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THE ISSUES RELATED TO LEGAL SCOPE OF THE RIGHT TO FREEDOM OF CONSCIENCE AND RELIGION, AS WELL AS THE DEFINITION OF RELIGIOUS EXTREMISM
DOI: http://dx.doi.ong/10.14420/en.2017.63
Sergei Oganesyan, Doctor of Sciences, Professor, Senior research associate of the Research Institute of the Federal Penitentiary Service of Russia, class 1 state advisor of the Russian Federation, e-mail: mixvik77@mail.ru. Victor Mikhailov, Ph.D. (Legal), Associate Professor of the academic judicial department at the National Research University Higher School of Economics, class 1 state advisor of the Russian Federation, e-mail: mixvik77@mail.ru.
It is demonstrated in the article, that when defining the right to freedom of religious and the term of extremist activities in the religious sphere in the existing laws, the legislators failed to consider its conceptual (lexical, semantic) meaning, which came to be perceived by the most of humanity as an extremely negative phenomenon posing a real threat to the world security just during the mental civilization of «scientific world view» we are passing through right now. The need to review the constitutional guarantee to act in accordance with the religious convictions is grounded in the article, while the authors suggest that the propaganda of religious exclusiveness and supremacy should be excluded from the legal regulation of the definition of extremism in the religious sphere.
right to freedom of conscience and religion, religious extremism, religion, belief, Constitution of the Russian Federation, Federal Law «On countering extremist activities», Criminal Code of the Russian Federation, mental civilizations, Holy Scriptures, administration of law, law making, orderliness, Judaism, Christianity, Islam, paganism, Torah, New Testament, Quran.
In this article, we will make an effort to demonstrate that when defining the right to to freedom of religious and the term of extremist activities in the religious sphere in the existing laws, the legislators failed to consider its conceptual (lexical, semantic) meaning, which came to be perceived by the most of humanity as an extremely negative phenomenon posing a real threat to the world se-
Abstract.
Keywords:
Sergei Oganesyan, Victor Mikhailov
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curity just during the mental civilization of «scientific world view» we are passing through right now.
Needless to say that it is particularly significant for a definition of the notion of religious extremism (that is widely used nowadays) and the corresponding term to be clear and accurate in the world of law, as it determines both the nature of the offense and the relevant penal sanction for religious extremism, that is, for law enforcement effect.
Speaking about the specific features of definition and application of the particular legal terms, it is provided in the Encyclopedic Law Dictionary in the entry on «Legal Technique» that «Verbal designations of public legal notions, whereby the scope of the regulatory directions of the state is expressed and established»1.
Thus, what is expressed by the public legal notion of extremist activities in the religious sphere in the existing laws and regulations and why wasn't it established therein even three decades ago?
However, before answering these and other questions, we believe it necessary to frame such definitions that are utterly important for our topic as «extremism» and «religion», constituting the basic components of the relevant terminology wording.
The word «religion» is known to have several meanings in modern languages, the key one being the certain world perception, mental outlook, world view that predetermines both «spiritual» inwardness and behavior of a human in various life situations and is based on belief in existence of supernatural forces beyond human control, governing the whole world. That is why the semantic fields of the meanings of the words «mentality» and «religion» are mostly the same. This fact is supported, in particular, not just by the corresponding entries of Russian definition dictionaries or glossaries, but by the modern philosophical, political, religious and other dictionaries as well2.
As a side note, the modern Russian dictionaries contain no notions of extremism paired with religion.
This is not by accident, as the word «extremism» in one of its essential meanings came into general use just beginning with mid-19th-century in England and only in media, that is, in purely journalistic literature. In the USA, during the Civil War (1861 - 1865), one started calling the representatives of the hostile parties of the South and the North «extremists of both parts of the country», that is, to denominate political phenomena. In France, the word «extremism» came into
1 Encyclopedic Law Dictionary / Authoring team: V.N. Dodonov, A.S. Pigolkin, V.P. Panov and other; Under the general editorship of V.E. Krutskikh. Moscow, 1999.
2 Great Encyclopedic Law Dictionary / Author and compiler A.B. Barkhin. Moscow, 2004; Tikhomiro-va L. V., TikhomirovM. Yu. Legal Encyclopedia / Ed. by M. Yu. Tikhomirov. Moscow, 2002; Dictionary of Monotheisms: Judaism, Christianity, Islam / Ed. by J. Potin, V. Zuber. Saint-Petersburg, 2008; Russian Language Dictionary: 4 volumes / Ed. by A.P. Evgenieva. Moscow, 1999; Updated Philosophical Dictionary. Moscow, 2001; Encyclopedia World. Russian Language. Encyclopedia / Chief editor: F.P. Filin. Moscow, 1979; Ozhegov S.I. The Dictionary of the Russian Language / Ed. by N. Yu. Shvedova. Moscow, 1991.
use during the World War I (1914 - 1918) and again in the journalistic literature in order to denote the opposing far left and far right political forces.
Thus, when and why did the religious extremism start to represent a phenomenon posing a threat to safety, security and stability of world community, finding its lodgment in the national laws as a criminal offense just within the last decades?
The detailed answer to this question is given by one of the authors of this article in his multiple publications1, as well as to the questions related to the extremist nature of almost any religious viewpoint appearing in various ways within various mental civilizations and to the particular mental civilizations in the history of mankind.
Therefore, with no stop at this point and giving a mention just to the generally accepted truth of the unbreakable link existing between the actual notions and the corresponding legal terms, let us make the point that we have doubts about the definition contemplated by article 29 of the Russian Constitution prohibiting propaganda of «religious supremacy» or religious «exclusiveness». It is also repeated in article 1 of the Federal Law dated 25.07.2002 No. 114-FZ «On countering extremist activities», defining the notion of the «extremist activities (extremism)» and providing the ground for the objective side of such criminal offences as:
- public appeals to performance of extremist activities (article 280 of the Criminal Code of the Russian Federation);
- organizing an extremist community (article 282.1 of the Criminal Code of the Russian Federation);
- organizing the activities of an extremist community (article 282.2 of the Criminal Code of the Russian Federation);
- financing extremist activities (article 282.3 of the Criminal Code of the Russian Federation).
This is related to the fact that any religion that has ever existed is professing its absolute supremacy over all the others, insisting on its exclusiveness and undoubted value for the human life activities.
Is it imaginable that any Holy Scripture would not proclaim its messianism in salvation of humanity? Alternatively, is it possible to forbid an Orthodox cleric to extol Orthodoxy, ranking it higher any other Christian denominations? And, what is more, not to anathematize a member of its community who decided to accept Catholicism, Krishnaism or Judaism, or convert to Islam, or join Jehovah's Witnesses? Likewise, the representatives of any other religions and denominations, due to their professional specificity, cannot help but disapprove the others' religious beliefs, warship and observance.
1 Oganesyan S. S. Shaping legal awareness in Torah, New Testament and Quran: 2. Concerning the notions of «neighbour» and «brother» in the modern world // Space and Time. 2011. No. 2; Oganesyan S. S. Origins of legal nihilism of our people // Representative Power. 2011. No. 5, 6; Oganesyan S.S. Sequential transmission of legislative initiative and function from the God to the human // Values and Senses. 2011. No. 1; Oganesyan S. S. Approach of Quran to the Hebrew and Christian // Electronic scientific publication Space and Time Almanac. 2013. Vol.3. Issue 2; Oganesyan S.S. Torah, New Testament and Quran - law, order, orderliness. The means of shaping legal awareness and transmitting legislative functions from the God to the human. Moscow, 2011.
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One can find the most telling example in the message of Patriarch Alexy II of Moscow and All Rus at the opening of the Bishops' Council of 2004, who called the expansion of neo-paganism one of the top threats of the 21st century, bringing it into line with terrorism and «other disastrous phenomena of our age»1.
This speech contrary to the letter and spirit of the Constitution of the Russian Federation could not be none other, due to the fact that it was Orthodoxy, not any other belief, that was the ideological and mentally cementing basis of the very existence of the Russian Empire. That is why the certain backsliding on militant atheism, common for the USSR, should have imminently resulted in the attempts of the Orthodoxy to get own back into a completely new mental civilization. In such civilization, it is the human mind (mental capacity) that serves as the main legislative means and method of law making to regulate human life and activities (the scientific perception and view of the world) instead of norms and rules «bequeathed by the forefathers» in one instance (paganism) or God-given (monotheism).
Thus, it is hardly thinkable that the religious workers would demonstrate tolerance to other religious beliefs and main scriptures not just due to their devotion to their own religious convictions, but also because of the very historic nature and designation of religion as the social, economic, cultural (spiritual) and political phenomenon ensuring the ideal, ideological and world-view foundation for human consolidation and life within the unified sovereign state. That said, these are the life activities of society in strict compliance with the unified ideal, ideological, moral, ethical and legal principles of coexistence of people disregarding their racial, ethnic, class, age, property and other differences and distinctions. It is what the entire history of human religious coexistence gives evidence of in a highly persuasive manner.
The above provisions of the Constitution inevitably predetermine the legal scope of the named rules of the Criminal Code of the Russian Federation along with the law enforcement practices related thereto, which, in our opinion, pose not just potential, but real threat to safety and security of our society and nation.
When equating religion with racial, national and linguistic attributes, one is making a legal error related, in particular, to the requirement of the criminal prosecution with regard to the event, substantive, ideal and ideological foundations of all existing texts of Holy Scriptures. It suffice to cite Torah, New Testament and Quran to prove this testament.
Thus, Torah is inquiring via Moses: «For what great nation is there that has God so near to it, as the Lord our God is at all times that we call upon Him? And which great nation is it that has just statutes and ordinances, as this entire Torah, which I set before you this day?» (Devarim 4 Vaetchanan; 7,8).
Moreover, Torah is repeatedly proclaiming the exclusive nature of the nation created by God from Jacob-Israel:
1 Message of Patriarch Alexy II of Moscow and All Rus at the opening of the Bishops' Council of the Russian Orthodox Church on 03.10.2004 // Moscow Patriarchate: official web page. URL: http://www. patriarchia.ru/db/text/420130.html.
«For ask now regarding the early days that were before you, since the day that God created man upon the earth, and from one end of the heavens to the other end of the heavens, whether there was anything like this great thing, or was the likes of it heard? Did ever a people hear God's voice speaking out of the midst of the fire as you have heard, and live? Or has any god performed miracles to come and take him a nation from the midst of another nation, with trials, with signs, and with wonders, and with war and with a strong hand, and with an outstretched arm, and with great awesome deeds, as all that the Lord your God did for you in Egypt before your eyes? You have been shown, in order to know that the Lord He is God; there is none else besides Him. From the heavens, He let you hear His voice to instruct you, and upon the earth He showed you His great fire, and you heard His words out of the midst of the fire, and because He loved your forefathers and chose their seed after them, and He brought you out of Egypt before Him with His great strength, to drive out from before you nations greater and stronger than you, to bring you and give you their land for an inheritance, as this day. And you shall know this day and consider it in your heart, that the Lord He is God in heaven above, and upon the earth below; there is none else. And you shall observe His statutes and His commandments, which I command you this day, that it may be well with you and your children after you, and that you may prolong your days upon the earth which the Lord your God gives you forever. (Devarim 4 Vaetchanan, 32-40).
Is it nothing but «propaganda of the exclusiveness, superiority or deficiency of individuals on the basis of their attitude to religion, social, racial, national, religious or linguistic identity» as is?
The books of biblical prophets are also rich in extolling the children of Israel over all other «sub-nations»: «Yet I planted you a choice vine» (Jeremiah 2:21), «For the vineyard of the Lord of hosts is the house of Israel, and the men of Judah are his pleasant planting» (Isaiah 5:7).
The substantial principle of the New Testament books laying the world-view foundation for all Christian confessions and various denominations (branches) are likewise not devoid of the statements concerning the «exclusiveness» of the people and nations that are followers of Jesus Christ and his teaching: «Every tree that does not bear good fruit is cut down and thrown into the fire... Not everyone who says to me, «Lord, Lord,» will enter the kingdom of heaven, but the one who does the will of my Father who is in heaven» (Matthew 7:19-21).
Certain statements made by Jesus towards people, who negate his teaching and remain pagans or profess on the doctrine revealed on Moses, not just proclaim exclusiveness and supremacy of his teaching, but can also be deemed as degrading. Here are the relevant statements by Jesus Christ: «I am the true vine, and my Father is the gardener. He cuts off every branch in me that bears no fruit, while every branch that does bear fruit he prunes so that it will be even more fruitful» (John 15:1-2).
«And behold, a Canaanite woman from that region came out and was crying, «Have mercy on me, O Lord, Son of David; my daughter is severely op-
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pressed by a demon». But he did not answer her a word. And his disciples came and begged him, saying, «Send her away, for she is crying out after us». He answered, «I was sent only to the lost sheep of the house of Israel». But she came and knelt before him, saying, «Lord, help me». And he answered, «It is not right to take the children's bread and throw it to the dogs» (Matthew 15:22-26).
Can there be more severe violation of the heathens' feelings than being compared to dogs?
Allah proclaims via Muhammad: «Allah has promised those who believe and do righteous deeds for them there is forgiveness and great reward. But those who disbelieve and deny Our signs - those are the companions of Hellfire» (Surah 5:9, 10). «This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion». (Surah 5:3).
Needless to prove that the cited texts of the sacred scriptures leave a man no opportunities for heterodoxy and no spiritual alternative and, therefore, no space for indulgent (tolerable) attitude towards other worldview ideas, beliefs and spiritual positions!
As the result, this legislative provision sets impossibly wide scope for discretion when being interpreted by the law enforcing agents, whereby this or that religious belief or literature can be deemed extremist due to subjective judgment.
It is a different matter when the propaganda of supremacy of certain religion is aimed at arousing hatred or hostility, as well as at abasement of human dignity, is accompanied with acts of violence (aggression) or calls for such acts.
The existing international acts proclaim the rights and freedoms of every human to be supreme value of the member states, while the freedom of thought, conscience and religion is recognized as one of the fundamental and inalienable components of the individual's legal status, with no distinctions in the opportunities for implementing them1. This is the spot where the guarantees of political and ideological variety and pluralism come from, along with equality of religious organizations. Pursuant to article 18 of the International Covenant on Civil and Political Rights2, everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
The similar understanding is built in this right by the Convention for the Protection of Human Rights and Fundamental Freedoms3 in article 9, whereun-
1 Articles 2, 7 and 18 of the Universal Declaration of Human Rights (adopted by the United Nations General Assembly on 10.12.1948).
2 International Covenant on Civil and Political Rights was concluded on 16.12.1966. Enacted for the USSR since 23 March 1976 by the Decree of the Supreme Soviete of the USSR of 05.07.1991 № 23051, by which the USSR acknowledged the competence of the Human Rights Committee under article 41 of ICCPR.
3 Convention for the Protection of Human Rights and Fundamental Freedoms was concluded in Rome
der everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
With reliance to these principles, the Constitution of the Russian Federation contemplates, expressly and unambiguously, the secular nature of the Russian state and that no religious views or ideas shall prevail over the others. Religious associations shall be separate from the state and shall all be equal before the law with no exceptions.
At the same time, the Constitution provides the citizens with the right to profess any religious beliefs or not to have any, and deems spreading religious discord and animosity to be inadmissible.
That said, the Constitution of the Russian Federation goes further, expanding in article 28 the legal scope of this right as compared with the international law and claims that «everyone shall be guaranteed freedom of conscience and religion, including the right to profess individually or collectively any religion or not to profess any religion, and freely to choose, possess and disseminate religious and other convictions and act in accordance with them».
However, were the creators of the Russian Constitution accurate and reasonable enough? Unlikely so, because the Constitution of the Russian Federation with all guarantees of freedom of conscience and religion declared therein contains the provision that ignores the specificity of religious beliefs as the historical mental phenomena along with the corresponding way of life activities. It is also disregarding the scope of international regulation of this bundle of rights permitting the discretion solely within the scope of religious warship in accordance with article 18 of the International Covenant on Civil and Political Rights and article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
This refers to the provision empowering people to «act in accordance with» the religious «convictions».
The matter is that by empowering people to «act in accordance with» their religious conviction the Constitution admits the fact that some alternative legislative systems can be existing in the country, as it is not possible for the religious convictions to be separated from the relevant rules of life activities.
According to the Scriptures, a believer is a true man of faith only when he lives and acts solely in compliance with the rules and norms (legislative systems) contemplated thereby, while it is known that the Holy Scriptures are designated not only and not so much for shaping certain particular views and convictions, but presume strict obedience to the directions, laws and commandments provided therein. James the Apostle wrote about it: «For as the body apart from the spirit is dead, so also faith apart from works is dead» (James 2:26).
on 04.11.1950. The version (save for the amendments introduced by the Protocol No. 11 of 11.05.1994) came into effect on 01.09.1998.
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There is a good reason for Torah being alternatively called the Law (Law of Moses). Quran can hardly be imagined without a legal system of Sharia. Meanwhile the New Testament provides the Commandments, to violate each of them being the deepest sin (wrongdoing). We should note the words by John the Apostle: «Everyone who sins breaks the law; in fact, sin is lawlessness» (1 John 3:4).
For instance, Torah admits no possibilities of using Saturday as the working day. Quran requires vacating Friday for having rest, thinking of God (Allah) and attending mosque at all times, while in Christian tradition such day shall be Sunday. Alternatively, Torah is known to require rendering death for death, while Quran sets a duty to cut off a hand of a thief to make an example for others. «As for the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent from Allah. And Allah is Exalted in Might and Wise» (Surah 5:38).
It is widely known that the New Testament strongly forbids any matrimonial divorces, save for the cases of explicit and reliably ascertained adultery. In particular, Jesus said: «It has been said, «Anyone who divorces his wife must give her a certificate of divorce». But I tell you that anyone who divorces his wife, except for sexual immorality, makes her the victim of adultery, and anyone who marries a divorced woman commits adultery» (Matthew 5:31-32). How can a man consider his belief to be Christian, if he was married twice?! While marriage or celibacy, as well as dietary preferences, can be referred within purely personal sphere of a human, the duty such as imposed by Torah and Quran to take «life for life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise» (Torah, Shemot 21 Mishpatim, 23,24; Quran, Surah 5:45) is in the explicit contradiction to the laws of the Russian Federation.
Moreover, Quran, tolerating dissent and non-conformity, for which a man shall be answerable solely to the God, not the people (Surah 5:41-47), still requires that the court shall be held exclusively in compliance with the rules contemplated by Quran: «And whoever does not judge by what Allah has revealed -then it is those who are the wrongdoers». (Surah 5:45)
That is why the constitutional wording that grants people the right to «act in accordance with» their «religious convictions» (emphasis added) should be deemed grossly erroneous and, in terms of their direct application, containing the threat to public and national safety and security.
Therefore, to summarize in brief all mentioned above, we suggest that the legislator should, firstly, revise the constitutional guarantee to act in accordance with the religious convictions, and, secondly, exclude the propaganda of religious exclusiveness and supremacy from the legal regulation of the definition of «extremism».
References
1. Constitution of the Russian Federation.
2. Universal Declaration of Human Rights (adopted by the United Nations General Assembly on 10.12.1948).
3. International Covenant on Civil and Political Rights concluded on 16.12.1966.
4. Convention for the Protection of Human Rights and Fundamental Freedoms. Concluded in Rome on 04.11.1950.
5. Ozhegov S. I. The Dictionary of the Russian Language / Ed. by N. Yu. Shve-dova. Moscow, 1991.
6. Oganesyan S. S. Shaping legal awareness in Torah, New Testament and Quran: 2. Concerning the notions of «neighbour» and «brother» in the modern world // Space and Time. 2011. No. 2.
7. Oganesyan S. S. Origins of legal nihilism of our people // Representative Power. 2011. No. 5, 6.
8. Oganesyan S. S. Sequential transmission of legislative initiative and function from the God to the human // Values and Senses. 2011. No. 1.
9. Oganesyan S. S. Approach of Quran to the Hebrew and Christian // Electronic scientific publication Space and Time Almanac. 2013. Vol.3. Issue 2.
10. Oganesyan S. S. Torah, New Testament and Quran - law, order, orderliness. The means of shaping legal awareness and transmitting legislative functions from the God to the human. Moscow, 2011.
11. Message of Patriarch Alexy II of Moscow and All at the opening of the Bishops' Council of the Russian Orthodox Church on 03.10.2004 // Moscow Patriarchate: official web page. URL: http://www.patriarchia.ru/db/text/420130.html.
12. Torah (Pentateuch, Law of Moses). With Russian translation. Russian translation edited by P. Gilh / Under the general editorship of G. Brannover. Moscow, 1993.
13. Holy Bible. The Holy Scriptures of the Old and New Testament. International publishing center of the Orthodox literature. Moscow, 1995.
14. Quran. Meanings and iman commentaries translated by Valeria Porokhova. Moscow, 2008.
