Безземельная О.А., Мустафина Ю.А.

Уфимский юридический институт МВД России, Россия

The right to freedom of conscience and religion: history and constitutional regulation

The trends of the new, the development of social thought, science and culture, as time shows, is impossible in the conditions of the prohibition of ideological pluralism, concerning most spheres of human community. All the more it is impossible to "harmonize" the development of the state on the "wave" of globalization, establish qualitative political and economic ties between societies, if the participants in the relations do not accept dissent, are intolerant of their colleagues' worldviews. This situation is true not only for international relations, but for any public and legal system within states. It is impossible not to agree with the statement of O.V. Klyuchevsky: "History is not a teacher, but a supervisor: it does not teach anything, but punishes severely for ignorance of the lessons." And, as history shows, intolerant to worldviews of the state and society are not capable of vigorous, progressive development, peaceful coexistence with the world community - they are waiting for destruction or transformation. Freedom of conscience and religion is an important part of pluralism and general intellectual freedom. It is impossible to build a truly free state - a just state based on civil society - without literate provision of freedom of conscience and religion as an element of political and legal pluralism.

The right to freedom of conscience and religion is a constitutionally guaranteed inalienable natural human right, inherent in every individual, regardless of any signs (gender, age, nationality, etc.).

It is difficult to determine the content of the subject of this right. In other words, a very ambiguous interpretation received in the theory of legal science a phenomenon such as "freedom of conscience and religion". Let us consider this question in detail. In science, there are many opinions on the elemental composition of the right to freedom of conscience and religion. For example, F.M. Rudinsky and M.A. Shapiro consider it appropriate to distinguish the following content elements of this right:

a) to adopt religion or belief of one's choice;

b) to have religion or belief;

c) change religion or beliefs;

d) to profess religion both individually and jointly, publicly or privately, in teaching and worship;

e) to send cults and perform religious and ritual ceremonies;

f) to ensure the religious and moral education of the children by their parents or tutors-at-law in accordance with their beliefs. "

It is worth noting this concept due to the fact that it rightly puts in a row such political and legal concepts as "religion" and "conviction", thereby emphasizing its universal character. We believe that this theory fully reflects the content of the right to freedom of conscience and religion.

It should be noted that the first example in the world of constitutional consolidation of freedom of conscience and religion is the US Constitution of 1787, which in the first amendment contains the following: "The Congress should not issue any law regarding the establishment of any religion, or prohibiting the free exercise of any religion, or restricting Freedom of speech and press, or the right of the people to assemble peacefully, and also to ask the government to stop abuses. " This rule contains a whole range of rights that are established by prohibiting the state from encroaching on these rights. Subsequently, the rules and principles of the US Constitution were harmoniously accepted by international law. Following the international generally recognized acts of general action, following the trends of democracy, freedom, equality and humanism, the modern Russian state recognized the need to ensure the right of every person to freedom of conscience and religion. So, Art. 28 of the Constitution of the Russian Federation declares: "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, freely choose, have and disseminate religious and other beliefs and act in accordance with them."

Unfortunately, modern realities of domestic legal life show that the right of citizens to freedom of conscience and religion is systematically violated. Violation of this constitutional law-principle is allowed, in our opinion, in two forms: in legislative and regulatory and organizational.

1. Violations in the legislative and regulatory form. Since the unconditional equality of citizens, irrespective of their religious views, is an integral part of the right to freedom of conscience and religion, it is important in the legislative regulation to take into account the requirements of the Constitution for ensuring such equality.

Contrary to this, Federal Law No. 136 of June 29, 2013 amended Art. 148 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation). In the earlier version, this provision provided for criminal-legal measures only for illegal obstruction of the activities of religious organizations, which, in our opinion, meets the requirements of an adequate criminal policy. However, in the current version of Article 148 of the Criminal Code of the Russian Federation, the following actions are considered criminal: "Public actions expressing obvious disrespect to the society and committed with a view to insulting the religious feelings of believers". At the same time, a new subject of criminal legal protection appears - religious feelings of believers. Such innovations introduce an imbalance in the overall structure of the criminal legal "coverage" of public relations related to freedom of conscience and religion. This problem can be solved in two ways: to provide a proportionate criminal-legal protection to "feelings of atheists" (destructive way) or to deprive the "sense of believers" of criminal-legal protection and not to provide them with preferential legislative positions (constructive path).

2. Violations of human rights to freedom of conscience and religion lie outside the scope of legislative regulation, but are closely related to the equality of citizens. The state, striving to ensure equality of citizens, should ensure equality and equal "remoteness" from the state to all religious organizations (Article 14 of the Constitution of the Russian Federation). However, the existing realities show the opposite: today the Patriarch of Moscow and All Russia, as the head of the Russian Orthodox Church (hereinafter ROC), is the object of state protection. In other words, the security of a representative of a religious organization is provided by the Federal Security Service of the Russian Federation (hereinafter referred to as FSO RF) - at the expense of the federal budget. At the same time, the heads of other religious organizations do not possess such "privileges".

We believe that the unmotivated granting of any privileges to some religious organizations is the embodiment of state support for certain confessions, which is incompatible with the title of a secular state. Thus, the right of citizens to freedom of conscience and religion is violated when equality is not ensured. It is about a certain "legal nihilism of the state". The very state power (the President of the Russian Federation) allows a deliberate violation of the norms of the Constitution that ensure the human right to freedom of conscience and religion. Of course, all this is cleverly camouflaged for the proper dissemination of the provisions of the Constitution in strict accordance with its meaning.

Thus, today the right to freedom of conscience and religion in Russia is a truly guaranteed constitutional human right, which has centuries-old traditions of constitutional and international legal consolidation. However, today in Russia there is a number of serious problems, the solution of which will fully ensure the right of everyone to freedom of conscience and religion.

Literature:

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2. The Universal Declaration of Human Rights and Freedoms (adopted by UN General Assembly Resolution 217 A (III) of December 10, 1948) // The official website of the United Nations [Electronic resource] URL: http://www.un.org/en/ Documents / decl_conv / declarations / declhr.shtml (reference date: 11/02/2017)

3. Ismailov A. Sh. Freedom of conscience in the history of Russia / / Islamology. 2010. № 3. Pp. 47-59.

4. The Code of the Russian Federation on Administrative Offenses No. 195-FZ of December 30, 2001 (as amended and supplemented on February 7, 2017) // Official Internet Portal of Legal Information [Electronic resource] URL: Official Internet -portal of legal information http://www.pravo.gov.ru (reference date: 14.02.2017)

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8. AS Lovinyukov. Freedom of Conscience // State and Law. 1995. № 1. P. 24-36.

9. International Covenant on Civil and Political Rights (adopted by General Assembly resolution 2200 A (XXI) of 16 December 1966) // United Nations official website [Electronic resource] URL: http://www.un.org/en /documents/decl_conv/conventions/pactpol.shtml (reference date: 11/02/2017)