October 11, 2001

Briefing of the

Commission on Security and Cooperation in Europe

WASHINGTON : 2002

107th CONGRESS Printed for the use of the

1st Session Commission on Security and Cooperation in Europe

ROADBLOCK TO

RELIGIOUS LIBERTY:

 RELIGIOUS REGISTRATION
COMMISSION ON SECURITY AND COOPERATION IN EUROPE

234 Ford House Office Building

Washington, DC 20515-6460

(202) 225-1901

csce@mail.house.gov

http://www.csce.gov

LEGISLATIVE BRANCH COMMISSIONERS

EXECUTIVE BRANCH COMMISSIONERS

(VACANT), Department of State

(VACANT), Department of Defense

(VACANT), Department of Commerce

COMMISSION STAFF

RONALD J. MCNAMARA, Chief of Staff

DOROTHY DOUGLAS TAFT, Deputy Chief of Staff

BEN ANDERSON, Communications Director

OREST DEYCHAKIWSKY, Staff Advisor

JOHN FINERTY, Staff Advisor

CHADWICK R. GORE, Staff Advisor

ROBERT HAND, Staff Advisor

JANICE HELWIG, Staff Advisor

MARLENE KAUFMANN, Counsel

MICHELE MADASZ, Office Administrator

MICHAEL OCHS, Staff Advisor

ERIKA B. SCHLAGER, Counsel for International Law

H. KNOX THAMES, Staff Advisor

MAUREEN T. WALSH, General Counsel

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HOUSE

CHRISTOPHER H. SMITH, New Jersey

Co-Chairman

FRANK R. WOLF, Virginia

JOSEPH R. PITTS, Pennsylvania

ZACH WAMP, Tennessee

ROBERT B. ADERHOLT, Alabama

STENY H. HOYER, Maryland

BENJAMIN L. CARDIN, Maryland

LOUISE MCINTOSH SLAUGHTER, New York

ALCEE L. HASTINGS, Florida

SENATE

BEN NIGHTHORSE CAMPBELL, Colorado

Chairman

KAY BAILEY HUTCHISON, Texas

SAM BROWNBACK, Kansas

GORDON H. SMITH, Oregon

GEORGE V. VOINOVICH, Ohio

CHRISTOPHER J. DODD, Connecticut

BOB GRAHAM, Florida

RUSSELL D. FEINGOLD, Wisconsin

HILLARY RODHAM CLINTON, New York
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ABOUT THE ORGANIZATION FOR

SECURITY AND COOPERATION IN EUROPE

The Helsinki process, formally titled the Conference on Security and Cooperation

in Europe, traces its origin to the signing of the Helsinki Final Act in Finland on August

1, 1975, by the leaders of 33 European countries, the United States and Canada. As of

January 1, 1995, the Helsinki process was renamed the Organization for Security and

Cooperation in Europe (OSCE). The membership of the OSCE has expanded to 55 participating States, reflecting the breakup of the Soviet Union, Czechoslovakia, and Yugoslavia.

The OSCE Secretariat is in Vienna, Austria, where weekly meetings of the participating States permanent representatives are held. In addition, specialized seminars

and meetings are convened in various locations. Periodic consultations are held among

Senior Officials, Ministers and Heads of State or Government.

Although the OSCE continues to engage in standard setting in the fields of military

security, economic and environmental cooperation, and human rights and humanitarian

concerns, the Organization is primarily focused on initiatives designed to prevent, manage and resolve conflict within and among the participating States. The Organization

deploys more than 20 missions and field activities located in Southeastern and Eastern

Europe, the Caucasus, and Central Asia. The website of the OSCE is: <www.osce.org>.

ABOUT THE COMMISSION ON SECURITY

AND COOPERATION IN EUROPE

The Commission on Security and Cooperation in Europe, also known as the Helsinki

Commission, is a U.S. Government agency created in 1976 to monitor and encourage compliance by the participating States with their OSCE commitments, with a particular emphasis on human rights.

The Commission consists of nine members from the United States Senate, nine members from the House of Representatives, and one member each from the Departments of

State, Defense and Commerce. The positions of Chair and Co-Chair rotate between the

Senate and House every two years, when a new Congress convenes. A professional staff

assists the Commissioners in their work.

In fulfilling its mandate, the Commission gathers and disseminates relevant information to the U.S. Congress and the public by convening hearings, issuing reports that

reflect the views of Members of the Commission and/or its staff, and providing details

about the activities of the Helsinki process and developments in OSCE participating

States.

The Commission also contributes to the formulation and execution of U.S. policy

regarding the OSCE, including through Member and staff participation on U.S. Delegations to OSCE meetings. Members of the Commission have regular contact with parliamentarians, government officials, representatives of non-governmental organizations, and

private individuals from participating States. The website of the Commission is:

<www.csce.gov>.
ROADBLOCK TO RELIGIOUS LIBERTY:

 RELIGIOUS REGISTRATION

THURSDAY, OCTOBER 11, 2001

PARTICIPANTS

Page

Ronald J. McNamara, Chief of Staff, Commission on Security and

Cooperation in Europe......................................................................................................... 1

Knox Thames, Staff Advisor, Commission on Security and Cooperation in Europe ....... 1

Dr. Sophie van Bijsterveld, Co-Chair, OSCE/ODIHR Advisory Panel of Experts

on Freedom of Religion or Belief ........................................................................................ 3

Dr. Gerhard Robbers, OSCE/ODIHR Advisory Panel of Experts on Freedom

of Religion or Belief.............................................................................................................. 6

Vassilios Tsirbas, Senior Counsel, European Centre for Law and Justice ........................ 7

Col. Kenneth Baillie, Commanding Officer, Salvation Army-Moscow, Russia.................. 9

APPENDICES

Prepared Statement of Rep. Christopher H. Smith, Co-Chairman, Commission on

Security and Cooperation in Europe ................................................................................ 25

Prepared Statement of Rep. Zach Wamp, Commissioner, Commission on Security and

Cooperation in Europe....................................................................................................... 27

Prepared Statement of Sen. Gordon Smith, Commissioner, Commission on Security and

Cooperation in Europe....................................................................................................... 29

Prepared Statement of Dr. Sophie van Bijsterveld ............................................................ 32

Prepared statement of Dr. Gerhard Robbers ...................................................................... 36

Prepared Statement of Vassilios Tsirbas............................................................................. 37

Prepared Statement of Col. Kenneth Baillie ...................................................................... 46

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ROADBLOCK TO RELIGIOUS LIBERTY:

 RELIGIOUS REGISTRATION

THURSDAY, OCTOBER 11, 2001

COMMISSION ON SECURITY AND COOPERATION IN EUROPE

WASHINGTON, DC

The briefing was held at 9:30 a.m. in Room 340, Cannon House Office Building, Washington, DC, Ronald J. McNamara, Chief of Staff of the Commission on Security and Cooperation in Europe and Knox Thames, Staff Advisor of the Commission, moderating.

Witnesses present: Dr. Sophie van Bijsterveld, Co-Chair, OSCE/ODIHR Advisory Panel

of Experts on Freedom of Religion or Belief and Professor of Law at Katholieke Universiteit

Brabant, Netherlands; Dr. Gerhard Robbers, Member, OSCE/ODIHR Advisory Panel of

Experts on Freedom of Religion or Belief and Professor of Law, Universitat Trier, Institut

fur Europaisches Verfassungsrecht, Germany; Vassilios Tsirbas, Executive Director and

Senior Legal Counsel, European Centre for Law and Justice, Greece; Col. Kenneth Baillie,

Commanding Officer, Salvation Army, Eastern Europe.

Mr. MCNAMARA. Good morning. I am Ron McNamara, the Chief of Staff of the Commission on Security and Cooperation in Europe, the Helsinki Commission.

On behalf of Senator Ben Nighthorse Campbell, the Chairman of the Commission,

and Congressman Christopher Smith, our Co-Chairman, and the members of the Commission, I am pleased to welcome you here today to this briefing on religious registration in

the Organization for Security and Cooperation in Europe [OSCE] region. This session is

part of an ongoing series of hearings and briefings that the Commission is holding on

questions relating to various aspects of religious liberty in the OSCE region.

I am pleased to introduce the Commissions Staff Advisor for religious liberties issues, Knox Thames. He will serve as the Moderator of this mornings program.

We are particularly pleased that many of you are representing various OSCE participating States, and I have met several of you and would appreciate an opportunity to meet

more of you. I think some participants will also be visiting our Commission offices tomorrow, where we will be able to have a more in-depth discussion.

This forum, todays briefing, will be transcribed and will be produced in printed copy,

and will also be available through the Commissions website, which is <www.csce.gov>.

We would encourage you, if you have not done so already, to visit our website. There is

also a subscription function where you can subscribe based on your interest in individual

participating States, or in topics including religious liberties. So, I will turn to Knox, and

he will, again, serve as the moderator for the balance of the program. Again, I do want to

welcome each of you here today. Thank you.

Mr. THAMES. Good morning, ladies and gentlemen. I would like to express my gratitude for everyone attending today. I have a statement that our Co-Chair, Mr. Smith, was

hoping to give today but, unfortunately, he had a conflict arise this morning, so I will read

his opening statement and then we will hear from our panelists.
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PREPARED STATEMENT OF HON. CHRISOPHER H. SMITH,

CO-CHAIRMAN, COMMISSION ON SECURITY AND

COOPERATION IN EUROPE

Ladies and gentlemen, I would like to welcome everyone to this

briefing today, convened by the Commission on Security and Cooperation in Europe, to address an issue of great importance in the promotion of religious freedom, religious registration policies in the OSCE.

The Commission strives to monitor and encourage compliance with the

Helsinki Final Act and other commitments of the Organization for Security and Cooperation in Europe.

As Co-Chairman, over the past decade I have observed a troubling

drift away from a robust and vibrant protection of religious freedom in

a growing number of OSCE States. I have become alarmed with how

some OSCE countries have developed new laws and regulations that

serve as a roadblock to the free exercise of religious belief. These actions have not been limited to emerging democracies, but also include

Western European countries, with the definitive example being Austria.

Considering the gravity of this issue, I am pleased by the panel of

experts and practitioners assembled today who have been kind enough

to travel from Europe to share their thoughts and insights. Our distinguished panel includes Dr. Sophie van Bijsterveld, who is currently

serving as Co-Chair of the OSCE Advisory Panel of Experts on Freedom of Religion or Belief, as well as a law professor at Catholic University in The Netherlands. Dr. Gerhard Robbers is also a member of the

OSCE Advisory Panel of Experts, and is a professor of law at the University of Trier in Germany. Vassilios Tsirbas serves as interim Executive Director and Senior Legal Counsel for the European Centre for

Law and Justice, and he is based in Strasbourg. Lastly, Col. Kenneth

Baillie is the Commanding Officer for the Salvation Army in Eastern

Europe. He has experienced firsthand registration laws which not only

have impeded, but actually liquidated, a religious group, as he has

been very involved with the Salvation Armys ongoing action to register

in Moscow.

During todays briefing, the panel will provide critiques of religious registration policies throughout the 55-country OSCE region. In

addition, panelists will prove the big picture of religious registration

issues throughout that region, including States which formerly were

part of the Soviet Union. I feel the upcoming dialogue will be very helpful in developing a better understanding of these roadblocks to religious freedom.

From what I have seen through the work of the Helsinki Commission, many of these laws are crafted with the intent to repress religious

communities deemed nefarious and dangerous to public safety. Certainly after the September 11 tragedies, one cannot deny that groups

have hidden behind the veil of religion in perpetrating monstrous and

perfidious acts. Yet, while history does hold examples of religion em-
3

ployed as a tool for evil, these are exceptions and not the rule.

In our own country, during the Civil Rights Movement, religious

communities were the driving force in the effort to overturn the immoral separate but equal laws and provide legal protections. If, during that time, strict religious registration laws had existed, government

officials could have clamped down on this just movement, possibly delaying long overdue reform. While the OSCE commitments do not forbid basic registration of religious groups, governments often use the

pretext of state security to quell groups which espouse views contrary to the ruling powers party line.

Another practice I have observed is the creation of registration

laws designed on the premise that minority faiths are inimical to governmental goals, like respect for human rights and rule of law. Often,

proponents of these provisions cite crimes committed by individuals in

justifying stringent registration requirements against religious groups.

Still, as I previously mentioned, the history of religious movements is

one of good will and benevolence, not hate and misdeeds. Clamping

down on the ability for a religious group to exist not only contravenes

numerous, long-standing OSCE commitments, but also serves to remove

from society forces that operate for the general welfare. The Salvation

Army in Moscow is a lucent example.

In other situations, some governments have crafted special

church-state agreements, or concordats, which exclusively give one religious group powers and rights not available to other communities. By

creating tiers or hierarchies, governments run the risk of dispersing

privileges and authority in an inequitable fashion, ensuring that other

religious groups will never exist on a level playing field, if at all. In a

worst case scenario, by officially recognizing traditional or historic

communities, governments declare their ambivalence, and sometimes

hostility, toward minority religious groups, which can serve as a catalyst for violence. The persistent violence against Jehovahs Witnesses

and other evangelical groups in Georgia is a prime example.

Notably, religious registration laws do not operate in a vacuum;

other rights, such as freedom of association or freedom of speech, are

often enveloped by these provisions. Accordingly, it is with great concern that I convene this briefing to discuss religious registration roadblocks. My heightened level of concern is only equaled by my strong

desire to encourage participating OSCE States to fully comply with their

OSCE commitments.

In working toward this goal, I was pleased to learn of the Bush

Administrations shared commitment to religious freedom. In a March

9, 2001 letter, Dr. Condoleezza Rice, Assistant to the President for National Security, stated: President Bush is deeply committed to promoting the right of individuals around the world to practice freely their

religious beliefs. She also expressed her concern about religious discrimination. In a separate letter on March 30 of this year, Vice President Dick Cheney echoed this commitment when he referred to the
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promotion of religious freedom as a defining element of the American

character. He went on to declare the Bush Administrations commitment to advancing the protection of individual religious freedom as an

integral part of our foreign policy agenda.

While some may construe the Administrations war on terrorism

as a move away from religious freedom, Mr. Bush has repeatedly made

it clear, as stated in his address to the country, the enemy of America

is not our many Muslim friends.... Our enemy is a radical network of

terrorists and every government that supports them. His statement

that the terrorists are traitors to their own faith, trying, in effect, to

hijack Islam itself demonstrates his distinction between terroristic acts

and religion. Accordingly, it is my belief that this Administration will

not stray from supporting religious freedom during this challenging

time.

In closing, the Helsinki Commission is greatly appreciative to our

panelists for agreeing to come and share their thoughts on this critical

issue. In addition, the Commission will continue to monitor the activities of governments in light of their OSCE obligations and encourage

compliance. We will now proceed with the panelists presentations,

which will be followed by an opportunity for questions. Thank you.

Mr. THAMES. Once again, that was the opening statement by our Co-Chairman, Mr.

Chris Smith of New Jersey.

At this time, I would like Dr. van Bijsterveld to give her presentation. Thank you.

Dr. VAN BIJSTERVELD. Thank you very much, Mr. Moderator. Ladies and gentlemen, I

am very grateful for the opportunity to be here and to be able to share some thoughts with

you on the legislative developments regarding religion in the OSCE region.

I would first like to sketch a perspective against which to assess the registration of

religions issue and, second, to address the role of the OSCE and the panel in religious

liberty matters.

In dealing with socio-religious changes, states often turn to the instrument of legislation and, in this legislation, the mechanism of registration of religion plays a crucial role.

Indeed, one recurrent issue under which problems of religious liberty become manifested

in the OSCE region is that of registration of religions. This has also made the phenomenon of registration itself suspect.

It is important, however, to realize that registration, even if this mechanism has become charged in the context of legislative change, is not, in itself, good or bad. The assessment of registration from the point of view of religious liberty depends entirely on the

function that registration fulfills in the legal system, and the consequences that are attached to registration.

So, the assessment of registration and the criteria to be met in order for a religion to

be registered depends on these underlying elements, and this starting point allows us to

make some concrete observations.

First, registration as an absolute requirement: A requirement of registration of religious groups as a pre-condition for the lawful exercise of religious freedom is worrisome

in the light of international human rights standards. A prior permission of the government for allowing a person to adhere to a religion and to exercise his religion in commu-
5

nity with others is, indeed, problematic in the light of internationally acknowledged religious liberty standards. Religious liberty should not be made dependent on a prior government clearance, and this touches the very essence of religious liberty. In this case, the

motives for requiring registration are undesirable and not in tune with the standards.

Second, registration and countering certain particular behavior: Government may

wish to counter particular behavior. Controlling the existence of or the adherence to religions as such, by introducing a requirement of registration is not the right approach. The

law in such cases should deal with the actions and manifestations themselves, and should

not criminalize a particular religion in general. In other words, if in such a case the motive

of government to tackle a particular behavior was justifiable, using the mechanism of

registration is not the right means to achieve this end.

Third, registration and entity status: It is important to notice the registration also

fulfills many other functions in legal systems of OSCE countries.

A primary condition for being able to function as an organization in society is that of

enjoying entity status, that is, to be able to function as a legal entity, as a collectivity

distinct from the individual members. To function as such a legal entity, a certain structure is required. Allocations of responsibilities for decision making and financial matters

need to be clear. Legal systems often require some sort of registration for obtaining entity

status. If registration fulfills a role in the process of requiring entity status, the role of the

state is, in principle, a facilitative one. Without such legal status on the basis of which an

organization can function independently from its members, the effective exercise of religion as an organization would be illusory.

The facilitative role of the state, however, can change into its opposite if the criteria

to be met in order to register are disproportionately burdensome. For instance, a very

high numerical threshold, or a very long duration of existence in a particular country

would be elements that would make the registration disproportionately burdensome. Very

large discretionary powers may result in the same. In this case, the motives and the function of registration are in order, but the way the registration mechanism is used is disproportionate.

Fourth, the facilitative role of the state is not limited to granting entity status. Often

states provide more elaborate facilities to enable the functioning of religion and religious

organizations in societies such as, for instance, chaplaincy services in public institutions

or religious education in school or access to the public mass media, and so forth. The

precise legal format of these facilitative arrangements depends on legal and cultural factors, and the general legal system of a particular country. These facilities are, of course,

important for the functioning of religions in the social reality.

In one form or other, facilities to enable the functioning of religion and religious

organizations in societies are available in all types of systems of church-state relationships, whether there is a separation of church and state, or system of cooperation, or one

of an established church.

Typically, in systems of cooperation between church and state, organizations based

on the religion or belief which meet particular criteria are granted a certain status not

only giving them entity status, but also qualifying them for other facilities as well. Indeed,

also here the facilitative role of the state is paramount. It is also clear that sometimes

more strict requirements are set. But whether these requirements are acceptable depends on their being adequate and proportional for the purpose, and here again very high

thresholds and overly strict requirements in order for a religion to be registered are prob-
6

lematic.

In conclusion, we need to see through the outward design of the system, and concentrate on the substantive issues of the position of one religion and another. A detailed

scrutiny and assessment, therefore, is necessary to form a sound legal opinion on the way

that registration functions in a legal system.

Now, I turn to the role of the OSCE. The predominantly non-legally binding nature of

OSCE commitments and the political diplomatic functioning of the OSCE are sometimes

seen as a weakness of the organization. These features are also their strength. Without

duplicating other international efforts, the OSCE can contribute to the promotion of human rights including religious liberty in a very unique and supplementary way.

The importance of religious liberty was recognized by the OSCE and the Office for

Democratic Institutions and Human Rights [ODIHR] in establishing an advisory panel of

experts on freedom of religion or belief. This took place in the aftermath of the 1996 seminar on the topic of Constitutional, Legal and Administrative Aspects of Freedom of Religion. The composition of the panel reflects different geographical, denominational and

legal systems backgrounds, although each member acts in his own personal capacity.

Technically, the panel is an advisory body to the ODIHR. Through the ODIHR, the

panel may be invited to offer its assistance on religious liberty issues

The panel recognizes that, however important the legal dimension of religious liberty is, there are often underlying problems. For this reason, the panel has three focus

areas. Apart from legislative issues which deal with the subject that this meeting is concerned with, the panel has also outlined education and tolerance, and conflict prevention

and dialogue as areas of distinct interest, and has formed working groups accordingly

I come to a conclusion. Issues of religious liberty need international attention, and it

is very important to develop an international approach to these issues based on international human rights law. Such an international approach should have its own distinctive

contribution to the protection of religious liberty, exceeding merely national perspectives. A specific value of OSCE involvement with issues of religious liberty lies in their

focus on the long-term and in the contribution it can make to creating a forum of dialogue

and the building of understanding, under the acknowledgment of and adherence to its

human rights commitments. Thus, it offers concrete and structural assistance to states in

addressing these problems which are important for the quality of society. Thank you very

much.

[Applause.]

Mr. THAMES. Thank you, Dr. van Bijsterveld. With some people coming in a little late,

I want to remind the audience that an opportunity will be provided at the conclusion of all

the presentations, for members of the audience to ask questions of our panel.

At this time, I would like Dr. Robbers to give his presentation.

Dr. ROBBERS. Thank you, Mr. Moderator. Ladies and gentlemen. Registration of religious communities is known to most, probably to all, legal systems in the world, in one

form or another. Be it centralized or decentralized registration. It need not be a roadblock

to religious freedom. In fact, it can free the way to more positive religious freedom if

correctly performed.

Often, religious communities carry a variety of special needs, religious needs, of and

for organization, different from other secular associations. Freedom of organization and

attributing offices is a key issue of freedom of religion. Registration as a religious organization can mean attributing special autonomy to religious communities, like it is the case,
7

for example, in the law for Sweden. It can open the door to specific rights, like tax exemptions, rights to perform religious marriages with civil effects, access to positive public

funding, and other rights. Especially in countries with a legal infrastructure still further

to be developed, registration can clear the positive status for religious communities. Religious communities, in this case, would not depend on various and possibly diverging decisions of many different case-to-case decision makers somewhere in the country.

Registration can thus facilitate cooperation between state authorities and religious

communities, and cooperation being a striking and positive characteristic feature of the

culture of many a country in religious matters, not impeding separation of state and church.

We should not forget that religion can also be misused, for detrimental activities. It

can be misused to exploit the members of religious communities, as such. It can be misused to seduce people to perform criminal, even terrorist assaults, as we have seen. Registration can be a positive means to averting dangers to public safety. Registration, though,

can be misused to jeopardize religious freedom easily.

Registration and registration procedures must meet certain standards, among which

figure as probably most relevantand I am just confining myself to some, leaving aside

others. Religious activity in and as community, must be possible even without being registered as a religious community.

Secondly, the minimum number of members required for registration must be legitimized by the status acquired by registration. You must not need too many.

Thirdly, there should be no minimum period of existence before registration required.

Any such requirement, if it exists, must have good reasons in the specific status that may

follow from registration.

Registration must be based on equal treatment of all religious communities. The administration fee that may be required for registration must be adequate. The process of

registration must follow due process of law, and so must the loss of the registered status

follow due process of law.

Let me indicate, finally, some ways the OSCE, from my point of view, might proceed.

Actions taken by the OSCE, or any other organs of the international community, to safeguard religious freedom should be further developed.

OSCE must, in this process, be conscious and considerate of local cultures and

long-standing traditions. OSCE should assist to foster positive religious freedom, encouraging governments to help religious communities to actively perform their religions. OSCE

activity, in the field of freedom of religion, must be ready to become involve in processes of

long duration, and be more patient than it has been up to now.

OSCE should encourage, finally, and engage in cooperation with governments and

religious communities in creating and maintaining an atmosphere of tolerance and cooperation. Thank you so much.

[Applause.]

Mr. THAMES. Thank you, Dr. Robbers. Next, Mr. Vassilios Tsirbas.

Mr. TSIRBAS. I will start with the thought of a Frenchman who loved, if not adored,

America. He wrote much about the political system of America when he speaks of and

about religious freedom. The heart of man is of a larger mold, it can at once comprise a

taste for the possessions of earth and the love of those of heaven. At times, it may seem to

cling devotedly to the one, but it will never be long without thinking of the other. That is,

of course, Alexis de Toqueville, the famous political thinker who basically set the tone and

atmosphere that we need to realize when we talk about religious freedom and roadblocks
8

to the enjoyment of religious liberty.

I will first make a few statements of a general nature, and then I will try to associate

these statements with specific examples, using as a case study my own country, Greece.

But before I begin my short presentation on the issue under examination, I wholeheartedly express, along with many people all over the world, my condolences for the loss of all

those who died on September 11, 2001. Moreover, our resolve to stand united in our fight

for the preservation and the deepening of our open society and democratic societies against

the irrational powers of chaos and destruction, is firmer than ever.

Getting into our topic, with a word of consolation is the case because all of us were

under the influence of what happened that fateful Tuesday, and it has always been the

case throughout history that upon the ruins an ever greater and more blessed present and

future has been built.

On November 1950, the Foreign Ministers of the Founding Member States of the

Council of Europe met to sign the European Convention on Human Rights. The goal was

to lay the foundations for the new Europe which they hoped to build upon the ruins of a

continent ravaged by a fratricidal war of unparalleled atrocity. This is why the international treaties, ever since the end of the Second World War, (in light of that grim experience and the fear of what could come about in the future, that is, the ever present danger

of totalitarianism which also assumes religious overtones more and more as we move

forward), were concerned not simply with the furthering of peaceful relations, going beyond the mere treatment of the facts of war to the treatment of its causes. This is why we

find the first statements about the protection of human rights because when we speak of

religious freedom, we really speak of the open society, and when we speak of human rights,

we speak of the causes that left untreated, will lead us to more ruins in the future.

The ever-growing field of human rights constitutes currently a major paradigm, and

this paradigm shapes our understanding of what domestic and international law is and

how it is applied, but it also affects our own self-understanding, that is, who we understand our own selves to be and, correspondingly, what we believe we ought to enjoy. It is

this paradigm that the recent terrorist attacks tried to overthrow.

Within this proliferation of the field of human rightsof course, we could go on for

endless hours, speaking of the list of human rights covering the whole spectrum from the

most personal to the most communal, from the local and the domestic to the international

and then global, transcending not only place but time, extending claims all the way to the

past and reaching forward as to what would or should be enjoyed in the future.

Within this proliferation of the field of human rights, the Helsinki Final Act is a more

than promising note. The commitment to respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief for all, without distinction as to race, sex, language or religion, basically summarizes the overall attempt.

Among the human rights that enjoy the protection of international and domestic legal documents, religious liberty stands out as one of those sine qua non conditions for an

atmosphere of respect for the rights of individuals or whole communities.

If the protection of the individual is considered the cornerstone of our modern legal

consciousness of rights, religious freedom should be considered the cornerstone of all

other rights. The right itself is one of the most recent to be recognized and protected, yet

it embraces and reflects the inevitable outworking through the course of time of the fundamental truths of belief in the worth of a personI prefer this term rather than to use

the term rights of the individual, it is better to speak of the rights of the person.
9

Now, in 1989, the Vienna Concluding Document stated that they wanted to ensure

that laws, regulations, practices, and policies conform with the obligationsthat is, Im

speaking of the contracting parties and states to this documentthat practices and policies conform with their obligations under international law, and are brought into harmony with the provisions of the Declaration on Principles and other CSCE commitments.

Since Southeastern Europe heavily operates under the influence of the European

Convention on Human Rights, it is within this context that I would like to propose two

major areas of consideration (that are subsequent or simultaneous OSCE commitment to

further examine these areas on the basis of bilateral and multilateral dialogue) which

actually would help.

The first issue is the issue of establishing common standards of human rights, and the

second one is the issue of national standards and of legitimizing the laws in the respective

national societies pertaining to human rights.

Europe, either through the European Union or the Council of Europe arrangements

and processes, tends more and more toward a Jus Communis in matters of human rights.

Thus, the first issue appears and actually is not simply a matter of individual states, but

also of international European jurisprudence.

On December 12, 2000, last year, 16 churches and religious organizations in Greece,

in a northern city of Greece, were charged and brought to court based on an antiquated set

of laws regarding the operation of churches and religious organizations. The criminal

charges were based on the alleged operation of all of them without proper license, although all of them had produced evidence of that license when the police made its report.

Still, they were asked to come before the judge. The list included the evangelical churches,

Pentecostal churches, Mormons, Jehovahs Witnesses, and the Catholic Church.

Among the many things these laws require from the churches is to actually get the

opinion of the local Greek Orthodox bishop. Of course, the Greek courts, have tried within

their interpretative action to modify that and alleviate it and just basically render it as a

requirement of a simple opinion. That still leads to the paradox, churches distinguished

by theology different from the Greek Orthodox Church to be pulled by the Greek state to

an indirect, yet clear recognition, of that which they denounce to begin with as part of the

integrity of their doctrinal identity.

Needless to say, high-ranking state officials were embarrassed with that case. Of

course, all of those leaders, pastors, and clergy were acquitted. For one, a 70-year-old

Pentecostal pastor, a war hero, it was the second time within a year that he had to appear

before the court to produce the evidence of his innocence. As I said, they were acquitted.

But this is usually being taken as an incident that relates with what happens in Greece.

I do want to claim today that it has to do with the jurisprudence of the European Court of

Human Rights. In 1990, the Home Secretary General in Great Britain decided that a separatist sect leader living in England should be deported to India, the country of which he

was a citizen, and that for reasons of national security because of his alleged involvement

in terrorist acts. Well, the European Court on Human Rights, based on the Article 3 of the

European Convention on Human Rights, stated that basically the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration,

and that the protection that the Article 3 provides is absolute.

On the other hand, when it comes to issues of religious freedom, we see that the

European Court on Human Rights is characterized by a centrifugal tendency allowing the

various states, basically on the basis of national sensitivities, peculiarities, to even limit
10

the exercise of religious liberty. That is an issue that I would like us to think about today.

Another case, because I think here I need to close, has to do with the law, the recent

law regulating private television and radio stations in Greece. Now, this law requires two

things for anyone who wants to operate a radio station, either be a legal entity of public

law or be a commercial legal entity. That leaves untouched the Greek Orthodox radio

stations to continue operating and forces all the non-Orthodox Church radio stations to

become something that, to begin with, they are not interested in becoming. The radio

channel Christianity of the Free Apostolic Church of Pentecost and the radio station

Channel 2000 of the Free Evangelical Church have already been closed down.

Well, I could go on and on, but I just wanted us to think not only in terms of what we

can do in relation to the individual national states, but also within this broader context

that the Council of Europe and the European Union provides for us. And although I dont

have time to tackle the second issue, I would just briefly summarize what it is all about by

telling you, and we will have the opportunity maybe to talk more about that later, what a

Hebrew saying has it, that judges need to reside within their own people, alluding to the

need of the law to correspond to the social reality that it needs to serve. Thank you very

much.

[Applause.]

Mr. THAMES. Thank you, Mr. Tsirbas. Just to bring to everyones attention, all the

testimony given today will be on our website, which is <www.csce.gov>. Mr. Tsirbas full

statement will also be included on our website.

At this time, I give the mike to Col. Baillie.

Col. BAILLIE. Thank you. From an office in Moscow, I have responsibility for Salvation

Army work in five East European countries. First, I will briefly describe our religious

registration issues in each of those countries, and then I will zero in on the one biggest

problem.

In Georgia, there is no law that requires us to register as a religious organization. In

order for us to conduct ordinary business, we are registered as a charity.

In Moldova and Ukraine, we have full nationwide registration as a religious group. In

both cases, it took years of work, but as of last year, 2000, we now have those registrations.

In Romania, we have been trying to get registered for about 3 years. At first, our own

law firm did not understand us well enough and, consequently, tried to register us as a

charitable foundation. When we corrected that bit of misinformation and tried to register

as a church, a church which as an expression of its faith does charitable work, we learned

that use of the word church is potentially problematic. Apparently only longtime churches

in Romania can use that word. But we were told that the title Christian Mission might

be acceptable. Well, thats all right with us, so long as we are able to do all of our ministries, so we are pursuing that possibility at present.

 As a centralized religious organizationwe had applied back in September of last

year, and it appeared that nothing was being done with our application until December

when the media had a field day with our Moscow city denial, and worldwide publicity was

fairly extensive. There were quick meetings of the Committee of Religious Expertise, and

their report was drafted almost overnight, and we were awarded our CRO. By the way,

that renews a comparable status that we had long ago until we were liquidated by the

Bolsheviks in 1923.

The city of Moscow is another story. We have been registered as a religious group in

Moscow since 1992. In response to the 1997 law, like everyone else, we applied for re-
11

registration, thinking that it would be merely pro forma. Our application documents were

submitted, a staff person in the city Ministry of Justice said everything was in order, and

we would have our signed and stamped registration in two days.

Two days later, the same staffer called to say, in a sheepish voice, Theres a problem. Well, it is now 3 years later, and there is still a problem. Someone took an ideological decision to deny us. That is absolutely clear to me, and 3 years of meetings and documents and media statements and legal briefs are all window-dressing. Behind it all is an

arbitrary, discriminatory, and secret decision, and to this day I do not know who made the

decision, or why.

Based on what has happened in these 3 years, I can offer a few observations.

For one, the laws ambiguity gives public officials the power to invent arbitrary constructions of the law. For instance, the law says nothing about who can sit on our governing board. Still, we were told that we would have to submit copies of passports for any

foreigners who happened to be on our governing board. The law does not require this, but

we submitted the copies anyway. As part of the flimsy justification for denying our registration, 6 months later, the city claimed that we should also have submitted copies of

visas. Nothing had been said about this earlier, but this new, invented requirement was

now used as a reason to deny our registration.

Here is another example of arbitrary readings of the law: one paragraph in one section gets lifted out of context and applied to another. Under the terms of our existing

registration, a quorum of our governing board could approve changes to the charter and,

accordingly, this is what we did as part of the application process. But another section of

the law, completely separate and unrelated, says that the formation of a new organization

needs 10 Russian citizens to be the founders. Well, we had fulfilled this requirement back

in 1992, but now this Justice Ministry official rejected the proper legal decision of our

governing board, and arbitrarily asserted that the unrelated paragraph was operative.

Another observation. I think officials are unhelpful, if they choose to be. They do not

see their function as assisting or enabling religious groups to fulfill the law, and so, in

practice, they become obstructionist.

When our full set of application documents went to the city Ministry, the first reply

we got in writing was this: We have received your application, but we will not act on it.

The official gave no explanation, as required by law, and offered no word as to what we

should or might do next.

I recall a series of meetings with another official. He had asked for a written statement of our beliefs on various subjects. And when I returned with a rather lengthy statement, his response was simply, This is not correct yet. Rewrite it and come back again.

He gave no explanation as to what was allegedly inadequate, and so I rewrote it. In fact,

the process went on several times coming back, and each time the response was the same.

Another observation. The law is one thing and enforcement of it is another. More

than 2 years ago, the city official, a fellow by the name of Vladimir Zhbanov, said to a group

of lawyers and government officials in a semi-public meeting, that the city was doing a

wonderful job with the new law, and registering many groups with no problems, and so on,

but not, of course, the Jehovahs Witnesses and the Salvation Army. They will never be

registered as everyone knows they are undesirables. I was not there myself, but I am told

that jaws gaped open. The mans animus has been abundantly clear ever since.

I sat in a meeting with him myself last February, when he acknowledged to me that

he knows the Salvation Army is a proper religious group, that we do good charitable work,
12

and that we are well regarded around the world, but, he said, I will never register you in

Moscow, never. And, in fact, I will liquidate you and all your properties and assets will go

to the state. I will leave you penniless. Believe it or not, he has since said the same thing

in a media interview.

Another observation. The lack of impartial enforcement can extend to the courts.

There has been no redress for us in Moscows courts. The procedural and substantive

violations of due process convince me that the courts, at least the ones weve had to deal

with in Moscow, are not independent, but are controlled by the same Minister of Justice

who denied our registration.

I will give you one example. A city Justice Ministry brief to one of these courts quoted

a long series of excerpts from various Russian laws about insurrection, subversion, paramilitary formations, and national security, and then, with breathtaking illogic, said that

since the Salvation Army has the word army in its name, it must be all the above. This

was after our having been legally ministering in Moscow for 8 years. Not one bit of socalled evidence, was included in support of this nonsense and, indeed, there is none to

adduce. It is, to me, sad that a lawyer would write this in a brief to a court, and it is equally

sad that a court would receive it and later issue its judgment against us by quoting it at

length.

A final observation. The lack of enforcement involves a tug-of-war between federal

and local powers. The federal government in Russia, under various treaties and international obligations, is responsible to see that human and religious rights are upheld throughout the nation. In our case, the federal government has granted our registration, and I am

grateful for that, deeply grateful, but it has failed to confront the city of Moscow about

Moscows inappropriate actions.

There have been meetings. There have been assurances, but as of this date, there has

been no substantive action by federal Ministry officials to deal with Moscow Ministry

officials.

In conclusion, we will not give up. We have appealed to the European Court of Human Rights, and we are confident that the case is so clear a violation of justice that we will

prevail eventually. In the meanwhile, I am understandably skeptical about religious registration law, and particularly the will to uphold what the law says in regard of religious

freedom. Thank you very much.

[Applause.]

Mr. THAMES. Thank you, Col. Baillie.

At this time, we will provide the opportunity for the audience to ask questions. If you

have questions, please come up to the microphones in the front, state your name and your

affiliation.

I have a question for our two professors. In your opinion, are the norms on religious

freedom that protect religious liberty, outlined in the Universal Declaration of Human

Rights, the ICCPR, the European Convention on Human Rights, and the numerous OSCE

commitmentshave the protections of religious freedom attained the level of customary

international law? Do you see a trend to where it is reaching that level?

Dr. VAN BIJSTERVELD. Thank you very much. The OSCE has a large number of participating States. And the OSCE commitments on religious liberty are quite extensive. In my

personal opinion, they are not only extensive, but they are also quite modern. They go one

step further than some classical human rights standards that are incorporated in the

European Convention on human rights and the International Covenant on Civil and Po-
13

litical Rights.

 Apart from that, all participating States of the OSCE are also members of the U.N.

and practically all are party to the International Covenant on civil and political rights.

Most of them are also party to the European Convention on Human Rights.

So, I would say at the level of the principles, the basic norms, the protection is quite

extensive and of a high standard. The challenge will be how to implement those standards

in particular countries, and to give these principles flesh and blood with respect to the

real issues that we are facing right now. So, we need to focus on the interpretation of

these standards and their meaning for and application to todays problems. But I think

that can be done.

Dr. ROBBERS. Mr. Moderator, the question clearly aims at those countries who have

not signed the instruments, not all of them, or they would be involved and obligated by all

these norms. I would think that apart from what I wish to be, what is the case in international law would be that part of these norms would be accepted as customary international law. Other parts of these norms I would have doubts whether we could speak as far

as I would like them to be customary law, especially in the case of changing ones religion,

leaving and changing ones religion and adopting a new one. The Islamic states have time

and again insisted that this is not part of their understanding of freedom of religion. I

deplore that, but it is the case.

So, I think from the basics of international public law, we could, unfortunately, not

speak in this case of that as customary international law.

Mr. THAMES. Are there any questions from the floor? Yes, please?

QUESTIONER. My name is Cole Durham. I am the Director of the BYU International

Center for Law and Religion Studies, and I want to describe just a problem and a possible

solution with regard to the impact of terrorism in this area, and get responses from members of the panel as to this possible solution or how we deal with this.

The problem is, I think the events of September 11 will tend to aggravate problems of

registration. I base this on work with the OSCE expert panel in Kazakhstan last spring,

where there was an effort to reform, so-called, their registration rules in response to

terrorism problems being experienced there. The response was essentially to tighten up

the registration rules, to make it more difficult for all religious groups to register.

Now, my own sense is that that is probably counterproductive particularly since the

truly illegal groups just go underground, leaving this heavier burden for legitimate groups.

But it was an instinctive response of the government, they backed off. But I fear in response to the increased global concerns about terrorism, those issues will come back.

Now, the question is how to deal with that without sacrificing religious freedom principles. It seems to me that a possible line could be drawn, taking into consideration well

established principles in criminal lawthat is, to the extent terrorist activities violate

criminal law and, in particular, violate rules dealing with what we call inchoate crimes,

attempts, the law of conspiracy, that if you take into account the areas of the law that

criminalize preparatory conduct but distinguish it from mere thought or mere joining of

organizations, that that may suggest a line that would work. Every criminal law system

that I know accounts for preparatory crimes, but has to draw the line between actual

preparation or action that will substantially corroborate criminal activity from mere joining of organizations, and that maybe that would suggest a line for how things could be

distinguished.

Among other things, it ought to be possible for organizations to disavow, formally
14

disavow conduct ofthere might be some criminal element, someone who has belonged to

a religious group, saythe group ought to be able to disavow that conduct in some formal

way so that the whole group is not punished for the activity of certain malefactor. If you

think about, to some extent, the approach of the U.S. and the Taliban, there is something

like that. You can turn over a malefactor and you could insulate yourself from association

with that.

Id just like to pose that. Would something like that work as a solution to how one

could draw the line in this difficult area, or are there other additional suggestions that

could be made? Thank you.

Mr. THAMES. Who on our panel would like to step up and provide an answer? Any

thoughts?

Dr. ROBBERS. You are looking at me, Mr. Moderator. Many of these rules on registration do not only have the question in mind of drawing the line where criminal law begins

or ends, but they also carry the notion of prevention, as I would call it, diverting dangers

from the public wheel, police the issues of the question of how to avoid getting into criminal action.

I would think that basically that is an honorable and legitimate aim. It is a very dangerous thing to do. It is very hard to draw the line.

The only thing I could say is that all these answers to a question like this would have

to be answered in relation to the very country, the very legal system you are working in

and you are living in with the religious community. It is different in Denmark from Tajikistan. It is just different. It is not better anywhere, but it is just different. The needs of

handling these problems are different in these countries. That certainly is not a sufficient

answer, but it may indicate the direction I would go into.

Dr. VAN BIJSTERVELD. Thank you. Of course, genuine political concerns can be taken

into account in determining the concrete scope and extent of liberties, including religious

liberty. Concerns of security and safety are legitimate concerns which may lead to the

restriction of human rights. Human rights provisions themselves usually provide guidance as to the criteria to be met for such restriction. From an international point of view,

the question as to how to strike the right balance cannot be answered in general but, as my

colleague says, the precise circumstances of the case are highly determining for the concrete assessment of the situation.

Basically speaking, of course, it is best to target particular action through criminal

law instead of aiming at banning a particular religion or putting extensive constraints on

exercising religion in general.

That would be my answer. Dissolution of organizations  that is, the formulation of

the legal criteria for such dissolution at the national level as well as the interpretation of

these criteria at the national level, must satisfy the scrutiny of international human rights

standards, in our case both freedom of assembly and of religion. Sheer suspicion does not

satisfy such scrutiny.

Mr. TSIRBAS. Well, indeed, this is, I think, the issue from now on, ever since that Tuesday, September 11, 2001, that we all need to come together and find the proper solution or

the proper balance. But it seems to me that, indeed, I would agree with what we have just

heard about the need to be dealt with accordingly in every individual social reality, and at

the same time, within, of course, the norms of the internationally binding legal documents.

Speaking in the context of the political element, it needs to be stronger; I think we
15

need to discriminate in order to preserve freedom, and that, of course, needs to be worked

out, and it is a very precarious road, but still we need to consider that. That is my opinion.

Mr. THAMES. Yes, Col. Baillie. [Allowing Baillie to answer]

Col. BAILLIE. I guess I am representing the prime example, number one, here. I am not

a lawyer, but it does strike me as ironic that more than a year ago, a Russian court said

about us on this subject, that among the many reasons why they would not grant us

re-registration, It will be inevitable that members of the Salvation Army will break Russian law in the process of, so on and so on and so on. What they are talking about our

membership faith commitment statement. It is strange to me that in 107 other countries

of the world, our people seem to be peace-loving. I didnt know that any of them were

insurrectionists.

But how do you defend yourself against the charge that your people might do something instead of saying what they have done. There is nothing adduced here to say that

any of our people have done anything in Russian law, it is what they might do. And, moreover, it goes on to say that our organizational charter does not takedoes not have me

taking responsibility for what all our members do. How can I? I do not know what they all

do.

So, thesehow can I say thisthis is not a theoretical issue. It is very practical, very

immediate. It is one of the reasons that we have lost our case, that we apparently might do

something, therefore, we are automatically excluded in advance.

Mr. THAMES. Yes, sir. [Calling on audience member for question.]

QUESTIONER. Thank you. I am a professor at the Free University of Brussels, and at the

Central European University in Budapest, and also Duke University. I wanted to ask a

question that is related to Professor Durhams question, but it is not about terrorism, it is

about what are called in Euro Sect Hotels (phonetic). And I refer to Professor Robbers

lecture, when you said that, well, there is a danger of terrorism, but you also mentioned

exploiting people and so on and so forth.

So, I would like to have the opinion of the panel about a very volatile question related

to recent legislation or creation of bodies in France and in Belgium regarding sects. There

was a statute, a statute was passed in France referring to a vague notion of mental manipulation, then the word mental manipulation was put out of the statute because of the

problem this kind of very broad concept, but finally the statute has raised a lot of concerns

particularly in the United States and in Congress.

In Belgium, there is no new statute, but there is, as in France, an Observatory of the

Sects which is pluralist in its composition and so on and so forth.

I think that in our countries, we think that it is a legitimate aim to struggle against

deleterious use of religion that is not related to terrorism, but is related really to exploiting the vulnerability of people as we saw, for instance, in the example of the Order of the

Solar Temple. Probably they overreacted and these legislations or measures are debatable or should be criticized, but I would like to have the opinion of the panel between this

kind of legislation and what freedom of religion in general, and maybe the problem it

could affect maybe the registration system. Thank you.

Mr. THAMES. Who on our panel would like to approach that question first?

Dr. ROBBERS. France seems to be the one country where the public, say, resentment

against new religious movements has persisted most in Western Europe. I would not

single out France, though. In many Western European countries, there have been, as you

know, investigations, parliamentary hearings and reports about new and smaller reli-
16

gious movements. In France, it has come to this law you are referring to, in Belgium, the

Observatory, in other countries similar things.

My impression is that in some of these Western European countries, the parliamentary reports have contributed more to public tolerance, have been a means to smooth

down public resentment against new religious movement. By the way, those movements

have come more to public attention, thus, also to more public knowledge, so the people

knew more about it and lost their fear towards it.

I am in the situation personally, and not as a member of the panel of the OSCE, but

personally, to see what will come out in the long run from the French law. We have seen

laws in France about religion from the beginning of the last century, which have never had

any practical event, never been taken into use, practical issues.

My feelingand it is not more than a feeling, I may be wrongbut my feeling is that

there will be no dissolution of any religious movement in France in the near future. It is

more a law of atmosphere. I would hope that this atmosphere calms down.

Mr. THAMES. Dr. van Bijsterveld.

Dr. VAN BIJSTERVELD. I would only like to add one observation from my own country,

from The Netherlands. Already, in the early 1980s, on auspices of parliament an investigation was conducted on new religious movements. It resulted in a fairly extensive report

which contained a description of activities and the beliefs of a number of new religious

movements, and this was based also on interviews with representatives of the new religious movements. The moment the report was published, all interest, publicly and parliamentary, in new religious movements died down, and it hasnt been an issue since.

So I would like to say that maybe this report fulfilled a function in depoliticizing this

issue.

Mr. TSIRBAS. Well, I appreciate the comment we just heard, and it is apparent that the

historical element plays kind of a safety valve type of a role when things kind of alleviate

themselves as they go on.

My only observation to the issue that was raised before us has to do with our tendency to think in terms of being focuses between the liberal and republican kind of approach to religion. When I say republican, I speak of that which ascribes importance in the

initiative the state assumes to actually define religion, whereas the liberal would have

more of a secular individualisms type of approach to religion. I think that we need to

and that is the goal, I think, for all of usto promote a third way where we would actually

positively encourage and assume the risks. We do not live in a vacuum, we live in actual

history, so we need to encourage positively the expression of religion, to be manifested in

all its forms.

Mr. THAMES. I have seen four individuals raise their hands, so I will just gofive now

in the order that Ive seen them. So, I think first is the gentleman in the suit.

QUESTIONER. Good morning. James Standard, from the Seventh-day Adventist Church.

First of all, I wanted to say thank you to each one of you for your fine presentations. They

have been very interesting and informative.

The question that I have is, is there any evidence that registering religious bodies

reduces crime or creates social stability? And, secondly, is there any evidence that those

nations that go through the more elaborate or stricter standards are more effective in

lowering crime or creating social stability than those that have looser standards? And if

there is no difference or if there is no discernible positive impact in reducing crime or

creating social stability, what is the point of these processes? Thank you very much.
17

Dr. VAN BIJSTERVELD. Thank you very much for this question. I think the answer to this

question depends again on the particular function that registration fulfills. From the function of registration as an absolute requirement or registration as a means to tackle particular behavior, I think registration in itself is not a good solution. Either the motive is

false or it is false as a method.

In the other two situations, registration, I think, can fulfill a very good facilitative

function, that is, of enabling entity status or for integrating religious organizations in the

general legal framework.

So, when registration fulfills the latter functions, the answer would be registration is

an element in creating positive facilities for the exercise of religion. The requirements

that are set for registration must be adequate and be proportionate to the function that

registration fulfills.

So, in the first two instances, I think registration is not good. In the second two functions, it is good when designed in the right way.

Mr. THAMES. Any other thoughts from our panel?

[No response.]

The next person I saw was the gentleman over here in the right corner.

QUESTIONER. I am from the University of Gilg, Istanbul. I have a question to Col. Kenneth Baillie, but I have some preliminary questions.

Is it usual to have a uniform? You are not belonging to a states army, as far as I can

understand. It is a religious institution. It is a private institution. So, you are wearing a

uniform. Is it possible, according to the law here in the United Statesit is possible, as far

as I can see.

So, to make registration in Moscow, are you going over there with the uniform? I do

not know. And fill out the paper for the registration? I do not know.

Can you imagine if people would tolerate people coming from a Muslim country, with

the dress some kind of Muslim dressTaliban, lets saymaking propaganda of their

religion here? It gets in direct registration in this country? Would you tolerate them?

Thank you.

Col. BAILLIE. Well, I am an American, but Im not sure I can speak for all of America as

to what Americans would tolerate. Our uniform, our title, and our sort of quasi-military

structure is simply an accident of history and a century-old metaphor for Christians who

are deeply serious about their faith and activist about the evils in the world. It is part of

our identity. Lutherans put a white collar here, and others wear a cross. This happens to

be how we identify ourselves. And in countries where we are known, 108 countries of the

world, when I walk down the street in this uniform, I am frequently stopped because

people know the Salvation Armys reputation, and someone who is hurting or troubled or

needy will stop me. And if I were in plain clothes, that would not happen.

So, I can understand the confusion and misunderstanding, but all I can do is point to

130 years of our history and say, we are known by our deeds. I do not know if that answers

the question, but that is how I explain this uniform.

Mr. TSIRBAS. I just want to make a comment as far as the example that you used. If a

Taliban was to comedressed up as a Talibanif he was to help me rediscover Aristotle

as Islam did, and promote science as Islam did, I would welcome that personally as a

citizen of the West, but I wont welcome anything that would actually come to force me

into a lifestyle that is away from my consent. And I am saying this because I find the

parallelism that you tried to imply here quite unfortunate. When I hear the term army,
18

I guess in a certain context it is frightening, but at the same time related with what we

know being the work of the Salvation Army, it is more than just a consolation for my soul

and of comfort to my heart; to know and see that is, people identified as such with their

special uniform being actually active in our society. Their presence reminds us of what

they do and that colors decisively what you describe as being offensive military outfit,

rendering it back to us in the most positive and spiritually significant semiological way.

Mr. THAMES. Thank you. The gentleman in the red tie on the left side there.

QUESTIONER. Thank you, Mr. Chairman. I am a justice in the Constitutional Court of

Bulgaria, and a former member of European Court of Human Rights.

In the context of all that I have heard now, I would like to remind you in the panel

that there is a paragraph, second paragraph of Article 9, stressing the situation of not

giving the right for religion liberty, as in the case of danger for the security, as danger of

public security.

So, as a judge, I am hesitating to discuss some other courts decision because if you

are judge, you cannot judge without evidence, without documents. So, I, with all my respect to Salvation Army, I am not intending to take part of such a discussion because the

court is to decide whether to register, or the European Court on Human Rights will decide whether there was religion or not in this case. This is my opinion. Thank you.

Mr. THAMES. Thank you, sir. The gentleman in the blue shirt.

QUESTIONER. I am from Macedonia, and we are interested in international standards

about the number of the group that should be registered because according to the law of

religion communities and religion groups in the Republic of Macedonia, there was proposition which noted number of 50 members or believers of religious group, and then the

Constitutional Court of Macedonia canceled this proposition. So, according to the new

draft law on religious communities and groups, there is no number that is requested for

one religious group to be registered. Thank you.

Mr. THAMES. Thank you.

Mr. MCNAMARA. I know that there are others who have questions in the audience, but

I did want to follow up on the comments of the jurist from Bulgaria. Unfortunately, I do

not have the text exactly in front of me, so I cant quote it exactly, but in the context of the

OSCE, certainly the participating States are mindful of the standard sort of exceptions, if

you will. However, the participating States themselves have acknowledged that those

exceptions, such as public safety, morals and theres this standard list included in the

international instruments, are, in fact, exceptional and do not become the rule as opposed

to under extenuating circumstances exceptional, in fact. So, I think that is an important

point that I did want to get out there, that the states have gone even one step further

besides acknowledging those exceptions but, again, with the emphasis that the exception

should, indeed, remain exceptions, and that there should be adequate legal protections

for individuals whose rights are breached citing those limitations and that there be remedies against abuses that, unfortunately, do occur.

There was one point that I wanted to make as a follow-up, and it is something that

struck me in the context of the law in France, and my working assumption is that developments or events such as the Solar Temple and so forth, contributed to the promotion of

these kinds of notions in law.

But I guess the question that Ive always asked or have had in my mind is, can we say

that there is insufficient criminal law in those countries such that this promotion of such

a law, such as the one recently adopted in France, somehow contributes to the ability of
19

law enforcement officials in that country to route out illegal and true criminal activity

because then, otherwise, I seriously wonder what the motivation is. So, we can all understand the responsibility of a society to route out criminal behavior, but I guess my question, not being a lawyer, is, isnt there sufficient criminal law such that the state can

prosecute individuals who are indeed involved in criminal behavior? And my understanding, also, of the French law is that an institution could actuallyor religious community

or organizationcould actually be dissolved based on the criminal activity of as few as

one member of that organization, and that certainly runs against my understanding of the

notions of innocent until proven guilty, guilt by association, and so forth. And perhaps

some of our other jurists or legal experts could address those issues.

Dr. ROBBERS. In fact, if I might come back to this point, it is very important that one

sticks to the individual criminal action and the response of the state and the government

towards individual criminal action. That must be the key issue.

On the other hand, sometimes criminal action is performed by organizational structure, with the means of organizational structures, and to disrupt those organizational

structures, it can be, and is in many a country, a means of criminal law, of legitimate

criminal law, to disrupt organizational structures, completely disregarding whether this

is a religious or an economic, commercial, or whatever, organization, you forbid the organization, to get rid of the organizational structure, to make it impossible for them to go on

getting new members and new people to commit the criminal action.

So, I would say that is the line we should notwe cannotstick only to the individual criminal action, we also have to see the organizational structure. If that is done in

a legitimate way, fine. It must never be a means to head against the religion as such.

May I alsoif that would be enough. I also may come to the question of how many

members a community needs to be registered, the question that was raised just now. As

far as I can see, there is no, in international law, no explicit rule on a certain number of

people required to register.

If registration means nothing but incorporation of a group to make them a legal person, that they may be able as a legal person to acquire goods to build a chapel or a church

or a temple or a mosque, then one would, comparing all the laws we know, see that very

few people should be sufficient, should suffice. Some countries know 7, some countries

know 10, some 12. That should be enough. Maybe three. I would not say that you have a

real minimum number, but anything around that, between 1 and, say, 15, 20, I think would

be fine, and no problem. If it is only for incorporation, 50 or 100 I would think is a bit much.

If, though, registration would mean attributing specific religiously related or societally

related rights towards that community, like, say, performing marriages with civil effects,

which is the case in many countries, then I would think you would need a most substantial

number of people because there needs to be some continuity, the need to be some substance ofhow would you say thatearnestness, sincerity of the thingyou know, performing marriage normally would not be something what two people do, that on the next

day they are all gone again. So, you need to assure some continuity.

Again, this would be a question of which specific rights are attributed to the religious

community. Registration, as such, to be able to perform their religion, we should have

very few.

Dr. VAN BIJSTERVELD. Maybe I could add something to that. I fully agree with my colleague, Gerhard Robbers, and I think in cases in which more than just entity status is

awarded to a registered religious group, such as, for instance, tax exemptions or access to
20

mass media, in which case the numerical standard could be a bit higher. There should also

be an alternative option for a group which does not meet those high standards, to register

as a legal entity under a different label, so that at least there is a possibility to acquire

entity status.

Mr. TSIRBAS. I will have a complementary approach to what we just heard from the

distinguished professors. And, again, relating with the practical experience of Greece, my

own experience in Greece.

In Greece, you can basically get licensed if you can provide around five people, to

operate as a church. But there is a cut. You can be licensed as a church but, as such, you

cannot own property. You cannot legally interact. So you have to assume another form of

existence, of legal existence, that pushes all the non-churches into the private law realm,

and have to become private entities. And that many times creates problems, and potentially there is a danger upon all these arrangements that you can have an association that

owns everything pertaining to the church, and you can have the church in a temple, and

these two could be totally different bodies. And, anyway, that is not the case with the

Orthodox Church.

So, one needs to be wiseI like very much the title of our topicRoadblock to Religious Liberty: Religious Registration. Religious registration can be a very, shrewd way

actually not allowing you to freely worship, and that is one practical example I can give

and contribute to that.

Mr. THAMES. Yes, sir.

QUESTIONER. Hello. I am Secretary of State for the Religious Affairs in Romania, and a

member of the government. Unfortunately, for our meeting here, I am not an English

speaker, I am a French speaker, so I need an interpreter.

[Speaking through an Interpreter]: I would like to address the remarks of the Col.

Kenneth Baillie, because he made a statement about Romania which is incorrect, in my

view. I believe that the statement is wrong because it is based on wrong information about

Romania.

Your statement is wrong, but it is not the only wrong statement about the situation in

Romania. The Jehovahs Witness organization has also made similar statements about our

country. So, please allow me to make some clarifications.

I would like to underline the fact that Romania is a completely democratic country

that respects basic human rights. Ninety percent of the population belongs to the Orthodox religion. This religion has been present in Romania for over 2,000 years. And 90 percent of our population is Christian.

Therefore, any new religion that appears within this condition seems, lets say, exotic

to us, out of the mainstream. Therefore, when a new religion has to obtain a registration,

we need some time to obtain some information about it. The basic legal rights of our citizens are established in a constitution, and Article 29 ensures the free practice of religious

beliefs. So, the religious freedom of the individual is guaranteed in our constitution.

If several individuals want to form a religious group or organization, and if they want

this religious organization to have patrimony or assets, they have to give a copy of their

bylaws to a court, and based on the bylaws they will receive a license. In his or her decision, the judge looks at the potential threat to the security of the government by the organization.

Once licensed, this religious organization, if it so wishes, can also inform the Ministry of Culture and Religious Organizations about its activities. If it wishes, the Ministry
21

then would issue some kind of public recognition of this religious organization. So, from a

legal point of view, it is recognized as an organization with a religious activity or religious

association.

So, new associations need this registration. Besides that, there is another category in

Romania called Religious Sects or Cults. These cults have been around for hundreds of

years in Romania, and they bring an important contribution to the spiritual life of Romania. For this particular cult, the Romanian government can apply a so-called affirmative

action policy. They would be the Orthodox Church, the Catholic and Greek Catholic Church,

Baptist, Pentecostal, Adventist Churches, the Armenian Church, the Evangelical Church,

the Muslim and Jewish Cults. All these were also recognized as such in a communist

regime. During the communist era, these religions suffered a great deal. The priests, pastors, the leaders of the church were jailed and the assets of the church were disrupted.

Therefore, now the Romanian government is trying to offer so-called moral compensation to these religions through tax exemptions and financial support. The religious organizations that arrived in Romania after 1990 do not know very well these legal definitions of religious associations and/or religious cults in Romania. Therefore, they ask to be

registered under the category of the religious cults that I have mentioned before. So, if

they are not recognized as such, as religious cults, they sue the Romanian government for

religious discrimination. This is the case of Jehovahs Witnesses which, however, in the

last 10 years received permits to build more than 75 different houses of prayer, and for the

missionaries who received the visa to come and undertake their missionary work in Romania. Nonetheless, they are right now in court filing cases against the Romanian government for discrimination because they are not recognized as religious cults.

The Mormon Church arrived in Romania in the last 10 years, as an example. It took

advantage of all the different freedoms that the Romanian government allowed them to

have, and they can attest to that here. But because they do not want to change the legal

label or the legal name, they are still quite a good, valid partner for the Romanian government, despite that.

Mr. THAMES. If you could please bring your conclusions to an end so they can have an

opportunity to respond, because there are some other questions I would like to get to.

Thank you.

QUESTIONER. So any organization can come and give itself a namechurch, association,

cult, sect, congregationwhatever they choose, a missionary organization. But the Romanian government only uses these two different names, legal names, religious association

or religious cult.

As far as the Salvation Army, I personally signed a letter to the Salvation Army in

which it came to my mind the court decision in your case, in the case to set up this association. And, actually, I guaranteed their right of religious activity in Romania. So, I believe

it is a misunderstanding and wrong information that you had, so please come see me in

the Ministry, and we can continue this discussion there. Thank you for your patience,

especially since these accusations towards the Romanian government are brought at the

present time when Romania is chairing the OSCE. You know very well our Foreign Minister, Geoana, who is also the Romanian Ambassador to Washington. You know very well

the activities of our Prime Minister, Mr. Nastase. He is a lawyer whose work was very

important in the area of human rights in the Council of Europe. Thank you very much.

Mr. MCNAMARA. I would just note that the Commission will actually be holding a hearing next Wednesday, on October 17, with Foreign Minister Geoana, in his capacity as
22

Chair-in-Office of the OSCE. And having worked very closely with him in his previous

position as ambassador, as you indicated, one of the points that we have made throughout

this year of Romanias chairmanship of OSCE is that Romania has a unique opportunity to

lead by example. So, it would be very good to get a clarification in terms of exactly what

the status is of this issue raised at this briefing, as it may be something that would be

pursued further in the context of that hearing next week. I do not know if anyone else

wanted to respond.

Col. BAILLIE. Just two comments. One is, perhaps we missed something in the translation here. I was not trying to be critical of the Romanian Government. In fact, I am more

conscious that perhaps our own identity is not well understood by our own law firm, and

that we have been trying to sort out those issues over a period of time, and understand

how our potential registration would fit into the Romanian legal system. So, it is a process

and we are happy to pursue it to a proper conclusion.

The only other comment would be, the application of the word cult and the word

sect, one of the discoveries that has been a surprise to me as an American living in

Eastern Europe is the degree to which those two words have very different meanings.

They are directly taken from English to Russian to Romania to whatever, a number of

languages, but, in fact, the meaning changes in not subtle ways, in very profound ways, so

that, for instance, the word cult here in North America, in the common usage, not the

specific theological usage or the legal usage, but in common usage, has a very pejorative

meaning.

To the contrary, in Eastern European countries, that is the better word. It is almost

the reverse of what we understand here in North America.

So, I would be content to be called in North America, in some ways, a sectthat is,

small, somewhat different, not well understood. But in Eastern Europe, it is better to be

called a cult, believe it or not, because that has less pejorative meaning than the word

sect does, all of which is to say we need to understand what religious groups are and

what their aims and purposes are, and how they actually live it out, just what gets written

down on paper, what, in fact, is the practice, and hope to overcome the misunderstandings

of language and definitions of words and so on.

Conclusion: To my North American friends here, reverse the words cult and sect

when you use them in Eastern Europe, and you will be closer to how it is understood

there.

Mr. THAMES. The woman in the front row, I believe she had a question earlier. Time is

running short, so brevity would be appreciated.

QUESTIONER. I am from the Czech Republic. I am Director of the Department of Ministry of Culture.

[Speaking through an Interpreter]: I only have one request or perhaps a note. Perhaps one word, the word registration actually means a lot of different things, and it

could mean a lot of different things in different countries.

Most of the things that you have mentioned here are not really directly connected to

the Czech Republic and the Slovak Republic. The registration does not have anything to

do with religious freedom or with its level. Registered and unregistered churches are on

the level of religious freedom as declared in convention and internationally ratified agreements.

The importance of registration is basically to obtain the status of a legal entity, and

because in our country it is the historical tradition that this registration is performed in
23

accordance to a special law. The importance of the registration is also the guarantee of the

state is that the state is guaranteeing that these are trustworthy people, and I would like

to point out different systems of acknowledging religions in the United States and in

Europe. I also had a presentation that was addressing this issue, and I would like to ask

you if you would kindly try to follow up on this and pay attention to this. Just a couple of

things.

In our country, there is no waiting period to register. The number of people that need

to be registered is going down significantly with the new law, and the state is not allowed

to try to find out the exact numbers of a religious group, and any kind of decisions that are

made by the government are always able to be scrutinized by the courts. Thank you.

Mr. THAMES. Thank you. One more question. I would just remind the gentleman of the

short amount of time. Please be brief.

QUESTIONER. I am from the Ministry of Justice of the Russian Federation. I am grateful

for the opportunity to speak before this Commission. This session is devoted to the issue

of religious freedom, or it is supposed to be devoted to the issue of religious freedom, but

there has been one fact that generally prompted me to speak up.

Frankly, my jaw dropped when I heard the distinguished Col. Baillie when he used

this terminology because I was that functionary who introduced correctives into the definition of Salvation Army as a religious organization. Under the existing law of the Russian

Federation, any religious organization has to meet three criteria.

First of all, this is faith, education and training of the believers, and conduct of same

and ritual. But when the Salvation Army came to the Ministry of Justice, they could not

represent that they represent a faith, which is the primary criterion of an organization

being recognized as a religious one.

We know what this organization army is very well. It is a highly esteemed international organization, and it is accredited in the United Nations as a philanthropic or charitable organization. Under the Russian law, a charitable or philanthropic organization is

classified as a social organization. In view of the importance of the Salvation Army, the

Federal Government of the Russian Federation decided to modify the definition and to

recognize the Salvation Army as a religious organization.

As for the purely legal dispute about the registration of the Moscow division of the

Salvation Army as a religious organization, I think we all recognize the importance of a

civilized approach to the solution of this issue and that we should recognize that it is up to

the courts. And we support the actions of the Salvation Army when it filed a grievance

with the European Court of Justice. And I hope that the European Court of Human Rights

will go into detail and will pass its weighted judgment. Thank you for your attention.

Mr. THAMES. Thank you, sir. Col. Baillie, would you like to respond?

Col. BAILLIE. I thank Mr. Koronov for his offices support of us in our process of obtaining the centralized religious organization status. If it sounded as if I was referring to you

specifically in a negative way, Mr. Koronov, no, I wasnt. I had in mind another official in

another city, as an example.

At the federal level, I must say we have been treated with respect and dispatch and

fairness. We are deeply grateful. I said that in my remarks and I repeat it again, we are

deeply grateful.

I realize the Salvation Army is not well known in some countries. That is part of

becoming a ministry of faith community in a new country that we need to explain who we

are and what we are, and that was part of the process that happened in Russia.
24

My comments specifically relate to Moscow where I think, as Mr. Koronov says, there

is a different issue going on. We are not quite sure what it is, but it is not representative of

the federal level. The federal level, I believe, has done a much different and better and

commendable job of handling this issue, at least in our case, and I am thankful for it.

Mr. THAMES. Thank you, sir.

I would now like to give our panelists an opportunity, if they would like, to briefly

provide a closing statement on todays discussion. I start with Dr. van Bijsterveld.

Dr. VAN BIJSTERVELD. Thank you very much, Mr. Moderator. I just would like to stress

that I am glad that this session took place and that I had an opportunity to participate in

it.

Dr. ROBBERS. I agree very much to that, and I hope that the OSCE, and especially also

the organization here in the House about the CSCE will continue its work. Perhaps also

attribute more means than we have.

Mr. TSIRBAS. I thank you as well for the honor to be invited and be part of this meeting

today. It was an educational meeting for me. And just a last remark in relation to what the

gentleman from Romania said. Coming from a similar culture of my own, being very relational types of culture, not so much thinking in terms of institutions but really in terms of

relationships, by pointing out the needs and the shortcomings, where we need to focus

and improve the legislation regarding the application of the laws pertaining to religious

freedom, we are actually saving face more than just when we avoid naming things as

they are, and in no way my comments were derogatory of, first of all, the Greek culture.

Specifically and consciously, I used all of the examples from my own country and culture,

which I love, not to appear disrespectful of any other, and I hope that that was clear.

Thank you.

Col. BAILLIE. I am also thankful for the opportunity to be present here and just use our

five illustrations as sort of where the rubber meets the road on the theoretical issues

here, and I point out again that in five countries, all has gone well for us, and our only

major and continuing problem is specifically located in one city. So, I think, all told, it is a

good story, without misunderstandings and learning processes and procedures, and all

the rest, but, nonetheless, overall, a good story for which we are thankful.

Mr. THAMES. On behalf of the Chairman and Co-Chairman, I would like to thank all the

panelists for their coming a very long way to participate in this briefing. I appreciate your

insights and your thoughts in highlighting how individual religious freedom is directly

connected to religious registration policies.

I would also like to thank the audience for their participation and for their insightful

questions. At this time, the briefing is concluded. Thank you.

[Whereupon, the briefing was concluded at 12:12 p.m.]
25

PREPARED STATEMENT OF HON. CHRISTOPHER H. SMITH,

CO-CHAIRMAN, COMMISSION ON SECURITY

AND COOPERATION IN EUROPE

Ladies and gentlemen, Id like to welcome everyone to this briefing today, convened

by the Commission on Security and Cooperation in Europe, to address an issue of great

importance in the promotion of religious freedom, religious registration policies in the

OSCE. The Commission strives to monitor and encourage compliance with the Helsinki

Final Act and other commitments of the Organization for Security and Cooperation in

Europe.

As Co-Chairman, over the past decade I have observed a troubling drift away from a

robust and vibrant protection of religious freedom in a growing number of OSCE States. I

have become alarmed with how some OSCE countries have developed new laws and regulations that serve as a roadblock to the free exercise of religious belief. These actions have

not been limited to emerging democracies, but also include Western European countries,

with the definitive example being Austria.

Considering the gravity of this issue, I am pleased by the panel of experts and practitioners assembled today who have been kind enough to travel from Europe to share their

thoughts and insights. Our distinguished panel includes Dr. Sophie van Bijsterveld, who

is currently serving as Co-Chair of the OSCE Advisory Panel of Experts on Freedom of

Religion or Belief, as well as a law professor at Catholic University in The Netherlands.

Dr. Gerhard Robbers has also participated with the OSCE Advisory Panel of Experts, and

is a professor of law at the University of Trier in Germany. Vassilios Tsirbas serves as

interim executive director and senior legal counsel for the European Centre for Law and

Justice, and he is based in Strasbourg. Lastly, Col. Kenneth Baillie is the commanding

officer for the Salvation Army in Eastern Europe. He has experienced first hand registration laws which not only have impeded, but actually liquidated, a religious group, as he

has been very involved with the Salvation Armys ongoing action to register in Moscow.

During todays briefing, the panel will provide critiques of religious registration policies throughout the 55-country OSCE region. In addition, panelists will provide the big

picture of religious registration issues throughout that region; including States which

formerly were part of the Soviet Union. I feel the upcoming dialogue will be very helpful

in developing a better understanding of these roadblocks to religious freedom.

From what I have seen through the work of the Helsinki Commission, many of these

laws are crafted with the intent to repress religious communities deemed nefarious and

dangerous to public safety. Certainly after the September 11th tragedies, one cannot deny

that groups have hidden behind the veil of religion in perpetrating monstrous and perfidious acts. Yet, while history does hold examples of religion employed as a tool for evil,

these are exceptions and not the rule. In our own country, during the Civil Rights Movement, religious communities were the driving force in the effort to overturn the immoral

separate but equal laws and provide legal protections. If, during that time, strict religious registration laws had existed, government officials could have clamped down on

this just movement, possibly delaying long overdue reform. While OSCE commitments do

not forbid basic registration of religious groups, governments often use the pretext of

state security to quell groups which espouse views contrary to the ruling powers party

line.

Another practice I have observed is the creation of registration laws designed on the

premise that minority faiths are inimical to governmental goals, like respect for human
26

rights and rule of law. Often, proponents of these provisions cite crimes committed by

individuals in justifying stringent registration requirements against religious groups. Still,

as I previously mentioned, the history of religious movements is one of good will and

benevolence, not hate and misdeeds. Clamping down on the ability for a religious group to

exist not only contravenes numerous, long-standing OSCE commitments, but also serves

to remove from society forces that operate for the general welfare. The Salvation Army in

Moscow is a lucent example.

In other situations, some governments have crafted special church-state agreements,

or concordats, which exclusively give one religious group powers and rights not available

to other communities. By creating tiers or hierarchies, governments run the risk of dispersing privileges and authority in an inequitable fashion, ensuring that other religious

groups will never exist on a level playing field, if at all. In a worst case scenario, by officially recognizing traditional or historic communities, governments declare their ambivalence, and sometimes hostility, towards minority religious groups, which can serve as

the catalyst for violence. The persistent violence against Jehovahs Witnesses and other,

evangelical groups in Georgia is a prime example.

Notably, religious registration laws do not operate in a vacuum; other rights, such as

freedom of association or freedom of speech, are often enveloped by these provisions.

Accordingly, it is with great concern that I convene this briefing to discuss religious registration roadblocks. My heightened level of concern is only equaled by my strong desire to

encourage participating OSCE States to fully comply with their OSCE commitments.

In working towards this goal, I was pleased to learn of the Bush administrations

shared commitment to religious freedom. In a March 9, 2001 letter, Dr. Condoleezza Rice,

Assistant to the President for National Security, stated: President Bush is deeply committed to promoting the right of individuals around the world to practice freely their

religious beliefs. She also expressed her concern about religious discrimination. In a separate letter on March 30th of this year, Vice President Dick Cheney echoed this commitment when he referred to the promotion of religious freedom as a defining element of the

American character. He went on to declare the Bush administrations commitment to

advancing the protection of individual religious freedom as an integral part of our foreign

policy agenda.

While some may construe the Administrations war on terrorism as a move away

from religious freedom, Mr. Bush has repeatedly made it clear, as he stated in his address

to the country, the enemy of America is not our many Muslim friends. . . . Our enemy is a

radical network of terrorists and every government that supports them. His statement

that the terrorists are traitors to their own faith, trying, in effect, to hijack Islam itself

demonstrates his distinction between terroristic acts and religion. Accordingly, it is my

belief that this administration will not stray from supporting religious freedom during

this challenging time.

In closing, the Helsinki Commission is greatly appreciative to our panelists for agreeing to come and share their thoughts on this critical issue. In addition, the Commission

will continue to monitor the activities of governments in light of their OSCE obligations

and encourage compliance. We will now proceed with the panelists presentations, which

will be followed by an opportunity for questions.

Thank you.
27

PREPARED STATEMENT OF HON. ZACH WAMP,

 COMMISSIONER, COMMISSION ON SECURITY

AND COOPERATION IN EUROPE

In the rugged region of Central Asia, two nations have been dealing with proposed

changes to current religion laws. In both Kazakhstan and the Kyrgyz Republic, new religion laws have emerged partially in response to real concerns about terrorism and state

security. After the events of September 11th, our whole country has a very clear understanding of the threat terrorists pose. Still, our commitment to democracy and religious

freedom stands firm.

Consequently, I want to highlight and praise both countries for seeking assistance

from the OSCE Advisory Panel on Freedom of Religion or Belief. The choice to seek assistance and working to ensure the new legislation is in line with human rights norms is a

mark of wise governance. Even more, I want to encourage these governments to continue

their close cooperation with this body of experts, and to continue to strive to uphold OSCE

commitments and international norms for religious freedom.

In Kazakhstan, there has been great discussion over a proposed amendment to its

1992 law On Freedom of Religion and Religious Associations. The Kazakh Government

has been responsive to critiques of the law and removed it from consideration during this

past summer. Furthermore, it has listened to the comments made by the OSCE Advisory

Panel and modified some of the more troubling sections of the proposed law. However,

concerns still exist in the area of registering Islamic religious groups by the Kazakhstan

Moslem Spiritual Administration. It seems likely that with the various Islamic religious

groups that are at odds over purely theological issues, registration could be denied for

merely being out of favor with the Spiritual Administration. This is problematic; religious

organisations should not be denied registration solely on the basis of their religious beliefs. Before the proposed law is reintroduced, I hope Kazakhstan will address these issues, so as to ensure its compliance with all OSCE commitments.

The Kyrgyz Republic is currently considering a proposed law entitled On Freedom

of Conscience and Religious Organisations, which would replace the 1991 Law on Freedom of Religion and Religious Organisations. In the Kyrgyzstans short history of independence, it has consistently joined international human rights covenants. As one of the

55 participating States in the OSCE, the Kyrgyz Republic agreed to abide by the Helsinki

Final Act and all subsequent agreements, in which clear language concerning religious

freedom exists. This new legislation, made long before the events of September 11th, was

in response to real fears about terrorism. With religion often being used as a guise to

legitimise criminal activities, I recognise the genuine concerns of Kyrgyz authorities about

religious organisations existing in their country. However, while the United States has

new understanding of the threat of terrorists, I want to encourage the Kyrgyz Republic

from overreacting and unnecessarily limiting religious freedom.

While the current law on religion is generally in line with its OSCE commitments, it

is my concern that if the new law is enacted, Kyrgyzstan will no longer be in compliance

with its international obligations. This is especially true concerning the provisions

addressing registration of religious groups. In its current form, the draft laws use of registration requirements appears complex, confusing and convoluted. The two step process

of registering religious groups appears to be more an exercise for government involvement rather than a well outlined procedure for recognising religious communities. The

vague requirement of record-keeping registration is especially problematic, as it could
28

serve as a major obstacle for successful registration that the government can utilise to

block an application. Clear and transparent guidelines would be a superior way to prevent arbitrary tampering by government officials in the process of registration.

In closing, I hope both the Kazakh and Kyrgyz Governments will be mindful of 1989

Vienna Concluding Document, para 16.3, which states that governments are obligated to

grant upon their request to communities of believers, practicing or prepared to practice

their faith within the constitutional framework of their states, recognition of the status

provided for them in their respective countries.
29

PREPARED STATEMENT OF HON. GORDON H. SMITH

COMMISSIONER, COMMISSION ON SECURITY AND

COOPERATION IN EUROPE

Mr. Chairman, Im pleased to have the opportunity to speak for a few minutes about

religious freedom in Russia. Tolerance in the Russian Federation, the Soviet Union and

Czarist Russia, particularly the plight of the Jewish community, has been on the forefront

of our bilateral relationship. In fact, the Senate Foreign Relations Committee has held

hearings on religious freedom in Russiaand the plight of its Jewish community throughout this century and even in the 19th century.

Until 1917 the Russian Empire was home to the worlds largest Jewish community.

From the time of their entry into the Empire, Jews suffered from discriminatory laws,

including severe limitations on where they could live, and periodic eruptions of violence,

known in English by their Russian name, pogroms. The Bolshevik Revolution of 1917

offered false hope to many Jews that the injustices of the Tsarist period would end. In

time, however, the Communist Party of the Soviet Union began a systematic campaign to

eradicate all religion, including Judaism.

Under Khrushchev, there was also a dramatic shift in Soviet foreign policy against

Israel and toward the Arab countries.

Large-scale Jewish emigration from the Soviet Union revived in the 1960s, when the

Jewish population numbered 2-3 million. Jewish emigration peaked in the late 1980s and

1990s. today, the Jewish community in Russia numbers between 500,000-600,000, the third

largest in the world. (Large numbers of Jews remain in other former Soviet states, especially Ukraine.)

Since the collapse of the Soviet Union, a revival of the Jewish community in Russia

has occurred. Several synagogues have reopened, and over 100 Jewish organizations and

groups operate in Moscow, including religious, cultural, research and education, and charitable institutions. Despite these improvements, the Jewish community was reminded of

its precarious position in Russia through a series of recent anti-Semitic actions and statements.

The August 1998 devaluation of Russias currency, the ruble, sank the exchange rate

and caused many Russians to lose their savings. It also attached a tremendous price tag to

imports, including food and other consumer goods.

Amidst these difficult circumstances, there has developed an increased sense of insecurity among Russian Jews, who have in recent years confronted strident anti-Semitic

rhetoric in the political arena on both the national and local levels and a number of highly

public acts of anti-Semitic violence.

In addition to the age-old formula of scapegoating Jews for societys ills, the present

difficult situation in Russia is compounded by another disturbing fact. A high percentage

of the so-called oligarches, -the highly visible, and detested, business tycoons who are

believed to have profited immensely from corrupt privatization deals-are Jews, as were a

number of prominent government officials associated with the privatization process.

The Senate has spoken out yearly in letters to present and past Presidents of the

Russian Federation. Last year, President Vladimir put in spoke out against anti-Semitism in response to a letter signed by 98 United States Senators on March 9, 2000. Putin, in

a March 15th interview said Russias main constitutional principle stipulates the protection of citizens rights and interests regardless of nationality or religious affiliation. Any
30

expressions of anti-Semitism are seen as aggressive nationalism and are therefore unacceptable. There is no place for them in a civilized society.

But there remain problems with religious tolerance in Russia. As a freshman senator

in 1997 I offered an amendment to the Foreign Operations Bill that predicated foreign aid

to the Russian Federation on the implementation of a new law restricting religious freedom in Russia. That law, passed by the Russian Duma on July 4 1997, had the potential of

severely restricting freedom of religion in Russia. The bill was ironically titled On Freedom of Conscience and On Religious Associations.

That bill was eventually signed into lawa law that required religious groups to

register with the state and submit their religious doctrines and practices to scrutiny by a

commission of experts with the power to deny religious status. Without this status, these

groups would lose the rights to rent or own property, employ religious workers or conduct charitable and educational activities. Clearly that law in Russia and its implementation would have a grave impact on religious freedom in that country.

Im happy to report that my 1997 amendment passed the Senate 95 to 4. In following

years this amendment was included as part of the Foreign Operations Bill and was included again in the FY 2002 bill.

In my years in the Senate I have remained vigilant on the issue of religious freedom.

The Foreign Relations Committee has held yearly hearings on religious freedom abroad

especially with regard to what is going on in the Russian Federation. I also host, with the

Department of State, a series of yearly roundtable discussions on religious freedom.

These roundtable discussions are attended by members of each religious community

impacted by this new law in Russia and by various state department and NSC officials

that are responsible for religious freedom abroad.

As the years went by and the registration period closed regarding religions, it was

felt by all those interested in religious freedom in that country that this amendment was

a positive influence on how the new Russian law was implemented.

It let the Russian government know that Americans cared about freedom of religion

in Russiathat the eyes of the world were upon the Russian government as it implemented the law on religions. Although the amendment has never been implementedand

each year aid has gone out to the Russian Federationthe amendments influence and

impact have been positive and undeniable according to those religions on the ground in

Russia.

In general, many of the problems initially have worked themselves out under this

new law. Many of the problems with denials of registration or persecution have occurred

in the far reaches of the Russian Federation. The conventional wisdom regarding implementation of that law is that persecution occurs abroadthe farther away from Moscow

and the centralized government, the greater the risk is for religious intolerance.

But even in Moscow there is a requirement of vigilance. And I am happy to report

that this body has been vigilant on this issueespecially regarding the old problem of

anti-Semitism in Russia. Some might say that we shouldnt single out Russia regarding

this issue. I would agreewe should fight anti-Semitism in every nation including our

own.

Because I believe that how a nation treats the sons and daughters of Israel is a bellwether for tolerance.

The Russian law, among other things, limits the activities of foreign missionaries and

grants unregistered religious groups fewer rights than accredited Russian religious or-
31

ganizations such as the Russian Orthodox Church, Islam, Judaism and Buddhism. This

law if poorly implemented, could also sharply restrict the activities of foreign missionaries in Russia.

One of my own constituents, Pastor Dan Pollard, is a missionary with a church in the

Russian far eastin a town called Vanino. Pastor Pollard has been continually harassed

by local officials, many who cite the 1997 law as an official reason for barring Pollard from

ministering.

The Russian government must permit foreign missionaries to enter and reside in

Russia and work with fellow believers. I strongly believe that foreign missionaries, like

Pastor Pollard, should be allowed to enjoy the religious freedom guaranteed Russian citizens and legal residents by the Russian constitution, OSCE commitments, and other international agreements to which Russia is a signatory.

I want to thank the Chairman for holding this hearing and having the opportunity to

discuss religious freedom in Russia. I believe that hearings such as this one shine the

bright light of freedom on areas of human rights and tolerance that cannot be ignored by

this country or by Russia.
32

PREPARED STATEMENT OF DR. SOPHIE VAN BIJSTERVELD,

CO-CHAIR, OSCE/ODIHR ADVISORY PANEL

ON FREEDOM OF RELIGION OR BELIEF

Mr. Moderator, Ladies and Gentlemen,

I am grateful for the opportunity to be here and to be able to share some thoughts

with you on the legislative developments as regards religion in the OSCE region. I would

like to stress that I am speaking in a personal capacity and not as a Co-Chair and Member

of the ODIHR/OSCE Advisory Panel of Experts on Freedom of Religion or Belief. The aim

of this presentation is two-fold: first, to sketch a perspective against which to assess registration of religion; second, to address the role of the OSCE in issues of religious liberty.

REGISTRATION OF RELIGIONS

In dealing with socio-religious change, states often turn to the instrument of legislation. In this legislation, the mechanism of registration of religions plays a crucial role.

Indeed, one of the recurrent issues under which legal problems of religious liberty become manifested in the OSCE region is that of the registration of religions. This has also

made the phenomenon of registration itself suspect. It is important, however, to realize

that registration, even if this mechanism has become charged in the context of legislative

change, is not in itself good or bad. The assessment of registration from a point of view of

religious liberty entirely depends on the function that registration fulfils in a legal system

and the legal consequences that are attached to registration. The assessment of registration and the criteria to be met in order for a religion to be registered depends on these

underlying elements. This starting-point allows us to make some concrete observations.

REGISTRATION AS AN ABSOLUTE REQUIREMENT

A requirement of registration of religious groups as a precondition for the lawful

exercise of religious freedom is worrisome in the light of international human rights standards. Prior permission of the government for allowing a person to adhere to a religion

and to exercise this religion in community with others is problematic in the light of internationally acknowledged religious liberty standards. Religious liberty should not be made

dependent on prior government clearance. This touches the very essence of religious

liberty. The motives for requiring registration in this case, banning or controlling religion, are not in tune with international standards. The same is true for coupling this

requirement with the penalization of adherence to an unregistered religion.

A government may wish to counter particular behavior. Controlling the existence of

or adherence to religions as such, introducing a requirement of registration is not the

right approach. The law should deal with the actions and manifestations themselves instead of criminalizing a particular religion in general. In other words, if, in such case, the

motives of a government, i.e., to tackle particular behavior, were justifiable, using the

mechanism of registration is not the right means to achieve that end. The problem with

registration in this case lies with the legal consequences attached to it.
33

REGISTRATION AND ENTITY STATUS

It is important to notice that registration also fulfils many other functions in the legal

systems of OSCE countries. One of the primary conditions for being able to function as an

organization in society is that of enjoying entity status, i.e., to be able to function as a legal

entity, as a collective distinct from the individual members. In order to function as a legal

entity, a certain structure is required; the allocation of responsibilities for decision-making and financial matters needs to be clear. Legal systems often require some sort of registration for obtaining such entity status. If registration fulfils a role in the process of

requiring entity status, the role of the state is, in principle, a facilitative one. Without

such a legal status, on the basis of which an organization can function independently from

its members, the effective exercise of a religion as an organization would be illusory. Thus,

registration for religious and other groups (whether or not this distinction is made) is

basically an expression of the facilitative role of the state. The facilitative role of the state

can change into its opposite if the criteria to be met in order to register are disproportionately burdensome. For instance, a requirement of having a minimum of thousands of members simply to gain entity status would be disproportionate and would hence be hard to

justify in the light of religious liberty. Instead of an expression of the facilitative role of

the stateallowing entity statusthe requirement would be an overt expression of a

restriction of collective and organizational religious liberty. The requirement of a longstanding existence in the particular country can be seen in the same perspective. Overly

broad discretionary powers for administrative authorities in this perspective are obviously not desirable either.

RELIGIOUS LIBERTY AND THE STRUCTURE OF CHURCH

AND STATE RELATIONSHIPS

The facilitative role of the state is not limited to the granting of entity status. Often

in states more elaborate facilities exist to enable the functioning of religion and religious

organizations in society, such as chaplaincy services in public institutions, religious education in (the context of) state schools, or the establishment of acknowledged private

schools, access to the mass media, tax facilities, or ancient church monument care. The

precise legal format of these facilitative arrangements depends on legal cultural factors

and the general legal system of a particular country, for example, how the general education system is set up. These elements are, of course, important for the functioning of religions in the societal reality. In societies as ours, which are highly regulated and in which

the state has a strong ordering and re-distributive function, they play an important role.

However, they exceed the very basic functioning of entity status.

REGISTRATION AND THE INTEGRATION OF RELIGIOUS ORGANIZATIONS

IN THE GENERAL SOCIAL SECTOR

In one form or another, facilities to enable the functioning of religion and religious

organizations in society are available in all types of systems of church and state relationships, whether there is separation of church and state relationships, or systems of cooperation or of established churches. Differences in these issues often seem to depend more

on the general role of the state in society (a stronger role of the private sector (more

market) or a stronger role for the public sector) than on constitutional principles regarding the role of the state vis-à-vis churches. In systems of separation of church and
34

state, a decision on whether a particular religion or religious organization qualifies for a

facility needs to be taken in the context of the law that regulates the particular issue. In

the Netherlands, for example, access to the public mass media system requires and administrative judgement. The granting of fiscal benefits, such as tax exemptions for charitable purposes, also need to be seen in the light of the requirements of the specific law. As

a result, these judgements tend to be less visible and generally are not dealt with in the

context of registration, although their underlying rationale is not fundamentally different. Typically, in systems of cooperation between church and state, organizations based

on a religion or belief which meet particular criteria are entitled a certain status, giving

them not only entity status, but qualifying them for a set of other facilities as well. Thus,

the systems becomes multi-tiered. From a viewpoint of religious liberty, this is not a problem. Indeed, the facilitative role of the state is paramount. It is also clear that, in the

perspective of the facilities granted, often more and stricter requirements are needed

than for simply obtaining entity status. Whether these requirements are acceptable depends on their being adequate and proportional for the purpose. As long as the system is

open, that is, as long as all religions which meet the requirements qualify for the facilities,

the facilitative dimension of the system is paramount. For those who do not meet the

requirements, obtaining entity status in some form or other should be possible.

In conclusion, we need to see through the outward design of the system and concentrate on the substantive issues of the position of one religion and another. Not one particular type of system is a priori better from a religious liberty point of view. A more

detailed scrutiny and assessment is necessary in order to form a sound legal opinion. But

there are certainly some approaches and criteria that can guide us in assessing registration issues.

THE ROLE OF THE OSCE

The predominantly non-legally binding nature of OSCE commitments and the political-diplomatic functioning of the OSCE are sometimes seen as a weakness of the organization. These features, however, are also its strength. Without duplicating other international efforts, the OSCE contributes to the promotion of human rights -including religious

libertyin a unique and supplementary way. This is true with respect to religious liberty

as well. The role of the OSCE in dealing with religious liberty could beto engage (participating states) in a process of further developing a common understanding of the dimensions and requirements of religious liberty,to focus primarily on structural developments, andto aim at reaching viable long-term results. As religious liberty issues are

seldom isolated, main streaming religious liberty issues in a broader human rights perspective is important as well.

The OSCE has manifested involvement with issues of religious liberty both in developing standards and in making their interpretation and implementation subject of attention, notably through Human Dimension Implementation Meetings and the organization

of Seminars. The interest taken in issues of religious liberty is also reflected by the establishment of the OSCE/ODIHR Advisory Panel of Experts for freedom of religion or belief.

This took place in the aftermath of the 1996 Seminar on the topic of Constitutional, Legal,

and Administrative Aspects of the Freedom of Religion. The Panel is an advisory and

consultative body to the ODIHR. Through the ODIHR, the panel may provide assistance

on religious liberty issues. The composition of the Panel reflects different geographical,

denominational, and legal backgrounds, although each member acts in a capacity of ex-
35

pert. In a relatively short time, the Panel has already been able to offer advice on particular issues of religious liberty in various countries, including that of the registration of

religions. However important the legal dimension of religious liberty is, legal problems

often reflect underlying problems. For this reason, the Panel has three focus areas. Apart

from Legislative Issues, issues with which this presentation is concerned, the panel has

outlined Education and Tolerance, and Conflict Prevention and Dialogue as areas of distinct interest, and has formed its working groups accordingly.

CONCLUSION

Issues of religious liberty deserve international attention, based on international

human rights law. Such an international approach should have its own distinctive contribution to the protection of religious liberty, exceeding merely national perspectives. The

specific value of OSCE involvement with issues of religious liberty lie in their focus on the

long term and in the contribution it can make to creating a forum for dialogue and the

building of understanding, under the acknowledgment of and adherence to its human

rights commitments. Thus, it offers concrete and structural assistance to states in addressing

these problems which are important for the quality of society.
36

 PREPARED STATEMENT OF DR. GERHARD ROBBERS,

MEMBER, THE OSCE/ODIHR ADVISORY PANEL OF EXPERTS

ON FREEDOM OF RELIGION OR BELIEF

I. Registration of religious communities is known to most, probably to all legal systems in the world in one form or another as centralised or decentralised registration. It

need not be a roadblock to religious freedom. In fact, it can free the way to more, positive

religious freedom, if correctly performed.

Often, religious communities carry a variety of special religious needs of organisation,

different from other associations. Freedom of organisation is a key issue of freedom of

religion. Registration as religious organisation can mean attributing special autonomy to

religious communities like it is the case e.g. in Sweden. It can open the door to specific

rights like tax exemptions, rights to perform religious marriages with civil effects, access

to positive public funding, et. al. Especially in countries with a legal infrastructure still

further to be developed distinct registration can clear the positive status for religious

communities; religious communities would not depend on various and possibly diverging

decisions of many different case to case decision makers.

Registration can thus facilitate co-operation between state authorities and religious

communities, co-operation being a striking and positive characteristic feature of the culture of many a country in religious matters. We should not forget that religion can also be

misused for detrimental activities. It can be misused to exploit the members of religious

communities. It can be misused to seduce people to perform criminal, even terrorist assaults. Registration can be a means to averting dangers to public safety. Registration,

though, can be misused to jeopardise religious freedom.

II. Registration and registration procedures must meet certain standards, among which

figure as probably most relevant:

1. Religious activity also in and as community must be possible even without being

registered as a religious community.

2. The minimum number of members required for registration must be legitimised by

the status acquired by registration.

3. There should be no minimum period of existence before registration required. Any

such requirement must have good reasons in the specific status that may follow

from registration.

4. Registration must be based on equal treatment of all religious communities.

5. The administration fee for registration must be adequate.

6. The process of registration must follow due process of law.

7. The loss of the registered status must follow due process of law.

III. Actions taken by the OSCE or other organs of international community to safeguard religious freedom should be further developed. 1) OSCE must be conscious and

considerate of local cultures and long standing traditions. 2) OSCE should assist to foster

positive religious freedom encouraging governments to help religious communities to actively perform their religion. 3) OSCE activity in the field of freedom of religion must be

ready to involve in processes of long duration. 4) OSCE should encourage and engage in

co-operation with governments and religious communities in crating and maintaining an

atmosphere of tolerance and co-operation.
37

PREPARED STATEMENT OF VASSILIOS TSIRBAS,

SENIOR COUNSEL, EUROPEAN CENTRE FOR LAW AND JUSTICE

ROADBLOCK TO RELIGIOUS LIBERTY: RELIGIOUS REGISTRATION

The heart of man is of a larger mold: it can at once comprise a taste for

the possessions of earth and the love of those of heaven; at times it may

seem to cling devotedly to the one, but it will never be long without

thinking of the other.Alexis de Tocqueville

A CONTEXTUAL APPROACH

The treatment of the issue under examination cannot be but contextual if it is to

preserve its integrity and this means first of all that we start from the events of the 11th

of September 2001 and our wholehearted expression along with many people all over the

world of condolences for the loss of all those who died in the ruins of New York and

Washington DC, but also of our resolve to stand firmly united in the good fight for the

strengthening of our open and democratic societies against the irrational powers of chaos

and destruction.

It has always been the case throughout history that upon the ruins piled up an ever

greater and more blessed present and future has been built. On November 1950, the Foreign Ministers of the founding Member States of the Council of Europe met in order to

sign the European Convention on Human Rights; their aim was to lay the foundations for

the new Europe which they hoped to build on the ruins of a continent ravaged by a fratricidal war of unparalleled atrocity. The international treaties ever since the end of World

War II, in light of the grim experience of that which had preceded and the fear of what

could come about in the future in the face of the always close to us danger of totalitarianism, were put to place.

Only this time, they were concerned not simply with the furthering of peaceful relations. They went beyond the mere treatment of the facts of war to the treatment of its

causes, as this becomes clear in the Preamble to the Charter of the United Nations and the

second paragraph, where we have the first reference to human rights in an international

treaty, that is to reaffirm faith in fundamental human rights, in the dignity and worth of

the human person, in the equal rights of men and women and of nations large and small.

Enlightening as to the endeavors goals and the corresponding to it understanding was a

statement by the Irish Minister, Mr. Sean MacBride, in Rome in November 1950 who said,

when the Convention on Human Rights was signed at the sixth session of the Committee

of Ministers, that:

The present struggle is one, which is largely being fought in the minds and consciences of mankind.

Our era ever since has been characterized by a heightened sensitivity for human

rights and an immense preoccupation both with the politics of forhuman rights and

the law explosion that the proliferation of entitlementsrights, in short accompanies

it. Politically, the ultimate criterion of our modern democracies is the preservation of

human rights as this is manifested concretely in the principle of limited government

whichlimited by division of powers and by the independence of church, press, conscienceis more essential feature in modern political systems which are called demo-
38

cratic than is the reference of authority to the people. The ever-growing acceptance of the

concept of judicial review as one of the distinctive features of the modern democratic

systems, originally characteristic of the American political and constitutional landscape

ascertaining the enjoyment of rights by examining the constitutionality of state and federal statutes and carried out by the courts, testifies as to that.

Human Rights theory ingrained in political institutions and preserved through jurisprudence constitutes currently the major paradigm of our domestic and international systemic order; it has demonstrated, and continues to do so, its authoritative explanatory

and regulatory power within our domestic vertical legal orders and also in the mainly and

for the time being international horizontal one. It does not stop there, however; it shapes

not only our understanding of what Domestic and International Law is and how it is applied, but also our self understanding and correspondingly what we believe we ought to

enjoy! It is this paradigm that the recent terrorist attacks tried to overthrow.

RELIGIOUS LIBERTY IN OSCE

Among the human rights religious liberty stands out as one of those sine qua non

conditions for an atmosphere of respect for the rights of individuals or whole communities. If the protection of the individual is considered the cornerstone of our modern, legal

and not only, consciousness of rights, Religious Freedom should be considered the cornerstone of all other rights . The right itself is one of the most recent to be recognized and

protected, yet it embraces and reflects the inevitable outworking through the course of

time of the fundamental beliefs in the value of the human person (a preferable term than

this of the individual) and for that matter of the theory of Human Rights. Moreover, it is a

formative factor in the modern understanding of Human Rights and thus it lies at the

roots of open society! Alexis de Tocqueville, cited at the beginning, recorded and published in 1835 his impressions of his 9 months visit to the United States, soon to become a

best seller under the title Democracy in America. Among his many acute observations

he writes about religion:

for if it does not impart a taste of freedom, it facilitates the use of

it

The protection of the international and domestic legal documents ascribed to religious liberty is specific enough to clearly be distinguished from notions and secular claims

of rights of conscience, since it refers to claims of rights of religious conscience and it is

broad enough to also ensure the protection of religiously motivated conduct, either for

individuals alone or in communities. It is thus preserved the integrity and diversity of

religious life.

The Helsinki Final Act (HFA), which was signed in Helsinki, Finland in 1975, enshrines in its Decalogue the commitment by the participating States to respect religion

and the corresponding freedom of professing and practicing it alone or in community with

others. In subsequent OSCE Documents the commitment is enriched by obligations the

contracting parties bear to foster a climate of mutual tolerance and respect, the enhancement of the freedom to manifest ones religion (in public or in private, through worship,

teaching, practice and observance, the granting upon their request recognition of the status provided for them in the respective countries), the exercise of these rights subject

only to such restrictions as are prescribed by law and are consistent with international
39

standards, the respect of the religious communities to organize themselves according to

their own hierarchical and institutional structure, the selection, appointment and replacement of their personnel in accordance with their respective requirements and standards

as well as with any freely accepted arrangement between them and their States, the solicitation and acceptance of voluntary financial and other contributions, the freedom to

communicate and the exchange of information.

Through these successive agreements, the OSCE participating States gradually have

expanded and refined their commitment to Religious Freedom. The perspective thus built

over the years in the OSCE context in regard to religious freedom points towards religious pluralism, rather than assimilation or secularism and conceives religious factions

not as destabilizing factor but to the contrary as a source of peace and welfare for the

countries.

It is often the case, however, that countries either desiring to be politically correct

or succumbing to competing interests and pressures in the midst of such an all permeating international culture of rights, concede to a provision in principle, only to undermine

it through the concrete operation of national laws, rules, or regulations. It is then when

the paradigm suggested before manifests internal systemic malfunctions; it is when roadblocks are set on the road towards a fullest enjoyment of Religious Liberty.

RELIGIOUS REGISTRATION: JURISPRUDENCE AND LEGITIMACY

The picture would be misleading if we isolate or focus our attention only at the specific incidents of obstruction of religious liberty in various countries. Obviously we start

from there and they are important as such to be noted. But if an inquiry wants to suffice

has to be all-inclusive if not systemic, since we always face the constant interaction of

more than one components, constituent parts of a diverse but interrelated and interdependent environment; individuals and collective entities operating independently or in

networks, formally or informally, states and non state actors, international and domestic

institutions, acting in the traditional hierarchical, vertical or horizontal manner but also

in the way of the day that is, in a manner befitting the realities of the global civil society,

should be taken into account. Of course, the full range of such an inquiry is far beyond

what the economy of our presentation allows us to treat, however, our far narrower approach would move along these lines.

For the purposes of better facilitating our examination of the subject within its given

economy, we will make, albeit arbitrary, reference to two only major issues: (a) the issue

of establishing common standards on Human Rights or of a jus communis, and (b) the issue

of national standards and of the legitimacy of the laws pertaining to religious liberty. Our

case study would be Greece.

A. JURISPRUDENCE

The free exercise of religion is tested against the registration regulations required

and it is affected by the way these regulations are interpreted and applied by the courts,

the administration, even by the pace the administrative agencies respond to and handle

respective requests. The registration of churches and religious societies in their pursuit

to manifest their religion (in public or in private, through worship, teaching, practice and

observance), the respective granting upon their request of recognition of their status,

their ability to organize themselves according to their own hierarchical and institutional

structure, of course subject only to such restrictions as are prescribed by law consistent
40

with international standards, are fundamental aspects of the free exercise of religion. We

focus therefore at religious registration regulations because interestingly enough, these

most often we find being at stake.

Europe, either within and through the Union or the Council of Europe arrangements

and processes, tends more and more towards a sharper tuning in on matters of Human

Rights and it is characterized by the strong influence of the European Convention on

Human Rights and the respective judicial safeguards of compliance with it. This influence

far exceeds the European Union judicial parameters within the narrower context of

which we have also another court, the Court of Justice. Thus, the issue appears and actually is not simply a matter of individual states but also of international European jurisprudence, as it is the jurisprudence of the European Court of Human Rights that signals

the direction the domestic legal orders ought to take in so many fields, and of course in

the field of religious liberty.

The underlying principle in all these of course is the one of conformity and of jus

communis, a major theme also in the agreements signed by the contracting States in the

context of OSCE; the 1989 Vienna Concluding Document stated, In this context, [the

participating States] confirmthey will ensure that their laws, regulations, practices and

policies conform with their obligations under international law and are brought into harmony with the provisions of the Declaration on Principles and other CSCE commitments.

The extensive jurisprudence of the European Court of Human Rights (ECHR) strongly

upholds the principle of a jus communis in the protection of human rights:

In 1990 the Home Secretary in Great Britain decided that a separatist Sikh leader,

Karamjit Singh Chahal, living in England, should be deported to India, the country of

which he was a citizen. This was for national security reasons because of his alleged involvement in terrorist acts in Punjab. Chahal claimed political asylum. He relied on Article 3 of the European Convention on Human Rights, which states that no one shall be

subjected to torture or to inhuman or degrading treatment or punishment. The ECHR

ruled in 1996 that, because there was a real risk of Chahal being subjected to ill treatment

in India, he could not be removed to that country and the protection guaranteed by Article

3 is absolute and so the activities of the individual in question, however undesirable or

dangerous, cannot be a material consideration, although the ECHR also stated that it

was well aware of the immense difficulties faced by states in modern times in protecting

their communities from terrorist violence.

However, when it moves away from cases such as these or others pertaining to the

right for a fair trial, etc. and comes to issues of religious liberty, it can only be described as

centrifugal. It acknowledges national sensitivities and allows on the grounds of the domestic peculiarities of the individual states only a relative constraint upon them and usually retreats in observations on the application of the law or the juridical syllogism.

In the case of Greece, which practically has begotten the major body of the religious

freedom cases the ECHR has examined (thirteen on the issue of religious heterodoxy), it

means leaving intact the antiquated laws as such and instead an engagement with the

application of these laws and the respective reasoning of the agencies involved, away

from the fundamental issues of the cases brought before the Court . That results in legal

difficulties in religious registration, intensifies the administrative obstruction tactics and

many law-abiding citizens are being harassed as they are brought to courts, one or more

times successively, on the basis of the misapplication of the laws, but really on the grounds

of their heterodoxy as it is ill treated by the unaffected by the ECHR jurisprudence

registration laws:
41

Religious assimilation: On the 12th of December 2000, sixteen Churches and religious societies in the city of Thessalonica, in northern Greece, were charged and brought

to court on the basis of an antiquated set of laws regarding the operation of Churches and

religious organisations. They were all allegedly violators of the religious registration laws.

The criminal charges were based on the alleged operation of all of the Churches without

proper licence, although when originally asked by the police, who filed the report, they

had all produced copies of their licences. The list of the churches and religious organisations

thus charged, covered the religious spectrum of the city, since it included Evangelical

Churches, Seventh Day Adventists, Pentecostal Churches, Mormons, Jehovahs Witnesses,

and the Catholic Church.

The Greek laws in question were enacted in 193839 (AN 1363/1938, 1672/1939) during a time when Greece was under the authority of a dictator. It requires Protestants and

non-Greek Orthodox to accept the authority of the local Greek Orthodox Bishop. Towards

that end any religious group must get the permission of the local Orthodox Bishop in

order to be licensed. The interpretation of the Supreme Administrative Court has reduced it down to a requirement of a simple opinion of the Greek Orthodox Bishop on any

religious registration petition Greek citizens desiring to exercise their religious rights

bring forth ! That, still, leads to the paradox, Churches distinguished by an ecclesiology

different from that of the Greek Orthodox Church being pulled by the State to an indirect

yet clear recognition of that which, to begin with, they denounce according to the integrity

of their doctrinal identity. Therefore, the defendants representing their own Churches

and religious societies had to produce once more before the Court their licence granted to

them by the Greek Ministry of Religious Affairs, which encompassed of course the corresponding for each one of these Churches consent of the local Greek Orthodox Bishop.

The Greek Police and the respective City Department of the State Security without

prior examination of the records of the Department of Heterodox of the Ministry of

Religious Affairs, filed the report against the Churches utilizing the existing registration

laws which have been left intact by the ECHR. High-ranking State officials who were

contacted on the occasion of the trial were concerned that this law will be the source of

continued embarrassment for Greece. The extend of the burden these registration laws

impose upon unsuspected, law abiding citizens on the basis simply of their heterodoxy, is

the case the Pastor of a local Pentecostal Church of the city of Thessalonica, N. Demetriadis.

For him it was the second time within one year that he had been called to appear before

the court on the same false charge. Pastor Demetriadis is seventy years old and a war

hero, yet he was forced twice to come to court to prove his innocence on facts already

known by the administrative and police authorities!

The Thessalonica criminal court (!) of first instance, finally acquitted all sixteen

churches that had been charged as operating without a licence, since it was proven that

they did adhere to religious registration requirements, among which of course the opinion of the local Greek Orthodox Bishop still stands strong.

Therefore, apart from the obvious dysfunctional legal framework of Greece on this

matter, we need to make a note in this regard of the equally influencing and enabling such

a legal framework cautious jurisprudence of the ECHR. Substantiating even further our

contention we highlight how much more complicated thus becomes the enjoyment of religious liberty: Religious legal entities and procrustean measures: The Orthodox Church

and her institutions are recognised within the Greek legal framework as legal entities of

public law. The non-Orthodox Churches however, apart from the Muslim and Jewish institutions, are not recognised as such.
42

The case of the Catholic Church of Chania. This major insufficiency of the religious

registration laws, which licence a community to operate as a Church but do not allow it to

engage in any transactions of legal significance associated with its very existence as a

Church, led recently to the judicial diagnosis of the lack of any legal personality of the

Greek Catholic Church!

Under the existing laws in order to assume such a legal personality a Church has to

resort to the format of the common legal entities of the private law. The substantial technical difficulties and not only of the non-Orthodox Churches having to adapt their church

life into the structure and the form of non religious associations or other private law

entities are easy to discern. The probability to have procrustean solutions is very serious,

when two distinct entities could develop out of such an arrangement one owning the property and another one being the church, per se; it has been considered serious enough

recently and by the ECHR, which convicted Greece in the case of the Catholic Church of

Greece.

Interestingly enough, ever since the decision of the ECHR the administration has not

yet given a satisfactory solution to the problem of legal existence of the Catholic Church of

Greece. It only accommodated the minimum solution for the deadlock created with the

specific Catholic Church of Chania and for all those Catholic institutions that had been

established until 1943; all the other Catholic institutions after that date are still in a legal

state of limbo, let alone their continuous inability under the existing framework to organize themselves according to their own hierarchical and institutional structure!

The case of the Evangelical and Pentecostal Radio Stations. What however, makes

clearer why and how religious registration can be characterized as a roadblock to religious liberty, enabled by a more than cautious jurisprudence, is the case of the two religious radio stations recently closed down by the Greek administration.

Upon the major insufficiency of the Greek laws pertaining to the legal personality of

the non-Orthodox churches, we recently had the build-up of the administrations closure

of the only two non-Orthodox radio stations, the one of the Free Apostolic Church of Pentecost (Christianity) and the one of the Free Evangelical Church of Greece (Channel

2000), while the two Orthodox radio stations, of the Greek Orthodox Church and of the

local Orthodox Church of Piraeus are still operating.

According to the Greek law regulating private television and radio stations a candidate to qualify for a licence has to be either a legal entity of public law or a commercial

company. The law of course, as is the case in most European countries, came a posteriori

to regulate, that is retrospectively, the already existing field of private radio waves and to

put order by granting licences to those meeting the standards it set up. In light of what we

explained before, however, the Orthodox Churchs stations didnt have but remain as such,

due to their legal nature of being public law entities. On the other hand the Evangelical

and Pentecostal radios stations were thus forced to take a different route that of becoming commercial companies, although they were clearly religious organizations and simple

extensions of the respective Churches.

Apart from the enlightening details of how the administration delayed and even obstructed the whole procedure of the application of the two heterodox radio stations

(Channels 2000" petition was lost for six months, its equipment confiscated on grounds

that could not hold under judicial inquiry and then returned creating all kinds of logistical and not just only such problems, its peculiar, albeit professional, operation not befitting a commercial company with volunteersmembers of their Church working in it under adverse assessment by the respective Committee weighing candidacies, etc.), and apart
43

from the discrimination issue ensued thus upon them on the basis of the discriminatory

regulation of the non-Orthodox entities, we have also the additional handicap within the

ECHR jurisprudence context.

Commercial companies, it has been established, although eligible to claim violation

of certain rights of the European Convention of Human Rights are not under the protection of all rights; not all rights are of relevance to them and of course in that light they

cannot be subjects of religious liberty rights and obligations . A commercial company therefore, as such that the Free Evangelical Church and the Free Apostolic Church of Pentecost were forced to become, operating by definition within the Greek legal framework for

commercial purposes, does not constitute a manifestation of religion and of religiously

motivated conduct and thus cannot be protected by the Article 9 of the Convention! The

above convincingly attest as to how shrewdly religious registration can temper the fundamental identity of those whom is called supposedly to protect and positively encourage,

only rendering them finally with reduced or even at times limited protection. If, as in the

case of the radio stations, they conform with what is asked from them and assume commercial legal nature, are cut off from the protection allotted to them; if they do not conform, then they do not qualify and simply they cannot fulfill their religious mission identified with the proclamation of their religious message through radio waves, edifying believers and evangelizing non believers. It is a fair statement to argue that it is not only

by what we regulate but also by what we dont in reference to the free exercise of religion

that unsurpassable difficulties are created. But then the perspective towards religious

pluralism, rather than assimilation or secularism and the acceptance of religious factions

not as destabilizing factor but to the contrary as a source of peace and welfare for the

countries, fades away.

B. LEGITIMACY

We have been examining how international jurisprudence and the strong current for

conformity and jus communis can influence religious registration. However, our inquiry

directs us also to domestic juridical and non-juridical agents of meaning against which

religious registration needs to be examined. Religious liberty is not just an international

juridical phenomenon.

We expressed earlier our concern regarding the cautious stance of the ECHR in interpreting Article 9 of the European Convention on Human Rights so that it does not

impose substantial constrains on the individual states and of the enabling effect that such

a stance has on dysfunctional domestic legal frameworks pertaining to religious registration. However, the acknowledgment of national sensitivities and of domestic peculiarities of the individual states highlights a counterbalancing active factor of influence in the

enjoyment of religious liberty equally important to reckon with. It is this factor that directly affects religious registration in the manner it is framed and carried out in actuality.

A Hebrew saying enjoins judges to reside within their own people implying the

importance of public responsibility and the need for legitimacy of laws and their corresponding application. This is what we mean by speaking of national standards and the

legitimacy of the laws pertaining to religious liberty as a counterbalancing active factor of

influence. Religious registration is not carried out in a vacuum. It is always contextual, in

place, time, and culture, that is people. It differs only in scale from the broader correlation between culture and human rights.

The 1989 Vienna Concluding Document states that, In this context [the participat-
44

ing States] confirm that they will respect each others right freely to choose and develop

their political, social, economic and cultural systems as well as their right to determine

their laws, regulations, practices and policies. In exercising these rights, they will ensure

that their laws, regulations, practices and policies conform with their obligations under

international law and are brought into harmony with the provisions of the Declaration on

Principles and other CSCE commitments. In that sense the OSCE framework is well

prepared to engage and face the twofold challenge religious liberty poses; conforming to

and aiming at international standards and maintaining a sense of ownership that a culturally meaningful legal framework provides.

During the Cold War era, the OSCE was one of the few forums for dialogue between

East and West where human rights issues could be discussed and norms could be agreed

upon. Today, the OSCE remains an important arena for discussion and action regarding

human rights and of course religious liberty, this time promoting not just democracy but

what constitutes the real test of an open society, the sense and the degree of ownership of

human rights and religious liberty in particular.

Many today live in a constant state of dichotomy between what they have grown up to

feel and sense to be true and that which is all around them real, coming from abroad

permeating every thing they do or want to do; a culture for many where they sing songs

and tell stories (that is mainly, watch movies!) that are not their own or maybe have

come to become their own creating a lot of confusion and the need for a catharsis.

Human life is essentially cooperative; we comprehend the world by sharing stories,

experiences and purposes with others, which in turn provide us with a familiar frame of

meaning and implant in us a corresponding sense of ownership. Being part of a culture is

an innate need human beings are born with culture, whatever its contents, is a natural

function and a liberating experience when we grow naturally first into it and then out of

it, always transforming it as we become transformed. This participation leads to evaluations of reality not as scientistsbut in active negotiation of creative imaginings and a

norm is successfully and operational when is evaluated as such. This is what Alexis de

Tocqueville refers us to when he notes of the American political system:

Religion in America takes no direct part in the government of society,

but it must be recorded as the first of their political institutions;  I do

not know whether all Americans have a sincere faith in their religion

for who can search the human heart?but I am certain that they hold

it to be indispensable to the maintenance of republican institutions.

This opinion is not peculiar to a class of citizens or to a party, but it

belongs to the whole nation and to every rank of society.

To be joined complementarily by a Colonial Presbyterian Minister who noted that:

The United States have lately formed their several systems of civil government so as to

leave religion free

The goal in other words is not to impose norms only on the basis of legal reasoning

and external statutory or even foreign structural associations, just to save face, which as

practice has shown leads often to legal rationalization, external adherence and ultimately

imperils the very thing we try to protect; but to own them. It is important to have a culturally meaningful correspondence of norms and reality, if necessary re-create norms in order to own them, actively drawing from the reservoirs of cooperatively shared and shaped

notions of fundamental ideas and ideals. A well known dictum express it very succinctly
45

when it describes laws that do not correspond to the social reality they aim to serve as

simply a piece of paper.

We recognize the theory of Human Rights as a Western cultural evolvement, having

grown up in the Christian West; this does not at all diminish its established value for the

whole world, only it raises our awareness as to the issue of its proper applicability and

legitimization in diverse cultures. Every time we have roadblocks in the enjoyment of

religious liberty, mainly manifested in dysfunctional religious registration frameworks,

we need to arise in examining the level of affinity or alienation of the people of the land

with the rights in peril.

The Human Rights paradigm derives its authoritative explanatory and regulatory

power from the fundamental belief in the empowerment of each person. This is an allpowerful doctrine capable of providing a central, ideological and operational coherence

even in different from the Western cultural norms, which happen to be collective and

communitarian. It is in such settings that we observe the most difficulties with religious

pluralism, as in Greece, since it comes against the primary value of the central, cohesive

notion of the community against which the value of the individual is measured in terms of

his participation in it. However, even in such environments there are always cultural

reservoirs, which could support a successful decentralization of the convincing value of

the empowerment of each person.

The OSCE forum can encourage such processes of a successful decentralization of the

core values at stake, enabling the parts [participating states] to be of one mind even

though they are diverse in culture and place. If the Cold war dialogue and agreement

processes could be measured in dinosaur like sizes and methods, the new reality, especially after the events of Tuesday 11th of September, 2001, can only be pursued through

smaller and more flexible forms of engagement; not simply a cross institutional, cross

structural, statutory and hierarchy-oriented approach and influence but also a networkoriented approach. When many herald the network society in the midst of an ever-deepening global civil society, power and legitimacy are more and more to be fostered and

reinforced in networks, pushing us to rethink our typologies. The importance of the social

capital in the new morphology of our societies, affecting the conceptualization, establishment and application of rights, starting from, as a core reinvigorating systemic value, and

going all the way down to religious registration, would be crucial.

In all these OSCE could play a leading role, through consultative and consensusbuilding mechanisms, employing the social capital dimension within its broader methodological category of Human Dimension.
46

PREPARED STATEMENT OF COL. KENNETH BAILLIE,

COMMANDING OFFICER, SALVATION ARMY, MOSCOW, RUSSIA

From Moscow I direct Salvation Army work in five east European countries. First I

will briefly comment on our religious registration situation in each of the five, then comment at more length on our one major problem.

In Georgia there is no law requiring religious registration. In order for the Salvation

Army to conduct ordinary business, i.e. hold title to a vehicle, open a bank account, sign a

rental lease, etc., we are registered as a charity.

In Moldova and Ukraine we have full nationwide registration as a religious group. In

both cases we were present in the countries for several years, doing our ministries and

establishing our reputation, as a result of which in the year 2000 we were granted our

registrations, for which we are thankful.

In Romania we began our ministries over two years ago. Admittedly we are not yet

well known. In our first attempts to register our own law firm did not understand us well

enough, and consequently tried to register us as a charitable foundation'. When we corrected that misinformation and tried to register as a church (a church which, as an expression of its faith, does a variety of social ministries) we encountered apparent difficulty in

using the word church. It seems only some in Romania can use that word. But we were

told that the alternate title Christian mission may be acceptable. That is all right with us,

so we are pursuing that possibility at present. An interesting historical footnote: in late

nineteenth century England where the Salvation Army began, our legal name prior to

The Salvation Army was The Christian Mission. So we are returning to our roots.

In Russia as of February 2001 we are registered nationwide as a centralized religious

organization (CRO). We had applied for CRO in September 2000 but we did not know

what was happening with our application until three months later. That was when the

media had a field day with the Moscow city denial of our local city registration. It was an

entirely separate issue, of course, but the worldwide publicity did not make a careful

distinction, and consequently misdirected criticism redounded to the federal ministry

though the real problem was with the city ministry. The federal ministry of justice did

take up our case. There were meetings of the federal committee of religious expertise,

the report endorsing us was drafted promptly, further meetings were held with federal

ministry of justice officials, and we were awarded our CRO in early February 2001. Another historical footnote: the CRO registration renews the comparable status we in 1922

until liquidated by the Bolsheviks. We are very grateful for the federal ministrys positive actions on our behalf.

The city of Moscow is another story. We returned to Moscow in late 1991 and were

well received by numerous public officials. We obtained registration as a religious organization in 1992. We have worked in Moscow ever since, with never a hint from any official

of any dissatisfaction with our ministries. On many, many occasions we have worked in

cooperation with officials to distribute humanitarian aid. Our records show involvement

with over 800 government departments, orphanages, hospitals, prisons, etc. Never had

anyone in the city government voiced any criticism or raised any questions.

In response to the 1997 federal law we applied for re-registration of our Moscow

branch, never imagining it would be anything but pro forma. Over a period of weeks from

November 1998 to late January 1999 we worked with a staff person in the city Ministry of

Justice. Through numerous meetings and phone calls we fulfilled requests for additional

documents, changes in wording, etc. until everything was deemed satisfactory. On 18 Janu-
47

ary 1999 the staffer called to say we should have our signed and stamped registration on

Friday, two days hence. On Friday, however, the same staff person called to say in rather

sheepish voice, Theres a problem.

It is now nearly three years later, and to say the least there is still a problem! On 19

or 20 January 1999 someone in the Moscow Ministry of Justice (MMJ) took an ideological decision to deny our application. That is abundantly clear. Three years of meetings,

documents, media statements, and legal briefs all point to an arbitrary, discriminatory,

secret decision. To this day we do not know who made the decision, or why.

At first MMJs B.S. Saliukov said he had received our application but would not act

on it. He gave no reason though such is required by law. Our lawyer insisted he tell us

what requirements of the law we allegedly had not fulfilled. In discussion Saliukov told

our lawyers what needed to be changed in our application documents. We agreed, and

submitted the changed documents. Saliukovs response was to say again that our application would not receive any consideration. This time he gave two reasons: his department

was not competent to judge whether we are a religious group, and our documents were

not in order according to the law. This second reason was a contradiction to what he had

said in requiring various changes, to which we had agreed. Now evidently there were

more aspects not in order but he did not give specifics.

In regard to the first reason (not competent to judge) Saliukov said our case was

being sent to the citys committee of religious expertise (CE) for the purpose of determining if we are a legitimate religious group with a favorable reputation. However, in

April we learned Saliukov had not in fact sent our case to the city CE. In reality, there was

no city CE. Instead, Saliukov now asserted that in the absence of a CE he could function in

the CEs role. There is no provision for this in the law. To the contrary, the law established the CE precisely to keep government bureaucrats from making decisions about

religious matters for which they have inadequate competence. This was what Saliukov

acknowledged in his earlier letter, but now, contradicting himself and asserting a power

he did not possess, he said he would conduct the expertise himself.

In June our lawyers complained that no answer had been received within the three

months maximum time allowed by law. Under the law when a case is referred to CE up to

six months is allowed so that the CE has time to function. But it was improper for the

ministry to claim it was a CE, and to claim the CE did function. The effect was to waste six

months of our time. No CE was ever done. The ministry has not produced any findings of

the CE as required by law (as apparently there are none). Six months to the day V. N.

Zhbankov issued a flat denial of our application. It was clear to us, however, that the

decision had been taken six months earlier. But now we had six months less time before

the expiry deadline.

Zhbankov gave four reasons for denial. Three of them were misapplications of the

law.

(1) He said our governing board had only five members present when it approved the

new proposed charter while there are actually six members of the board. But the

existing charter under which the board was functioning clearly specifies a quorum as

four.

(2) He claimed that ten Russian citizens would have to form the religious organization.

But to construct this assertion he extracted a sentence from article 8.3 of the law,

having to do with forming an original, new organization. There is no mention of the

number ten in article 8.1 having to do with making changes to an existing charter.
48

(3) He claimed that photocopies of the visas of non-Russian members of the governing

board were not submitted, therefore the vote on the charter revision was invalid.

But the law does not state that visas must be submitted. Six months earlier the

MMJ had asked for photocopies of passports, and these were supplied by our lawyers, but MMJ never asked for visa photocopies. Further, MMJ staff had said in

February 1999 that all necessary documents were to hand. And further still, when

our lawyers submitted our application documents the cover letter specifically said

that if any further documents were required that we would supply them. Nonetheless, Zhbankov failed to ask for visa copies, waited an improperly long six months,

then blamed the Salvation Army for not having submitted the copies he never asked

for, and the law doesnt require!

(4) The fourth alleged reason for denial was significant. The Salvation Army is a worldwide organization with headquarters in London, England. Zhbankov claimed that

we could only have a representative office of a foreign organization in Moscow.

There is provision for such in the 1997 law, but a representative office status

grants little or no opportunity for our ministries. The representative office category would leave us unable to hold worship services, visit a hospital or orphanage, import humanitarian aid, operate our leaders training college, etc. The hidden injustice in this is that since 1992 we had a much higher category of registration, a local religious organization, which allowed our ministries to operate legally. Why the 1992 category of local religious organization could not be renewed

was not explained by Zhbankov. We can only conclude it was a veiled attempt to

foreclose on our religious rights.

Ever since Zhbankov has made statements to the media to the effect that we have

failed to meet the requirements of the law or we are trying to evade obeying Russian

law. This is disingenuous at best. What it really means is that we have refused to be

forced into the representative office category because it would deny virtually all religious rights, rights we have had since 1992.

Zhbankov would not discuss the three spurious legal claims or the injustice of the

representative office category so we had no choice but to sue in court. Ten months were

wasted while two courts claimed lack of jurisdiction. Ultimately an appeals court directed

the case back to the first court but the ten months lost time were never to be recovered,

and the clock was ticking toward expiry of the existing charter.

The court trial of our case violated due process. The city failed to send its lawyer to

the trial. Under proper procedure the judge should have issued a declaratory judgment in

our favor. Instead, the judge permitted the city to submit a written brief after the trial

date, and completely unknown to us! Any first year law student knows how wrong this is

yet the judge not only permitted the city attorney to do this secretly but quoted the citys

brief at considerable length in the text of the eventual judgment. The Salvation Armys

lengthy verbal arguments and accompanying written brief were dismissed with exactly

one sentence. The judge simply noted we had submitted arguments but did not address a

single one of them, as required by proper procedure.

The citys brief violated procedure by introducing new reasons for denial of our registration. Under proper procedure the city could only defend its original four reasons, not

introduce new ones. But it did so, and the judge allowed it. For instance, the city argued

that the Armys documents did not make clear the religious beliefs of the Salvation Army.

This cannot be true. The full statement of beliefs had been included in the 1992 charter
49

and had sufficed for eight years. No explanation was given why the same statement was

now deemed unclear.

In what became the focal point of media attention later, the city claimed the Salvation Army was a military threat to Russia. MMJ quoted at length from various Russian

laws having to do with insurrection, subversion, militaristic formations and national security. Then, in a leap of illogic, the city asserted that since the Salvation Army has the

word army in its title then it will be inevitable that members of the organization will

break Russian law. But no evidence was submitted. One would think that if we were a

threat to Russia and were inevitably going to break the law that after eight years of

properly registered work in Moscow the city could cite at least a few instances in support

of their charge. So a peace-loving organization, known and respected for its work in 107

other countries, was rendered a threat to Russias security by the pen of the citys lawyer.

Most lawyers would be embarrassed to submit such legal illogic. And most judges would

toss it out of court.

Finally, the MMJ brought up the representative office claim again. By this time,

almost a year later, another similar case had worked its way to decision at Russias Constitutional Court. In that case the Jesuits had been denied registration because their headquarters was in Rome. The Constitutional Court overturned the government denial of

registration, noting that an article in the 1997 law specifically provided for foreign-based

churches to be registered. Our lawyers noted the provision in the law, and the Constitutional Court decision with its direct parallel to our situation, but the judge ruled for the

city.

We appealed the lower court decision. Three months later (November 28, 2000) the

appeal was denied. Most of the lower court arguments were re-hashed but there were a

few new arguments. (1) The governing board visa copies had been submitted in the meantime but now the court claimed that a visa is not the document that proves [board members] are lawfully residing on the territory of the Russian Federation. But these visas are

precisely what the MMJ and lower court said, after the fact, were needed to prove lawful

residency. Furthermore, if the visas would not prove legal residence then what would?

There is nothing else! (2) In long and convoluted language the court asserted that the

Salvation Armys documents did not meet requirements of the law. But the MMJs own

staffer had said they did. And if the staffer was wrong, why did the MMJs deputy minister

take six months to say so? And why did it not spell out clearly in what ways the documents

were supposedly at fault? In fact, MMJ gave only four reasons, each of which the Salvation

Army challenged. Both the MMJ and the courts have continued improperly to invent

new alleged reasons for denial. (3) Interestingly, the appeals court did agree that the

MMJ and lower court were wrong in asserting that the Salvation Army is a military threat.

But the MMJs Zhbankov has continued for almost a year to make the discredited charge

in statements to the media.

Under Russias legal system there was no further automatic right of appeal for the

Salvation Army. Reluctantly we took our case to the European Court of Human Rights.

The case has been accepted and efforts are underway through diplomatic channels to

achieve a resolution.

In the summer of 2001 the citys MMJ took the matter much further by filing in court

for liquidation of the 1992 charter. This was a serious escalation of the situation at a

time when city officials were giving assurances in diplomatic channels that the problem

would be resolved soon. The MMJ claimed two reasons. (1) It said the Army had failed to

re-register by the legal deadline. Yes, of course because the MMJ had refused to issue
50

our re-registration. (2) The city claimed the Army had not filed a required annual report

about its continued operations for three years. There is a provision in the law for liquidation of a religious group which becomes defunct, three consecutive years of non-reporting

being the presumed proof. We admit we failed to report in two of the three years, a mistake we regret. But we did report in 1999 (we have conclusive proof) so the laws requirement of three consecutive years (1998, 1999, 2000) cannot be sustained. And in any event,

considering all the meetings and documents and correspondence which the Salvation Army

had with the MMJ in the three year period, it is ludicrous for MMJ to assert that it doesnt

know of the Armys existence any longer!

The case was heard in another Moscow court on September 11-12, 2001. On the first

day, when about 30 media reporters were present with TV cameras, the judge appeared to

be interested in receiving documentation to show the Armys lawful presence in Moscow

tax audits, payment of employee taxes, correspondence with MMJ, etc. Court was adjourned one day so that the judge, as she said, could contact the tax authorities about us.

By the next day media interest had turned to the terrorist attacks in America and only

four print reporters returned to the courtroom. The judge refused to let the Armys attorney speak at all, and refused to consider the Salvation Armys many documents stacked on

tables in front of her. She left the courtroom and within ten minutes returned to read out

a lengthy, already-typed judgment for liquidation.

The written judgment was not given to the Army for twelve days though the law

requires a maximum of three days. Right of appeal ends after ten days. The Army intends

to appeal anyway, even though the late document theoretically precludes an appeal. The

outcome is very uncertain.

A further concern is the threat by Mr. Zhbankov to confiscate Salvation Army properties and assets in Moscow. To protect our three properties we applied to transfer ownership from the old, expired city registration to the new national registration. But city property registration officials have required change after change, document after document,

in a process that has gone on for months when it normally takes two weeks. We note that

the deputy head of the city ministry of justice (Zhbankov), the property registration office,

and the courts are all under the same ministry of justice.

In addition to dealing with the MMJ and the courts the Salvation Army has had to

endure repeated public disinformation to the media by the MMJs Vladimir Zhbankov. He

has repeatedly linked us with the Jehovahs Witnesses when there is absolutely no connection. Around the world Jehovahs Witnesses do not enjoy the same public recognition

and respect as the Salvation Army. Zhbankov appears to be sowing seeds of doubt and

distrust in the public mind by linking us to an unpopular religious group.

Zhbankov has claimed we have not brought our documents into line with the law.

This is another way of making the Salvation Army seem at fault. What he doesnt say is

that he is attempting to deny our religious rights by forcing us to settle for the useless

representative office status. The only way we are not in line with the law is that we

wont bend to his discriminatory construction of the law.

He has called our lawyers foreigners, appealing to populist Russian fears of all things

foreign. It is not true. At all times in the past three years our lawyers have been Russians.

He has called our lawyers unscrupulous and incompetent. One of our law firms is

a major international law firm with a large Moscow office. Our second law firm has established itself with a national reputation for matters dealing with religious law. Zhbankovs

un-lawyerly characterizations are regrettable. But he has privately and publicly demanded
51

that the Salvation Army abandon use of our law firms and use a law firm which he

(Zhbankov) recommends. We reject the demand, for obvious reasons.

He has claimed that we are not a legitimate religious organization but rather a military group bent on the violent overthrow of the Russian government. The federal

governments committee of religious expertise ruled otherwise almost a year ago, and

anywhere else around the world people know better. But Zhbankov has continued to make

the charge to the media.

We have offered again and again to negotiate revised wording of the proposed registration, changing it to the precise wording already approved by the federal ministry for

our CRO. But Zhbankov has refused, and then given statements to the media that we

refused to bring the documents into line with the lawö.

In conclusion, we believe the Salvation Army has been discriminated against by the

Moscow city Ministry of Justice. Moscow courts have followed the MMJ line. And Zhbankov

has manipulated the popular understanding of the issue through propaganda and

disinformation.

The federal ministry of justice has failed to intervene with the city though we understand it should do so in order to uphold Russias constitution and any number of international treaty obligations. We continue to hope federal officials will step in soon to resolve

the situation.

We remain hopeful that various high level contacts and diplomatic efforts may still

prompt federal officials to resolve the matter. But if all such efforts fail then we believe

the European Court of Human Rights will eventually establish justice where it has been

denied.

We are saddened to have been drawn into this situation. It is not something we have

experienced elsewhere. We do not normally resort to the courts. We just want to be left

alone to do our ministries. We regret the embarrassment and ill will the Moscow situation

has brought upon Russia, which is particularly ironic when it was the federal ministry

whom we commend and thank for having granted us full registration. We desire harmonious, cooperative relationships with government officials. We have such relationships in

other countries, and in fifteen other Russian cities where we minister. Despite all that

has happened we still wish to have good relationships in Moscow, and look forward hopefully to the day when that may be so.
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