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§2.1. The Freedom of worship and creeds as object criminally-right protection: concept, its maintenance and volume

As it was already marked, according to ч.2 item 1 UK the Russian Federation, the Code is based on Constitution of the Russian Federation both the conventional principles and norms of international law which recognise a freedom of worship and creeds natural and integral.

All certificates provide «the right to freedom of thought, conscience and religion» which, in turn, includes "freedom" to have, extend etc. « Religion or belief ». Separate norms provide« the right to freedom of belief »which"freedom"them is to have, adhere, extend. The constitution of Russia, as well as the Constitution practically any foreign state (see Chapter 1) guarantees a freedom of worship, a freedom of worship. Given freedom include the right to profess individually or together with others any religion or not to profess any, freely to choose, have and extend religious and other belief and to operate according to them [299]. That is« freedom "includes" the right »on certain actions. Besides, the Constitution fixes thought and word freedom, the truth, not explaining, they consist in what rights [300]. The compulsion interdiction to expression of the opinions and belief or refusal of them [301] is guaranteed.

Let's notice, that, category definition «freedom of worship, freedoms of worship» is the question at issue which practically has been not studied in a science of criminal law. In a constitutional law the freedom of worship is understood by the majority of scientists or is exclusive in connection with a freedom of worship, or and at all as its synonym. As a rule, the given concepts mix up. Though, proceeding from literal and formal interpretation of norm according to Russian rules - a freedom of worship and creeds not is same as they are divided by a comma. The constitution speaks about «other belief», and not just religious. The word "including" speaks only about examples, that is, the freedom of worship and creeds is not limited only to that list of displays which are specified in Constitution article 28. It is possible to draw a conclusion on consideration of a freedom of worship and creed as two interconnected, but independent freedom. Freedom of worship - one of versions of a freedom of worship. In this connection there is a question - for what its allocation in the text is necessary? Not clearly, why freedom to adhere to any economic, political convictions is not reserved separately, for example. In the federal legislation as developing and providing realisation of positions of the Constitution, certainly, rationally such isolation of religion, but hardly it is pertinent in the Constitution.

To these questions the set of scientists addressed. Very little from them represent a criminal law science (about what more low). Constitutionalists, basically, mix the given concepts. For example, M.V.Baglaj specifies, that «the freedom of worship is understood as human rights how to believe in God according to the doctrine of this or that religion freely chosen by it, well the atheist, i.e. Not to believe in God» (the spelling is kept - a comment of the author) [302]. Besides narrowness of the presented definition, it would be desirable to note also, what not any religion means belief in "god (gods)" - for example, the personified god is absent in the Buddhism, dzhajnizme, konfutsianstve.

The persons practising given religions, it is possible to name atheists (literally - from and - "without" + Gso ^ - "god").

Similarly O.V.Brjantseva considers, that "Concept" conscience »is the key term opening the maintenance of the granted right (the right to a freedom of worship and creed),« as it is connected with concept of religion it is communication has provided transformation of this moral category in legal »[303]. That is, in that case, at the person not religious, according to the author,"conscience"is not present. Further, the truth, O.V.Brjantseva comes to conclusion, that the constitutional law on a freedom of worship« is multidimensional concept, the elements defining the options, propagation are included in its maintenance, actions according to the belief, including according to the relation to religion, and also the right to tolerance from the state and the persons adhering to other belief »[304]. Recognising as a part of a freedom of worship not only a freedom of worship, the author nevertheless especially allocates it, and further in the work considers a freedom of worship exclusively as its display in a freedom of worship.

Z.S.Terloev adheres to practically similar point of view, specifying, that «at a modern historical stage the freedom of worship is necessary for considering in a broad sense: not only as independence of the person in a choice of the relation to religion but also as possibility and ability of the person to make own choice, to bear responsibility for the actions according to conscience to define the relation to outlook and religion problems including» [305]. Thus the author includes in a category "freedom of worship" of 6 rights connected with religion (to profess, not to profess, change religion to lead atheistic or religious propagation, and also equality of the rights of citizens without dependence from their relation to religion) and only one "general" right - on a free choice of world outlook belief as a whole »[306].

It is interesting to notice also, that some authors consider "freedom of worship" and in a broad sense - as freedom of belief in general, and in narrow - through a prism of the relation to religion [307 [308]. It is thought, the similar opinion, no less than mixture of concepts "freedom of worship" and "freedom of worship", could be justified in the past when the religion played society lives an essential role, was for everyone something self-evident, and the share of atheists in the world was not so high. Now, in a century scientifically - technical progress, enormous development of human reason, and also essential increase in a share of atheists and агностиков313, it is time to depart from the given position. The federal legislation on a freedom of worship should cease to be connected especially with religious displays of outlook. The law «About a freedom of worship and about religious associations» actually not about "freedom of worship", it regulates exclusively questions of realisation of "freedom of worship". S.A.tall weeds has truly noticed, that in such situation «the priority is given to religious associations, instead of the person which becomes« an appendage »faiths. The right« everyone »on a freedom of worship remains in the legal system only as the declaration, actually being out of a legal field» [309].

The author's term «religion freedom» enters A.V.Pchelintsev. It specifies, that that is «a part more the general constitutional category« a freedom of worship », covering all spectrum of the world outlook rights and freedom». The Freedom of worship, according to the author, is «wider concept and includes a freedom of worship (religions), freedom of belief, and also the right to disbelief, scepticism and atheism». The author includes In the maintenance of freedom of religion «a complex of the individual religious rights and freedom realised by the person independently, and a complex of the collective religious rights and freedom, realised by the person together with other persons and constituting an integral part of system of the general permissions» [310]. The author of the given research shares A.V.Pchelintseva's position concerning a parity of concepts "freedom of worship" and "freedom of worship", however, on their definition has other point of view (about what more low).

At all without communication of "freedom of worship" with religion N.J.Terjatnikov manages. The author specifies, that «the freedom of worship is fundamental slozhnosostavnoe the natural right of the first generation belonging to each person owing to a birth and presented in the form of personal liberty of the individual in sphere of its outlook, and also the behaviour based on this outlook to which implitsitno correlates a duty povedencheski the tolerant relation to admissible the right to freedom of all other persons» [311].

Even more radical and worthy, partially divided by the author of the present research of sights E.V.Tikhonov adheres. It specifies, that «at a concept formulation« institute of a freedom of worship and creed »term use« religion »is not admissible.« The outlook »which value is represented more capacious, substantial and reflecting modern lines in the right» [312] is necessary to replace the given term with the term. Institute of a freedom of worship and creed E.V.

The body of laws suggests to define Tikhonov, how «, regulating public relations in human rights sphere to accept or not to accept, freely to choose, change, extend and express any world outlook systems, not being exposed to discrimination from the state and a society» [313].

"Sistemoobrazujushchim" as the right »in all system of human rights the freedom of worship is considered by S.A.tall weeds. He notices, that that shows« a basic inalienable law of everyone to satisfaction of the world outlook requirement giving sense to existence on the basis of a free world outlook choice, and also the lawful behaviour based on the mentioned choice without restriction in other civil rights and freedom or their loss »[314]. The right is included In the maintenance of given freedom individually« and-or together with others freely to form, choose, change, extend belief and to operate according to them, not restraining freedom and personal advantage of others »[315]. The author absolutely fairly notices, that the freedom of worship is« freedom basis as that, sistemoobrazujushchim the right in system of human rights.... Without due realisation of a freedom of worship all system of human rights is subject to threats. Violation of a freedom of worship is accompanied by increase of risks of transition to uncontested political system, to avtoritarizatsii the authorities, to mass infringements of human rights, to growth of xenophobia, intolerance, discrimination and violence on their soil »[316].

In a criminal law science there are very few works devoted to crimes against the rights and freedom of the person and the citizen in general, and freedom of worship and creeds in particular. For example, it is necessary to note work N.I.o. Amrahova, considering the rights and freedom of the person and the citizen as object criminally - a right protection [317]. The author connects understanding of the rights and freedom exclusively with konstitutsionno-legal interpretation, and does not give their definition how object of protection [318]. Fundamental laws and freedom it are understood «as the most important rights and freedom of the person and the citizen, freedom opening state of nature and having guarantees of the higher legal protection». The list of those N.I.o. Amrahov defines, proceeding from item 17 maintenance, 20-29 Constitutions [319]. The Freedom of worship and creeds is narrowly interpreted by the author «as the human rights to believe in God, according to the doctrine of this or that religion, well the atheist, i.e. not to believe in God. . The Freedom of worship means human rights on a choice of the religious doctrine and unobstructed departure of cults and ceremonies according to this doctrine »[320].

In L.G.Machkovsky's devoted to crimes against constitutional laws and freedom thesis for a doctor's degree, also there is no definition of those through an object prism criminally-right protection [321]. And creed the author considers the Freedom of worship in connection with the relation to religion [322].

A.S.Kurmanov in the research of the criminal legislation of Russia about protection of constitutional laws and freedom of the person does not differentiate concept «object criminally-right protection» and «object of a crime» as which he traditionally understands «public relations» [323]. Direct object in item 148 UK the Russian Federation (in red. For 2011) the author considers «public relations in sphere of realisation of the religious rights and freedom of the person guaranteed by item 28 of the Constitution» [324]. A.S.Kurmanov fairly specifies, that the criminal law does not protect somehow the law of persons, not practising any religion; and also the rights arising not in connection with religious sphere of ability to live, and with other forms of realisation of outlook.

P.V.Bahmetev in the work directly does not speak about object ugolovnopravovoj protection, and specifies only in object of a crime. The author considers, that the acts provided ч.1 and ч.2 item 148 UK the Russian Federation, «encroach not on the rights of the concrete person and the subjective blessings belonging to it, they break the public relations developing in sphere of a public order and public morality concerning the valid and tolerant relation to any religion... In this case it is possible to recognise as the Protected blessing public peace and public morality» [325].

N.V.Kazantsev offers «under a freedom of worship as object criminally-right protection to understand the natural death defined by possibility of a free choice by the person of realisation of the behaviour in a society, based on religious and other feelings, by fulfilment of actions, acts, distribution of own religious and other sights and the belief which are not dependent on opinion of other persons, thus not breaking other rights and freedom of other citizens» [326]. However, the made definition, in our opinion, in bolshej to a measure reflects the konstitutsionno-legal nature of a freedom of worship, rather than considers that as object criminally-right protection. Besides, the use of not explained category of "religious feelings» (about what see more low) is hardly admissible.

At all respect for the specified opinions, there are no bases to agree with one of them. It is thought, that under "freedom of worship" as object criminally-right protection (instead of a konstitutsionno-legal category, though and in connection with it) it is expedient to understand the blessing consisting in possibility guaranteed to everyone person (that is the right) distributions and expressions of any outlook, and also actions according to it within the limits of the law. Possibility intentionally is not included in the made definition «to choose, have and change world outlook systems» as it is a question of exclusively internal cerebration of the person, not having external display, and, hence, not having value in the right. To a freedom of worship, including (but not being limited to that, proceeding from Constitution close interpretation), freedom of not religious or religious outlook will concern. The freedom of worship, in turn, concerns the last (that is - freedom of confession of religion, as existence of the term "belief" not expediently in the legislation [327]) - the possibility (right) guaranteed to everyone person to practise any religion in any ways not forbidden by the law. It is possible to understand reckoning by the person of as «religion confession» to this or that religion, shown through fulfilment of religious practices, religion training, religious education, distribution of the doctrine, creation of religious associations and (or) participation in their activity, and also fulfilment of other actions dictated by an accessory to this or that religion (for example, regular military service replacement in army alternative civil service, etc.). In the made definition, besides, namereno it is not included positions about any internal installations of the person as they have no external expression and, hence, value in a legal field.

It is necessary to notice, that, unlike the international legislation, Russian has express indication on the right not to practise any religion whereas in international law that is meant within the limits of the right to operate according to "belief". However, it is possible to assume, that the given fact is connected by that the Constitution of Russia does not provide in separate article anything like «freedom of belief», unlike international law. In the Constitution of "belief" of any sort (not only religious) correlate with a freedom of worship. Separately thereupon the interdiction for compulsion to «to expression of opinions and belief or refusal of them» in ch is provided only. 3 items 29.

Thus, the concept maintenance «freedom of worship and creeds» characterise such signs, as the relevancy to the guaranteed each person to the blessing; and the possibility connected with it freely to extend, express any outlook and to operate according to it within the limits of the law. The wide list of the rights is included in concept volume: to practise any religion, not to profess any, to extend and express any social, political, economic, other sights and to operate according to them.

Let's notice also, that in the international legislation «the right to freedom of thought, conscience and religion» consisted in "freedom" to operate definitely. The Russian legislator «» opens a freedom of worship, a freedom of worship through the list of the given rights. Thereupon it is necessary to differentiate "right", "freedom" and «the right to freedom». With reference to the characteristic of last term, proceeding from its standard fastening, the author of the given research expresses solidarity with F.M.Rudinsky's point of view which defined «the right to freedom» as a legal embodiment that [328]. In the Constitution of Russia it is a word-combination it is used only with reference to maintenance of physical freedom of the person [329].

The international documents considered in Chapter 1 fix in the identical image in themselves set of "rights" (the right to life, the property, participation in a state administrative office, freely to move, on a legal personality recognition, rest, the introduction into marriage etc.). "Freedom" communicate only with «the right to freedom of thought, conscience, religion», and «the right to freedom of belief»: the granted rights include the certain list of freedom - «freedom to change the religion or belief and freedom to practise the religion or belief both individually, and together with others, public or private order in the doctrine, divine service and performance of religious and ritual ceremonies»; «freedom free to adhere to the belief and freedom to search, receive and extend the information and ideas by all means and irrespective of frontiers» [330].

Probably to assume, that "right" unlike "freedom" [331] in the international legislation is a category more concretised, it is accurately certain possibility to make certain actions or not to make them. «The right to freedom of thought, conscience, religion; belief» means legally guaranteed possibility of the person to make own choice in the intellectual activity. Such right includes "freedom" of external display of this choice - that is variations of actions, their wide range which cannot be outlined with clearness in view of specificity of a subject of regulation - thoughts, conscience, religion, belief. In Russia the legislator also gives the wide list of the rights (for a life, work, a private property etc.) . In the same communication, as in international law, garantirovanno not «the right to freedom», and "freedom" of conscience, creed [332]; thoughts and words [333]; creativity [334]. The freedom of worship, a freedom of worship are concretised through not closed list of the rights only. «The right to freedom» in the Constitution is provided only in aspect of its physical display [335].

Let's notice, that on a parity of "rights" and freedom »in a science there are various points of view. Frequently concepts are considered as synonymous [336]. The author of the present research, taking into account necessity of literal and formal construction of statutes, considers possible to agree with opinion of the researchers believing, that« the term "freedom" urged to underline more ample opportunities of an individual choice, not outlining its concrete result »... While the term"right"defines concrete actions of the person (for example, the right to participate in a state administrative office, the right to select and be the selected works)» [337]. A.N.Kokotov adheres to a similar position, specifying, that «the right is mainly connected with maintenance of natural qualities of the person (the right to life, inviolability of a private life, etc.), concrete action (the right to participate in a state administrative office and so forth) Instructions of the certain subject ("everyone", «citizens of the Russian Federation», etc.). The Personal freedom co-ordinates with the competences outlining sphere of independence of the person or protecting from intervention in its private world »[338] more often. Certainly, given concepts are close on the essence, have equal value in the characteristic of a legal status of the person, equal ways of maintenance and protection, however, a little various maintenance.

Briefing stated, it is necessary to underline, that, according to the Constitution of Russia, after international law, the blessing which is coming under criminally-right protection, the freedom of worship should be, one of which versions is the freedom of worship. Protection should be provided by means of an establishment of responsibility for hindrance to lawful forms of realisation of the right to a freedom of worship [339].

In current UK the Russian Federation the criminal liability for infringement, on a plan of the legislator, the right to a freedom of worship and creeds is provided in item 148 UK the Russian Federation, with the name with the same name. We will notice, that from the moment of Criminal code acceptance in 1996 and up to June, 29th, 2013 of item 148 UK the Russian Federation provided responsibility for illegal hindrance of activity of the religious organisations or to fulfilment of religious practices, and was called «Hindrance to realisation of the right to a freedom of worship and creeds». For seventeen years article disposition sanctions did not vary, changed only, and that is insignificant [340]. As already there are very few the scientific works devoted to crimes against constitutional laws and freedom in general, and to hindrance to realisation of the right to a freedom of worship and creeds in particular. For example, it is possible to name E.V.Shevkopljas's work. In 1999 the author, putting orthodox religion in the Russian leader [341] and vastly enough arguing on «religious safety» [342] and «spiritual immunity» [343], has suggested to add the criminal law, including, with article 141 UK the Russian Federation - "Blasphemy", which in ch. 1 provided punishment in the form of the penalty to 6 MRZP for «the insult of religious feelings of believers which was expressed in public mockery over belief or its symbols» [344]. Besides, it offered to alter a disposition ch. 1 items 282 UK the Russian Federation [345], with inclusion in it of a sign of an orientation of actions on humiliation of religious advantage or the insult of religious feelings of believers [346]. According to the author, it is necessary for «maintenance of appropriate legal base real (instead of declarative) protections of human rights in modern Russia». However the attention most part in the work the researcher has devoted so-called to "destructive cults» [347].

Other not numerous researchers of crimes against constitutional laws and freedom of the person and the citizen marked «necessity of maintenance of definiteness criminally-rules of law, reduction of a role of estimated signs» in sphere of protection of fundamental laws and freedom of the person [348]; together with imperfection of item 148 UK the Russian Federation which are not providing responsibility for compulsion to fulfilment of certain actions, hindrance or compulsion to the introduction into religious association [349]. The requirement for an establishment of responsibility for illegal hindrance of activity of atheistic associations of [350] and religious groups [351] was marked also.

In the educational literature published till 2013, also it was absolutely fairly specified, that «contrary to the name of item 148 UK the Russian Federation its disposition does not provide hindrance to realisation of the right to a freedom of worship, in particular, does not provide hindrance to right realisation to be the atheist; compulsion of the non-believer to performance of religious practices cannot be qualified under given article that is a lack of the specified norm....v item 28 of the Constitution of the Russian Federation is proclaimed a freedom of worship and creeds« to everyone », and not just to the groups of the people which have created association. Besides, compulsion of separate persons to refusal of confession of certain religion and on the contrary, that is obvious infrigement of the constitution, the criminal liability under item 148 UK does not attract» [352]. It was noticed also, that

Hindrance of activity of the religious organisations is admissible only in case of their official registration and legality of actions [353].

Now article 148 UK the Russian Federation is renamed in «Breach of law on a freedom of worship and creeds», and on ч.1 provides responsibility for «the public actions expressing obvious disrespect for a society and made with a view of the insult of religious feelings of believers». Before to start the detailed analysis, it would be desirable to notice, that the Russian law speaks about «the insult of feelings» not for the first time - as has been found out, responsibility for «the insult of feelings and belief of citizens in connection with their relation to religion» was provided in edition of the Criminal code of 1993. To 29.06.2013 years «the insult of religious feelings of citizens» was considered as administrative violation [354].

Even regardless to «the insult of feelings of believers», in Russia there are very few the scientific works devoted criminally-right protection of constitutional laws and freedom, including - freedom of worship and creeds. Article 148 UK the Russian Federation in edition from 29.06.2013 and at all is partially mentioned only in two proceedings [355]. Probably, it is connected with recent acceptance and complexity of the analysis of the disposition which are not answering to criterion of legal definiteness. The scientific works devoted directly to "the insult of religious feelings of believers», no. For example, N.V.Kazantsev in the research (devoted, the truth, mostly to the prevention of corresponding crimes) fairly specifies that «protection of the rights of believers in the absence of equivalent protection of the rights of non-believers - infringement of the rights of citizens» [356]. For the decision of the given problem it addition ч.1 item 148 UK the Russian Federation instructions on «the insult of feelings of the persons having other belief» [357] is offered. However such way hardly it is possible to consider successful as still remains not clear, that such "feelings" and as it is possible to offend them. Besides, the author does not explain, whom is admissible to consider as "believers" and what to understand as «other belief» - whether only not religious (judging by a dichotomy «believers - others»), or also abilities to live carried to other spheres. In detail N.V.Kazantsevoj the corpus delicti provided by item 148 UK the Russian Federation, is not analyzed.

G orazdo there is more than attention to "the insult of feelings of believers» in the work has given P.V.Bahmetev. The author has fairly noticed, that «the law cannot protect feeling of some category of citizens in a kind of the extremely subjective maintenance of this phenomenon. Moreover, protection of religious feelings (even if to reject all complexities connected with definirovaniem of this concept) grows together with religion protection as that, that cannot be myslimo in the secular state what, according to the Constitution, Russia» [358] is. However, P.V.Bahmetev does not consider necessary to bring norm into accord with the Constitution. According to the author, «acts encroach not on the rights of the concrete person and the subjective blessings belonging to it, they break the public relations developing in sphere of a public order and public morality concerning valid and tolerant to any religion which doctrines do not contradict the Constitution of Russia and the country legislation» [359]. So structure transferring in G a lava 25 UK the Russian Federation, with some modifications is offered.

For example, the author specifies in necessity of an exception of the text of the law of such category of victims as "believers", fairly specifying, that «the recognition of eyewitnesses of similar acts or other believers victims from a crime is unreasonable» [360]. The objective party of a crime, according to P.V.Bahmeteva, represents «the public gross violation of a public order accompanied by defilement of constructions and subjects of religious appointment, the insult of doctrines and the belief ceremonies, expressing obvious disrespect for a society, not accompanied by violence application, threat of violence or property destructions in the large size. All these actions are consolidated by a sign of the disrespectful relation accordingly to sacral subjects, an assembly of gods and sacred, and also to ceremonies and church rules».

At such statement of a question on character of act which the author suggests to include in UK the Russian Federation, should please instructions at least that «the disrespect expressed in not public actions, or the actions which are not causing harm to a public order, expresses a personal position of the subject, acts as display of its internal freedom guaranteed by the Constitution of the Russian Federation, and it can not be considered as criminal behaviour, at least this behaviour and caused disapproval of those or other persons, at least it contradicted historical or other traditions» [361].

It is interesting and the offered characteristic of the subjective party, in aspect of comprehension by the subject of abusing «own right to expression of ideological or religious identity. A basis for comprehension of inadmissibility of corresponding behaviour as the subject of the right to freedom of expression of religious or atheistic moods and feelings, a recognition and respect of the similar rights of other persons, respect to historical and to a country and world cultural heritage, the reasonable and standard self-restrictions on behaviour the adequate understanding serves in public places and on public, forecasting of consequences of the disrespectful and provocative relation to symbols and objects of honouring of other persons» [362].

The author fairly considers «the insult of feelings of believers» as the defective formulation, and offers following designing of structure: «Article 244.1. Public disrespect for religion. Public fulfilment of the actions expressing obvious disrespect for the maintenance of a religious cult, to rules symbolising it, subjects, ceremonies, places of their carrying out, and accompanied by public order gross violation, - is punished....» [363].

Such offer, certainly, rationally excluded of the text of the law instructions on «the insult of religious feelings» and "believers" is thought, that, it is impossible to consider to the full successful. The author has left in the law text not less estimated and indistinct categories, as «obvious disrespect» and «public order gross violation». Besides it it is necessary to notice, that punishment for similar act is provided item 20.1 KoAP the Russian Federation, and item 213 UK the Russian Federation. The author of the present research expresses serious doubts in necessity of existence of given articles, however, not subjecting on pages of the given work to the detailed analysis such legal phenomenon as "hooliganism", dares to assume, that, at least, sees inexpedient allocation as separate structure of the same "hooliganism" only showing «obvious disrespect» to a religious part of a society. In the secular state granting to the persons practising religion, preferentsy in the form of a public order in their vision as isolated object criminally - a right protection, is not admissible.

Besides, P.V.Bahmetev has not given definitions to used concepts, as that "religion", «a religious cult», «rules symbolising it», "subjects", "ceremonies", «places of their carrying out». Not clearly, what to understand as "maintenance" of a religious cult.

It is represented reasonably interesting to notice also, that instead of item 148 UK the Russian Federation P.V.Bahmetev offers addition of the code of item 147.1: « Breach of law on a freedom of worship and creeds »which as regards 1 provides responsibility for« Hindrance or compulsion of the person to acceptance of religious or other belief or refusal of them, the introduction into religious association or an exit from it, to participation in religious or other activity of religious association, carrying out of divine services, other religious practices and ceremonies, and equally illegal hindrance of religious activity of religious associations ». The part 2 - the qualified structure, includes the same acts made« the person with use of the official position; either with application of violence or with threat of its application »[364]. On pages of the present research it is not obviously possible to agree With such interpretation in view of wider understanding of"freedom of worship"as object criminally-right protection about what it has been specified above. In this case article name mismatches its maintenance as the freedom of worship object criminally-right protection, in effect, is not.

Along with dissertational researches there is a quantity of articles mentioning separate aspects of the selected theme. So, So-called Ermakova and K.N.cock within the limits of comparative jurisprudence notice, that allocation «insults of feelings believing in the Russian criminal law« can testify, on the one hand, to unreasonable toughening of the criminal law, with another - about it klerikalizatsii ». According to authors,« such approach of the legislator considerably differs from universal practice »[365]. Authors fairly notice, that« Fixing responsibility for breaches of law on a freedom of worship and creeds, the legislator should formulate as much as possible precisely criminally-rule of law, to specify in its application bar none (privileges), to avoid estimated categories and terms without instructions on their value. Otherwise the rule of law instead of a guarantee of observance of a principle of equality becomes means of eradication of heterodoxy and an obstacle for development of cultural, ideological and religious variety in a society »[366].

V.E.Bondarenko, arguing on an orientation of "the insult of religious feelings of believers», and at all considers, that is admissible to consider as object honour and advantage of the person in sphere of religious beliefs [367]. The author fairly thus notices, that, criminalising «the insult of feelings of believers», the legislator establishes the criminal liability for actions which have no legal maintenance. To understand and qualify act as offending feelings of the believing person, it is necessary to address to sources and norms of religion which describe the basic dogmas, rules of fulfilment of those or other ceremonies, behaviour rules in places of carrying out of religious ceremonies etc. However konfessionalnye norms are not a part of the Russian legal system. Therefore the understanding of the insult of feelings of believers is in sphere of value judgment and perceptions. Such situation will cause complexities in process pravoprimenenija when qualification sodejannogo depends on internal belief concrete pravoprimenitelja and «the insult of feelings of believers» will be under construction on the conclusion based on own understanding of concept. It is necessary to agree with a conclusion that such situation contradicts obshchepravovym to legality and justice principles not indisputable the offer of the author on criminalisation of the insult with a qualifying sign «on motives of political, ideological, racial, national or religious hatred or enmity or on motives of hatred and enmity concerning any social group» [368], however, is.

In uncertainty of concepts "believers" and «the insult of religious feelings» specified in E.O.Rueva's research. According to the author, «indistinct legislative formulations generate problems of correctness of qualification and awarding punishment for the actions directed on the insult of feelings of believers, and absence of equal approaches to responsibility of believers and non-believers, testifies to infringement of the major constitutional principle of equality of all before the law, positions of the Constitution that our state is secular and legal» [369]. However, thus she has suggested to alter ch. 1 items 148 UK the Russian Federation to «the public actions expressing obvious disrespect for a society and offending religious feelings of believers»; and to add with the note: « Under believing in the present article it is necessary to understand the person who is the carrier of system of sights, ideas, belief, the values, the dictated themes or other religious doctrine and promoting formation at it the religious outlook based on belief in supernatural forces, and also on corresponding behaviour and specific actions of religious character (cult) »[370]. It is thought, that the author in the given situation contradicts to itself: if the law contradicts the Constitution, is hardly admissible to offer as its"modification"insignificant change of formulations with preservation of estimated and discrimination categories.

Besides scientific, in the educational literature of detailed attention the Russian Federation, as a rule, is not given to the analysis of item 148 UK, presence of any problems in its application is not marked [371]. However, it is not obviously possible to agree with such point of view. So, the detailed analysis ч.1 item 148 UK the Russian Federation allows to allocate set of the disputable moments.

First of all, it is not obviously possible to define object criminally-right protection. On a plan of the legislator, existence of item 148 UK the Russian Federation is caused necessity of protection of a freedom of worship and creed. However, in ч.1 «religious feelings of believers» in this connection there is a natural question who concerns that appear only certain, and how many they should be, as the word is used in plural [372].

The structure on a design of the objective party is formal: the law does not provide approach of concrete harm as obligatory element essential to the offence. Act is made in the form of the action expressing obvious disrespect for a society. Not clearly, what to understand as that with reference to ч.1 item 148 UK the Russian Federation. In the Supreme Court position it is underlined, that «obvious disrespect of the person for a society is expressed in deliberate infringement of the conventional norms and the behaviour rules, dictated by desire guilty to contrast itself with associates, to show the scornful relation to them» [373]. In effect, this explanation so also has not explained anything. It is obvious, that the category «obvious disrespect for a society» is estimated, and cannot be defined with accuracy as «the conventional norms and behaviour rules» cannot be fixed anywhere, they are defined exclusively by the way of life which has developed for a long time in a certain society.

Some authors as an example result «demonstrative (in the presence of people or during mass action) destruction of religious attributes, symbolical signs or subjects, exhibiting of comical images sacred, comic representation of a certain religious image or ceremony» [374]. Hardly probable probably to agree with such interpretation as, first, not clearly, how to spend otgranichenie ч.1 item 148 UK the Russian Federation from ч.1 item 5.26 KoAP the Russian Federation. Secondly, is inadmissible to consider criminal caricatures and «comical images» in the state in which the Constitution guarantees a censorship interdiction, freedom of thought, a word and creativity.

Obligatory sign of the objective party are also conditions in which act is made. Proceeding from a disposition design, that should be made publicly. There is a question: what to understand as «public actions»? How many persons should observe made actions that act has been recognised by made publicly: two, more, than two and more? Whether Also all these persons should be "believers"? Or only some of them? In that case - how many should be "believers"? Hardly one as in a disposition the word is used in plural.

The Russian legislation does not contain accurate uniform definition of "publicity", it is understood differently in each branch of law. And, if to speak about criminal law act fulfilment publicly is an obligatory sign in many structures, for example, in item 205.2, 280, 280.1 UK the Russian Federation, and others. The Supreme Court of Russia, with reference to crimes of an extremist orientation, has specified, that «the question on publicity of appeals should be resolved by vessels taking into account a place, a way, conditions and other circumstances of business (the reference to group of people in public places, at meetings, meetings, demonstrations, distribution of leaflets, posting of posters, distribution of references by mass dispatch of messages to subscribers of a mobile communication, etc. . At fulfilment of public appeals to realisation of extremist activity by mass dispatch of messages to subscribers of a mobile communication or with use of electronic or information-telecommunication networks, including it is necessary to consider networks "Internet", a crime ended from the moment of placing of references in the specified networks of common use (for example, on sites, forums or in blogs), departures of messages to other persons »[375]. In the educational literature it is considered, that« publicity "means" fulfilment of actions in the presence of a significant amount of people (in the street, meeting, meeting, in spontaneously formed crowd, in an audience, etc.) »[376]. It is possible to count the made definition incomplete as, for example, action fulfilment in a network"Internet"does not assume real"presence"somebody. Besides, the criterion of"relevancy"is not explained. Also as"publicity"suggest to understand as conditions of fulfilment of actions -« in public a place in the presence of other people (believers, other persons who are present on religious ceremony) », and the characteristic of a way,« oposredovanno expressing their public value (for example, by secret performance in public places of obscene inscriptions, drawings.) »[377].

It is obviously possible to assume, that "publicity" can mean fulfilment of actions in a place where they can become property of an uncertain circle of persons among which it is obligatory, obviously for the person making socially dangerous acts, there should be "believing" persons (a minimum two as the word "believers" is used in plural). If the subject can limit a circle of persons which will familiarise with the information (for example, having limited access to Internet page, even having made an addition like «Believing not to read») such distribution of the information cannot be recognised by public. The subject should make publicly with the express intent actions, and deliberately wish to be heard "believing" (though and not personified), that is it should know or have good causes to believe, that they will be among public. Inadmissible absence of victims thereupon is represented at excitation of criminal cases. However judiciary practice considers differently (about what see more low more in detail). It is necessary to agree with A.G.Kibalnika's point of view which specifies, that «there is opened a question: and what and whose personal constitutional law is broken in this case? If to consider, what an obligatory sign of each crime is its social danger (injuriousness), whether it is possible to speak here about a crime (we will specify - about a crime against constitutional laws and freedom of the person and the citizen) as that?» [378].

Of fulfilment of the given act any made person who has made it which have reached of 16 years can be recognised guilty.

From the subjective party act is made with the express intent and a specific goal: to offend religious feelings of believers. There are at once some questions: what to understand as the insult, what such religious feelings whom to consider as believers [379] and how to establish, what act is made for the purpose of the insult?

Before insult decriminalization in the criminal law it was understood «as humiliation of honour and advantage of other person, expressed in the indecent form» [380]. On the person linguists and psychologists who specify, in particular, urged to solve a question on «impropriety of the form» and its influence that «for finding of fact of the insult to the expert is necessary to establish presence of linguistic signs of humiliation of honour and advantage and linguistic signs of the indecent language form of expression of corresponding data» [381]. «The indecent form» them is understood «as presence of the statements containing obscene lexicon and phraseology, that is obscene words and expressions which roughly offend public morals, roughly break norms of public decencies» [382]. It turns out, obscene words should be not simply obscene, but so obscene what to break «public morals» and «norms of public decencies». Thus remains not clear how these phenomena give in to definition.

Let's notice, that not numerous existing practice of application ч.1 item 148 UK the Russian Federation, has shown the extremely disputable and, besides, a situation contradicting the Constitution, at which negation of existence of the god experts, (and after them and court) have considered offensive for feelings of believers, no less than the use obstsennoj lexicon [383]. Besides, it will be inconvenient to establish the insult purpose as the purpose is the actual result, which subject wishes to reach by means of act fulfilment, that is it that is exclusively in its consciousness. Thus still it is necessary for "malefactor", making act publicly to know, that among public will be, apparently, a minimum two "believers", the nobility or to have good causes to assume, in what they "believe", and in certain to "the indecent form» to make act which inexplicably would offend them «religious feelings».

In this connection there is a next question - how it is possible to offend religious feelings, instead of their persons, them possessing? The disposition ч.1 item 148 UK the Russian Federation speaks about «the insult of religious feelings of believers», but not "believers". In the educational literature, however, there is a point of view according to which under «the insult of religious feelings of believers the humiliation of their advantage in connection with creed is understood, carrying out of divine service, other religious practices and the ceremonies expressed in the public form... Thus the indecent form of expression of these actions is unessential» [384]. In that case, absolutely not clearly, how is admissible to delimit ч.1 item 148 UK the Russian Federation from ч.1 item 282 UK the Russian Federation, providing responsibility for humiliation of advantage of the person or a group of persons on the basis of the relation to religion (see more low more in detail).

Thereupon it is interesting to notice also, that the initial bill provided introduction of item 243.1 by which responsibility for «the insult of religious beliefs and feelings of citizens (that is as« believers »was established, and not carrying to that - primech. The author) and (or) defilement of objects and subjects of religious honouring (pilgrimage), the places intended for religious practices and ceremonies». The Supreme Court in an official response has suggested to replace it, «as object of an encroachment to define only religious feelings of citizens» [385]. Thus, Council at the President of the Russian Federation on development of a civil society and human rights in the conclusion on the same bill has specified what be supported it cannot for some reasons, in particular, connected by that «neither the law, nor judiciary practice internal subjective experiences of one person or a group of persons cannot be used as objective criterion of an estimation of acts of other persons as it would lead inadmissible and konstitutsionno to the not proved infringement of the rights and freedom of the person and the citizen.... The act maintenance« the insult of religious feelings of citizens »has no legal definiteness, and in real conditions pravoprimenenija will have the extensive interpretation leading to infringement of the rights and freedom of persons, which actions, including within the limits of realisation of constitutional laws and freedom (freedom of speech, freedom of creativity, a freedom of worship etc.) Can hypothetically be treated as offending feelings of separate citizens or groups of the citizens allocated on the basis of the relation to religion »[386].

In the given kind the bill really has not been accepted, but, nevertheless, the norm about «the insult of religious feelings» has been kept. Thereupon it is necessary to reflect that such notorious «religious feelings». We will notice, that interpretation of the given term with reference to disposition requirements ч.1 item 148 UK the Russian Federation causes difficulties even at religiovedov, whose problem, actually, and there should be an analysis of those at a summer residence of the expert judgement [387].

Modern religiovedami they are defined as «the emotional relation of believers to recognised objective to beings, properties, communications, to sakralizovannym to things, persons, places, actions, to each other and to to itself, and also to is religious to the interpreted separate phenomena in the world and to the world as a whole». Authors concretise, that «not it is possible to consider any experiences religious, but only what are soldered to the religious

Representations, ideas, myths and owing to it have got the corresponding

393

Orientation, sense and value »[388].

Other authors define religious feelings as «the experiences of people caused by religious representations» which differ from usual human feelings only the orientation on the supernatural: love to the God, fear of divine punishment, pleasure bogoobshchenija etc. [389]). A.J.Grigorenko adheres to the similar point of view, specifying, that «various human emotions - the fear, love, hope, disappointment etc. - play a huge role in occurrence of religious belief, in lives of the religious person. However these feelings, emotions and experiences get religious character only in case of connection with religious belief in supernatural, with belief in a reality of supernatural transcendental forces» [390].

Being, certainly, common for religious studies, the concept of "religious feelings» is inadmissible in jurisprudence as to make the accurate legal definition possessing established external signs in the given situation basically it is impossible. The category of "religious feelings» is not legal, it cannot be accurately and is clearly formulated, it something uncertain, inadmissible in the criminal law text. The use of the given term breaks rules of legal technics which clearness says about necessity «, simplicity of application and understanding of terms; inadmissibility of use in the text of the document of not clear, multiple-valued and indistinct, emotionally sated terms» [391]. The author makes common cause to the full with A.G.Kibalnika's position which specifies, that «full legal uncertainty the disposition sign ч.1 item 148 UK the Russian Federation, namely -« the religious feelings, which purpose of the insult possesses «key»

397

Constitutes "salt" of a considered criminally-legal interdiction »[392].

Thereupon, we will notice, that application practice ч.1 item 148 UK the Russian Federation is not numerous. According to Judicial department [393] at the Supreme Court, in 2013 nobody has been condemned [394]; in 2014 - one person on ч.1 item 148 UKRF [395]; in 2015 - one person on ч.1 and one - on ch. 2 items 148 UK the Russian Federation [396]; in 2016 - only 5 persons on ч.1 item 148 UK the Russian Federation [397]. For 2017 - 4 persons on ч.1 item 148 UK the Russian Federation and 1 person on ч.2 item 148 UK the Russian Federation [398]. Total: 11 sentences on ч.1 item 148 UK the Russian Federation, and 2 sentences on ch. 2 items 148.

As the brightest illustration of inadmissibility of existence ч.1 item 148 UK the Russian Federation in operating edition, is admissible to result resonant so-called «Sokolovsky's business». On May, 11th, 2017 the Top-Isetsky has been pronounced by regional court of of Ekaterinburg a sentence in the relation blogera R.G.Sokolovsky convicted on ch. 1ст. 148 (7 episodes), ch. 1 items 282 UK the Russian Federation (9 episodes). It was sentenced to 3,5 years of imprisonment conditionally, with a trial period by 3 years then the Sverdlovsk provincial court has lowered the penal term. Business «the hunter pokemonov» has received wide publicity in mass media, including foreign [399].

To R.G.Sokolovsky it was made, that in nine videoclips placed on site Youtube.com, it has admitted statements, «directed on hatred or enmity excitation, and also on humiliation of advantage of the person and a group of persons to signs of a nationality, the relation to religion, and is equal to an accessory to any social group» [400]. Originally also the fact «catching pokemonov» indoors «the Temple-monument on Blood for the sake of All sacred, in the earth Russian lighted up», has received the qualification on ch. 2 items 148 UK the Russian Federation which has not proved to be true during session of the court.

In seven of nine videoclips the statements expressing obvious disrespect for a society, made with a view of the insult of religious feelings of believers »have been admitted«. In everyone thus there were signs of excitation of hatred or enmity, and is equal humiliations of advantage of a group of persons to national, religious and social signs. In the same cases the court has considered, that Sokolovsky's actions form ideal cumulative offences: the same statements simultaneously comprise signs and structure ч.1 item 282, and ч.1 item 148 UK the Russian Federation.

By sentence from May, 11th, 2017 it has been recognised, that R.G.Sokolovsky's fault in the insult of feelings of believers is shown through:

«- Negation of existence of the God;

- Negation existence of founders of Christianity and Islam - Jesus Christ and prophet Muhammada;

- Derision of significant religious instructions and ceremonies of Moslems;

- Representation and Jesus Christ investment with quality pokemonov, as heroes not only a computer game and an animated serial, but also representatives of a bestiary of the Japanese mythology, and also qualities of the revived dead person - the zombie »;

- Investment of the head pomestnoj orthodox church - patriarch Cyril - qualities of humiliating, pejorative character »[401].

That is, it is necessary to come to conclusion: not religious outlook and its public display offends feelings of believers and admits Russia criminal. It is thought, that fact does not require the explanatory, that in the secular state in which all rights and freedom of the person recognised as international law are guaranteed, such situation is inadmissible, as is infringement as equality principle, and is right not to practise any religion.

Also it is necessary to notice, that any witness interrogated during examination during trial from charge (during the period since 14.03.2017 for 17.03.2017) could not answer a question of the party of protection on «religious feelings», and also explain, on the basis of what they consider themselves as "believer", and how which «religious feelings» have been offended"[402]. Any of them thus has not been recognised by the victim. The charge party also has not explained the given moments in the bill of particulars, they have found reflexion and in a sentence. It once again confirms all, that present edition ч.1 item 148 UK the Russian Federation contradicts laws of logic and rules of legal technics, comprises not explained estimated categories, contradicts norms of international law and the Constitution.

Continuing the analysis pravoprimenitelnyh certificates, we will notice, that the first on ч.1 item 148 UK the Russian Federation in its new edition was a sentence to the inhabitant of Izhevsk condemned of 21.08.2014 years to obligatory works. It has placed on the page in a social network "VKontakte" the facsimile which contains «the information directed on the insult of religious feelings of believing (Moslems)». In session of the court the defendant to fault in committing a crime recognised partially, having specified, that had no intention to offend someone. But, as already it was specified earlier, the intention of the person should be really directed on the insult not "someone", and "something" - certain «religious feelings» [403].

In connection with the publication on the Internet of article about an icon of the Christ «the Malicious Christ» on ч.1 item 148 UK the Russian Federation have been condemned by S.A.Lazarov [404]. The court recognised as its guilty, and has appointed the penalty at a rate of 35 thousand roubles with clearing of punishment in connection with the expiry of the term of prescription of bringing to criminal liability [405]. According to appeal definition, the protection party specifies, besides inadmissibility of some proofs, on an ambiguity in an establishment of time, a place and a way of fulfilment of socially dangerous act (the Russian Federation) and also is underlined probability of fulfilment before coming into force of new edition of item 148 UK that has not been proved motive (disrespect for a society) and the purpose (the insult of religious feelings of believers) [406].

However, in opinion of court of appeal instance, S.A.Lazarova's wine it is completely proved, including, «witness's testimonies which has shown, that from the point of view of its creed article text« Malicious Christ »is offensive, offends feelings of believers, contains obvious disrespect for a society";"witness's testimonies from which follows, that some fragments of article« Malicious Christ », and also images of monsters, the comparisons used in article are offensive";"witness's testimonies according to which article for believers has offensive character";" Witness's testimonies, that for separate people article text can contain disrespect for public morals »[407]. First, not clearly, why the given persons at all them"oskorblennosti", have the status of"witnesses", instead of"victims". Secondly, witnesses in this process as if have changed for themselves functions of a consequence, court, experts and experts at once, having specified that is"offensive"from the point of view of this or that creed.

Besides, the court refers to the expert judgement, according to which in article text «Malicious Christ» the author «... Has not shown due objectivity and impartiality, and, on the contrary, has stated the point of view prejudicedly in relation to Judaic and Christian religions, and also in relation to the Jewish nation and to the Moscow Patriarchy of Russian Orthodox Church. In the text such language means as lexemes (« the murderer "," a narcissus-oligofren "," the tyrant "," it is ruthless »), word-combinations (« zhidovsky the batja-chastener »moulding ugly creatures») and offers («Any other variant - from a Satan are used. As the standard of" other variant »always take MT RPTS - will not be mistaken";"JAhve tries on Jesus";" The Christian world continues to worship to the Creator. Its vile essence appears through a mask of the Christ which he has pulled on itself(himself) ») for formation of characteristics to Judaic, Christian religions, the Jewish nation, the Moscow Patriarchy of Russian Orthodox Church... In the materials presented on research, there are signs of rendering of psychological influence on readers. In the text statements which can promote excitation of religious and national hatred or enmity» [408] contain. Such expert conclusions taken by court as a principle of a verdict of guilty, once again show, that at pravoprimenitelja there are difficulties in differentiation ч.1 item 148 and ч.1 item 282 UK FR.

Two inhabitants of the Kirov area in a special order have been sentenced to obligatory works on ч.1 item 148 UK the Russian Federation for stuffed animal placing on poklonnom a cross established in village the Old Robin of Vjatskopoljansky area of the Kirov area on open district about a motorway. Besides the inscription has been put on a cross «Allah Akbar Death Incorrect» [409]. Probably, it would be more pertinent to speak about the administrative violation provided ch. 2 items 5.26 KoAP the Russian Federation - deliberate public defilement and damage of subjects of religious honouring, signs or emblems of world outlook symbolics and the attributes [410] which formulation, however, also causes weight of objections.

Thereupon, there is a question on differentiation of administrative and criminal structure. So, ч.1 item 5.26 KoAP provides administrative responsibility for «hindrance to realisation of the right to a freedom of worship and a freedom of worship, including acceptance of religious or other belief or refusal of them, the introduction into religious association or an exit from it». Is admissible to correlate it with ch. 3 items 148 UK the Russian Federation - «illegal hindrance of activity of the religious organisations or to carrying out of divine services, other religious practices and ceremonies». It turns out, that the legislator considers answering to a social danger sign only such hindrance of realisation of the right to a freedom of worship and creeds which is connected with activity of the religious organisations and departure of ceremonies. Other forms (including - all forms of individual realisation of the rights) are considered socially harmful. I will notice, that hindrance of realisation of a freedom of worship as is considered that only administrative violation, but not a crime. Not clearly, on what basis differentiation and why the legislator considers one rights as subjects criminally-right protection is spent, and others - are not present.

Complexities arise with differentiation ch. 2 items 5.26 KoAP and ch. 1. Item 148 UK the Russian Federation. Not clearly, when "defilement" of subjects of religious honouring is punishable in itself administratively and when it already offends «feelings of believers». Besides, it is not explained, that there is "defilement", and what "subjects" mean. That fact, that KoAP does not establish as an obligatory sign presence «obvious disrespect for a society» does not clear up a situation, taking into account that criteria "javnosti" "disrespect" are not clear.

It would be desirable to notice, that is rather problematic to delimit not coming under to an adequate estimation and application structure of that are considered as though "adjacent" with it. Thus, before modification of item 148 UK the Russian Federation [411], in the initial edition ч.1 item 5.26 KoAP also provided responsibility for «hindrance to realisation of the right to a freedom of worship and a freedom of worship» [412], and ch. 2 up to 29.06.2013 - for «the insult of religious feelings of citizens or defilement of subjects esteemed by them, signs and emblems of world outlook symbolics» [413].

Continuing the analysis of sentences on ч.1 item 148 UK the Russian Federation, we will notice, that in August, 2016 to obligatory works in a special order have sentenced M.V.Vorobeva. It was convicted that «has publicly placed on the page in a social network"VKontakte", the facsimiles containing the information, expressing obvious disrespect for a society and directed on the insult of religious feelings believing (adherents of Orthodoxy - representatives of Russian Orthodox Church and orthodox believers), namely: the facsimile of an eight-final (orthodox) cross with an obscene inscription and the facsimile on which the sculptural composition displaying a scene of God execution of Jesus Christ (in the centre is represented is located the Crucifixion - a cross with Jesus Christ nailed to it, on the Crucifixion the man with a smile on the person sits and shows a sign on pleasure and pleasure, the big finger of a hand upwards, in a photo there is an obscene inscription» [414]. Besides, M.V.Vorobev «. . Has publicly placed on the page in a social network "VKontakte" the facsimile (post) of the turned four-final cross with the text «Accepted the god have believed and have assured others of own negligibility and feebleness» [415]. According to the expert judgement, facsimiles «contain religious subjects and directly offend religious feelings of believing (Christians-orthodox), show the scornful, disrespectful and humiliating relation to religious relics (Christianity), have sendings to devilish sights» [416]. Thereupon it would be desirable to notice, that, despite uncertainty «insults of feelings of believers», is hardly admissible to consider, that certain "sights" can "offend" them. Besides it, not clearly, about which version of a Satanism speech is led.

On September, 16th, 2016 in Kirov the sentence on ch has been pronounced. 1 items 148 UK the Russian Federation and ch. 1 items 282 UK the Russian Federation concerning the minor. On a version of the investigation «in November, 2015 16-year-old kirovchanin publicly, using the mobile phone, has placed on the Internet in one of social networks of the facsimile with the inscriptions offending religious feelings of believers, in December, 2015 it also has deliberately placed some facsimiles which contain linguistic and psychological signs of the justification of practice of application of violent actions on the basis of the relation to religion». The court recognised as its guilty and has sentenced to punishment in the form of 120 hours of obligatory works [417]. Unfortunately, it was not possible to find out the information on what particularly inscriptions and facsimiles have been placed.

On May, 18th, 2017 in Belgorod on ч.1 item 148 UK the Russian Federation has been sentenced to the penalty at a rate of 15 thousand roubles the local resident for prikurivanie from a candle in a temple, with the subsequent placing of photos in a social network [418].

05.12.2017 the Industrial regional court of of Barnaul has sentenced N.O.Telegin on ч.1 item 282 UK the Russian Federation and ч.1 item 148 UK the Russian Federation to imprisonment is conditional for a period of two years [419]. To it the publication of numerous images in a social network "VKontakte" was made, the court has seen in some of which «infringement of norms of religious ethics, that is the insult of religious feelings of believers»; and in others - «signs of humiliation of advantage of the person concerning a group of persons, consolidated to signs of the origin, concerning nationalities of caucasus». Thus, that there are «norms of religious ethics» and on the basis of what somebody should observe them, except voluntary on that dared "believers", is not explained. In a sentence 12 images are described, thus is not specified, what publication forms structure of them ч.1 item 282 UK the Russian Federation, and what - ч.1 item 148 UK the Russian Federation. Kasaemo last qualification there are accurate instructions only on one image - a man's figure with the hammer a Torah brought over orthodox church. Besides numerous remedial infringements (for example, the party of protection and N.O.Telegin have not been acquainted with the decision about expert testimony in court manufacture), it is necessary to notice, that in this case the publication of all images was considered as uniform continuous crime - that is one episode ч.1 item 148 UK the Russian Federation and one - ch was made. 1 items 282 UK the Russian Federation. Thus, in R.G.Sokolovsky's sentence in aggregate there are 16 episodes - on 8 episodes ч.1 item 148 and ch. 1 items 282 UK the Russian Federation. Actually, each roller was regarded as two episodes of committing a crime. With what such heterogeneity pravoprimenitelnoj experts, not clearly is connected.

The similar situation develops in business of the inhabitant of Omutninska, sentenced to the penalty at a rate of 25 thousand roubles. Under the court version, «Lobov D.S. testing hostility to persons, consisting in social groups - Christians and clergymen, because of obvious disrespect for a society, for the purpose of the insult of religious feelings of the believers professing Christianity..., has decided to place publicly in a social network« In Contact »informatsionnotelekommunikatsionnoj networks"Internet"information materials - facsimiles with the inscriptions offending the basic symbols of Christians. Realising conceived, Lobov D.S., showing obvious disrespect for a society, deliberately breaking the conventional norms and behaviour rules, wishing to contrast to the persons, consisting in social groups - Christians and clergymen to show the scornful relation to them and religions, with a view of the insult of religious feelings of believing, professing

Christianity, deliberately, with laptop "Lenovo" use has placed in an information-telecommunication network "Internet", on the personal page in a social network «In Contact» information materials:... With an inscription «I ISUS the CHRIST WILL rescue the comical image of the bearded man FOR poltos», containing linguistic and

Psychological signs of humiliation of Christians and propagation of inferiority of Christians;... 4 comical images of the bearded man with a nimbus symbolising Jesus Christ accompanied remarks with

Use of obscene abuse in which linguistic signs of humiliation of clergymen and propagation of inferiority of clergymen contain. Thus Lobov realised, that in the materials placed by it there are Christian symbols - images of the central person at Christianity - Jesus Christ represented by the God and esteemed by believing persons, and their maintenance offends religious feelings of the persons professing Christianity ».

The given case allows to allocate some laws. First, the court does not differentiate ч.1 item 148 and ch. 1 item 282 UK the Russian Federation as mixes concepts «social groups - Christians and clergymen», and "believers", and also does not divide "humiliation", «inferiority propagation» and «the actions made with a view of the insult of religious feelings of believers», defining one through another. Secondly, placing of several images is again recognised by uniform continuous crime.

V.V. Nochevnov in of Sochi also have been condemned of 02.08.2017 for the publication of six caricatures on Jesus in a social network "VKontakte" [420]. The court has regarded them as one episode, having appointed the penalty at a rate of 50 thousand roubles. Besides, it is necessary to notice, that as proofs of fault of the defendant, a testimony of the cleric approving was specified, that V.V. Nochevnov the actions has broken a doctrine about ikonopochitanii 787 years.

Caricatures included the image of the Christ hanging on a horizontal bar; dancing at stadium; in the form of the weight-lifter against Olympic rings; engaged in a sports hall on a shell; in military form SS with symbolics of the Third Reich and an inscription «Christ SS, truly SS»; and with the person who represents its suffocation.

In a sentence it was especially reserved, that some images have been placed by V.V. Nochevnovym in days of Christian holidays, that ostensibly is the proof of presence of intention. However hardly the citizen of the secular state is obliged to know dates of any religious holidays.

The court of appeal instance has directed business on new trial, for the first time for all practice of application ch. 1 items 148 UK the Russian Federation. However exclusively remedial infringements - in particular became the basis for this purpose, it was specified, that the sentence is an actual copy of the bill of particulars; indications of witnesses, data in session of the court, literally coincide with the indications given during preliminary investigation; time of fulfilment of continuing crime [421] is not established; the court not to the full investigates criminal case materials, and so on [422]. Thus the court was obviously prejudiced and has convicted V.V. Nochevnova that it is the godfather, not being itself kreshchenym [423]. In January, 2018 business has been ceased in view of the expiration of limitation periods of bringing to criminal liability [424].

Briefing available information on the affairs which have ended with a verdict of guilty on ч.1 item 148 UK the Russian Federation, the author of the given research comes to following conclusions. First, a consequence and court not in a condition to resolve properly questions of application of norms material and the law of procedure, namely - it is not underlined, on the basis of what those or other persons have been recognised by "believers"; in what they "trust" and as it proves to be true; how also which «religious feelings» have been offended and as it proves to be true. Besides, do not find a due substantiation presence at the suspected express intent and a specific goal. Secondly, experts - linguists, religiovedy, have now no representation how examination on affairs about «the insult of feelings of believers» should be spent, there are no methodical instructions, recommendations etc. Besides, inspectors do not know, how it is necessary to formulate questions for expert investigation.

Besides it it is necessary to note complexity in differentiation ч.1 item 148 and ch. 1 items 282 UK the Russian Federation. In Ruslana Sokolovsky's considered business the court has come to conclusion, that its acts (is more exact, the same statements) fall simultaneously under signs of both structures, forming ideal set. So, in a sentence it is specified, that «the ideal cumulative offences represent cases of fulfilment by the person of one action containing signs of crimes, provided by two and more norms of the criminal law. Feature consists that the person one action, simultaneously makes two and more crimes, provided by various articles of the criminal code, such actions of the person represent set as any of norms separately does not cover as a whole act. The ideal cumulative offences, when Sokolovsky of the River of in this case take place Having placed the information in videoclips in a network the Internet, has made actions directed on hatred or enmity excitation, and the humiliation of human advantage is equal, simultaneously same actions has broken the right to a freedom of worship and creeds »[425] (the spelling and a punctuation is kept. - a comment of the author).

The disposition ч.1 item 282 UK the Russian Federation at all in bolshej degrees is defined, than a disposition ch. 1 items 148 UK the Russian Federation. So, it is quite possible to consider as "hatred or enmity excitation», and also «humiliation of advantage» negative statements to the persons practising any religion; to their critic; the use obstsennoj lexicon. That is, in case a speech subject are dogmas and canons of certain religion, act mentions not advantage of the person or a group of persons, and their religious feelings (that is there are structure signs ч.1 item 148 UK the Russian Federation). Whereas in case of the insult on the basis of a religious accessory, it would be possible to speak about humiliation of advantage of a group of persons (that is - about presence of signs of structure ch. 1 items 282 UK the Russian Federation). It turns out what to offend Jesus - means, to offend feelings of Christians, to offend Christians - means, to be the extremist. Not clearly, than similar division and why «religious feelings of believers» "do not offend" the statements directed against them is caused.

Analyzing a parity ч.1 and ч.1 item 282 UK the Russian Federation, some facts would be desirable to note item 148.

1. The acts provided by given norms are directed against cardinally various kinds of the blessings protected by the law. In the first case object criminally - a right protection (on a plan of the legislator) is the right to a freedom of worship and creed; in the second - bases of the constitutional system and safety of the state.

2. Both structures on a design of the objective party are carried to formal, that is the disposition does not provide necessity of causing of concrete harm as an obligatory sign.

3. An obligatory element in both structures is act in the form of action.

In ч.1 item 148 UK the Russian Federations are certain actions which express obvious disrespect for a society. What exactly concerns them, proceeding from a disposition design, not clearly.

In ch. 1. Item 282 UK the Russian Federation, according to Supreme Court explanations, is statements (in various forms), proving and (or) approving necessity of a genocide, mass reprisals, deportations, fulfilment of other wrongful acts, including violence applications.

It is important to notice, that the Supreme Court directly specifies: «Criticism... Religious beliefs, national or religious customs in itself it should not be considered as the action directed on excitation of hatred or enmity» [426].

1. Both acts are necessarily made publicly.

2. The perpetrator in both cases is the made physical person who has reached of 16 years.

3. From the subjective party both acts are made only with the express intent. However, on ч.1 item 148 UK the Russian Federation the purpose is the insult certain «religious feelings of believers» (but not "believers"). On ch. 1 item 282 the malefactor pursues the aim to excite hatred or enmity, or to degrade advantage of the person or a group of persons on the basis of the relation to religion. That is, if the first act is directed against certain not clear «feelings of believers» the second concerns directly people, by the incorporated certain relation to religion (that is, including - and to "non-believers" whereas in ч.1 items 148 appear only "believing"). But, as proceeding from a design ch.

1 item 148 not clearly whom to consider as "believers", is not obviously possible to correlate objectively the given category with «a group of persons on the basis of their relation to religion» or «accessories to any social group».

Besides, on ч.1 item 282 UK the Russian Federation (as well as on all crimes of an extremist orientation) the obligatory establishment of motive - hatred to the person or a group of persons on the basis of the relation to religion is necessary; whereas in ch. 1 item 148 UK motive of value has no Russian Federation.

According to ch. 2 items 17 UK the Russian Federation, «cumulative offences admit also one action (inactivity) containing signs of crimes, provided by two or more articles of the present Code». However it is not thought, that with reference to ч.1 item 148 and ч.1 item 282 UK the Russian Federation is admissible to bring at all an attention to the question on ideal set, taking into account a various orientation and essence of made acts. The situation at which the same act (statement) simultaneously «would offend religious feelings of believers» is impossible and «has excited hatred or enmity» or «has degraded advantage of a group of persons». The situation at which the same acts form structure simultaneously ч.1 item 148 UK the Russian Federation and ч.1 item 282 UK the Russian Federation as they consist in the different actions directed to the different purposes, and against the different blessings is impossible. Application of the given norms in their set breaks guaranteed to each person in the item 50 Constitutions to be right not to condemned repeatedly for one crime.

Existence of item 282 UK the Russian Federation, as well as ч.1 item 148 UK the Russian Federation, is represented at all inexpedient - both in an equal measure mismatch laws of logic and rules of legal technics, comprise uncertain estimated categories that can entail essential abusings from the party pravoprimenitelej. Bringing to criminal liability for words and images which do not comprise direct appeals to violence, even is inadmissible in the event that they in the sharpest form state a negative estimation or criticism of this or that phenomenon.

Continuing the analysis of item 148 UK the Russian Federation, we will notice, that in ч.2 there is qualifying structure «insult of feelings of believers» - committing a crime in the places specially intended for carrying out of divine service, other religious practices and ceremonies. Thus, not clearly, that there are "divine services", "religious practices" and "ceremonies" (the branch law does not explain the given concepts). Also it is not known how to define corresponding "places". The Federal act in this respect explains, that the religious group should in the notice on the beginning of the activity specify data on such places [427]. For some reason the similar requirement is absent for the religious organisations.

Judiciary practice on ch. 2 items 148 UK the Russian Federation is presented now by two sentences. On July, 28th, 2016 the Elista city court of Republic Kalmykia has pronounced a sentence concerning Saida Osmanova, the Buddha who have "profaned" a statue. It has been recognised by guilty on ch. 2 items 148 UK the Russian Federation and on ch. 1 items 282 UK the Russian Federation, 1 year is sentenced to imprisonment for a period of 2 years conditionally with a trial period. On a version of the investigation, on April, 2nd, 2016 the Osmanli Turks, arrived to Elista on competitions on free-style wrestling, together with team mate has come into a Buddhist temple, has urinated there and has kicked in a nose a statue of the Buddha. With record of act it has published video on the Internet. The local residents who have looked a roller have arrived to a hotel building in which sportsmen have stopped, and have forced Osmanova to apologise [428].

Denying obvious intelligence of act Saida Osmanova, we will notice, that hardly it is possible to consider to its hatred directed on excitation or enmity (Osmanli Turks did not suppose any statements) and the humiliation of advantage of the person or a group of persons on any is equal

To sign. It is thought, it would be more logical to qualify acts of the Dagestan sportsman as minor hooliganism (item 20.1 KoAP the Russian Federation).

Also in a special order has been condemned to obligatory works on ч.2 item 148 of the Criminal code of I.V.hare. Ostensibly he, «in the local religious organisation orthodox Arrival of a temple of the Cathedral Kemerovo sacred, in a condition of alcoholic intoxication, operating publicly, has expressed rough obscene abuse and words of the obscene maintenance to Jesus Christ and an icon with the image of the last, having degraded religious feelings of orthodox believers, than has offended religious feelings of the above-stated citizens» [429]. That is, in "humiliation" of feelings the court has seen their "insult". There should be a question on a parity of the given concepts, and a natural conclusion on complexity of their differentiation for pravoprimenitelja, as well as complexities of that definition, that such «feelings of believers» and as they "are offended".

Continuing research criminally-right protection freedom of worship and creeds, we will notice, that the law establishes responsibility in ч.3 item 148 UK the Russian Federation, in particular, for illegal hindrance of activity of the religious organisations. Thereupon there are natural questions: what to understand as the "hindrance", what hindrance is considered illegal, which activity of the religious organisations means, and why the attention bypasses religious groups [430].

G ovorja about "activity", it would be desirable to note the following. In the federal act «About a freedom of worship and about religious associations» the word-combination «cult and other religious activity» (once) [431], «religious activity» (twice) [432], and «activity of religious associations» or "organisations" (repeatedly) [433] is used. Such variety is not represented expedient, and use of the uniform general term - «activity of religious associations» which would be understood as activity forms, statutory and specified in the Charter of religious association would be more pertinent. With reference to religious groups - in our opinion, the similar instructions in the notice [434] are necessary.

According to P.V.Bahmeteva, the criminal law should protect only such "activity" which answers several criteria. First, it should be exclusively based on the law [435] with what, perhaps, it is difficult to argue. However, hypothetically, possibly, there can be situations when hindrance of illegal activity will be carried out, for example, by the person who does not have on those competences that can entail a competition to item 330 UK the Russian Federation. Besides, it is not clear, whether hindrance which is not connected in any way with illegality of activity of the religious organisation - for example if that has not given the reporting when due hereunder is lawful, and hindrance occurs at realisation of missionary activity; or consists in input blocking in a building of the religious organisation, etc.

Secondly, P.V.Bahmetev considers, that «Within the limits of positions of Chapter 19 UK the Russian Federation the law protects only one aspect of activity of religious association, namely - religious, that is directly connected with a cult and belief». According to the author, that includes: the basis and the maintenance of cult buildings and constructions, other places and the objects specially intended for

Divine services, prayful and religious meetings, religious honouring (pilgrimage); fulfilment of divine services, other religious practices and ceremonies; missionary activity; training of religion and religious education of followers.

Also P.V.Bahmetev specifies, that «other kinds of activity which religious association has the right to carry out, have no direct relation to a freedom of worship, their presence follows, on advantage, from the status of the legal person» [436]. It is thought, that is expedient to agree with such approach, in order to avoid excessively wide construction of statutes and abusing a freedom of worship, however, it does not exclude necessity of more cardinal modification of the criminal legislation (about what more in detail more low).

Concerning illegality of hindrance, the author fairly specifies, that «in ch. 3 items 148 UK the Russian Federation do not contain instructions on the form of illegality or other circumstances proceeding from which it would be possible to concretise the given sign of structure... Formally it turns out, that any hindrance of lawful religious activity is illegal» [437]. Marking also complexities in differentiation of item 148 UK the Russian Federation from item 5.26 KoAP the Russian Federation, P.V.Bahmetev offers the following edition of norm: «Hindrance or compulsion of the person to acceptance of religious or other belief or refusal of them, the introduction into religious association or an exit from it, to participation in religious or other activity of religious association, carrying out of divine services, other religious practices and ceremonies, and equally illegal hindrance of religious activity

Religious associations »[438]. At all respect, it is not obviously possible to agree with such decision of a problem, on what is more detailed - see further.

Besides it, the maintenance ch. 3 items 148 UK the Russian Federation mismatch the given right to practise any religion individually as and creed the criminal law protects from illegal hindrance of realisation of the right to a freedom of worship only the religious organisations, having ignored religious groups, and also separate citizens. Actually, only such form of individual realisation of a freedom of worship, as possibility of departure of religious practices [439] criminally-right protection comes under. Thus, as it has been specified above, norms of international law guarantee to everyone freedom to change, practise the religion or belief, including individually, by means of participation in divine services, training, departure of religious practices. The constitution of Russia in article 28 guarantees to everyone the right freely to choose, have and extend religious and other belief. The corresponding federal act confirms the right to profess individually or together with others any religion or not to profess any, to make divine services, other religious practices and ceremonies, to carry out training of religion and religious education, freely to choose and change, have and extend religious and other belief and to operate according to them, including creating religious associations [440]. Also the law settles the right to reception of religious formation [441], realisation of missionary activity [442]. Any of these and other rights which the person can individually realise within the limits of a freedom of worship, except possibility to send religious practices, in the criminal law of Russia does not concern the blessings which are coming under criminally-right protection.

Judiciary practice on ch. 3 items 148 UK the Russian Federation from 2013 on current time is presented only by one example which has ended with application of a measure of criminally-legal character in the form of the judicial penalty. As 26.02.2017 years, about 09 hours of 30 minutes follow from the court decision from 12.09.2017, «, to Safiullin M. F publicly, obviously showing disrespect for a society has come into Andrey Blazhennogo Simbirskogo Chudotvortsa's orthodox temple where began to shout and draw loudly to itself attention, than has broken divine service passing there at this time. Signs of the crime provided ch are seen in Safiullina M. F's actions. 3 items 148 UK the Russian Federation - illegal hindrance of activity of the religious organisations or to carrying out of divine services, other religious practices and ceremonies» [443]. It is thought, that the court in the decision has a little mixed dispositions ч.1 and ч.3 the item 148 UK the Russian Federation as last does not provide as obligatory signs "publicity", «obvious disrespect for a society».

Hardly given act answers such obligatory sign of a crime, as the social danger. In our opinion, the act connected with hindrance of realisation of the right to a freedom of worship and creeds which is made without violence application cannot be considered criminal; and also does not attract causing of essential harm (see more low more in detail).

In ch. 4 items 148 UK the Russian Federation as qualifying signs are provided fulfilment of illegal hindrance of activity of the religious organisations by the person with official position use, or with application of violence or threat of its application. With reference to violence it would be desirable to notice, that comparison of sanctions gives the bases to believe, that causing of easy harm to health is covered by structure ch. 4 items 148, also do not demand additional qualification whereas average weight or heavy harm to health attracts cumulative offences. Judiciary practice on ch. 4 items 148 UK the Russian Federation during 2013-2017 are absent [444].

The stated allows to make some conclusions. First, the freedom of worship in the Russian Federation de facto is not object ugolovnopravovoj protection, despite legal declaration of that. In the given dissertational research the freedom of worship was not investigated outside the limits of the relation of the person to religion. However besides absence as object is criminally-right protection right not to practise any religion, it is necessary to notice, that the freedom of worship as possibility of distribution and expression of any outlook, and also actions according to it in general practically is not mentioned in the Russian legislation. The maintenance of article 148 UK the Russian Federation mismatches its name: so, regarding 1 object of protection to allocate it is impossible; regarding 3 as that some aspects of a freedom of worship, namely - activity of the religious organisations (but not groups), and the right to send religious practices act only. Parts 2 and 3 contain qualifying signs for parts 1 and 2. Possibilities of realisation of a freedom of worship in the Russian legislation are not settled not so, even the branch law «About a freedom of worship and about religious associations» actually regulates is only right to practise religion, and anything more than [445]. Norms of the criminal law about human rights protection to practise any religion and not to profess any are blanketnymi, interconnected with the corresponding branch federal act. The given law regulates only a freedom of worship, and with essential blanks, including - in a part, concerning formations kategorialno - the conceptual device, that, in turn, does actually impossible application of norms of the Criminal code.

The criminal law should, developing the international and constitutional positions about a freedom of worship and creeds to protect a freedom of worship, including, but not being limited to that - the common right of the person to practise any religion, any lawful ways, or not to practise any religion. Actually it turns out, that ч.1 item 148 UK the Russian Federation is directed not on right protection, and on protection of an abstract category of "religious feelings of believers». That is, article 148 UK the Russian Federation in the contradiction with ч.2 item 1 UK the Russian Federation is not based on the Constitution and international law as does not do by object criminally-right protection a freedom of worship from hindrance of its lawful realisation.

Besides, the Russian legislation in aspect of settlement criminally-right protection freedom of worship and creeds mismatches current European tendencies, with reference to norms about «the insult of religious feelings of believers». Practically in all investigated European countries at which the given norm is present, it is "dead", and is not applied. Many countries dekriminalizujut the given act [446]. Only corresponding article has been entered into Russia in 2013, and its application invariably causes a wide public resonance. Besides, in Russia some positive moments from the foreign right, for example, necessity criminally-right protection freedom of worship as a whole, and not just freedoms of worship have not been apprehended.

With historical development of the criminal legislation of Russia the present edition, unlike all previous shows comparison, that, de jure on the first place among objects of protection for the first time puts the person, its rights and freedom. « The insult of religious feelings of believers »also is present at such formulation for the first time - in 1993 was spoken about« the insult of feelings and belief of citizens in connection with their relation to religion ». In the USSR hindrance to lawful forms of realisation of the right to a freedom of worship, together with infringement of rules about branch of religious associations from the state was considered as the criminal only, that, unfortunately, now is absent in the Russian criminal legislation (the following paragraph more in detail see). The Dosovetsky period thereupon provided responsibility for"Blasphemy"which, in our opinion, is quite comparable to« the insult of religious feelings of believers »as not numerous practice of application ch has shown it. 1 items 148 UK the Russian Federation. That is, there is an absurd situation at which the law under the aegis of protection of the rights and personal freedoms de facto erects to the object status criminally-right protection certain abstract categories. It inevitably leads to distortion pravoprimenitelnoj experts, to infringement of the rights and personal freedoms.

Besides, it is necessary to note the following. Article 148 UK the Russian Federation (as well as all norms of Chapter 19) is blanketnoj therefore all "loading" of understanding of a disposition lays down on the branch legislation, first of all - on FZ «About a freedom of worship and about religious associations». Certainly, assuming a subject of other branch regulation, the detailed analysis of the given certificate is beyond the present research. At the same time, from our point of view, with a view of perfection criminally-right protection freedom of worship and creeds, discussion by representatives of corresponding branch of law of some theses is represented actual.

First of all, FZ «About a freedom of worship and about religious associations» does not answer the name as practically does not regulate an order of realisation by people of the right to a freedom of worship. The given certificate rather in detail regulates only some aspects of realisation of freedom

Creeds. Thus it is necessary to notice not a readiness of the kategorialno-conceptual device in the federal act, that, in turn, complicates application of the criminal. The Russian legislator, widely using terms "religion", «divine services, other religious practices and ceremonies», "creed", «a freedom of worship and creeds», «activity of the religious organisations», etc., at all does not give them definition.

Thereupon we will allow to specify, that due interpretation of item 148 UK the Russian Federation cannot, not consider, in particular, that the norm arises, including, in connection with confession by people of religion. Thus, legal definition to it it is not given in one regulatory legal act that is strange, after all hardly the person is capable is high-grade to realise the right to a freedom of worship if it is not clear what exactly he "professes", and whether it is carried to "religion". In the present there is only a "faith" definition, and in the document which has been not connected directly with regulation of a similar sort of relations - the Letter of Federal service of execution of punishments [447]. In it it is specified, that «the faith or creed is understood as feature of creed within the certain religious doctrine, and also association of the believers adhering to this creed. Konfessionalnoe division is inherent in any religion. So, for example, the Christianity shares on three basic faiths - Orthodoxy, Catholicism, protestantizm, and Islam - on such faiths, as sunnizm, a Shiism and a vahhabism ». The made definition is indistinct, contains a logic error (definition« creeds "through" feature of creed »), and in effect to the explains nothing.

For the answer it is necessary to address, including, to explanatory dictionaries as the law comes under to literal and formal interpretation according to Russian rules. At carrying out of the given research the most modern dictionaries - T.F.Efremovoj and S.A.Kuznetsova that is caused by their conformity of a present language situation were used. In

«The list grammatik, dictionaries and the directories containing norms of a modern Russian literary language at its use in quality

State language of the Russian Federation », approved by Order Minobrnauki of Russia, paternal - that is absent any explanatory dictionary [448]. So is admissible to choose independently a support for the terminology analysis.

In T.F.Efremovoj's dictionary as "religion" it is understood: 1) one of forms of public consciousness - set of the representations based on belief in existence of the higher forces and beings (the God and gods) which are a worship subject; 2) Each of existing directions of such public consciousness, this or that belief, this or that creed (Christianity, the Buddhism, Islam, etc.); 3) peren. - that is based on belief [449]. S.A. Smiths defines religion as: 1) One of forms of public consciousness; set of the spiritual representations which are based on belief in

Supernatural forces and beings (gods, spirits) which are a worship subject; 2) This or that belief; creed [450].

Both authors consider religion or as a certain set prestavleny, the ideas based on belief in something supernatural; or as a synonym of belief, creed. Thus T.F.Efremovoj's Explanatory dictionary defines "belief", how: 1)) a recognition something the true force surpassing force of arguments, the facts and logic; belief in real existence of subjects of religion or imagination, and also in the validity of that is not proved with obviousness; firm belief in the indispensable

Realisation, inevitability of that-l. The coming; 2)) a condition of consciousness of the believer; religion.; the certain religious doctrine, creed; peren. - a direction in a public life, a science, art [451].

"Creed" considers: 1) dogma in connection with ceremonialism peculiar to it; 2) an official accessory to any religion [452]. T.F.Efremova's "Dogma" understands as «set of doctrines, substantive provisions of any religion» [453].

S.A.Kuznetsova's dictionary understands as "belief": 1. Firm conviction, deep confidence of someone, something, belief in existence something; 2. razg. The religious doctrine, creed; religion; 3. razg. Trust [454]. The author carries To "creed" «Religious dogma with ceremonialism peculiar to it; an accessory to any religion, church, faith» [455]. As "dogma" suggests to understand «set of doctrines of any religion» [456].

That is, despite presence of several definitions of one term, it is possible to allocate uniform feature: the religion is defined by both authors as a certain system of ideas; belief - as unsubstantiated conviction in something; and creed - as a dogma synonym (that is sets of the basic doctrines of religion), only with addition about obrjadovosti.

In total attempts to make definition to the given phenomenon there is "great variety" [457]. Also would be in a root incorrect to be limited to only dictionary interpretation of "religion", after all the question on concept of so difficult and many-sided phenomenon set historians, philosophers, psychologists, religiovedy, lawyers. Considerable difficulty is represented by a problem to formulate accurate legal definition for pravoprimenitelnyh the purposes.

Perhaps, the only thing in what opinions concerning the given term coincide (in various formulations) so it that the religion is one of outlook forms. Hence, for definition of concept of "religion" it is necessary to understand the discriminating features peculiar only to it allocating the form given of outlook among the other.

Not going into details, the author of the present research to the full makes common cause with a position of historian A.G.Filimonova synthesising in the work the various points of view. In particular, it specifies in an inconsistency of allocation as discriminating features

Convictions in existence of the god (gods), as, for example,

Personified "god" in traditional understanding is absent, in, for example, dzhajnizme, the Buddhism, konfutsianstve [458]. Also is not

Sufficient criterion acceptance something without sufficient proofs - to say not about failure of evidence as those, and that they are obviously insufficient more pertinently; but only for the person adhering to the scientific

Outlooks [459]. Illusory reflexion of the validity in any measure is carried to any representations as even the scientific knowledge is imperfect, and transfers a reality only approximately [460]. Representation about supernatural, named as a religion sign, was absent in early forms of religions [461]. For example, the primitive magic is under construction not on the reference to something above nature laws, and on other understanding of these laws [462]. Sacral and profannogo ("ordinary" and conditionally "sacred", "higher") also it is impossible to name division of the world into spheres universal. A.G.Filimonov specifies, that «from the point of view drevneegipetskoj religions all beings and even things are allocated by the same nature. Even people and gods differ only different degree of display of the same elements» [463]. At all it, the sphere of the sacral can have not only religious, but also secular character. For example, it is possible to speak about displays of the sacral State Emblem in honouring, a flag, a hymn; organisation of memorials; fulfilment of secular ceremonies etc. A.G.Filimonov also notices, that «in 20 century the religion was defined as the collective symbolical system mediating the relations of the person both with internal, and with an external world. This any outlook which is not limited to the simple description of a reality, but estimates it and implicitly aspires to give certain stereotypes of behaviour. Besides, religions are inherent collective character and social mechanisms of reproduction» [464]. The author quite right considers, that «under the made definition any ideology really functioning in a society gets, which not always it is accepted to name religion (for example, the Soviet ideology or democratic values)» [465]. It is thought, that it is necessary to agree with A.G. Filimonovym concerning what to make universal definition of concept "religion" simply it is impossible. There is no such sign which would consolidate the inhabitant of the primitive tribe worshipping to the ornamented log; the Hindu making ritual actions with the cow excrement; orthodox devoutly christened on an icon; making namaz the Moslem and a Jew letting grow side curls. Behind all similar displays of so-called "religion" there are different phenomena between which there is nothing the general. So, "concept" the religion », used in attempt of its data to a certain universum, as a matter of fact, does not mean anything» [466].

However now disappearance of "religious associations» with leaving simply public, various organizatsionnopravovyh forms in which quality groups of persons on the basis of a generality of their views on the world could be registered is hardly possible. Therefore it is necessary to make an attempt at least to make legal definition to concept of "religion" for the purposes pravoprimenenija. After all differently simply it is not clear, how the problem of criminally-right protection such display of a freedom of worship as a freedom of worship [467] in a case when it is not clear, whether are belief shared by the person "religious", instead of others will be realised.

It is thought, that it is the most logical - not to consolidate the listed criteria otgranichenija religious outlook from others, and to leave a certain variability: the religion can admit that as in the presence of one, and several signs. So, as religion probably to understand collectively divided form of outlook mediating behaviour of adhering her faces; and characterised by one or several criteria:

• illusory (from the point of view of a modern science) perception of some aspects of the validity;

• not demanding sufficient from the scientific point of view of proofs belief in existence of the god (gods) and (or) supernatural;

• speculative division of the world into spheres sacral and profannogo.

Certainly, made definition also is far from an ideal. At due skill any system of sights can be defined as religion. To refer to historical aspect of formation of those or other collective representations to a certain extent, diskriminatsionno - hardly the priority in comparison with others only because of their time prevalence, or, for example, quantities of persons dividing them should be given to one collective representations. Therefore the most expedient to the author the legislation in which the religious outlook, no less than the associations created on its basis, does not stand apart at all sees and has no privileges in comparison with other public associations. However the scientist should work with the facts, instead of with dreams therefore the only thing that remains now is to try to bring the current legislation into accord with logic laws, rules of legal technics, international law and the Constitution of Russia.

So, for high-grade realisation criminally-right protection freedom of worship and creeds, to the author of the given research discussion FZ «About a freedom of worship and creeds» in following key aspects sees expedient, within the limits of corresponding branch regulation:

- Formation of the kategorialno-conceptual device;

- Settlement of realisation of the right to a freedom of worship, and not just freedom of worship, and also - the bases and an order of restrictions that;

- Exception of discrimination positions;

- Exception of any mutual relations of the state with religious associations.

Speaking about perfection of the criminal legislation, it is obviously necessary to formulate in a new fashion item 148 UK the Russian Federation. Thus it is important to recognise that object criminally-right protection the freedom of worship - that is the blessing consisting in possibility guaranteed to everyone person of distribution and expressions of any outlook, and also actions according to it within the limits of the law should act.

Being guided by the justice principle, fixed in item 6 UK the Russian Federation, is represented expedient, in view of necessity of conformity of a crime to criterion of the social danger, designing of structure of item 148 UK the Russian Federation as material, with instructions on compulsion of approach of a consequence in the form of causing of essential harm to the rights and legitimate interests of people (citizens of Russia, foreigners, stateless persons) or the organisations. The question on importance of the caused harm should dare independently in each concrete case. It is necessary to specify, which rights and the legitimate interests guaranteed by the Constitution, international law and the branch legislation, have been broken, and also to establish presence of a relationship of cause and effect. It is thought, in the given situation, taking into account coincidence of formulations, is admissible to address to the position of the Supreme Court stated by it in the Decision of Plenum «About judiciary practice on affairs about abusing official powers and about

Excess of official powers »[468]. So,« Under the essential

Infringement of the rights of citizens or the organisations... It is necessary to understand infringement of the rights and freedom physical and the legal bodies guaranteed by conventional principles and norms of international law, the Constitution of the Russian Federation. At an estimation of importance of harm it is necessary to consider degree of negative influence of illegal act for normal work of the organisation, character and the size of the material damage suffered by it, number of the sustained citizens, weight caused by it physical, moral or property damage, etc. Under infringement of legitimate interests of citizens or the organisations. It is necessary to understand, in particular, creation of obstacles in satisfaction citizens or the organisations of the requirements which are not contradicting rules of law and public morality (for example, creation by the official of the obstacles limiting possibility to choose in statutory cases at own discretion the organisation for cooperation) ».

Also it is important to provide possibility of fulfilment of act by the special subject - the person using the official position. Not considering necessary in the given research in detail to consider problem questions of definition of "official position", it is necessary to notice, that UK the Russian Federation, repeatedly specifying the person using those, as the special subject, does not give it definition. In the Decision of Plenum of the Supreme Court «About judiciary practice on affairs about swindle, assignment and waste» it is underlined, that «Under the persons using the official position. ., it is necessary to understand the officials possessing signs, provided by point 1 of notes to article 285 UK the Russian Federation, the state or municipal employees who are not officials, and also other persons who are meeting the requirements, provided point 1 of notes to article 201 UK the Russian Federation (for example, the person who uses for fulfilment of plunder of another's property the office powers including organizational - administrative or administrative duties in the commercial organisation) »[469]. That is, those are officials, the state, municipal employees, and also the persons who are carrying out administrative functions in commercial or other organisation, and also in the noncommercial organisation which are not the state body, local government, state or municipal authority.

Besides, important especially to note danger of application of violence, threat of its application (as way of committing a crime). Causing is represented, that to the person of harm to health, beginning from average weight, should attract set with corresponding articles of the Special part. Threat by murder or causing of heavy harm to health is a part of item 148 UK the Russian Federation, and additional qualification does not demand.

Besides it, in our opinion, it is not necessary «to multiply real needlessly» therefore leaving in the criminal law as object of protection of a freedom of worship as a whole as the blessing including is admissible, including, and a freedom of worship.

To execute prospective changes, the following edition of article 148 UK the Russian Federation is offered:

«Article 148. Hindrance of realisation of the right to a freedom of worship.

Illegal hindrance of realisation of the right to a freedom of worship, made:

The person with use of the official position;

With violence application, or with threat of its application;

The entailed causing of essential harm to the rights and legitimate interests of people or the organisation, is punished... [470] ».

It is represented, that the given reaction meets the requirements ч.2 item 1 UK the Russian Federation as is based on norms of international law and the Constitution according to which the blessing which is coming under criminally-right protection from hindrances of its realisation, should be a freedom of worship.

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A source: Fedotova Julia Evgenevna. the FREEDOM OF WORSHIP And CREEDS AS OBJECT CRIMINALLY-RIGHT PROTECTION. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 2018

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