Politiko-legal essence and system of religious offences in legal thought of Russia

Occurrence and development of system of crimes against religion directly also is closely connected with the relation of the Russian state to the religious liverty of the citizens. The understanding of its principles at different historical stages was various and ambiguous.

The right to freedom of religious thought was natural continuation of the right to freedom of human thought in general. Personal religious beliefs and preferences could be expressed in the oral or written form; in public fulfilment of religious practices, studying and the critic of other religious doctrines, and also in full negation of the accessory to one of religions. As religious liverty restriction the interdiction for affront of religions, preaching of immoral ideas and acts, disturbance of public peace and calmnesses, instigation to fulfilment of criminal actions in churches and other cult constructions acted. Thus, theoretically in a question of the religious liverty the state role was reduced to protection of principles of morals and public morality against encroachments from religious associations, but thus there was no intervention in questions of their internal hierarchy and religious dogmatic persons [52].

However in practice for high-grade realisation the religious liverty required the state support and protection which could fall outside the limits precautionary measures and be stretched up to an establishment of criminal sanctions. Lawyer-criminologist F a background Sheet treated the religious liverty as a version of personal liberty which could become object of religious encroachments. The similar wide understanding of the religious liverty, according to the Russian lawyer and psychologist S.V.poznysheva, did not allow
To explain occurrence in the Russian right of criminally-legal structures of such religious offences which objects were at all the religious liverty and interests of the separate person. Nevertheless, the religious liverty realised within the limits of the general restrictions of a personal freedom in the state, was represented to widest of all personal liberties which action extended as on religious, and atheistic убеждения1. External expression of religiousness in ceremonies, cults or the sermons which were not containing any insults or violent appeals in relation to other believers, did not break someone's interests and could not be limited by the state. Believers should be allocated also with the right to create new confessions (which, as a rule, were treated by traditional doctrines as heresy [53] [54]) or in general to leave the ranks of adherents of religion.

Degree of the religious liverty given by that citizen or other state, depended on a kind of state-church relations which, according to the classification offered in 1888 by the senior lecturer of the christian law of N.A.Zaozersky, could be the following: 1) «the legal state» where there was no state guardianship over Church; 2) the liberal state developing by a principle «Free Church in the free state»; 3) the state which did not interfere with activity of Church and religious associations; 4) the theocratic state which allocated with the power church hierarchy; 5) the superiority of Church over the state [55].

In turn, depending on a kind of state-church relations in the state there was one of two types of criminal protection of religion.

Within the limits of the first type the state retaliatory measures supported and protected distribution of certain religion, simultaneously limiting or completely forbidding other religious doctrines. The given type of protection of religion could be expressed in various forms: in open prosecution of other religious doctrines; in an establishment of an interdiction for transition of believers from religion patronised by the state in other creeds; in hindrance to public divine services or sermons of supporters of other religions and creeds. An obligatory element of the given type of protection of religion was criminal prosecution of the offensive and violent actions directed against followers of patronised religion. At the same time, on supporters of other religions the right protection from violence and insults of their religious feelings did not extend or applied to a lesser degree [56].

It is obvious, that type of the state protection of the religion, based on compulsion methods, testified to police character of the state, did not answer position of the person in a lawful state, mismatched and even contradicted religious liverty principles. Therefore transition was outlined in second half XIX century in the West European states to the second type of criminal protection of religion. To the state the role of the defender of free criticism of dogmas from external violence was taken away. Even if to assume, that the majority of the population of one of the states has suddenly ceased to belong to one of the religions, the established principle of unbelief would not become an occasion to introduction of restrictions of freedom of creeds to the believers who have kept adherence of this or that religion. No arguments about «religious errors», "superstitions", "heresies", etc. could justify a state policy of religious oppression The reference of the West European states to principles of a freedom of worship was assumed by unconditional refusal from
Applications in religious questions of any kind of violence - both material, and moral, also provided to each believer the right of transition from one creed in another proceeding from personal preferences. Thus change of creed did not involve negative consequences for the believer in the form of criminal prosecutions, stesneny and restrictions in the civil rights. Naturally enough, that in the conditions of the second type of criminal protection of religion there were senseless such criminally-legal structures, as heresy, split, verootstupnichestvo, seduction which have initially been borrowed by the secular legislation from initial права1.

The principles of the religious liverty developed by the western legal thought by second half XIX century, have been formulated by known Russian jurist A.D.Gradovsky. To them have been carried: freedom of public departure of divine service; freedom of choice of creed; freedom of preaching for the purpose of the reference in the belief; possession all political and civil rights, irrespective of an accessory to this or that religion. Thus, the religious liverty assumed the personal right independently, without intervention state or the ecclesiastical authority to become the follower of this or that creed and free to follow it [57 [58] [59].

The second type criminally-right protection religions could be realised in various forms; transition to it has been caused by change of a sight at problems of the state and the general character of its relation to the person. The long period of history during which the state acted «as the servant of the certain church, obliged thereby came to the end with measures of external compulsion

3 to protect the doctrine of this church and to promote its domination in the people ».

Thus, since second half XIX century the West European states began to recognise gradually for the citizens the right on

Religious self-determination which was realised by the last by change of creed or an exit from existing religious societies. The West European criminal legislation has reduced the list of religious offences, having kept only such structures, as blasphemy, ponoshenie religious beliefs, hindrance to departure of a cult or compulsion to participation in it. The Religious liverty has received fastening in the West European constitutions and began to admit an inalienable law of the person along with the inviolability of home, a freedom of speech and other rights.

In Russia state-church relations were formed under the influence of the Byzantian traditions which considered the state and Church as a uniform organism that was directly reflected in degree of the religious liverty of the Russian citizens and on system of crimes against religion in the Russian legislation. For possession a full complex of the rights of the Russian citizen, - as V.N.Shiryaev marked, - it was required to be the follower of one of recognised as the state вероучений1.

Having made religion a support of the state order and having given to it corresponding protection, the state was inevitably erected by one creed in exclusive position. «... A direct consequence obshchestvennoyogosudarstvennogo values of religion is that conclusion, that relations of the state to religion cannot be constructed on the equality beginning of all and any religions», the Russian lawyer, state and public figure N.D.Sergeevsky [60 [61] fairly noticed.

According to the professor of the christian law of Jurevsky university M.Krasnozhyona, a principle of Christian tolerance at all did not assume the equal relation to all recognised religious societies from the state. Each religion received the only in that measure in what it was
Comparably with true represented by the state, i.e. the justice principle was not identical to a principle of absolute equality. The state could guarantee a full freedom of worship only in the field of religious beliefs of the person. At the same time questions of creation of religious societies and public fulfilment of a cult by them were beyond requirements of Christian toleration. Therefore activity of religious societies was under the state supervision and was legislatively регламентирована1.

In «the Arch of the basic state laws» it was declared, that «all citizens of the Russian state not belonging to dominating Church, natural and in citizenship accepted 1832, also the foreigners consisting in the Russian service or it is temporary in Russia sojourning, (items 44) use everyone everywhere free departure of their belief and divine service on ceremonies of this». By the Russian legislation it was guaranteed, that «the Freedom of religion prisvojaetsja not tokmo to Christians of foreign confessions, but also Jews, Mohammedans and pagans: yes all people, in Russia sojourning, glorify the God All-powerful different languages under the law and confession praottsev the, blessing reign of the Russian Monarchs, and asking the Creator of the Universe about multiplication of prosperity and strengthening of force of Empire» (item 45 [62 [63]). However actually there were various legislative restrictions of a freedom of religion. For example, the selected creeds carried out the konfessionalnuju activity in especially favorable conditions, and all other religious associations had to overcome various interdictions and oppressions. One of grave crimes against religion in the Russian legislation was compulsion to acceptance or renunciation of religious belief and to fulfilment of cult actions. The state realised futility of attempts to achieve absolute toleration in a society,
Therefore put before itself a problem to eliminate only the most obvious displays religious нетерпимости1.

To the middle of XIX century process of nationalisation of Russian Orthodox church which became a part of machinery of state of the power has come to the end. Activity entered in konfessionalnuju structure of the state of foreign Christian churches and other religions was under the control of Department of spiritual affairs of foreign confessions of the Ministry of Internal Affairs. The problem on association multinational and polikonfessionalnogo societies round the Russian monarch has been in such a way solved. Their legally fixed inequality was feature of a legal status of religious faiths in Russian empire: the big complex of the rights, according to M.Krasnozhyona, religions possessed, whose dogmatic doctrine was closest to Orthodoxy [64 [65]. According to this principle, all creeds settled down at three hierarchical levels. The status «Taking priority and dominating» belonged to Orthodox church [66]. At the second level there were so-called «recognised tolerant» confessions. First of all, it were Christian inoslavnye faiths - Catholicism, a Lutheranism and some currents protestantizma. To «recognised tolerant» Islam, the Buddhism-Lamaism, a Judaism and jazychestvo concerned also. The least volume of the rights and privileges religious groups and currents possessed «tolerant not recognised»: staroobrjadchestvo and the sectarianism which has arisen because of the orthodox doctrine. We will agree with fair supervision of Russian scientist-lawyer M.A.Rejsnera which considered, that at the heart of legal hierarchy of religious faiths in Russia there was not so much dogmatic affinity of these doctrines to Orthodoxy as believed M.E.Krasnozhyon, how many the political importance of the nations and the people belonging to these creeds (to the brightest
As example that was served by a legal status of Old Believers, orthodox inherently, but placed on the lowest hierarchical level) 1.

Not orthodox religious communities recognised as the state were provided with the Russian legislation the right to confession of the belief and public departure of divine service. Not recognised religious societies were ignored by the legislation and, hence, had no rights. However even for the creeds recognised as the law the right to missionary activity, transition from one creed in another and on creation of new religious groups was limited. Moreover, dependence of volume of individual rights of citizens on their creed was established. Official sights of Church and the state at a toleration problem were expressed by metropolitan Philaret (1821-1867): «Thought on toleration - thought plausible and fair but only when truly its subject and limits also are precisely defined. The thought about ohranenii unities of the creed dominating in the state, should become above thought on toleration and to believe to it limits» [67 [68].

On boundary XIX-XX centuries the question on the religious liverty became object of brisk discussion in the Russian society in which course three basic points of view expressed. The state official position was expressed in negation any stesneny in belief questions. Representatives of the state and church circles who insisted on necessity of preservation of existing model of state-church relations were its supporters. The position of the ober-public prosecutor of the Most holy Synod K.P was characteristic. pobedonostseva: «Russia stores a deep belief, that anywhere in Europe inoslavnye and even not Christian confessions do not use so wide freedom, as in the middle of Russian people...». However «protection of orthodox belief from fluctuations and from attempts at it, from any party, constitutes
The major historical debt of Russia, requirement of its life »1.« Keep My God to blame each other for belief!.duh - here that is essential in any establishment, here that it is necessary to protect most expensively from curvature and displacement », wrote K.P.pobedonostsev [69 [70].

During the studied period in legal circles other sight at the maintenance of state-church relations was generated also. Austrian lawyer F.B.H. Maassen, Russian lawyer-jurist V.D.Spasovich, seminary student A.A. The Sokolov [71 [72], historian-jurist S.A.Kotlyarevsky, the politician and historian S.P.Melgunov in the works resolutely supported granting of full freedom to all religious confessions.

So, V.D.Spasovich considered principles of a freedom of worship as external border outside of which the state could not establish additional restrictions. The state role should be reduced protecting all religions from rough insults and violent actions. He fairly believed, that «the problem of the state in the field of religion can be only a problem tretchika, the intermediary, a problem mezhduveroispovednaja, and the unique logic principle on which religious relations without contradictions and fluctuations can be constructed, is the beginning of the full

4 separateness of church and the state ».

Lawful state basis, according to S.P.Melgunov, absence from the government of censorship of belief of the citizens was. The freedom of worship mentioning spiritual human life, was one of the major civil freedom. The religious liverty principle should
Was to be carried out in all completeness: the state had not the right to apply forced measures to this or that вероучению1.

With the widest value allocated S.A.Kotlyarevsky's religious liverty. He believed, that «borders for freedom of confessions requirements of public and state self-preservation, and that understood in literal, instead of in the expanded sense» should become only. In its opinion, «realisation of a full freedom of worship... The conclusion of marriages, etc. demands branch of church from the state, and all civil relations in which the church - as registration of births till now took part, - become purely secular.» [73 [74].

According to F.B.H. Maassena, freedom not to practise any religion was logic continuation of freedom of choice of creed, therefore the freedom of worship was broken to the same extent as in case of compulsion to following of certain religion, and by a religious life in general [75].

The majority of the Russian researchers and public figures, remaining supporters of the religious liverty, supported granting to the right state to forbid the religious doctrines contradicting public morality and the law and order, and also publicly preaching atheism. The understanding of the religious liverty as freedom of creeds was divided by the known publicist and lawyer K.K.Arsenyev, the Russian criminalist of h.p. Belogrits-Kotljarevsky. Arsenyev recognised, that the state could not admit free development in the environment of dogmas, «obviously and undoubtedly opposite to the eternal law of morals - uzakonjajushchih, for example, murder, izuvechenie, debauchery». Arsenyev identified a freedom of worship and a freedom of worship, believing, that «between them artificial distinction» is often spent. He believed, that in Russia such type was established
Freedom of confessions which assumed granting of exclusive set of the rights only «to primordial followers of one of the doctrines recognised as the state» 1.

H.p. Belogrits-Kotljarevsky believed, that the religious liverty right «cannot be stretched on limits nenarushimosti a public order and morals principles». Freedom of expression in the field of religion did not grant the right publicly to wear existing cults, to preach immoral principles and to prompt to fulfilment of criminal actions [76 [77].

Russian jurist M.A.Rejsner understood freedom of creeds as «the common right of the person free and without any damage for itself to show in general in the external image the religious beliefs and, in particular, to establish, respective these sights, house divine worship». This concept included the right: 1) to belong to one of creeds, or to remain out of confession; 2) to make divine service or religious practices without the state compulsion; 3) free to leave a religious society or to pass in another; 4) to organise divine services with participation of ecclesiastics by rules of the belief; 5) to use the civil and political rights without restrictions; 6) to make civil actions without obligatory observance of religious and church ceremonies; 7) to receive the state protection of the person, honour and freedom against religious encroachments. For realisation of freedom of creeds it was required: 1) not to ignore because of the religious beliefs the state and its laws; 2) not to break the existing rights of the religious associations recognised as the state, and the private persons belonging to them; 3) not to spend the public sermon of atheism and open immorality [78].

Thus, proceeding from the listed conditions of maintenance of the religious liverty, M.A.Rejsnerom definition of crimes has been deduced against
Religions: these are the acts directed on restriction of religious beliefs and their external displays in the form of a cult. S.V.poznyshev adhered to a similar position and carried to religious offences any acts connected with compulsion to fulfilment or refusal in fulfilment religious действий1.

Besides the state-church relations, an essential role in formation of criminally-legal institutes as a whole and crimes against religion - in particular, first five books of the initial Jewish Bible known as «pjatiknizhie Moiseja» have played. Throughout all epoch of the Middle Ages and partially - during New time, in all Christian states texts of the Scriptus were an authoritative source for the permission of criminally-legal questions, including - at trial of crimes against religion. The professor of St.-Petersburg university N.S. Tagantsev marked the following: « The most ancient views on essence of these crimes is view of the Jewish legislation. Its basic line starts with an identification of concepts of crimes and a sin. These beginnings have found to themselves expression and in the legislation of the first Christian emperors and in the christian law, and then were reflected in the secular legislation and later times »[79 [80]. Religious beliefs were considered as legal duties of separate persons before the theocratic state which subjected all antireligious acts to criminal prosecution. Was considered, that object of encroachments of religious offences was the Deity together with« an assembly below Its standing spiritual beings ». Infringement of laws was considered as revolt against the God - as a sin, as religious offence. Encroachments on religious beliefs were equated to encroachments on the God. As duties not only in relation to the God, but also to people, on the basis of prevalence in them of a divine or human element could be object of crimes, criminal offences were divided into crimes against the God and against people. At
It classification of crimes has been based on ten bible precepts and repeated their sequence: first four precepts regulated the relation to the God, other six - to people. Crimes against religion covered following acts: idolopoklonnichestvo, blasphemy, lzheprorochestvo, a perjury, ill-intentioned infringement of religious instructions, profanation of Saturday, the reference to «dark forces of a hell», giving the supernatural power, the introduction into dialogue with a devil. Thereby involuntarily there were preconditions for occurrence of superstitious acts - sorcery and чародейства1.

Sights at religious offences under the influence of new religious doctrines and natural death school have undergone serious changes by the end of XVIII century Representatives of the criminally-legal doctrine of the given period the German criminalist, one of founders of classical school in A.Fejerbah's criminal law, professor of law K.L.V were. Background Grolman, etc. the Theological theory of the Middle Ages it was replaced by comprehension of that religious encroachments could not be directed on the Deity which existed only in human consciousness and did not require justice protection: «the God exists out of a human hostel and human relations, and the right serves only for a hostel. The god does not require protection from people and their laws» [81 [82]. Outstanding German philosopher L.A.Fejerbah fairly noticed: « It is impossible, that the deity has been offended; it is impossible, that it revenged the person for the insult; it is ridiculous, that it has been satisfied by punishment oskorbitelja »[83]. Russian criminalist N.D.Sergeevsky also did not consider criminal the offences directed against immaterial subjects (« beings and concepts distracted ») - the God, angels, sacred because they were out of legal relationships with the person. Hence, encroachments on them
Could be considered as immoral, antireligious acts, but in any way правонарушениями1.

According to new judgement of religious offences, their object Deities and subjects of a religious cult, and church communities and religious feelings of their followers which could be offended ponosheniem subjects of honouring [84 [85] have started to admit not. So, L.A.Fejerbah considered, that Church as the moral person, honour had; hence, the one who degraded its purposes and has worn subjects of religious honouring of a religious society, offended also Church [86]. The similar position was occupied with N.S.Tagantsev who believed, that it is necessary to consider as object of religious offences Church as «the special form of dialogue the citizens recognised and protected by the state» [87].

However Russian criminalist V.N.Shiryaev considered erroneous ignoring in religious offences of a public element. In its opinion, as object of their encroachments acted not on any private interest of separate persons, and one of fundamental laws of civil freedom - the right to religious self-determination of citizens, their possibility freely to think and profess the belief. Protection of fundamental laws of citizens carried public interest as their observance guaranteed quiet existence and unobstructed development of a society and the state [88]. Thus, the religious offences, XVIII century known to the right, it is possible to classify on following groups: 1) the acts directed against the Deity; 2) encroachments on dogma, domination of "true" belief and Church; 3) the actions interfering divine service or encroaching on cult subjects which demanded respect. It is necessary to notice, that the legal thought at the given stage did not consider interests of persons, which not
Belonged to one of recognised dogmas, or were non-believers, and did not consider them as objects of religious offences.

At last, in XIX century, contrary to private-law tendencies, the wide circulation was received by the theory of breach of law of all society which carried crimes against religion to a category protivoobshchestvennyh the acts which had public character. K.Vehter's German lawyers, K.I.A adhered to the legal doctrine of 1830th. Mitermajer, V.E.Valberg. As objects of crimes against religion acted not only religious associations, but also religion as the major condition of existence of a society and an element of the state hostel. Acts have been carried to crimes against religion, though and not containing infringements of the rights of religious societies, but representing open attacks against bases of the state order. The theory of crimes against religion as public offences has found for the first time the practical realisation still in Austrian ulozhenii 1787 According to the given theory, the problem of the state fell outside the limits protection of the rights only private persons and the religious organisations. It had the right to protect from encroachments also the own interests necessary for the further existence and development. For example, imposing an interdiction for fulfilment of publicly immoral actions, distribution of compositions or images of the same character, the state started with necessity of protection of morals as one of social order bases. Thus, as object of religious offences began to act not only the rights belonging to private persons and it is direct to the state, but also bases of a social order - morals and religiousness [89].

The given theory has not found understanding from a number of the Russian lawyers. So, V.N.Shiryaev considered, that the similar sight at religion mismatched its essence and value for believers. Religion as set of known religious doctrines, was realised in belief and outlook of its followers. If the religion ceased to answer spiritual needs,
otpadenie believers from it could not prevent any criminally-legal запреты1. According to S.A.Kotlyarevsky, the state, having made religion object of the protection, has offended by that religious feelings of believers: the religion possessed value in itself, instead of as a support and a guarantee of the state order [90 [91].

Agreeing with S.A.Kotlyarevsky's fair remark, nevertheless it is necessary to note that special, dominating role which the Russian state played regulation of the various parties of a public life; among them there were also religious beliefs of citizens. The essence absoljutistskogo the states what throughout a long stage of the history Russian empire was, assumed attraction of Church for the decision of especially secular questions [92 [93]. Therefore the theory of the Russian criminal law protecting from encroachments the right of the subject on the religious liverty which degree was in inverse relationship from number of criminally-legal structures of 4 religious offences in the operating legislation has been contrasted the western doctrine.

Professor M.E.Krasnozhyon noticed, that in Russia the Orthodox church from the moment of the occurrence «has received in the conducting very many criminal cases of a different sort». In ancient Russia to the spiritual court were cognizable and were punished by church punishments: «1) crimes against belief and church, 2) crimes against a matrimony, 3) crimes against chastity, 4) some cases smertoubijstva. If the person deprived of civil rights, standing under the protection of church, 5) the personal insults made in a circle was killed
Matrimony or against women, or the insults put in the way especially shameful »1.

Keeping interrelation with Church through criminally-rule of law, the state aspired to prevent the possible threat proceeding from «religious rebels»: trampling on century foundations of a religious life, with a high probability they could become «rebels state». In exchange on restriction of influence and political independence of Church the state has given it the legal protection [94 [95]. According to professor of law A.F.Kistjakovsky, the police and criminal legislation of Russia on religious offences «belonged to an old formation» and kept such characteristic signs, as absolute ortodoksija, exclusive prozelitizm, neveroterpimost. Responsibility for fulfilment of crimes against religion was established by rules of law which were «some kind of quintessence of legal, religious, political institutes». In them have found the realisation of the decision of many vital issues of last Russian state [96]. The criminal legislation duplicated many religious interdictions and contained some church punishments (a spiritual repentance, the conclusion in a monastery) which provided execution by the population of religious instructions and ceremonies. The penal code criminal and corrective in different editions, the Arch of Charters about the prevention and suppression of crimes of 1890, the Criminal code of 1903 gave a right protection to representatives of various religions, but mainly - to followers of Orthodox church. In Russia the special diocesan court of spiritual consistories possessing enough the wide competence also operated. As has precisely noticed S.V.poznyshev, Russia was the state which «orders or forbids citizens any beliefs» [97].

Religious offences were equated by the Russian legislation to heavy, their list was numerous, they took places in the first sections of criminal codes, and for their fulfilment severe punishments were provided. So, at drawing up of the Code of laws of Russian empire, all religious offences have been carried to second section of XV volume «About crimes against belief and about infringement of decisions protecting it» 1.

The relation of the state to Orthodox church, according to V.N.Shiryaev, was «supervising factor for construction of known system of religious torts». In Russia laws protected interests of Church, and in the majority of the European states on the first place the rights of separate persons were put. It absence in the West European legislation of independent group of religious offences spoke: they have been placed in other sections of codes according to the nature of objects of the criminal trespass [98 [99].

In process of development of the Russian legislation religious offences were designated by the legislator various terms. In the Code of laws of criminal 1832 they were defined as «crimes against belief» [100], and in the Penal code criminal and corrective began to be called «as crimes against belief and protecting this decisions» [101]. Later, in the Criminal code of 1903, religious offences have been carried to group of encroachments «on decisions protecting belief» [102]. However S.V.poznyshev believed, that any of these names did not reflect most full essence of the given group of crimes. Therefore instead of the term «the religious
Crimes », in its opinion, it would be more pertinent to use« crimes against the religious liverty »1.

Crimes against religion in Russian empire, in comparison with other kinds, were not numerous. They constituted all nearby 1 % from the general number of the criminal cases which were on investigation at investigators and in procurator's supervision (during 1890-1894). Less than 2 % from the general number of the convicted have been condemned by the general vessels for religious encroachments [103 [104].

In summary we will consider, what punishments were provided for fulfilment of crimes against religion. During that historical period when the state, identifying concepts of a sin and a crime, aspired to protect the laws from encroachments the Deity and «Forces Heavenly Unbodied», for fulfilment of religious offences severe penalties - from mutilating corporal punishments to the qualified death penalty relied. In Ancient Russia right after acceptances of Christianity from retsipirovannyh collections of the Byzantian right at first in Canons, and during later period - and in codes of the secular legislation, began to pass such structures of religious offences as: heresies, seduction, verootstupnichestvo, magic, charodejanie and zelejnichestvo, execution of pagan rites instead of ceremonies of Christian belief and variety of others. Punishments for these crimes were the diversified: From corporal punishments and imprisonment, to a lifelong imprisonment in a monastery or a death penalty [105]. After change in the end of XVIII century of sights at essence of crimes against religion degree of punishments has essentially decreased, and their some kinds (for example, a death penalty) have ceased to be applied. However till the end of XIX century the Russian legislation for separate kinds of religious offences still kept such punishments, as imprisonment, a hard labour and the reference. Less heavy acts were punished by short-term arrest or
The fine. Degree of responsibility guilty considerably increased when the crime was made in church or the prayful house, and also during divine service. Similar displays of disrespect for religion were considered scandalous and demanded severe punishment.


Thus, formation and development of system of crimes against religion in the legislation of Russian empire has occurred under the influence of the several reasons. The first and most significant factor was the relation of the state to the religious liverty of the citizens, and also degree of its intervention in activity of religious associations.

Religious liverty degree depended on what of types of criminal protection of religion was established in this or that state. With reference to Russian empire the type criminally-right protection the religions, reducing a state role to Orthodoxy legal protection operated. Activity of other religious associations was limited or forbidden. Meanwhile, the principles of the religious liverty developed by the western legal thought by second half XIX century, included the right of public departure of divine service, a choice of creed, preaching for the purpose of the reference in the belief, and also possession all political and civil rights irrespective of veroprinadlezhnosti. The Religious liverty assumed the personal right independently, without intervention state or the ecclesiastical authority to become the follower of this or that creed and free to follow it.

In Russian empire in XIX century the status «Taking priority and dominating» has been appropriated Russian Orthodox church, and other creeds have been divided by the state on «recognised tolerant» (Catholicism, a Lutheranism and other currents protestantizma) and «tolerant not recognised» (staroobrjadchestvo and orthodox sects). Not orthodox religious associations recognised as the state were allocated with the right to confession of the belief and public fulfilment of divine services. However their right
On carrying out of missionary activity and creation of new religious groups it was essentially limited to operating legislation. For possession the full complex of the rights of the Russian citizen required to the follower of one of the dogmas recognised as the state. The big complex of the rights allocated the religions dogmatically close to Orthodoxy, and consolidating politically significant nations for Russian empire and the people (Catholicism, a Lutheranism and some other currents protestantizma).

On boundary XIX-XX centuries in the Russian society brisk discussion about the religious liverty which participants adhered to one of three cores of the points of view was developed. The official position of the state presented by the state and church figures, was expressed in negation any stesneny in questions of belief and support of existing model gosudarstvennoyotserkovnyh relations. Visible Russian jurists and public figures resolutely supported granting of full freedom to all religious confessions. However the majority of the Russian researchers, remaining supporters of the religious liverty, supported the state interdiction of the religious doctrines contradicting public morality and the law and order, and publicly preaching atheism.

Essential influence on treatment of religious offences has rendered the christian law which identified concepts of a crime and a sin. Religious beliefs were considered as legal duties of separate persons before the theocratic state which subjected all antireligious acts to criminal prosecution. Under the influence of new religious doctrines and natural death school by the end of XVIII century object of religious offences church communities and religious feelings of their followers began to admit. Interests of the persons who were not belonging to one of religions recognised as the state or non-believers, were not considered. In XIX century private-law tendencies were replaced by the theory of breach of law of all society which has carried crimes against religion in a category of the public. The religion as a basis began to be considered as object of religious offences
The state order, inevitable erection of one creed in exclusive position became a consequence of that. The Socially-state importance of religion has not allowed to build the relation of the state to it on the basis of equality of all creeds.

Crimes against religion under the Russian legislation of the end XIX - the beginnings of XX centuries were equated to the heavy; their list was numerous, and the punishments provided for their fulfilment - severe. The secular legislation of Russian empire was on a position of protection of interests of Orthodox church that distinguished it from the legislation of the West European states putting in the head of the right of separate persons.


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A source: Androshchuk Victor Vladimirovich. CRIMES AGAINST RELIGION UNDER the LEGISLATION of Russia of the END XIX - the BEGINNINGS of XX CENTURIES the Dissertation on competition of a scientific degree of the master of laws. Moscow - 2015. 2015

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