Diaconia: Legal support for social work
This cooperation is not something new, as the Russian Orthodox Church used to cooperate with the Russian State in the social service of the population for a millennium. For a long time, the Church and the state built their interaction on the princi-ple of "symphony of the authorities" formulated by Emperor Justinian.
In our time, this cooperation is built on different foundations and presupposes first of all the state and the Church unit-ing their efforts in solving most important social problems.
The church-state separation plays an important role here. The Church acts as an independent organization enjoying, ac-cording to the current legislation, a certain legal capacity for carrying out social service. At the same time, the state and the Church act as equal partners and coworkers building their relationship on a specific legal basis that includes legal contract rela-tions. Thus a certain balanced construction has emerged, taking into account the interests and specific features of each side. This balance is regulated by an effective set of normative legal acts defining the parameters in which the Church is to carry out her social service including the nature, limits and areas of church-state cooperation in this service.
Any departure of either side from this legal boundaries inevitably leads to a breach of this cooperation construction, as was the case with church-state relations in Russia in the period from October 1917 to the early 90s of the 20th century.
It is evident therefore that at present it is law and its implementation that comprise the fundamental foundation of church-state cooperation. Naturally, each side should seek by all possible means to keep its relations within the legal frame-work. It can be achieved only if adequate attention is given to the legal support of the social and charitable work of Orthodox religious organizations.
The problem of legal support
Law as a fundamental principle for the functioning of Russian society today puts to the forefront the problem of legal support for the social and charitable work of the Church. The legal support is all the more important as relations involved in this work have become too complicated. It takes a religious organization too much attention and energy to make legal ar-rangements for its every step in this field of work, and the requirements made by the state to participants in this work have be-come too high.
Obtaining a license for a social church structure, choosing an organizational and legal form of a social service, estab-lishing a charitable and social structure, fund-raising, securing tax and other privileges for a charity, concluding an appropriate contract to enter the existing state system of the support and encouragement of social service - these are only few of the prob-lems a religious organization has to encounter in its social and charitable work.
Certainly, a religious organization's competence in tackling all these problems does credit to a state and ensures normal partnership and effective cooperation.
The problem of legal support for the social and charitable work of Orthodox religious organizations lies also in the fact that the Church in this work enters into contact with physical and legal entities. In doing so, the Church has to observe their interests and rights, to formalize legal relations with them correctly and to protect herself against their possible arbitrariness.
Some problems of social and charitable work can be solved only by using mechanisms provided by the law currently in force. These are primarily contracts for providing social and medical services, recovery of religious property by religious or-ganizations, establishment and registration of church charitable and social structures, etc.
Finally, some forms of the Church's social work, such as social and legal work with orphans in Orthodox children's in-stitutions, can exist only in legal form.
It is evident therefore that the involvement of a legal expert is vital for a religious organization engaged in this kind of work.
Areas of legal support
For the social service of the Church to be effective it should enjoy serious organizational and legal support. The most important problem of social work is the establishment of a social service. To this end, an optimal organizational and legal form of service should be chosen, constitutive documents should be drafted, registration should be obtained according to the estab-lished procedure, and its functioning should be organized in accordance with the law.
In doing so, the internal structure of an organization, including its constituting units, which have no right of legal entity, such as branches and representations, should not be overlooked. The legal service will develop provisions for such units and arrange for their accountability to taxation and other bodies.
Legal support also includes contractual work with governmental and especially municipal bodies in charge of giving governmental assistance to the social service of the Church. Such contracts are used to establish the legal foundation of church-state cooperation in social service. It is important that a contract should be concluded with a person to whom a specific aid it given, especially from the point of view of observing and protecting the rights of a religious organization.
Legal monitoring and assessment of prospective areas in which an organization can work for social service play an im-portant part in the legal support for social service. This is assessment of how far the major areas of the work of a social service organization are covered with legal standards and monitoring the legal tendencies and changes made in the law so that the or-ganization may make correct short and long-term decisions. It also includes the work to ensure financial support for charitable and other projects of an organization through bringing its work in legal conformity with the normative requirements made by the state to such a support.
It is extremely important that a specialist should be involved in fund-raising. This specialist will secure and convey to possible sponsors the information concerning tax allowances applied to an organization. He or she will also ensure that an or-ganization is included in the system of privileges provided by federal and regional laws, develop charitable and other programs to be adopted at appropriate levels and conclude contracts for charitable work with sponsors' funds. These are only a few of the areas in which legal support for fund-raising is needed.
The legal component of the work with personnel should not be neglected either. Today, many workers join social ser-vice as volunteers. The law currently in force does not provide for the status of volunteers and other participants in social ser-vice. Therefore, legal support plays a considerable role in the correct arrangement of relations with these participants of social service.
If an organization is engaged in training its own specialists in social service, legal support is needed here to establish appropriate contractual relations with educational institutions training these specialists.
Forms of support
The primary form of legal support for social service is consultancy.
At a request of the leaders of an organization, legal advisers will also give counsel on the implementation of legal acts in the work of the organization.
Another form of legal support is drafting legal documents, such as contracts, statutes and provisions, and their legal maintenance.
Legal support for social service includes as its special form the drafting and adoption of specific charity projects and obtaining an appropriate status for them so that they may be financed by the state.
Social service requires much work to be done for intervening with federal and municipal bodies, including courts and arbitrages, concerning specific problems of this service. It includes the presentation of statements of claim, appeals and peti-tions, the conduct of negotiations and participation in preparing draft decisions of these bodies on specific aspects of the social service of an organization, as well as the conclusion of contracts on cooperation and interaction with these bodies.
Moreover, of great importance is the propaganda of legal knowledge through publications, participation in seminars, lecturing, etc., as well as the codification of the legislation made by a specialist.
Finally, a legal adviser will choose an informational legal reference system and its particular packages to fit the major areas of work of an organization.
Legal support models
Speaking about models of legal support for social service, it should be mentioned that the forms offered here are pre-cisely models. Each organization will create a specific organizational structure of legal support on its own.
The most popular form of organizational pattern is a legal adviser. Apparently, there are two models of his work for an organization, namely, working free-lance or on the administrative legal staff.
Another model of legal support is the employment of legal staff. It enables an organization to cover several major areas of its work at once and to allow the legal staff to specialize in particular areas.
To deal with particular problems involving several related organizations and to combine efforts for implementing spe-cific projects the existing legal services of these organizations or projects may unite their efforts. It is the most effective model in cases where a religious organization and a governmental body work together.
The most elaborated model of legal support is a centralized legal service backing up all the religious organizations en-gaged in social service. In the secular realm, this model of legal support was exemplified by the system of administrative cen-tral boards that monitored various sectors of the national economy. The centralized legal service of a board supported all the structures included in the board. A similar service could be organized under the Moscow Patriarchate or one of the organiza-tions engaged in comprehensive social service.
In establishing an association or a union of religious organizations carrying out social service, a legal service can be or-ganized to advocate effectively the interests of its members on various governmental levels, to prepare and present draft by-laws and to ensure unified legal support for every organization member of the union.
Finally, the best but not yet used form is an autonomous structure with the legal identity status, created specifically for the Church to give legal support to her social service.
The above makes it possible to conclude that legal support occupies one of the central places in social service. The quality of this support determines in many ways our ability to fulfill the Lord's commandment to love our neighbors as our-selves.
O. M. Trainin,
Head of the Legal Service
Sts Martha and Mary Convent of Mercy
Today the social work of the ROC religious and other organizations, such as parishes, monasteries, church representations, brotherhoods and sisterhoods, covers the following areas:
In the first area - social services and social support for the needy - legal support for church organizations is carried out in accordance with a number of normative acts. Among them are the federal Law on Basic Public Social Services of December 10, 1995, the federal Law on Charitable Work and Charitable Organizations of August 11, 1995, Provision for Licensing Pub-lic Social Services No. 933 adopted by the Government on December 7, 2000, and other normative acts.
In keeping with the federal Law on Basic Public Social Services Article 1, the ROC social work is carried out through social services established by the ROC to give social support to those whose living standards have sharply declined. According to Articles 3 and 4 of the same Law, the work of church organizations providing social services can be carried out in the fol-lowing forms:
The law currently in force enables ROC religious organizations to establish social institutions for adults and children Article 4, Par 3). At present, the most popular forms of the social service of the Church are Orthodox special institutions for children who need social rehabilitation, Orthodox orphanages and boarding schools for abandoned children and Orthodox old people's homes.
In establishing and running Orthodox social service organizations, a whole set of legal problems arises. First, it is the right choice of an organizational and legal form of such an organization. For instance, practice has shown that the best form of an Orthodox charity house in Moscow is a non-governmental stationary institution for medical and social aid to old and dis-abled people (a boarding house). As far as organizations for orphans and abandoned children are concerned, in establishing them it is necessary to consider two possibilities. First, giving a temporary asylum to them and placing them later to appropri-ate stationary institutions, such as orphanages, boarding schools, reformatories, etc. and, secondly placing them under perma-nent social rehabilitation to be followed by job placement. The best form in the first case is a social asylum as defined by the Provision for Children's Social Asylum in the Governmental Decree No. 896 of November 27, 2000. In the second case, the best form is a social rehabilitation center for underage children, engaged in preventing child neglect and in social rehabilitation of children caught in a tight situation. According to Par. 8 of the Provision, such a center can have long-stay social rehabilita-tion groups. Unlike educational institutions for orphans and abandoned children, a social rehabilitation center does need an education accreditation from public education bodies. Such a center can be established as a structural unit of a religious or-ganization, without a legal identity.
The work of a social service organization is subject to the Provision for Licensing for Social Service. Obtaining a li-cense requires the preparation of necessary documents. Thus, to obtain a license for an Orthodox charity house it is required to present the following to the Social Protection Committee:
Evidently, a legal adviser should take into account not only the federal law norms but also regional by-laws on licens-ing. The most acute problem for Orthodox social service organizations is to ensure the necessary conditions for keeping adults or children in accordance with the sanitary and epidemiological, fire prevention and construction rules established by respec-tive by-laws. More often than not, buildings and facilities adjoining churches, which have been handed over to religious or-ganizations for ownership or free use, do not meet the established requirements, while putting them under repair is difficult because of lack of resources. These difficulties, however, do not give grounds for a social service organization to give up seek-ing a license and go "underground". If the shortcomings are partially removed at the request of the local Sanitary and Epidemi-ological Station and Fire Prevention Control, a license can be obtained for particular social services, such as medical and social aid, sanitary and hygienic services, etc.
There is certain specificity in the formalization of relations between social service institutions and people they serve. For instance, the administration of an Orthodox old people's home often concludes a lifelong support contract with old people and their legal representatives whereby care and nursing are provided to these people on the condition that they give their apartments to the old people's home for ownership.
The second area of the ROC social work, namely, the education of underage children supported by Orthodox social service institutions, is also of great importance. These institutions do not at all always have at their disposal the necessary pedagogical staff trained for educating children. That is why the most popular form of such institutions is external studies in which students master the general school curriculum on their own, undergoing intermediate and final attestations by a state-accredited general educational school. The Provision on External General Education adopted by the Ministry of Education De-cree No. 1884 of June 23, 2000 (registered on April 4, 2000 under No. 2300), sets forth the responsibilities of the school and the external student or his parents or legal representatives in offering education in the form of external studies. Certainly, social service institutions should seek to develop their own pedagogical staff to be able to teach children themselves as it has been done today by some social service institutions and monasteries in which abandoned children live. They have opened their own licensed Orthodox educational institutions. The staffs of these institutions or monastics are graduates from pedagogical insti-tutes or university departments, internal or external, or from advanced pedagogical courses. As a result, there is no need to use external studies for their children as they can now teach their children themselves.
It should be emphasized with its own pedagogical staff, a social service institution can use two opportunities provided by law. First, this organization can establish its own educational institution with a legal identity, such as a general secondary school, a gymnasium, etc., and subsequently seek accreditation for it. Secondly, a social service institution is entitled to carry out educational work without registering its school with the state as a legal identity. To this end, an institution should set up a structural unit, such as a school, a gymnasium, etc., to function on the basis of the internal Statute. Subsequently it should ap-ply to an education body or a respective local self-government office to obtain a license for educational work without register-ing its school with the state. According to Article 33 of the Law on Education from July 10, 1992 as amended on January 13, 1996, a license for educational work is issued on the basis of conclusions made by an experts committee. Its task is to establish whether the educational process in an institution complies with the federal and local requirements for construction rules, sani-tary and hygienic standards, healthcare norms for students and teachers, educational qualifications of the teachers and other aspects indicated in Par. 9 of Article 33 of the Law.
In future, a social service institution or a school established by it and registered as a legal identity can obtain state ac-creditation. It gives the school the following opportunities listed in Article 33 of the Law on Education: to grant its graduates the state-recognized certificate of education, to use a stamp with the RF State Emblem and to enter the national financing sys-tem.
Another important problem is the contents of education in Orthodox schools. The point is that along with general disci-plines, such as Russian Language, Literature and Mathematics, the curriculum of an Orthodox school should include such reli-gious subjects as Religious Instruction, Basic Orthodox Culture and Ethics, etc. Unfortunately, the training of teachers for these subjects is still a problem, since there is no church-wide or national educational standard for teaching them. Nevertheless, some advanced training institutes have set up courses for training such teachers. The graduates are granted state certificates entitling them to teach religion to children as an optional subject. Similar certificates are granted to graduates of theological colleges and university departments having appropriate state accreditation. The experience gained in the city of Tver deserves attention in this respect. At the initiative of Tver State University, the documents necessary for introduction of Basic Orthodox Culture as a specialty for a preliminary school teacher were submitted to the Association of Pedagogical Institutes of Higher Education. On the basis of the Experts Statement of December 22, 1999, the Association concluded that it was possible for Tver State University to start training Basic Orthodox Culture teachers for preliminary school.
In recent years, the ROC has exerted considerable efforts to oppose the legalization of socially dangerous actions in the area of family relations and medicine. It is above all abortion, described in the law by such a plausible term as "artificial inter-ruption of pregnancy". The preamble to the Convention on the Rights of the Child, adopted by the UN General Assembly on November 20, 1989, states that ""the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth". However, according to Par. 2, Article 17 of the RF Consti-tution, "the fundamental human rights and freedoms belong to each from birth". Thus, in the Russian Federation the life of a conceived but not yet born child is not actually protected. In this situation, it is important that legal opportunities should be found for Orthodox doctors to refuse to perform an abortion on religious, ethical or other grounds. Characteristically, the Rus-sian legislation does not provide for the right of a doctor to refuse interrupting a pregnancy. Actually, the right of an attending medical doctor to refuse to "observe and treat" a patient, sealed in Article 58 of the RF Basic Legislation on Public Healthcare, can be realized only on the following grounds: first, if a patient fails to observe the prescriptions and internal routine of the treatment and prevention institution; secondly, if this refusal does not threaten the life of a patient and the health of those around. Clearly, the reluctance of a doctor to kill a conceived life does not fit in the legal framework in which a doctor can refuse to "observe and treat a patient". To our mind, this article does not present an obstacle for the legal insurance of the right of a doctor to refuse to perform an abortion. The point is that in case of an abortion what is involved is not the "treatment" of a patient, but rather a medical interference the rejection of which by a doctor is not settled in the Basic Legislation. The right of a doctor to refuse to perform an abortion is vested by Par. 6 of the World Medical Association Declaration on Medical Abortion, whereby "if personal convictions do not allow a doctor to perform a medical abortion, he is obliged to refer the patient to a qualified colleague'. However, this Declaration is not a legal but ethical document. Nevertheless, there are certain legal grounds for a doctor to refuse to perform an abortion. The point it that the Russian legislation acts on the permissive principle whereby "whatever is not forbidden by law is permitted". Thus, a refusal to perform an abortion appears to be a lawful action, since the law currently in force does not forbid it. Nevertheless, refusals of this kind have not occurred in the medical practice. Restraining here are Articles 124 and 125 of the Russian Federation Criminal Code, whereby a doctor shall be criminally liable "if he refuses to give aid to a patient without good grounds" or "if he obviously leaves a patient in danger threatening his life and health". The legal gap preventing the "permissive principle" from being realized fully could be filled by a special article providing for an opportunity for a doctor to refuse to perform an abortion on moral and ethical grounds and on the basis of religious and other convictions. As far as religious and other convictions are concerned, in the absence of a special article in the Basic Legislation on Public Healthcare, a doctor has the right to justify his refusal by referring to Par. 1, Article 3 of the Federal Law on the Freedom of Conscience and on Religious Associations, which guarantees the right to have and propagate one's religious and other convictions and act on them.
This analysis of major areas in which legal support for the ROC social work can be provided points to the need to de-velop and improve the practice of law implementation. It is also important that representatives of the ROC should be involved in legislative work. It can be done through such structures established at executive bodies as the Governmental Commission for Religious Associations, the Moscow Patriarchate and Education Ministry Coordinating Committee, the Commission for Church-State Relations under the Presidential Envoy in the Central Federal Region, and other bodies.
K. A. Chernega, Candidate of Law
Department for Religious Education and Catechism
Russian Orthodox Church
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