In Rus', in the era of its Baptism, the current civil law had not yet gone beyond the framework of ordinary folk law; it was incomparable with the delicately developed Roman law, which underlay the legal life of Byzantium, therefore the church hierarchy that came to us from Byzantium after the Baptism of Rus', received under its jurisdiction many cases that in Byzantium itself were under the jurisdiction of civil magistrates. The competence of the church court in Ancient Rus' was unusually extensive. According to the statutes of the princes of St. Vladimir and Yaroslav, all relations of civil life that related to religion and morality were referred to the area of the church, episcopal court. These could have been purely civil cases, according to Byzantine legal views. Already in Byzantium, marriage matters were predominantly conducted by the ecclesiastical court; in Rus', the Church received under its exclusive jurisdiction all matters related to marital unions. Cases concerning the relationship between parents and children were also subject to the holy court. The Church, with its authority, defended both parental rights and the inviolability of the personal rights of children. The Charter of Prince Yaroslav says: “If the girl does not marry, the father and mother will give it by force, and what the father and mother do to the bishop in wine, so will the boy.”
Inheritance matters were also within the jurisdiction of the Church. In the first centuries of the Christian history of Rus', such cases happened often, since there were a lot of “non-wedding”, illegal, from a church point of view, marriages. The rights of children from such marriages to their father's inheritance were subject to the discretion of the ecclesiastical courts. Russian practice, in contrast to Byzantine practice, tended to recognize the rights of children from such marriages to a part of the inheritance. All disputes that arose regarding the spiritual will were also subject to the jurisdiction of church courts. Legal norms of the statutes of St. Vladimir and Yaroslav retained full power until Peter's reform. Stoglav provides the full text of the Church Charter of St. Vladimir as the current law.
In the 17th century, ecclesiastical jurisdiction in civil matters expanded compared to earlier times. The “Extract on Cases Under the Patriarchal Order,” made for the Great Moscow Council of 1667, lists such civil cases as:
1. disputes regarding the validity of spiritual wills;
2. litigation regarding the division of inheritance left without a will;
3. on penalties for marriage agreements;
4. disputes between wife and husband about dowry;
5. disputes about the birth of children from a legal marriage;
6. cases of adoptions and the right of inheritance of adopted children;
7. cases of executors who married widows of the deceased;
8. cases of petitions from masters against fugitive slaves who took monastic vows or married free men.
In these cases, all persons - both clergy and laity - in Rus' were subject to the jurisdiction of the church, episcopal court.
But all civil affairs of the clergy were also subject to the jurisdiction of the church authorities. Only bishops could consider litigation in which both parties belonged to the clergy. If one of the parties was a layman, then a “mixed” (mixed) court was appointed. There were cases when clergy themselves sought trial from civil, that is, princely, and later royal judges. Countering such attempts, Novgorod Archbishop Simeon in 1416 forbade monks to appeal to secular judges, and judges to accept such cases for consideration - both on pain of excommunication from the Church. Metropolitan Photius repeated this prohibition in his charter. But both the white clergy and the monasteries did not always prefer to sue the bishops. Often they sought the right to appeal to the princely court, and the government issued them so-called non-conviction letters, according to which the clergy were exempted from the jurisdiction of the diocesan bishops in civil matters. Most often, such letters were given to the clergy of princely and royal estates, but not exclusively to them - they were also issued to monasteries. The Council of the Hundred Heads of 1551 abolished the letters of non-conviction as contrary to the canons. Tsar Mikhail Feodorovich in 1625 gave his father, Patriarch Philaret, a charter, according to which the clergy, not only in litigation among themselves, but also in the claims of the laity, was to be sued in the Patriarchal Class.
Under Tsar Alexei Mikhailovich, all civil affairs of the clergy were transferred to the department of the Monastic Prikaz established in 1649, the existence of which Patriarch Nikon energetically but in vain protested against. The Great Moscow Council, which condemned Patriarch Nikon, nevertheless confirmed Stoglav’s decree on the exclusive jurisdiction of the clergy to bishops, and soon after the Council, by decree of Tsar Theodore Alekseevich, the Monastic Order was abolished.
The uniqueness of church legal proceedings in Rus' in the pre-Petrine era also lay in the fact that the jurisdiction of the hierarchal courts also included some criminal cases. According to the statutes of the princes of St. Vladimir and Yaroslav were subject to the ecclesiastical court for crimes against faith and the Church: the performance of pagan rites by Christians, magic, sacrilege, desecration of temples and shrines; and according to the “Helmsman’s Book” also - blasphemy, heresy, schism, apostasy from the faith. The episcopal court heard cases related to crimes against public morality (fornication, rape, unnatural sins), as well as marriages in prohibited degrees of kinship, unauthorized divorce, cruel treatment of a husband and wife or parents with children, disrespect by children of parental authority. Some cases of murder were also subject to the holy court; for example, murder within the family, expulsion of a fetus, or when the victims of murder were persons without rights - outcasts or slaves, as well as personal insults: insulting a woman’s chastity with dirty language or slander, accusing an innocent person of heresy or sorcery. As for the clergy, in the pre-Petrine era they were responsible for all criminal charges, except for “murder, robbery and red-handed theft,” before the bishop’s judges. As Professor A.S. writes Pavlov, “in ancient Russian law there is a noticeable predominance of the principle according to which the jurisdiction of the Church was determined not so much by the essence of the cases themselves as by the class character of the persons: clergy, as primarily ecclesiastical, were judged by the church hierarchy.” In the Code of Laws of Ivan III and Ivan IV it is directly said: “but the priest, and the deacon, and the monk, and the monk, and the old widow, who feed from the Church of God, then the saint judges.”
“Judge with righteous judgment” (John 7:24).
The first article of the Regulations “on the canonical foundations of the judicial system of the Russian Orthodox Church” proposes non-canonical foundations of the judicial system. The position was cobbled together in the legal department of the MP, like a swallow’s nest, from individual pieces, lumps and twigs, borrowed from various codes of the Civil Code, Civil Procedure Code, Code of Criminal Procedure of the Russian Federation, even a couple of texts from church canons. Church canons form a fundamentally different structure of the church court, which contradicts the Regulations.
Church canons know the court of bishops. 12 bishops judge the bishop; the priest is judged by six bishops and his own; three bishops judge the deacon. In case of disagreement, more bishops are invited. (Ap.74. Carth.12; 29. Deut.6). Theoretically, the trial of a bishop is permitted by the Regulations. In practice, a trial of a bishop is not permitted. The provision abandoned the trial of bishops over clergy. The diocesan bishop single-handedly judges clergy and laity, which leads to arbitrariness.
The Regulations lack the basis and task of legal proceedings. The cutters from the legal department of the Moscow Patriarchate stitched together the church code from the concepts of civil, criminal and administrative law, changing the meaning of many provisions, sometimes even to the contrary, introducing laws of their own creation, framed with the sparkles of canon law.
Typically, courts differ in their tasks and methods of performing them. Civil, arbitration and arbitration courts resolve disputes between the plaintiff and the defendant. Criminal and administrative courts sentence defendants for offenses. The provision combined incompatible tasks and mixed the statuses of the participants in the process.
The bishop proposed to adopt a new Charter in the Parish of the Holy Myrrh-Bearing Women. The proposal divided the parish into supporters and opponents. The court could resolve the dispute by recognizing the right of each party to free expression of will in accordance with the law of the Russian Federation and the charter of the Parish.
The court did not identify the plaintiff in the dispute and did not invite him to the court hearing. Having invited the defendants, the court acted in the interests of the plaintiff and accused the defendants of an offense for expressing an opinion about the Parish Charter.
The situation is contradictory, the articles are unspoken, vague, and often ambiguous. It is impossible to determine the foundation on which the Regulations on the Church Court grew. The canonicity of the document is limited by its conciliar approval. Of the three courts established by the Charter of the Russian Orthodox Church, only two are practically used: the first and second for clergy and laity; the second and third are for bishops. The supervisory authority does not exist. The main task of the court is not set - to administer justice.
The task of legal proceedings is established by Article 2 of the Regulations. It is called: “The purpose of church courts” and consists of one point: “Church courts are intended to restore the broken order and structure of church life and are designed to promote compliance with the sacred canons and other institutions of the Orthodox Church.” The content of the first task, firstly, is broad to the point of uncertainty: “intended to restore order and preserve the order of church life.” The scope of the task and its specific content are unclear.Does this include the restoration of justice and truth? Will the court protect the weak from the strong, the offended from the offender, the right from the rapist? The position is not responding.
Secondly, it imposes responsibilities on the court that it obviously cannot fulfill. The judiciary examines the case and makes decisions. The execution of decisions is carried out by the executive branch.The second task - “to promote compliance with the sacred canons and other institutions of the Orthodox Church” - points to “canons and institutions” as the object of the court’s activities. The position ignores man as the object of the economy for whose sake Christ was crucified. “Seek the truth, save the oppressed, defend the orphan, stand up for the widow. Zion will be saved by justice” (Is. 1; 17, 27).
The Charter of the Russian Orthodox Church establishes a church court (Chapter 1, 8) and prohibits clergy and laity from applying to government bodies and civil court (Chapter 1, Section 9). The provision on the church court does not set the task of protecting people - clergy and laity. Where should the offended and offended go? The provision excluded the main task expressing the nature of the court - justice. A court that does not deliver justice is “thrown out to be trampled under foot by men, like unsalted salt” (Matthew 5:13).
The regulations and composition of the All-Church Court were adopted at the Council of Bishops in the summer of 2008. However, the court held its first meeting only two years later. The chairman of the court, Metropolitan Isidor of Ekaterinodar and Kuban, and four other judges: Metropolitan Onuphry of Chernovtsy and Bukovytsia, Archbishop of Suzdal and Vladimir Evlogiy, Archbishop of Polotsk and Glubokoe Theodosius and Bishop of Dmitrov Alexander - took the oath before the cross and the Gospel.
Metropolitan Isidore called for following the words of His Holiness Patriarch Kirill, spoken during the Bishops' Conference: “The authority of shepherds and archpastors is weakened by unjust actions, and not by their correction. Out of the duty of Patriarchal service, I will say: there should be no arbitrariness in the life of the Church. No personal conflict should lead to unjustified repression of the clergy or, conversely, personal sympathy - to the fact that a violator of church order will be exempt from responsibility.”
Bishop Isidore also recalled that since its creation, the General Church Court has regularly exercised advisory functions in relation to diocesan church courts.
At the first meeting of the All-Church Court, four cases were considered. The progress of the trial and the materials of the case are not disclosed. All paperwork in preparation for the hearing and during the court hearing is carried out by the Administrative Office of the Moscow Patriarchate. They have not yet been able to inform Ogonyok about the decisions that have been made, since all of them must be considered and approved by His Holiness Patriarch Kirill of Moscow and All Rus'. It is only known that all four cases did not concern the relationship of church ministers with the laity, but were related exclusively to delicate internal issues. They promised to inform us immediately about the decisions made as soon as they were approved by the Patriarch.
We asked to tell about a new institute in the history of the Russian Orthodox Church to Archpriest Vladislav Tsypin, chairman of the historical and legal commission of the Russian Orthodox Church, which for several years developed the regulations and other necessary documents regulating the work of the All-Church Court.
What caused the fact that the All-Church Court held its first meeting only two years after its formation?
We are not talking about any problems or difficulties here. The general church court is the court of appeal in cases of clergy and laity; only for bishops (the highest rank in the Orthodox Church) is the court of first instance. Diocesan courts have been operating for a long time, but obviously there are still few cases that could be considered by the General Church Court and they still arise quite rarely.
As for appellate cases, there is the following conflict. If clergy are excommunicated from service, defrocked, or banned from serving for life, then such decisions are not made by the diocesan authorities definitively and are approved by the Patriarch. After the approval of such a decision by the Patriarch, there is little hope for a review of the case by the All-Church Court. Excommunication of the laity from the church - such cases are extremely rare.
Diocesan courts began to appear after 2000. At first in individual dioceses, after the Council of 2004 - in most dioceses, now, I think, in almost all dioceses there are courts. Only where there are few priests and not enough personnel, the diocesan council considers matters. But I don’t know how many cases the diocesan courts have. If the matter is clear, then often, after reviewing the documents, the bishop makes a decision without convening a court. A trial is necessary when it is necessary to establish a fact.
- What was the point in the formation of the All-Church Court, if there is a court of the Council of Bishops, diocesan courts?
The Council of Bishops is convened once every four years, and convening it specially is very costly and redundant. Therefore, if a question arises regarding the bishop, why not consider this matter at the All-Church Court.
To what extent can ordinary citizens, who are not church ministers, be involved in the consideration of cases by the General Church Court?
Rarely. These may include appeals for excommunication. There are cases of possible temporary excommunication. They are also used extremely rarely, but in certain cases they are used, especially when it comes to laymen who occupy church positions and when holding this position becomes intolerable.
And, say, disputes between church ministers and residents of the village where this church is located can be considered by a church court? For example, land disputes.
Church courts have the opportunity to consider various types of litigation, but not in the literal sense of the word. Any layman can appeal to the church court. But an ecclesiastical court cannot interfere with the jurisdiction of civil state courts. He cannot oblige a priest or layman to transfer property, pay compensation, and so on. This is only possible through arbitration for those who themselves want to submit to the will of the church, but from the point of view of the state, the decisions of the church court cannot have binding force. Therefore, if someone wants to collect some kind of debt from a church institution or a clergyman, then he can write something like a lawsuit to the church court, but the church court is not authorized and does not have the means of coercion in such matters, unlike the court state
Then what kind of litigation between laity and clergy can the General Church Court consider and regulate?
These are matters related to some kind of intra-temple relations. But the main thing is that both people want and are ready to submit to the decision of the church court.
Sometimes in newspaper publications the creation of a church court is compared with the Sharia court of Muslims. How possible is such a comparison?
Such comparisons are baseless. Precisely because Sharia courts are not courts for spiritual matters, as we would call them, but for completely civil and criminal cases. This is impossible in a church court, not only because the church is separated from the state, but also because church courts have never decided such cases. Once upon a time in Russia, during the synodal period, the Holy Synod was also a government agency; some of its decisions were made by it as a government agency and were binding under coercion from the state. But in principle, church power cannot be a criminal power and, by itself, by its nature, does not deal with civil affairs. This is a court of a religious nature.
When compared with church courts of other denominations, for example with the Supreme Court of the Catholic Church, how much different are they from the General Church Court of the Russian Orthodox Church?
The Catholic Church is on a completely different scale. There the court is of the entire Catholic Church, but here we are at the level of the local church - the Russian Orthodox Church, and not the Ecumenical Orthodox Church. And there is a long judicial tradition there. In the Orthodox Church, including the Russian Church, until the 20th century there were no independent, separate judicial institutions anywhere. Court cases in old Russia in the synodal era were considered at the highest level - in the Holy Synod, at the diocesan level - in spiritual consistories, but there were no separate judicial institutions. More than half of all cases considered by the Synod were essentially judicial. After all, the divorce process is also a court case, and they all went through the Synod, otherwise the marriage would not be dissolved. But then everything was decided by the Synod; it also adopted legislative acts regulating church life, dealt with the appointments and transfers of clergy within the church hierarchy and administrative structure, and also made various judicial decisions. Now a separate judicial institution has emerged within the Russian Orthodox Church.
In old Russia, as you say, there were a thousand times fewer divorces than now. But in modern Russia the number of weddings - church marriages - is growing. Can the dissolution of such marriages also be considered by the Church Court now?
Now such decisions are made by the bishop. In the Regulations on the Church Court there is a mention of other cases. Such cases include divorce proceedings. If the bishop considers that the case is complex, he can refer it to the diocesan court for consideration. But by inertia, since there were no such courts before, all decisions on divorce proceedings are made by the bishop and, as a rule, personally. For modern Russia, a wedding is now not exotic; I think up to half of newlyweds get married. But, unfortunately, the termination of a church marriage is also no longer uncommon. There are many such cases, perhaps they will be considered by church courts. Such cases must be considered if we are talking about a second church marriage. In this case, it is necessary to dissolve the first marriage, but the bishop will consider this issue only after the first marriage actually breaks up in a civil manner. If this does not happen, then the case will not be considered.
- What is the number of people who can actually fall under the jurisdiction of a church court?
If we talk about clergy, now their number is approaching 30 thousand people. But this is for the entire Russian Church, because about half of this number of clergy is located outside of Russia - in Ukraine, in Belarus. If we add to this monks, nuns, novices, church workers, clergy, and, ultimately, church choir singers and so on, then it is difficult to estimate the total number of people who can appeal to the church court. I think at least 100 thousand people, but this is too rough a figure. Well, the laity theoretically falls under the jurisdiction of the church court, and there are tens of millions of laity in our church.
So, abstract thoughts.
Abstracted from the letter (church canons, worldly laws, decrees, provisions, judgments, comments, precedents, “with and without entry”), from the realities surrounding us of this best of worlds, but still fallen and vain, perishable. So, if we abstract from everything that is connected with the conditioning of church life by the comfortable inclination of its members to sin - it is so “convenient” that often the holiness of the Church, emanating from its Head and constituting its essence, through the sins, vices and infirmities of men is almost and does not shine through - it must be admitted that the phrase “church court” cannot but grate the ear.
There are several reasons for this. Firstly, it has historically developed that in the post-Soviet space the attitude towards the court is cautious and wary. This word is so overgrown with negative connotations that the essence of it simply cannot be understood. Do what you want, but the word “court” is inextricably associated with the verbs “condemn”, “condemn”, “imprison”, “deal with”. They don’t “come” to court, but “get”, and not to it, but "under". How under ice rink, under tank, under collapse... Unfortunately, this kind of association is not unfounded.
At best, the court is perceived as an evil designed to punish another evil. People go to court to get rid of some worst evil, to punish their offender, but not for advice, not for reasoning, not for help in resolving perplexing issues. The plaintiff's appeal to the court is perceived by the defendant as an attack, and the plaintiff himself understands it this way. Meanwhile, this is fundamentally wrong. The court is not a punitive authority. Or rather, it shouldn’t be, if we talk about the essence of the phenomenon. After all, why is the Judgment, to which we will all appear after the Resurrection, called “Terrible”?
For whom is he scary? - For sinners. That’s why he’s scary to us, because our conscience glares at us. But who is he truly afraid of? - To those who have “made friends” with sin. And we don't know if this applies to us. Our conscience is restless. But on that day everything will become clear. For some, the Judgment will indeed be terrible when they find themselves (I’m sure many with surprise) on the left hand of the Shepherd, and for others, who find themselves among the “beloved of the Father” (and even more unexpectedly for those who left, and for ourselves) - not scary at all.
Unfortunately, earthly courts are indeed sometimes terrible not for criminals, but for their victims, because they sit... people. And like all people, judges are also different. They can be honest, incorruptible, smart, insightful, or, on the contrary, they can be stupid, vicious, corrupt, or, as they say nowadays, corrupt. Woe to the one whose fate depends on unrighteous judges which They are neither afraid of God nor ashamed of people(Luke 18:2).
But if the court is not a punitive authority, then what is it?
He is the authority incriminating. Again, not in the sense of denunciation, as is commonly understood, due to the widespread substitution in everyday usage. Reproof is not an insult, an accusation, or a shame. It happens that all this is combined with reproof, but it does not constitute the essence of reproof. Revelation is highlighting, revealing, clarifying, becoming accessible to knowledge and understanding.
But judgment is something that takes place after exposure, when the invisible has become visible, discernible in full, and not in some separate fragments, that is, carried out on the basis of what has been examined, studied, investigated. Court in Greek - κρίσις <крисис> . This word is also translated as decision, sentence, condemnation, decisive outcome, dispute, competition, as well as interpretation. Court - denunciation of reality, interpretation of its essence. Moreover, what is important, God’s court is focused not on weighing the pros and cons, not on the supremacy of the written law, and not even on the triumph of justice, especially not on legally formalized punishment, but on the search for legal grounds or at least a reason to acquit the defendant.
“Then come and let us reason together,” says the Lord. Though your sins be as scarlet, they will be white as snow; though they are red as crimson, they will be as white as wool” (Isa. 1:18). But why such mercy, what is the reason? Under what condition, when is it “then”? “Wash yourselves, make yourselves clean...” says the Lord. And so that those reproached by Him would not think that we were talking about water procedures, he immediately explains: “... remove your evil deeds from before My eyes; stop doing evil; learn to do good, seek righteousness, save the oppressed, defend the orphan, stand up for the widow” (Isa. 1: 16-17).
Here it is... Not retribution or formal settlement under specific articles of the law, not delusional “satisfaction”, but the defendant’s bringing the fruits of repentance ( μετάνοια <метания> - change of mind; from μετανοέω <метаноэо>, what does it mean to “change your way of thinking”, change your vision, understanding of the meaning of life and its values) - the basis for a judicial decision in a case. And the fruits of repentance are not just one or another good deed, but an internal change, a transformation of personality, the formation in the soul of such qualities that, on the one hand, are generated by this change of mind, on the other hand, contribute to it, because repentance is a process that only begins with awareness of sin, repentance in him and his confession, but lasting throughout his life. The fruits of repentance are spiritual and mental virtues, evidenced by corresponding deeds.
Perhaps, to the reader of these lines at first glance, it may seem that we have confused the concepts of God's judgment and earthly judgment. No, simply, speaking about the essence of a true, fair, albeit earthly, court, you inevitably correlate it with God’s court. Since ancient times, truth has been considered an inhabitant of heaven, and morality - a gift from God, because if not by supernatural Revelation, then at least intuitively at all times, people have understood that any sublime values of the transitory world can only be protected from substitution and abuse when they are erected to their spiritual, unchanging, eternal sources, to their Primary Source - God. How feasible this is in earthly realities and how it is carried out is a separate question. Again, what kind of realities are we talking about? It is one thing to have a trial in a pagan or secular state (which, in essence, is the same thing), and another thing to do so in a state that claims to be called Christian. One thing is a state court in a Christian country, another thing (in it or outside it) is a church court.
And here we are faced with one important problem: what is the conceptual basis of church court? Does it exist, or are there simply specific conditions in which the church-canonical body was formed, and there is our reality, to which it is applied depending on practical need? This subordination church life to Roman law or nothing more than it application in the church fence? Should church legal proceedings make no more than an allowance (and should it at all) for the objective state of affairs in the church environment, the general level of morality, ecclesiastical legal literacy, for borrowed from the world, widespread and entrenched stereotypes of consciousness, including in the field corporate ethics, as well as the ethno-cultural, historical (including church-historical) and political specifics of the region, or tolerantly (in the medical, worst sense) adapt to all this?
Of course, the church court has a special conceptual basis. This is the New Testament Christian worldview. It was not by chance that I said “New Testament” and not just “Christian”, because lately very strange features have been ascribed to Christianity. So, as a clarification: not someone’s “Christianity” (“grey-legged”, “Bosyatsko-Tsorionovsky”, etc.), but that same apostolic, Orthodox one - embodied in the New Testament books and in the patristic heritage, which, thank God , is now accessible and useful (unless, of course, you take phrases out of context) for reading and guidance in life.
Nevertheless, no matter how annoying it may be for anyone, we should already get used to the fact that the church-judicial system has become a reality in the Russian Orthodox Church (and it is advisable to also thank God and everyone through whose efforts it was developed and functions). The phrase “church court” seems like an oxymoron ( what kind of judgment, what kind of laws can we talk about when we are all under grace, because when they start talking about the law, it means that love has become scarce... well, and other crazy verbs), others perceive it as some kind of rudiment either of deep antiquity, or of ancient legal consciousness, woven into the structure of church life.
Indeed, Why gather and confer there? - Do we need to teach the cleric a lesson and formalize this canonically? So here it is - the Book of Rules: open it at random and poke it with your finger. Although it is better not to even open it, but to immediately print a decree banning it for “molestation” according to the 55th Apostolic Canon... However, no. More than three years ago, a judicial precedent was created, during which it was clarified that not every “causing annoyance,” that is, not every action or word that upsets a bishop, should be considered “annoyance,” but only obvious insult, blasphemy, slander , swearing. Here, again, is an argument against: the church court only complicates the maintenance of discipline among the clergy. Just think! If every banned or expelled priest, who disagrees with his sad lot vomited from the lips of his Eminence, begins to look for truth in the church-judicial system, referring to the canons and appealing to oikonomia - then what will begin(however, it already started several years ago)?..
It turns out that you can no longer point your finger at random, and you can no longer use 55 AP, as before, as a universal club, without thinking.
Whether it’s good or bad - here’s how to look at it, what priorities to set. From the point of view of the same aforementioned conceptual framework, apparently good. From the point of view of ease of management... I don’t know, it probably depends on how you look at the goals and objectives of managing the clergy and laity. If the goal is to build everyone who is lower in rank in order to milk them and shear their hair, then, of course, the development of church-legal consciousness is all unnecessary, because it “complicates the process” and “creates the preconditions for disorder.”
If the goal of church administration is the interaction of all members of the Church (each according to their calling and position) in the free and conscious organization of Christian life for salvation, then it is more convenient to carry it out this way: based on the commandments of Christ and guided by the holy canons in such a way that they do not replace love in Christ, but protected it from abuse. So, it turns out that with a respectful attitude towards people, if we see them as brothers in Christ, bearers of the image of God, the church-judicial system is not only not perceived as a legalistic deck for the church manager, but also helps him in pastoral and archpastoral service.
The problem of church legal consciousness in each individual case is how a Christian comprehends the Church and, accordingly, church life in all its multifacetedness. Canonical thinking is preceded by ecclesiological thinking, which determines law enforcement practice. If the Church is conceived as a “state bond” or a militarized ritual and leisure enterprise, then understanding the essence and significance of church rules, and, accordingly, their application will ensure the exploitation of Orthodoxy as a surrogate for national ideology and as an instrument of national-ritual self-identification, or banal self-affirmation and despotism in the worst sense of the word.
If the Church is understood as a divine-human organism, then the body of canon law is seen fundamentally differently, and the attitude towards the church-judicial system is fundamentally different.
The court, as mentioned above, is the authority in which understand: carefully, in the context of church religious and moral teachings and taking into account various conditions (including the general level of morality and piety), the circumstances of the case are examined, all sides are heard, arguments are weighed, and not only the applicable canon is selected - the most important thing is that ways for healing are sought painful situation as a whole and its participants.
This is the most important, fundamental moment of church legal proceedings, without which it loses its meaning as a church, because the Church is the Ark of Salvation, and salvation is not just deliverance from some kind of disaster, it is healing, healing (the word σωτηρία <сотирия>, which is traditionally translated into Russian as “salvation”, comes from σώζω <созо> (save, save), the latter is the same root as the adjective σῶς <сос> - whole, healthy, unharmed, undamaged).
The word “punishment” is translated from Slavic into Russian as “teaching”. If punishment does not teach, does not admonish, moreover, if it does not specifically pursue an educational goal, admonishing and healing, saving, or if it claims to be so, but is not adequate to the declared goal, then this is not a punishment, but punishment, revenge, reprisal(probably indicative), but not punishment.
The task of a church court is not only to investigate a case, identify church wrongdoing and prove it, and then pass a verdict. And this is there, but not the main thing. Main - comprehensively study the case and not only prove the crime, but also understand what, and most importantly, why led to it, in order, if possible, to eliminate the soil that gave rise to it and think through healing and preventive measures for the improvement of both church life in general and specific individuals, and only as a last resort resort to “surgical” measures, applying the canons to the fullest extent.
It was all a theory, now - practice.
The reason for writing this article was the discussion surrounding the activity of the beloved kamikaze missionary in Christ, Protodeacon of All Rus', Fr. Andrei Kuraev, directed at what he called the “blue lobby.” I, unlike him, do not presume to say whether it exists or not, because I do not have evidence. Probably Fr. Andrei has such at his disposal, therefore he quite calmly names specific names, without fear that one of the persons he named will sue him in the Church Court for violating Rule 6 of the Second Ecumenical Council, according to which the slanderer bears the punishment to which the slandered person would have fallen if the intrigue was a success.
In the controversy that unfolded in the vastness of the Russian segment of the World Wide Web, the question was repeatedly asked about why he turned to the rather large audience of his LiveJournal with this information, and not to the Church Court. In particular, Igor Gaslov Fr. Andrey was directly offered assistance in preparing documented, substantiated appeals to. There was no response to this proposal. Perhaps the reason is that Fr. Andrei, as he himself has repeatedly explained, does not see the Regulations on the Church Court of the Russian Orthodox Church (hereinafter referred to as Position) formal grounds for such statements on their part. At the same time, Fr. Andrei refers to Article 34 of the Regulations, which states that only his clergy can sue a bishop.
I am willing to agree with Fr. Andrey that the text of the Regulations is not ideal. So it does not claim to be the 28th book of the New Testament. But in order for this document to be constructively finalized, it must first be thoroughly tested in practice. And law enforcement practice reveals a rich variety of canonical conflicts in church life, while at the same time giving an interpretation of what is not quite intelligibly formulated for mere mortals in this normative document. The only thing I am with Fr. What I cannot agree with Andrei is that the text of the Regulations does not allow him to initiate cases against specific personalities that he informed us about on the Internet.
In addition to the 34th article, there is also the 33rd, the second part of which states that the case is transferred to the General Church Court of First Instance by order of the Patriarch of Moscow and All Rus' or the Holy Synod on the basis of a statement of an ecclesiastical offense, as well as on the basis reports of a committed offense received from other sources.“Pay attention to the second basis,” comments Igor Gaslov. - That is, to transfer the case to the All-Church Court, you don’t even need an application. A message about a church offense committed, for example published in the media, is sufficient. Naturally, these should not be anonymous stories, not hints, not messages like “everyone already knows this,” “it’s written all over his face.”
So there is a mechanism for solving problems. Another thing is that one can understand those who are afraid to go to the All-Church Court. While the time drags on from the filing of the application to the transfer of the case to proceedings (what if it doesn’t even come to that?), and then until the meeting itself (and the All-Church Court meets infrequently), this clergyman at his place of canonical registration will be forced ten times to regret his rash behavior and withdraw the complaint. There are enough levers for this. And how does the plaintiff know What will be the attitude of the Patriarchate towards him when he appears there, and what good can he expect if his complaint against his ruling bishop or an appeal against the decision of the Diocesan Court approved by him, or against a ban personally imposed by him will also be considered by the bishops? Where is the guarantee that corporate solidarity will not prevail?.. I assure you that he will not have such thoughts spinning in his head. So what should he do then?
In 2010, I had to appeal to the Church Court with an appeal against the bishop’s decree banning me from the priesthood. The situation is interesting precisely because if you read the Regulations superficially, it may seem that an appeal to the General Church Court can only be made against the decision of the Diocesan Court, but not against the decree of the bishop, but this is exactly the situation I had: the Synod of the EOC MP did not issue any resolution regarding my question (the fathers decided among themselves that not everything is so simple and it is necessary to talk to me before deciding anything), and then the bishop banned me with his authority.
I immediately went to Moscow and filed an appeal in the name of His Holiness Patriarch Kirill of Moscow and All Rus', who, after some time, sent it to the All-Church Court.
Six months passed from the moment the banning order was handed to me until the court hearing. What is prohibition in the priesthood and how to survive it is a special topic and now it is not appropriate for us to digress into it, but I will say one thing: if it were not for the support of good people, I could well go crazy or experience the sweetness of diabetic complications. During these six months, I was repeatedly advised to withdraw the appeal, to admit anything and everything, just to get the ban lifted, because if the case did come to court, it could even end with my being deprived of my rank.
It should be noted that it was not some ill-wishers who persuaded me, but, on the contrary, people who were very kind to me, and also well-informed, so I took the warning about the prospect of losing my rank seriously and with hard-to-suppress horror. Moreover, the closer to the trial, the more insistent these voices sounded. Even Igor Gaslov, who, thanks to him, helped in drawing up the appeal, tried his best to convince me to retreat, considering the matter hopeless.
A few days before the court hearing, I was supposed to attend an appointment with the head of the Control and Analytical Service of the Moscow Patriarchate Administration (hereinafter referred to as CAS UDMP), abbot (now archimandrite) Savva (Tutunov). I didn't expect anything particularly good for myself. Firstly, I generally don’t like any kind of officialdom, I don’t understand it, and therefore I feel, to put it mildly, uncomfortable in the “corridors of power” and at all kinds of events with the participation of VIPs. Secondly, I was aware that I was going for an interrogation, which in itself cannot please me. So, this double tension was relieved in one moment, as soon as Fr. appeared. Savva.
In some incomprehensible way, he manages to combine brotherly love with bureaucratic efficiency. Formally, it was an interrogation, but it was carried out with such benevolent, non-demonstrative correctness and concentrated attention, with such a genuinely sincere desire to delve into, understand and establish the truth; at the same time, he conducted the conversation not only in a calm mood, evenly, thoroughly, without unnecessary emotions, but precisely in the peaceful spirit of Christ... This was unexpected.
I left his office with the hope that the judges would show the same understanding, although I was well aware that it would not be easy for them to do this. The point is not only in corporate solidarity, which may not be alien to judges in the rank of bishop, but also in the fact that their decisions, as I understand it, should not be too alarming for fellow archpastors. Meanwhile, any court decision they make in favor of a priest who is in conflict with his ruler is (at a minimum) a wake-up call for those bishops who are accustomed to feeling like absolute masters of the souls and bodies of the clergy under their control. Therefore, from judges, in addition to objectivity (not to mention wise and merciful justice), a fair amount of, let’s say, diplomacy and considerable courage are required.
My hopes were mostly justified. The accusation of violating the 55th Apostolic Canon was found to be justified, but in relation to the 39th I was partially acquitted (with all the decisions of the General Church Court, including in the case mentioned /http://www.patriarchia.ru/db/text/ 1331729.html /, can be found on the website of the Moscow Patriarchate). Taking into account my statement of repentance made at the very beginning of the meeting (in which I expressed regret for the grief caused to my bishop and the necessity of a number of my actions), as well as the six-month period of being under a ban (in state legal proceedings this is called “set off the term being in custody"), the judges decided to lift the ban on me from serving. Less than two weeks later, this decision was approved by the Patriarch and came into force.
Results.
Without going into details of further events, we will begin to summarize the results in the form of several comments and conclusions.
Appeal against the bishop's decree on the ban? How is it possible?..
That a clergyman can file a complaint against his ruling bishop with the General Church Court of First Instance (as, for example, was the case in 2010), this clearly follows from the text of the Regulations; that he can appeal against the decision of the Diocesan Court - this is also very clearly stated. But can he appeal the decree of his ruling bishop?
“The question is, of course, interesting,” since there is an opinion that no, supposedly the Regulations do not provide for such an option. That’s why I described my case because it belongs to this category. I'm did not sue his bishop, but just protested his decree. As mentioned above, if you read the Regulations superficially and outside the context of Holy Tradition, outside Orthodox ecclesiology, then it may well seem that my appeal was accepted in violation of the conciliarly approved document.
Well, let's find out. To begin with, I suggest you pay attention to a fragment of an interview with Fr. Savva to the columnist of the Izvestia newspaper Boris Klin, published on the website of the Moscow Patriarchate /http://www.patriarchia.ru/db/text/1249515. html /: “Very often priests complain about their complete lack of rights in relations with the bishop, who can simply prohibit them from serving,” says the journalist. “Every priest who believes that he has been treated unfairly,” answers Fr. Savva, - has the right to send an appeal to the Primate. Patriarch Kirill gave a clear directive: any complaint addressed to him must be studied and a detailed response must be sent to it.”
Pay attention to the context: we are talking about appeals against bishop’s personal decrees.
So that no one doubts that this is administrative arbitrariness, trampling on the conciliarly adopted Regulations, let us read the contents of Article 3:
1. The fullness of judicial power in the Russian Orthodox Church belongs to the Council of Bishops of the Russian Orthodox Church, referred to in the further text of these Regulations as the “Council of Bishops”. Judicial power in the Russian Orthodox Church is also exercised by the Holy Synod of the Russian Orthodox Church, referred to in the further text of these Regulations as the “Holy Synod”, and the Patriarch of Moscow and All Rus'.
The judicial power exercised by the All-Church Court stems from the canonical authority of the Holy Synod and the Patriarch of Moscow and All Rus', which is delegated to the All-Church Court.
2. The fullness of judicial power in dioceses belongs to the diocesan bishops.
Diocesan bishops independently make decisions on cases of church offenses if these cases do not require investigation.
If the case requires investigation, the diocesan bishop refers it to the diocesan court.
Moreover, delegation to delegation is different. It is one thing when the Patriarch or the Synod delegates judicial power to the General Church Court, consisting of bishops, and quite another when a bishop delegates his judicial power to the Diocesan Court, consisting of priests who do not have full judicial power even within their parishes. If the General Church Court is like a small council of bishops, then the diocesan court is something like an advisory council under the ruling bishop.
The most important thing, in the context of the question posed, is that the bishop transfers a case to the diocesan court only when, in his opinion, it “requires investigation.” What if, for example, he underestimates the complexity of the matter? Or who knows what other good or bad reasons prompt him to solve the matter on his own? Even if the case was not considered collectively, the bishop’s decision is the same decision of a church court of a diocesan scale, simply made in a simplified manner. And law enforcement practice shows that the General Church Court of Second Instance is not limited to considering only collectively made judicial decisions, but recognizes the bishop’s decision as an essential feature of a judicial decision at the diocesan level, whether in the form of approving a decision of the diocesan court, or in the form of its own decree.
I think everything is very clear.
Trial.
The next thing to keep in mind: the proceedings in the General Church Court are closed not only from the curious public, but also from the parties, each of whom testifies separately. This is done in the interests of the vulnerable party, but contains some inconvenience: each side is not aware of what the other party is saying about it, and cannot refute the lie unless one of the judges considers it necessary to directly ask the corresponding question. By the way, there is no need to shy away if the question is asked in a rhetorical form and in an accusatory tone.
From the fact that the judge is a bishop, it does not follow that he suffers from a power complex, and a reasoned, correct parry of the accusation made by him will be perceived as a personal insult. All the bishops sitting in the General Church Court are friendly, experienced and wise archpastors, capable of listening carefully and analyzing information. There is no need to confuse severity with cruelty, become numb and speechless, but if for some reason the judge misunderstood something, gather yourself, pray, calm down and clarify. The main thing is, don’t be afraid to ask again if you didn’t understand everything or didn’t hear something.
What then?
Then everything can be very diverse. It’s good if not only you are peace-minded, but your bishop is too. And if not? This is precisely what stops many of the injured clergy from appealing: they understand perfectly well that if the bishop remains on the cathedra (and he will remain on it 100%, if it is just a complaint about the decree on the ban, and not about reinforced concrete proven accusations of any serious crime), he will be able to make you regret not only the appeal, but also the very fact of your birth would begin to be viewed as a malicious misunderstanding due to a fatal coincidence of circumstances. In this case, everything will be done in such a way that formally you will no longer be able to make any claims. You will walk as if through a minefield, fearing to give rise to a new ban, and rejoice at the opportunity to serve at least outside your diocese. It’s good if you have the opportunity to get a job in another diocese, and the bishop lets you go. If you are bound by some obligations that do not allow you to leave... The “Black Scenario” could be painted for a long time.
So is it worth it?..
But this is not so much a question of common sense as of conscience. In any case, pre-trial reconciliation is preferable. And for this we need to do everything... morally acceptable. If none of this works out, options are available: appeal or not. If a repressed cleric prefers to wait for the situation to change for the better, or hopes to bend the bishop to his mercy, trying not to irritate him with seemingly hopeless attempts to seek the truth in Moscow - this is his personal choice if it comes to an appeal against a court decision, and he will I'm right, no matter what I decide.
If we are talking about the advisability of applying to the General Church Court first instance for the reasons raised, then the question is no longer whether you will be able to live to see the trial and survive after it, but who are you if you can do something against the abomination, but, out of cowardice, passively participate in it, keeping silent about the facts, covering up for molesters and rapists, condoning the rooting of vice, the career elevation of its carriers, as well as their reproduction through personnel budding?
Is it worth it?! What what costs? Is it worth suffering for the Church of Christ and for our neighbors, for “these little ones,” whose souls are crippled by temptation? Well, it's a matter of conscience.
The Church-wide court is created by decision of the Council of Bishops.
Article 28. Cases within the jurisdiction of the General Church Court.
1. The general church court considers as an ecclesiastical court of first instance:
in relation to bishops (with the exception of the Patriarch of Moscow and All Rus') - cases on charges of committing church offenses provided for by the list approved by the Holy Synod and entailing canonical sanctions (punishments) in the form of release from the administration of the Diocese, dismissal, temporary or lifelong ban in the priesthood, defrocking, excommunication from the Church;
in relation to clergy appointed by the decision of the Holy Synod or by decree of the Patriarch of Moscow and All Rus' to the position of heads of Synodal and other church-wide institutions - cases on charges of committing church offenses provided for by the list approved by the Holy Synod and entailing canonical reprimands (punishments) in the form of exemption from position, temporary or lifelong ban in the priesthood, deportation, excommunication from the Church;
in relation to other persons appointed by decision of the Holy Synod or by decree of the Patriarch of Moscow and All Rus' to the position of heads of Synodal and other church-wide institutions - cases on charges of committing church offenses provided for by the list approved by the Holy Synod and entailing canonical reprimands (punishments) in the form of release from office, temporary excommunication or excommunication from the Church;
other cases regarding the above-mentioned persons referred by the Patriarch of Moscow and All Rus' or the Holy Synod to the General Church Court of First Instance, including cases on the most significant disputes and disagreements between bishops, provided for in Article 2 of these Regulations.
In relation to clergy and other persons appointed by decision of the Holy Synod or by decree of the Patriarch of Moscow and All Rus' to the position of heads of Synodal and other church-wide institutions, the Church-wide court considers exclusively those cases that are related to the official activities of these persons in the relevant institutions. In other cases, these persons are subject to the jurisdiction of the relevant diocesan courts.
2. The general church court considers cases as an ecclesiastical court of second instance:
reviewed by diocesan courts and sent by diocesan bishops to the General Church Court for final resolution;
on appeals of the parties against decisions of diocesan courts;
considered by the highest ecclesiastical judicial authorities of the Russian Orthodox Church Outside of Russia or Self-Governing Churches (if there are higher ecclesiastical judicial authorities in these Churches) and transferred by the primates of the corresponding Churches to the General Church Court;
on appeals of the parties against decisions of the highest ecclesiastical judicial authorities of the Russian Orthodox Church Outside of Russia or Self-Governing Churches (if there are higher ecclesiastical judicial authorities in these Churches).
3. On behalf of the Patriarch of Moscow and All Rus' or the Holy Synod, the General Church Court has the right to review, by way of supervision, decisions of diocesan courts that have entered into legal force.
Article 29. Composition of the General Church Court.
1. The pan-church court consists of a chairman and four members in the rank of bishop, who are elected by the Council of Bishops on the proposal of the Presidium of the Council of Bishops for a period of four years with the right of subsequent re-election for a new term (but not more than three consecutive terms). The deputy chairman and secretary of the All-Church Court are appointed by the Patriarch of Moscow and All Rus' from among the members of the All-Church Court.
2. Early termination of the powers of the chairman or members of the General Church Court on the grounds provided for in Article 8 of these Regulations is carried out by a decision of the Holy Synod headed by the Patriarch of Moscow and All Rus' with subsequent approval by the Council of Bishops. In case of vacancies, the right to appoint temporary acting judges of the General Church Court (until the election of judges in the prescribed manner) belongs to the Holy Synod, headed by the Patriarch of Moscow and All Rus', and in urgent cases - to the Patriarch of Moscow and All Rus'.
On behalf of the Patriarch of Moscow and All Rus', the Deputy Chairman of the All-Church Court may temporarily perform the duties of the Chairman of the All-Church Court.
Bishops temporarily acting as chairman or judges of the All-Church Court have the rights and bear the responsibilities provided for by these Regulations, respectively, for the chairman or judges of the All-Church Court.
3. Cases involving accusations against bishops of committing church offenses are considered by the General Church Court in its entirety.
Other cases are considered by the All-Church Court composed of at least three judges, headed by the Chairman of the All-Church Court or his deputy.
Article 30. Ensuring the activities and location of the General Church Court. Archive of the Church Court.
1. Ensuring the activities of the All-Church Court and preparing relevant cases for consideration is entrusted to the apparatus of the All-Church Court. The number and composition of the staff of the apparatus of the All-Church Court is determined by the Patriarch of Moscow and All Rus' on the proposal of the chairman of the All-Church Court.
2. The Church-wide Court is financed from the Church-wide budget.
3. Sessions of the All-Church Court are held in Moscow. With the blessing of the Patriarch of Moscow and All Rus', the General Church Court can hold mobile sessions on the territory of the dioceses of the Russian Orthodox Church.
4. Cases considered by the All-Church Court are stored in the archives of the All-Church Court for five years from the date of completion of the proceedings. After this period, the cases are transferred for storage to the archives of the Moscow Patriarchate.
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