental freedoms 5 Restrictions on freedom of religion and belief can be justified if only they serve one of the five purposes listed below: public safety, health, order, morality, and the protection of the rights and freedoms of others. The European Court of Human Rights (ECHR) has consistently indicated in its jurisprudence that pressing social needs must meet these goals. Public safety, according to the logic of the HRC, is to allow the restriction of public practice of religion (religious meetings, public actions, if they violate the rights of third parties), if a situation arises that endangers the safety of people, life, personal integrity, health, safety property.

The need for limitation is especially clearly manifested in cases of confrontation between religious groups, when the confrontation threatens to develop into an open conflict. In situations where there is a threat to the immediate security of people's religious freedoms or the security of their property, the state has the right to take the necessary and adequate measures to protect its own security, including the prohibition of religious gatherings, including even their dissolution. It is significant that according to the high-profile trial of the notorious Pussy Riot group that took place in 2012the guilty verdict was nevertheless passed under the "hooligan article" paragraph b) part 1 of Art. 213 of the Criminal Code of the Russian Federation"Based on political, ideological, racial, national or religious hatred or enmity."

Obviously, it is necessary to distinguish between the external manifestations of freedom and beliefs that can threaten the safety of other people (public safety) and those manifestations that relate only to the safety of the person himself, whose religious freedom is in question. In this case, we are talking about the freedom of the right to death "Right to death" (euthanasia). This is a morally controversial issue, but from the point of view of the right to freedom, it is far from indisputable, because it is, first of all, the right of the person himself, especially if it is associated with his ideological conviction. The same applies to the right to refuse blood transfusions, as advocated by representatives of religious associations of Jehovah's Witnesses. From the standpoint of law, it is an expression of religious freedom, in which the state should not interfere and should not restrict the exercise of this freedom, if this does not concern the violation of the rights of other members of society. However, the legal consciousness of the majority of members of modern Russian society does not express any doubts about the fact that such interference is still legitimate.

An unquestionably legitimate limitation of freedom of religion in the interests of protecting public order is the requirement to register a religious community as legal entities in accordance with national laws.

The limitation also applies to questions of morality. In general, the very term "morality" is the most controversial and least clear of all the legal grounds justifying restrictions on freedom of religion and belief. This happens because the concept itself is difficult to subject to a clear definition. As the UN Human Rights Committee explains: “The concept of morality comes from a multitude of social, philosophical and religious traditions. Consequently, the limitation of freedom of confession of religious beliefs, setting the goal of protecting morality, should be based on principles that do not arise exclusively from any one tradition " 2 . Religions usually claim that their value system constitutes the most important rule of morality. The Human Rights Committee emphasizes that one should not rely on any one cultural or other tradition or ideology that can dictate a certain model of morality.

It is obvious that the state can and sometimes even must restrict the external manifestations of freedom of religion and belief that threaten the rights of other people. In particular, the right to life, liberty, security of the person, respect for private life, marriage, the right to property, the right to health care, the right to education, the right to equal treatment, the right to enforce the prohibition of slavery, torture, and the rights of minorities The adoption by the state of measures to protect personal integrity from violence inflicted on various religious groups can, of course, be justified by the need to protect public safety, health and order. However, if these measures are aimed at protecting the life and health of a person or persons professing religion to their own detriment, they cannot be justified from a legal standpoint by the need to protect the rights of others. This statement can also be illustrated by the example already cited: the refusal of blood transfusions by Jehovah's Witnesses.

Another limitation of the right to freedom of conscience also requires consideration - the possibility of limiting the absoluteness of religious secrets.

Religious secret is a special legal institution, which is indicated in Russian law, the position of which has not been sufficiently studied by science. One of the first questions of the right to religious secrets, as a guarantor of constitutional freedom, was raised by Professor I.L. Petrukhin, who expressed an opinion on the advisability of distinguishing two types of religious secrets: "The secret of the believer and his right to reveal or hide his belonging to religion in general, and to certain creeds, in particular, and the secret entrusted to the priest, which he should not divulge" 6 ... Professor A.V. Pchelintsev notes that the religious secret should be understood first of all "As information with limited access, the unauthorized receipt and disclosure of which may harm the protected interests of a believer or a religious association" 7 .

Legal guarantees of religious secrets are contained in the Constitution of the Russian Federation and in a number of federal laws. So, part 1 of article 23 of the Constitution of the Russian Federation states: "Everyone has the right to inviolability of private life, personal and family secrets, protection of his honor and good name"... Part 1 of Article 24 of the Constitution of the Russian Federation develops this provision in the prohibitions on the collection, storage, use and dissemination of information about the private life of a person without his consent. Part 3 of Article 29 of the Constitution of the Russian Federation states that “No one can be forced to express or renounce their opinions and beliefs.” Constitutional provisions concerning religious secrets are found in clause 5 of article 3 of 125-FZ "On freedom of conscience and religious associations", where they specify, that "no one is obliged to report their attitude to religion" ... There are indications of religious secrecy, and in clause 2 of article 41 of FZ 322-02 "On the Prosecutor's Office of the Russian Federation" it prohibits the collection and entry into a personal file of information about the religious affiliation of a prosecutor's employee. A similar prohibition is contained in paragraph 2 of Art. 24 FZ 114 "On service in the customs authorities of the Russian Federation."

Thus, Russian legislation guarantees personal and religious secrets and provides for its disclosure in certain cases on the initiative of only the citizen himself. For example, if a citizen wishes to exercise the right to alternative civilian service, if he cannot do military service due to religious convictions, then he declares his faith, since it is impossible to exercise the right to alternative service without disclosing his religious affiliation, then have their own religious secret.

Another type of religious secret is a professional secret, to which the secret of confession belongs. A fairly capacious definition of professional secrecy is contained in the definition of I.I. Anishchenko: "Professional secret is information obtained by representatives of certain professions due to the performance of their professional duties and protected from disclosure by law" 8 ... However, to date, the concept of the secret of confession is not directly contained in Russian legislation, nor in the legal literature in full.

According to Professor A.V. Pchelintsev's secret confession can be understood "Information that became known to the clergyman during the sacrament of confession and which is protected from disclosure by law and the internal charter of religious associations" 9 ... The legislation of a number of countries provides for the concept of the secret of confession as information communicated to a clergyman in various circumstances, even in a private conversation, and not only in a private confession, which, in my opinion, is more logical and justified. In accordance with clause 7 of article 3 of 125-FZ “On freedom of conscience and religious associations "The secret of confession is protected by law, and a clergyman cannot be held accountable for refusing to testify due to circumstances that have become known to him from confession." This requirement specifies criminal and civil procedural legislation. So, according to paragraph 4 of article 3, 56 of the Code of Criminal Procedure of the Russian Federation: "a clergyman cannot be interrogated as a witness about the circumstances that became known to him in confession." A similar rule is also contained in clause 3 of part 3 of article 69 of the Code of Civil Procedure of the Russian Federation: "A clergyman of religious organizations that have passed state registration, about the circumstances that became known to them from confession".

In this regard, the confessional church-legal (canonical) approach of the Russian Orthodox Church in solving this problem is interesting. In the history of this confession, in the process of the emerging model of state-confessional relations between the Russian Orthodox Church and the Russian state, there are examples when, in strictly defined cases, it was allowed to exclude the absoluteness of the right of religious secrets. So, despite the fact that the "Regulations or Charter of the Spiritual College" adopted in 1721 (the law issued in the form of a manifesto by Peter I, which determined the legal status of the Orthodox Church in Russia), provided for the strictest prohibition on divulging the secret of confession, at the same at the time it was allowed to disclose it in relation to those who commit state crimes. The regulation was published by Peter I, but the church took part in its editing and approval, as a canonically binding rule (February 23, 1720 the draft "Spiritual Regulations" was sent to the Ober-Secretary Senate so that the Senate and the bishops listen to the draft and express their opinion: “so that the remarks put on each remark an explication of the guilt of the case”). The regulation obliged the clergyman to disclose the secret of confession if the intruders, "Declaring an intentional evil, they will show themselves that they do not repent, but put themselves in the truth and do not put off their intentions, as if they will confess sin" 10 ... According to the "Complete Orthodox Theological Encyclopedic Dictionary" this provision is concretized: "Now everything said in confession is kept secret, except for such cases when concealment threatens the monarch, the imperial house or the state." 11 .

In modern conditions, is a clergyman obliged, against the will of the principal, to use the information received to prevent a crime, or is he obliged in any case to keep secrecy? If not obliged, then does the right to keep the secret of confession contradict his civic duty, serving his earthly fatherland (and this is also an aspect of his personal and professional religious secrets)? What moral religious choice should a clergyman make in a difficult life situation when a conflict of interests arises between his spiritual, professional position and civic duty, since he is a citizen of two kingdoms?

Blessed Augustine, Bishop of Hippo, taught about the existence of two kingdoms: the city of heaven and the city of earth. Developing the teachings of Augustine of Hippon, Reformer of the Western Church, Doctor of Papal Theology Martin Luther in a treatise "On the freedom of a Christian" wrote about the two natures of a Christian, as well as about two kingdoms - earthly and heavenly. A Christian has earthly citizenship due to the fact of birth (in legal terms - the personal law of an individual), and heavenly - due to the acquisition of faith. At the same time, a Christian must be loyal to both kingdoms.

Protestants also teach about the principle of the universal priesthood of believers. Every Christian in particular must observe the canons of the church and take care of the observance of the laws of the earthly kingdom, that is, the state. In the treatise "On the freedom of a Christian" 12 Dr. Martin Luther describes a situation where a Christian is “free from everything, incl. from the moral precepts of society, for it is before the King of heaven and is accountable only to Him. In addition, a Christian is free by virtue of the fact that Christ Himself freed him from everything, including the "fetters of the law." But precisely because he is free from everything, Luther goes on to draw a paradoxical conclusion that a Christian must “Voluntarily subordinate oneself to society”. How Christ, being the King of Heaven, voluntarily subordinated Himself to the will of the Heavenly Father and became a slave for the good of human society, voluntarily subordinating His freedom (including religious freedom), placing it on the altar of serving one's neighbor.

The indicated problem is relevant in the current conditions, since the level of grave and especially grave crimes in the Russian Federation against the individual and against public safety remains very high. If a clergyman has the ability to prevent the commission of a crime leading to the death of people, and does not do this, referring to the secret of confession, then, probably, in this case, the absoluteness of religious secrets is not fully justified. If the question of whether a clergyman should inform a person who has repented and persons associated with him, on the basis of an already committed crime, can be resolved only in terms of recognizing the clergyman's right to nondisclosure of secrets and canonical norms of the confession to which he belongs, then in With regard to the prevention of an impending crime, the preservation of the absoluteness of religious secrets can hardly be justified. However, such a requirement, as noted by Professor A.V. Pchelintsev "Should be fixed not in the norms of secular law, but in the internal canonical regulations of the religious organizations themselves" 13 .

So, in the "Foundations of the social concept of the ROC" in section IX contains a fairly detailed prescription for the behavior of a clergyman in the event of a similar situation: “A clergyman is called to show special pastoral sensitivity in cases when he becomes aware of an impending crime in confession. Without exception and under any circumstances, sacredly preserving the secret of confession, the pastor is simultaneously obliged to make every possible effort to prevent the criminal intent from being realized. First of all, this concerns the danger of homicide, especially mass casualties, possible in the event of a terrorist act or execution of a criminal order during a war. Bearing in mind the equal value of the soul of a potential criminal and his intended victim, the clergyman should call upon the confessed person to true repentance, that is, to renounce the evil intention. If this call does not take effect, the pastor can, taking care of the preservation of the secret of the name of the confessed person and other circumstances that can reveal his identity, - to warn those whose lives are in danger. In difficult cases, the clergyman should turn to the diocesan bishop " 14 .

Doctor Martin Luther, authoritative for the majority of Protestant denominations, absolutes the secret of confession: "The pastor, to whom I confessed my sins, must privately keep my confession in strict secrecy" 15 . But later, authoritative teachers of Lutheran theology detailed this canonical prescription towards the possibility of violation of the absolute. In the book Pastoral Theology by Norbert Müller and Georg Kraus, in Section IV, Application of the Sacraments in Special Cases, it is said: “A pastor may face a rather rare dilemma when he has to hear a confession about sin, which in him is a serious crime, such as rape, murder. A person who repents of such a sin should be called upon to confess his crime to the worldly authorities, being sure that the Lord is with him, even if punishment from the state awaits him. The pastor should invite him to accompany him on this difficult path of life, while strengthening his pastoral attitude while maintaining the confidentiality of confession. If all attempts to convince a person and confess his crime were in vain, the pastor should doubt whether the confession he heard was a sincere confession before God, for sincere repentance always entails active repentance. In the event that the pastor feels that he still should not disclose the information he has heard to the authorities, he should inform the confessing person about his intention, so that later he will not be accused of being entrusted to him, and he betrayed the person. The pastor cannot allow himself to become a participant in the crime, covering it with his silence, thus casting a shadow on the church as the people of God. " 16 .

It is obvious that in modern society the demand for public safety comes to the fore, incl. from potential threats of terrorism and other serious crimes against humanity. And since, Professor A.V. Pchelintsev, "The very concept of the secret of confession arose primarily in the interests of the believers themselves, then the degree of its protection should be correlated with the same interests of believers" 17 .

Obviously, the very concept of “confession” also needs legal clarification, since not every trusted secret falls under this concept. For example, according to chapter 5 of the conciliar Epistle of James (Bible), believers are called to reveal their sins to their neighbor - to another Christian. "Confess your misdeeds to one another." 18 ... However, such recognition, in the language of Protestants "The universal priesthood of believers" , from the point of view of the state, is not a confession in the institutional sense of the word. For the legislator, first of all, formal signs of the manifestation of this institution are important: the status of the confidant of secrecy and the trustee, place, time, purpose and other circumstances that characterize this act precisely as "confession" (it is important to have a canonical minister and a canonical confession procedure). It should also be noted that a number of theorists of ecclesiastical law already at the turn of the 20th century, incl. from among the Orthodox, argued that a priest cannot tell not only what he received in confession, but what is entrusted in the form of confession (not formally confession) to a clergyman.

Undoubtedly, this issue lies in the legal and church-canonical field, as well as in the ethical plane. A clergyman should be guided by ideas about the moral possibility and the possibility of silence in appropriate situations, when the disclosure of information is the only way to prevent a crime. It is the minister who retains the right to carry out the measures prescribed by the internal charter to prevent grave and especially grave crimes, of which he learned from confession. This is part of his personal and at the same time professional religious secret, which the state cannot claim. But at the same time, the state should not limit itself with the consent of the priest to give evidence, to accept such.

Thus, as noted by Professor A.V. Pchelintsev, one can see "Not an absolute, but a relatively absolute aspect of the right to the secrecy of confession, which most fully corresponds to social responsibility when it comes to such fundamental values ​​as human life and the safety of society" 19 .

Konstantin Mikhailovich Andreev,

Advocate

Literature:

Universal Declaration of Human Rights. Adopted by resolution 217 A (III) of the UN General Assembly of December 10, 1948, - http://www.un.org/ru/documents/decl_conv/declarations/declhr.shtml

Part 8 of Commentary No. 22 of the UN Human Rights Committee.

Transcript of the conversation of the President of the Russian Federation V.V. Putin during a meeting with the Governor of the Samara Region Nikolai Merkushkin and the local community: http: //president.rf/news/16720

International Covenant on Civil and Political Rights. Adopted by General Assembly resolution 2200 A (XXI) of December 16, 1966 http://www.un.org/ru/documents/decl_conv/conventions/pactpol.shtml

Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950) http://www.echr.ru/documents/doc/2440800/2440800-001.htm

Petrukhin I.L. Personal Secrets (Man and Power), Moscow: Institute of State and Law of the Russian Academy of Sciences, 1998, p. 220

Pchelintsev A.V. Freedom of conscience and activities of religious associations in the Russian Federation: constitutional and legal foundations. - M .: Publishing House "Jurisprudence", 2012. P.206

Anischenko I.I. Legal regime of professional secrets // Proceedings of the Faculty of Law of the North Caucasus State Technical University. Stavropol, 2004. Issue 3 p.50

Pchelintsev A.V. Freedom of conscience and activities of religious associations in the Russian Federation: constitutional and legal foundations. - M .: Publishing House "Jurisprudence", 2012. P.214

Regulations or Charter of the Spiritual Collegium, published on January 25, 1721 // Complete collection of laws of the Russian Empire. T.VI. No. 3718. SPb., 1899.

The Secret of Confession // Complete Orthodox Theological Encyclopedic Dictionary. CD-version: “Theological Encyclopedia.” Moscow: Directmedia Publishing2005. c.8760

Martin Luther. Selected works. SPB: “Lutheran Heritage Foundation”. 1994, p. 16-54.

Pchelintsev A.V. Freedom of conscience and activities of religious associations in the Russian Federation: constitutional and legal foundations. - M .: Publishing House "Jurisprudence", 2012. P.221

FOUNDATIONS OF THE SOCIAL CONCEPT of the Russian Orthodox Church.http: //www.patriarchia.ru/db/text/141422

A Brief Catechism by Dr. Martin Luther, with commentary by Edward Keiler. Minsk: Lutheran Heritage Foundation., 200. p.290

Müller N., Kraus G. Pastoral Theology (Lutheran Heritage, Moscow, 1999). pp. 81-82

Pchelintsev A.V. Freedom of conscience and activities of religious associations in the Russian Federation: constitutional and legal foundations. - M .: Publishing House "Jurisprudence", 2012. P.219

Bible, New Testament, Epistle of St. Ap. Jacob, All-Union All-Union Bourgeoisie, Moscow 1985, p. 172

Pchelintsev A.V. Freedom of conscience and activities of religious associations in the Russian Federation: constitutional and legal foundations. - M .: Publishing House "Jurisprudence", 2012. P.222