The concept and types of real estate property for religious purposes of the Russian Orthodox Church

Padyukin Ivan Vyacheslavovich ORCID: 0009-0002-0844-4151 Postgraduate student; Department of Church and Practical Disciplines; Moscow Theological Academy of the Russian Orthodox Church 141300, Russia, Moscow region, Sergiev Posad, Ilyinskaya str., 23, 1317 iv_pad@bk.ru

Introduction

The study of legal concepts predetermined by the presence of a social phenomenon develops through the study of their definitions, characteristics and legal nature. To this day, the problem of identifying the concepts of "religious", "liturgical" and "cult" property remains relevant, the volume of objects of which is quite similar, rarely even identical.

According to I. Z. Ayusheeva, "the property of a liturgical purpose should be part of the property of a religious purpose and represent the means of religious activity" [1.P.155]. I. Z. Ayusheeva bases her point of view on the fact that in religious studies religious activity, as a rule, is divided into two types: non-cultural and cultic [1. P. 155]. Non-cultural activities can be carried out in the spiritual (e.g., writing religious literature, developing religious ideas, etc.) and practical spheres (missionary work, catechesis, charity, education, etc.). Cult religious activities, in turn, "represent special stable forms and methods of behavioral acts aimed at expressing worship of objects and forces revered as sacred" [7. P.236]. In other words, the content of religious activities should be closely related to the worship services.

According to E. Y. Valyavina, it is precisely "the religious nature of things that determines their special legal regime - movable and immovable property for liturgical purposes cannot be foreclosed on creditors' claims" [4. P.202]. According to Y. S. Ovchinnikova, this norm has a positive significance, since it expresses respect for the feelings of believers at the legislative level, and also simplifies the procedure for distributing property of religious organizations during their liquidation [8. P.139].

Thus, it can be seen that in modern Russian legislation there are a number of concepts for defining the property of religious organizations. However, the lack of definitions of these concepts causes uncertainty in the legal regime of immovable objects of religious organizations, which makes it difficult to regulate relations arising regarding such objects.

Religious property

The main purpose of the creation of religious organizations of the Russian Orthodox Church is the collective confession and dissemination of the Orthodox faith. Its achievement is carried out not only in the spiritual, but also in the earthly (material) sphere, the main manifestation of which is the gathering of believers in specially designated places, for example, temples, cathedrals, chapels, etc. "Possession of religious property," notes I. A. Kunitsin, "involves the participation of religious organizations in civil law relations, and also with a certain legal regime of this property" [6. P.284]. This is also evidenced by the words of Professor of the Kazan Theological Academy I. S. Berdnikov: "In accordance with his nature, a person satisfies his religious need not only spiritually ... but also externally — by worshiping God and fulfilling His commandments."… From the satisfaction of a person's religious need, as it happens when satisfying his other needs, a number of legal relations arise, which together constitute a special complex legal institution ..."[3. pp.1-2].

The central position in the daily liturgical circle of the Orthodox Church is occupied by the Divine Liturgy, which in Greek means "common cause" (from Greek. "λειτουργία") [5. P.240]. It can be seen that the etymology of the main Orthodox divine service already presupposes its collective performance, which also determines the need for religious immovable objects.

To date, Russian federal legislation has provided an official definition of the concept of "religious property." Thus, Clause 1 of Article 2 of Federal Law No. 327-FZ stipulates that "religious property is immovable property (premises, buildings, structures, structures, including cultural heritage sites (historical and cultural monuments) of the peoples of the Russian Federation, monasteries, temples and (or) other religious complexes) built for the implementation of and (or) provision, including material and other, of such activities of religious organizations as worship services, other religious rites and ceremonies, prayer and religious meetings, religious education, professional religious education, monastic activities, charitable activities, social services, religious worship (pilgrimage), including buildings for temporary residence of pilgrims, as well as movable religious property (items of interior decoration of religious buildings and structures, items intended for worship and other religious purposes)".

According to Priest Vladislav Bagan, the main signs determining whether an immovable object belongs to the category of "religious purpose" are [2. pp.82-84]:

· the direct (initial), targeted (religious) purpose of the object for the practical joint realization of the right to freedom of conscience and religion;

· the common (functional) purpose of an immovable (non-cultural) property object with an immovable religious object located in close proximity (even if there is no legal, factual, functional or other connection between them at the moment, and even if it is not used for its intended purpose);

· the entry of an immovable (non-cultural) object into a single property complex for religious purposes, "... regardless of whether such an object directly ensures the functioning of the actual religious object (has an auxiliary purpose) or has another property of complementarity (significant for the activities of a religious organization) ..." [2. P. 84];

· the entry of an immovable (non-cultural) object into a single complex of cultural heritage monuments or architectural ensemble, due to the location of such an object or historical connection with the complex or ensemble.

The list of characteristics of religious property provided by Priest Vladislav Bagan is not exhaustive. The highlighted features appear to be applicable to immovable property subject to potential transfer under Federal Law No. 327-FZ. Nevertheless, a significant number of immovable objects of religious purpose have already been assigned to religious organizations, which determines their special legal regime, expressed, for example, in the restriction (in some cases, the impossibility) of civil law turnover; the impossibility of transactions with such property objects without the approval of the governing church body (paragraph 1 of art. 21.1 of the Federal Law on Freedom of Conscience); in using such objects solely to achieve the statutory activities of religious organizations (Clause 4 of Article 213 of the Civil Code of the Russian Federation); in transferring immovable property of religious purpose exclusively to the state balance sheet or the balance sheet of a religious organization of the corresponding confessional affiliation in cases established by law (clause 2 of Article 21.1 of the Federal Law on Freedom of Conscience).

In view of this, it seems that one of the indicative signs that determine the attribution of an immovable object to religious property is the possibility of unhindered worship in (on) it, however, if it is on the property balance of religious organizations. Judicial practice also testifies to this. For example, in the reasoning part of the Decision of the Arbitration Court of the Volgograd Region dated January 29, 2020 in case No. A12-46309/2019, it is noted that "religious property includes premises where institutions and enterprises of religious organizations are located, since worship services, other religious rites and ceremonies are freely performed in them.".

These conclusions of the court indirectly correlate with the position of the Judicial Board on Economic Disputes of the Supreme Court of the Russian Federation in case no. A40-30217/2017, according to which "property having a religious purpose is not only property built directly for carrying out activities of religious organizations, but also to ensure such activities ..." A similar conclusion was reached by the Arbitration Court. The Moscow City Court in case no. A40-276670/2022, according to which a "religious designation" regime was approved for the disputed building on the basis of its actual operation to maintain a "liturgical purpose" structure, as well as the engineering connection between them, which made it possible to characterize these objects as a single religious complex.

Thus, when determining whether an object belongs to the category of "religious purpose", it is necessary to take into account the purpose of its creation, its current functional use, as well as the property law on which such an immovable object is located. For example, ruined temple buildings have a pronounced religious purpose, but their functional use for religious purposes is questionable, including for security reasons. Nevertheless, even if they are in state ownership, they are religious property, since their primary purpose is directly related to the implementation of liturgical activities. Moreover, due to the special ecclesiastical and legal nature, secular legislation has established additional guarantees of protection for such facilities, which is confirmed, for example, by the norm prohibiting their privatization (Clause 2.1 of Article 3 of Federal Law No. 327-FZ).

On the other hand, boiler buildings located on the territories of religious organizations and owned by them are not intended for direct joint confession and dissemination of faith, however, they have significant functional (economic) significance, expressed in ensuring the implementation of the statutory activities of religious organizations, especially in the cold season.

Similar arguments can be extrapolated to such immovable objects of religious organizations as warehouses, workshops, garages and other outbuildings located on the property balance of religious organizations. This position is conditioned by the possibility of performing church rituals in such premises, for example, the rite of consecrating candles, wax, oil, church utensils and other things (stored in such buildings) or when performing prayer singing "Before starting any business", for example, before making (in such buildings) prosphora, wine, incense, etc. In this case, an important indicator of classifying an immovable object as a "religious destination" will be its initial and (or) actual use for religious purposes or the direct provision of religious activities of religious organizations. This remark is confirmed by the court's refusal to transfer the printing house building to the religious organization in accordance with the procedure provided for by Federal Law No. 327-FZ. Arguing for its decision, the court pointed out that the disputed immovable object did not meet the criteria of religious property, was erected solely for the purpose of carrying out printing activities, was not intended to support the activities of religious organizations provided for in Article 2 of Federal Law No. 327-FZ, and was not part of a single immovable religious complex (Review of judicial practice on transfer disputes to religious organizations of religious property (approved by the Presidium of the Supreme Court of the Russian Federation on 11/16/2022)).

Thus, it can be concluded that another feature determining the classification of an immovable object as a religious destination is:

· the possibility of unhindered implementation of liturgical, ceremonial and other religious and practical activities in such facilities, provided they are located on any property right of the Russian Orthodox Church or its canonical divisions.

Having defined the concept of property for religious purposes, it becomes possible to formulate a definition of the concept of "property for liturgical purposes."

Liturgical property

The specificity of religious organizations, expressed in the realization of citizens' rights to freedom of religion, encourages the state to provide them with certain guarantees aimed at protecting their property rights. According to paragraph 2 of Article 123.28 of the Civil Code of the Russian Federation, the immunity of movable and immovable property for liturgical purposes from penalties for creditors' claims is established. In accordance with clause 5 of Article 21 of the Federal Law on Freedom of Conscience, the Government of the Russian Federation has the right to form a list of types of property for liturgical purposes, in accordance with the proposals of religious organizations. Clause 2 of Article 21.1 of the Federal Law on Freedom of Conscience contains a provision according to which, in cases provided for by the charters of religious organizations, immovable property for liturgical purposes may to be alienated exclusively into state or municipal ownership or into the ownership of a religious organization of the same confessional affiliation.

The substantive norm of clause 5 of Article 21 of the Federal Law on Freedom of Conscience is not new to the Russian legal system. As noted by Y. S. Ovchinnikova, "a similar rule was contained in the USSR Law on Freedom of Conscience and Religious Organizations of October 1, 1990, with the difference that the Union law used the concept of "religious property." According to Article 20 of this law, "the property of worship belonging to religious organizations cannot be foreclosed on the claims of creditors" [8. P.139].

Thus, the concept of "religious property" is closely related to the modern concept of "property for liturgical purposes."

Despite the withdrawal of objects of liturgical purpose from civil circulation, however, modern legislation does not define "property of liturgical purpose", and the list of such property has not been formulated to date.

In connection with the above-mentioned reasons, the question arises about the procedural procedure for determining the property of a liturgical purpose, which is expressed in the subjective attribution by bailiffs of certain objects to the disputed category.

In accordance with the Definition of the Supreme Arbitration Court No. SAC-3811/10, bailiffs in each specific case are required to determine a particular property object for a liturgical purpose based on its functional characteristics and actual operation. At the same time, as V. A. Shashko notes, "... bailiffs in most cases do not have special knowledge in these areas, which creates the possibility of unlimited discretion and the actual absence of legal means to counter it, except for challenging actions in court" [11. pp.59-60].

The Ruling of the Constitutional Court of the Russian Federation dated 19.10.2010 No. 1406-O-O emphasizes: "judicial immunity from foreclosure on property having a liturgical purpose, and thereby ensuring the functional use of this property (religious buildings and structures, other religious objects), the value of which is primarily determined by the nature of such use, They do not consolidate the absolute property protection of religious organizations from creditors' claims and do not deprive the latter of the right to demand foreclosure on other property that does not have a liturgical purpose." The conclusion on the exploitation of such property for liturgical purposes is based on an assessment of the circumstances of a particular case, including the actual use of objects and functional characteristics.

This circumstance raises the issue of the need to generate the most informed approach to the definition of immovable property objects that are subject to immunity. In this context, V. A. Shashko suggests resolving the issue of classifying property for "liturgical purposes" in accordance with Article 61 of Federal Law No. 229-FZ, which provides for the need to involve independent specialists [11. P. 61]. To determine the property of the liturgical purpose of religious organizations of the Russian Orthodox Church, such specialists may be persons who have graduated from Orthodox higher educational institutions and possess the necessary knowledge in the field of liturgy, canon law, pastoral theology and other disciplines.

This mechanism is not without flaws. Thus, the Russian Orthodox Church will not be difficult to propose candidates, but for other religious organizations, which often do not even have centralized canonical divisions, the implementation of this procedure will become impossible.

It seems that the most reliable way to resolve the procedural problem of determining the property of a liturgical purpose is to compile a list of such property. In this area, the Russian Federation may follow the example of the Republic of Belarus, whose legislation contains "A list of types of religious property that cannot be levied on creditors' claims." In the specified Belarusian document, among the immovable religious objects, there are:

"1.1. religious buildings (structures);

1.2. buildings and structures for social, charitable, cultural and educational purposes;

1.3. buildings for economic and residential purposes, and other objects related to land plots allocated to religious organizations" (List of types of religious property that cannot be levied on creditors' claims (approved by the Government of the Russian Federation). Resolution of the Council of Ministers of the Republic of Belarus No. 465 dated July 2, 2024)).

Drawing up an exhaustive list, which includes all possible liturgical items of various religious organizations, seems impossible, and therefore such a list should be open, but containing the main positions.

It is obvious that the formation of a list of property for liturgical purposes is impossible without taking into account the internal regulations of religious organizations, in particular, the church law of the Russian Orthodox Church.

According to modern canonist Archpriest Vladislav Tsypin, church property can be divided into "sacred" and "ecclesiastical" items. Sacred objects, in turn, are divided into "sacred in the proper sense" and "consecrated" [10. pp.726-727]. A thing becomes sacred through the act of consecration, or through sacred use.

Consecrated in the proper sense include movable (chalice, diskos, antimins, tabernacle, etc.) and immovable (buildings of temples, churches, cathedrals) things.

Consecrated objects can also include both immovable (houses of worship, chapels, cemeteries) and movable (fonts, censers, candlesticks and candles placed on them) objects [10. pp.726-727].

Archpriest Vladislav does not mention the list of church items, but it is possible to assume that it would include movable objects (for example, benches and seats for lay people, drinking tables, floor carpets, household utensils used for liturgical needs, official cars, etc.) and immovable (for example, buildings, structures, designed to provide religious organizations with extracurricular activities (Sunday schools, spiritual and educational institutions, refectories, etc.) and to ensure the operability of sacred and consecrated immovable buildings (wheelhouses, garages, utility buildings, parking spaces, etc.).

It appears that immovable property for liturgical purposes includes and is limited to immovable sacred objects (with the exception of religious cemeteries).

Based on the above considerations, it becomes possible to formulate the following definition of the concept of "immovable property for liturgical purposes."

Immovable property for liturgical purposes is premises, buildings, structures, structures, including heritage sites (historical and cultural monuments) of the peoples of the Russian Federation, built and functionally intended for conducting worship activities, religious rites, ceremonies, prayer meetings and other religious practices, land plots on which such buildings are located, belonging to religious organizations by right of ownership or on other grounds.

Characteristic features of real estate for liturgical purposes are:

· limited purpose, which consists in using such facilities only during worship;

· being owned or otherwise entitled by religious organizations;

· withdrawal from civil law circulation;

· alienation, in cases stipulated by the charter, exclusively into state, municipal property or the property of a religious organization of the corresponding confessional affiliation in accordance with the procedure established by law.

Thus, the modern list of real estate of the Russian Orthodox Church for liturgical purposes will include: Orthodox buildings of temples (churches), cathedrals, monasteries, chapels, prayer houses, baptisms, bell towers, premises of house churches and prayer rooms, land plots under them.

Russian legislation regulating the property relations of religious organizations is not limited to the concepts of "religious" and "liturgical" property. The legislation also contains such a concept as "cult" property, which is not defined at all today.

Religious property

One of the methodologically sound ways to identify the characteristic features of "cult" property is the linguistic and legal analysis of the concepts under study.

When starting a comparative analysis, it is important to point out that the lexeme "religious" in relation to property objects of religious organizations is used in Federal Law No. 327-FZ (for example, Part 1 of Article 2), and in the Federal Law on Freedom of Conscience (paragraphs 1,2,3 of Article 21, paragraph 2 of Article 22).

The word "liturgical" is used in the Civil Code of the Russian Federation (Clause 2, Article 123.28) and in the Federal Law on Freedom of Conscience (clause 5, Article 21, clause 2, Article 21.1).

The word "cult" is found, among other things, in the following places of legislation:

· Clause 1 of Article 2 of Federal Law No. 327-FZ, which includes "religious complexes" and "religious buildings" in the scope of religious property;

· Clause 3 of Article 5 of Federal Law No. 327-FZ, which establishes the possibility of transferring immovable property that does not have a direct religious purpose, but is part of a "cult complex";

· Paragraphs 1-2 of Article 16 of the Federal Law on Freedom of Conscience, which enshrine the right of religious organizations to establish and maintain "religious buildings and structures", as well as guaranteeing the possibility of unhindered worship in "religious premises, buildings and structures";

· Clause 2 of Article 17 of the Federal Law on Freedom of Conscience, which grants religious organizations the exclusive right to establish organizations producing "objects of worship";

· in clauses 3 of Articles 21 and 2 of Article 22 of the Federal Law on Freedom of Conscience, regulating the possibility of gratuitous transfer of "religious buildings" to the ownership of religious organizations;

· Part 1, paragraph 2, of Article 24.1, which allows for the unhindered implementation of missionary activities in "religious buildings, buildings and structures."

The analysis of the above legal norms allows us to identify the following patterns:

· the objects of each type of property can be both movable and immovable things;

· real estate for worship purposes is on the property balance of religious organizations and has property immunity;

· objects of property of "liturgical purpose" are at the same time property of "religious" purpose. Thus, the categories "liturgical" and "religious" relate as private and general. At the same time, any object of worship has a religious purpose by its very nature.;

· As a rule, the legislator refers to immovable things (buildings, structures, complexes) as objects of "religious" purpose. Only clause 2 of Article 17 of the Federal Law on Freedom of Conscience stipulates the exclusive right of religious organizations to establish organizations that produce, among other things, objects of "religious purpose."

It can be seen that the concept of "cult property" is quite broad and does not have a legal substantive burden, which determines the complexity of regulating relations regarding such objects.

In Ozhegov's Current Dictionary, the term "cult" is defined, in a religious context, as "service to the deity and the rituals associated with this action" [9. p. 1360]. Consequently, religious immovable objects should also be created and used for liturgical and practical purposes.

At the same time, it is not possible to talk about a complete identity between objects of "liturgical" and "religious" purpose due to the specific position of "liturgical" objects, expressed in their withdrawal from civil law circulation. In addition, one of the most important features of real estate for liturgical purposes is its presence on the property balance of religious organizations. For example, religious cemeteries, being cultic in nature and being a place where, by virtue of paragraph 7, paragraph 2, Article 16 of the Federal Law on Freedom of Conscience, divine services and other religious rites (for example, memorial services or funeral services) can be performed unhindered, nevertheless cannot be characterized as objects belonging to the group property for liturgical purposes, from the point of view of the legislation of the Russian Federation, since in the Russian Federation religious organizations do not have the authority to dispose of cemeteries.

The above considerations allow us to conclude that a group of "cult" objects may or may not be part of the property of "liturgical" and "religious" purposes. For example, ruined church buildings that are not on the property balance of religious organizations, having a religious and religious purpose, are not actually "liturgical" objects, although it is obvious that their initial construction was aimed specifically at performing divine services in them. On the other hand, boiler houses and other outbuildings that are not religious a priori can be recognized as objects of religious purpose, as auxiliary immovable structures that ensure the material activities of religious objects, and (or) included with them in a single immovable temple, monastery and other religious complex.

The above allows us to draw the following conclusions:

· religious immovable objects are immovable objects intended for their exploitation for religious purposes, regardless of their owner;

· Religious property includes property for "religious" and "liturgical" purposes, as well as other religious sites, such as religious cemeteries.

Conclusion

Thus, summing up the results of this study, the following conclusions can be formulated:

· Modern Russian legislation defines the concept of "religious property" (Clause 1, Article 2 of Federal Law No. 327-FZ). Immovable property for religious purposes is limited (less often seized) in civil law circulation, which is mainly expressed in the possibility of its exploitation solely to achieve the statutory objectives of religious organizations (Clause 4, Article 213 of the Civil Code of the Russian Federation), transactions with it only with the consent of a higher church-institutional body (Clause 1, Article 21.1 of the Federal Law on freedom of conscience), the impossibility of its privatization (Clause 2.1 of Article 3 of Federal Law No. 327-FZ);

· Among the objects of religious purpose, the narrowest legal category is "property of liturgical purpose." With respect to objects of liturgical purpose, religious organizations have special legal capacity, which is determined by the use of such property exclusively in carrying out liturgical activities, its property immunity (paragraph 2 of Article 123.28 of the Civil Code of the Russian Federation; paragraph 5 of Article 21 of the Federal Law on Freedom of Conscience), as well as the possibility of its location only in state, municipal, and religious organizations (paragraph 2, art. 21.1 of the Federal Law on Freedom of Conscience). The group of immovable objects of property for liturgical purposes coincides with the group of sacred objects of the ecclesiastical legal classification (with the exception of cemeteries that do not have a liturgical purpose according to the letter of secular legislation);

· the immovable property of the liturgical purpose is a part of the property of the religious purpose;

· religious real estate includes immovable objects of "liturgical" and "religious" purposes, as well as other real estate objects (for example, religious cemeteries). The sign of cultishness characterizes, first of all, the sacred nature of things, however, the term itself currently does not contain any legal content. The group of religious immovable objects includes both sacred and ecclesiastical items.;

· the group of religious real estate objects is not identical to the group of immovable church objects, which is explained by the following. The group of immovable objects for religious purposes may include both sacred and ecclesiastical immovable objects. In turn, immovable sacred objects, with the exception of religious cemeteries, constitute a group of immovable objects for liturgical purposes. Meanwhile, the group of church immovable objects does not include sacred immovable objects (that is, immovable objects with a liturgical purpose). Otherwise, it would mean that it would be impossible to determine the punishment for sacrilege in relation to sacred and ecclesiastical things.;

· Defining concepts and classifying the property of the Russian Orthodox Church is impossible without taking into account its internal regulations, as well as the proper level of church culture.