CHURCH COURT:
ITS ORIGIN, PURPOSE
AND REGULATIONS ABOUT IT
IN THE CHARTER OF THE RUSSIAN ORTHODOX CHURCH (2000)
teacher of the Ministry of Education and Science, candidate of theology N.I. Bolokhovsky

Orthodox Church belongs, within its borders, to three branches of government: 1) legislative, which issues laws for the implementation of the successful evangelical mission of the Church in this world, 2) executive, which takes care of the implementation of these laws in the lives of believers and 3) judicial, which restores broken rules and regulations of the Church , resolving various kinds of disputes between members of the Church and morally correcting violators of the Gospel commandments and church canons. Thus, the last branch of government, the judicial, helps to preserve the sanctity of church institutions and the divinely established order in the Church. The functions of this branch of government are carried out in practice.

Orthodox Dogmatic Theology teaches that the Church of Christ is “a society of all rationally free beings, i.e. and angels and people who believe in Christ the Savior and are united in Him as their one Head.” Also, “The Church of Christ embraces the actual people who professed and profess the faith of Christ, every single one, whenever they lived, and wherever they are now, whether still on the land of the living, or already in the land of the dead.”

By becoming a member of the Church, a person freely assumes all rights and responsibilities in relation to it. Thus, in particular, he must preserve the purity of its dogmatic and moral teachings, and also follow and obey all its rules. Violation of these duties is the immediate subject of church court. It follows from this that crimes committed by Church members against faith, morality and church statutes are subject to church court.

IN Holy Scripture there is an indication of how the Church should exercise judicial power. Our Lord Jesus Christ, true God and true man, preaching only love, meekness and peace, could not approve of disputes between his followers. At the same time, taking into account the natural properties of the fallen human nature, He pointed out the means to end disputes. This instruction is contained in the Gospel of Matthew: “If your brother sins against you, go and tell him his fault between you and him alone; If he listens to you, then you have gained your brother. But if he does not listen, take with you one or two more, so that by the mouth of two or three witnesses every word may be established. If he does not listen to them, tell the church; and if he does not listen to the church, then let him be to you as a pagan and a tax collector. Truly I say to you, whatever you bind on earth will be bound in heaven; and whatever you permit on earth will be permitted in heaven” (Matthew 18:15-18).

From the above Gospel fragment we see that at first it is proposed that the disputed case be sorted out among the litigants themselves. Further, if this does not lead to its resolution - in the presence of two or three witnesses. Finally, if this does not give the expected result, then transfer this dispute to the court of the entire church community, which will make the final decision.

We see from the words of the Apostle Paul that any disputes that arise between Christians must be resolved within the church community. In his first letter to the Church in Corinth, he condemns Christians for turning to pagan judges for resolution of everyday disputes that arose in their midst. He advises the Corinthian Christians not to do this in the future, but to choose from among themselves a wise man who would judge their affairs. Prof. A. S. Pavlov notes: “This advice was motivated by considerations that, under the circumstances of that time, were of decisive importance for Christians. Appearing with their lawsuits in general (pagan) courts, Christians would degrade in the eyes of the pagans the moral dignity of their religion, which declared itself a religion of love and forgiveness; on the other hand, Roman legal proceedings were combined with some religious rites(for example, by burning incense to the goddess of justice), the execution of which, naturally, should have outraged the Christian conscience. These motives were so strong for Christians that they began to look upon the advice of the apostle as an obligatory command.”

The above New Testament fragments give reason to believe that the Church, as a human society, acquires judicial power in relation to its members.

Following the instructions of the Apostle Paul, Christians of the first centuries avoided pagan courts and turned to the court of ruling bishops for resolution of their disputes. First of all, this concerned the clergy. For the laity, the bishop's court had primarily the character of an arbitration court. By the end of the 3rd century, the discipline of the episcopal court had become widespread among Christians.

Subsequently, the Church officially established this position for members of the clergy in Canon 9 of the IV Ecumenical Council: “If a clergyman has a court case with another clergyman, let him not leave his bishop, and let him not run over to secular courts. But first, let him take his case before his bishop, or, by the consent of the same bishop, let those chosen by both parties form a court. And whoever acts contrary to this will be subject to punishment according to the rules. If a cleric has a legal case with his own bishop or with another bishop, let him go to trial in the regional council. If a bishop or cleric has displeasure against the metropolitan of a region, let him appeal either to the Exarch of the great region, or to the throne of the reigning Constantinople, and let him be tried before him.”

Since the reign of Constantine the Great, the custom of Christians to sue their bishops has acquired the force of state law. In 321, Emperor Constantine granted bishops the right to act as arbitrators. Their decisions were considered final and peremptory. In 331 and 398 this privilege underwent significant changes, and the bishop was given the right to act in civil trials in the role of mediator, based on the appeal of both parties.

This state of affairs had a twofold character. On the one hand, it elevated the authority of the bishop in the eyes of society and gave him the opportunity to get to know his flock, as well as have a varied impact on it (the flock). It was a real benefit for the people that, in contrast to the civil court, which was mired in many formalities, the procedure of the episcopal court was reduced to a minimum.

On the other hand, there were voices against this kind of privilege. Prof. In this regard, V.V. Bolotov writes: “St. Chrysostom says that this privilege constitutes a heavy burden for bishops. They have a lot of work ahead of them. It is difficult to determine which side is right and not offend the other person. Therefore, the best bishops were extremely reluctant to take on legal proceedings. Blzh. Augustine carried out these duties only out of selflessness. His tribunal was constantly besieged by many litigants, so that when two Councils assigned him difficult theological work, Augustine entered into a formal agreement with the flock so that he would be given 5 days free per week. The agreement was even written down on paper. Despite this, he, according to him, was distracted from the case both before and after noon. The result was irritation of the injured party.” V.V. Bolotov further notes: “The bishop was not forgiven for the peremptory nature of his sentence.”

During the proceedings, the bishop was helped to consider complaints by authorized persons from the church clergy. However, even here the factor of fallen human nature could manifest itself. Thus, it is known that Silvanus, Bishop of Troas, entrusted the investigation to persons from the clergy. “But when he found out that they were taking bribes, he began to entrust it to a pious and honest layman, and he was approved for this.”

2. Competence of the ecclesiastical court.

In the history of the Church, at different times the jurisdiction of the church court included different cases. Thus, in the Roman-Byzantine Empire, the following were exclusively subject to episcopal court: 1) civil disputes (when the defendant and plaintiff were clergy); 2) church matters that were controversial (for example, a dispute about the belonging of a Christian community to the jurisdiction of a particular diocese).

For cases of mixed jurisdiction, i.e. Church and secular matters included: 1) disputes between clergy and laity and 2) marriage matters. Under Emperor Alexei Komnenos at the end of the 11th century, all marriage matters, as spiritual matters, finally came under the jurisdiction of the Church.

In Rus', from its very inception, the Orthodox Church received many different types of cases under the jurisdiction of its own courts. Initially, the jurisdiction of these cases was determined on the basis of the Byzantine Nomocanon and the church charters of the Russian princes Vladimir and Yaroslav. According to these statutes, all phenomena of public and private life related to the Church or morality were brought under the jurisdiction of the church court. They can be divided as follows: 1) crimes against faith and the Church; 2) crimes against the family union; 3) crimes against chastity; 4) some cases of murder, if the person killed was a person without rights who was under the patronage of the Church; 5) matters of the union of parents and children and 6) matters of inheritance.

As for the clergy, in addition to the listed areas of human relations, they were subject to the jurisdiction of the church court both for crimes and misdemeanors that offended their rank, and in general for all criminal offenses, except for murder, robbery and red-handed theft.

During the reign of Peter I, the jurisdiction of the department of the church court for crimes was subject to significant restrictions. The following cases remained under the jurisdiction of the church court: cases of blasphemy, heresy, schism and sorcery, some crimes against morality and family union (adultery, bigamy, forcing children into marriage by parents, forced monastic tonsure) and cases of theft of church property.

Persons who were members of the clergy during the time of Peter I were tried in some cases by a mixed court, i.e. ecclesiastical and secular. Thus, clergy caught in “obvious crime” or “serious state affairs” (for example, political crimes, crimes against life) were first sent to the Holy Synod for defrocking, and then tried in a civil court. Clergy accused of any of the “particular” crimes (for example, against honor, against property) were sent to the Holy Synod for trial.

During the Synodal period, the circle of the department of the church court for crimes gradually decreased. By 1917, the ecclesiastical court had jurisdiction over the laity for misdeeds and crimes that subjected the guilty to church penance (for example, evasion of confession due to negligence, adherence by newly converted foreigners to previous heterodox customs, etc.). The competence of the mixed court included cases against marriage and incest (the Criminal Court considered these cases after considering them by the church court). Cases involving a complaint by one of the spouses regarding the other’s violation of the sanctity of marriage by adultery fell under the jurisdiction of either a church court or a civil court. Competence determined the purpose of the claim - whether the offended spouse was asking for punishment for the offender or for a divorce.

The church court considered the cases of clergy in two cases: 1) for crimes and misdemeanors against office, deanery and good behavior, and 2) for complaints against them from clergy and secular persons for grievances.

3. Church legal proceedings.

According to dogmatic and canonical teaching in the Orthodox Church, all judicial power within the diocese is concentrated in the person of the diocesan bishop (Ap. 32, IV Ecum. 9). In his judicial activities he may be guided by the advice of his presbytery. The canons allow an appeal to the regional Council against decisions of the episcopal court, i.e. Cathedral of the Metropolitan District (IV Ecum. 9, Sard. 14). This Council represents not only the (second) instance of appeal, but also the first - for the trial of complaints of clergy and laity against their bishop (Ap. 74; I Om. 5). The decisions of the regional (metropolitan) Council can be appealed to the Council, which represents the entire episcopate of a separate Local Church (IV Ecumenical 9).

The canonical process of church legal proceedings essentially has a twofold character: 1) accusatory, when the church order violated by criminal actions is restored; 2) exploratory, but not competitive; it serves as a means to resolve the dispute in the form in which it is established by the rules, and not in the way the parties wish. Thus, the ecclesiastical court has two jurisdictions of action: 1) over misdemeanors and crimes and 2) over disputes and wranglings.

In the church court it is necessary to distinguish between the common court for all believers and the special court for the ministers of the Church. The latter, in addition to the general duties of a Christian, also have special church and service duties, therefore, offenses arising from these duties constitute a special type of crime. Members of the clergy, as the canons of the Church show, are judged in a special manner, different from the trial of the laity, both in the form and consequences of the trial.

4. Church punishments.

The task of the church court is not to punish a crime, but to promote the correction (healing) of the sinner. In this regard, Bishop Nikodim Milash writes: “The Church, using coercive measures against its member who has violated any church law, wants to encourage him to correct and reacquire the lost good, which he can find only in communication with her, and only in extreme cases, deprives him of this communication completely. The means used by the Church for this purpose can be strong, depending on how much they can benefit her and her dignity. As in any society, so in the Church, if the crimes of individual members were not condemned and the power of the law were not maintained by the authorities, then such members could easily drag others along with them, and thus spread evil widely. Moreover, order in the Church could be disrupted and its very life could be in danger if it did not have the right to excommunicate bad members from communication with itself, thereby protecting good and obedient members from infection.” We find thoughts about the need to apply corrective sanctions against those who sin in order to establish the good of the entire Church and preserve its dignity in the eyes of “outsiders” in the sixth canon of St. Basil the Great. He calls for the greatest severity towards " dedicated to God”, falling into fornication: “For this is also useful for the establishment of the Church, and it will not give heretics an opportunity to reproach us, as if we were attracting to ourselves by allowing sin.”

Church punishment is not imposed unconditionally and can be canceled if the sinner repents and corrects himself. The Church accepts into its fellowship even those lay persons who have been subjected to the most severe punishment - anathema, if only they bring appropriate repentance. Only defrocking of persons who have received the sacrament of the priesthood (bishop, priest or deacon) is carried out unconditionally, and thus has a punitive nature.

In the ancient Church serious crimes entailed excommunication from the Church. For a repentant expelled from the Church who wished to be accepted into the Church again, only one path was possible - long-term, sometimes even lifelong, public repentance. Somewhere in the 3rd century, a special order was established for the return of a penitent to the Church. It was based on the idea of ​​a gradual restoration of church rights, similar to the discipline by which new members were accepted into the Church after undergoing various degrees of catechumen. There were four degrees of repentance (stationes poenitentiales): 1) mourners (flentes); 2) listeners (audientes); 3) crouching or kneeling (substrati, genuflectentes) and 4) standing together (consistentes). The duration of stay in one or another degree of repentance could last for years, everything depended on the severity of the crime committed against the Church and its moral and theological teaching. During the entire penitential period, penitents were required to perform various acts of mercy and carry out a certain fast. Over time, the practice of public repentance in the East gave way to penance discipline. The system of gradual repentance was reflected in the sacred canons of the Church.

Until 1917, serious crimes by members (laymen) of the Russian Orthodox Church were subject to open church trial and entailed the following types of church punishment:

1) church repentance (for example, in the form of penance performed in a monastery or at the place of residence of the culprit, under the guidance of a confessor);

2) excommunication from the Church;

3) deprivation of church burial, imposed for suicide committed “with intent and not in madness, insanity or temporary unconsciousness due to any painful attacks.”

The punishment for clergy is different than for the laity. For the very crimes for which the laity are excommunicated, the clergy are punished by defrocking (Ap. 25). Only in some cases do the rules impose double punishment on clergy - both ejection and excommunication from church communion (Ap. 29, 30; Neoc. 1). Defrocking means, in church rules, deprivation of all rights to the sacred degree and church service and relegation to the state of a layman, without hope of returning lost rights and rank. In addition to this highest degree of punishment for clergy, the church rules indicate many other punishments, less severe, with very diverse shades. For example, permanent deprivation of the right to serve in the priesthood, leaving only name and honor; prohibition of the priesthood for a time, with the reserving of the right to enjoy material income from the place; deprivation of any one right associated with sacred service (for example, the right to preach, the right to ordain clergy); deprivation of the right to promotion to the highest degree of priesthood, etc. Beginning in the fifth century, when the building of monasteries spread throughout the world, clerics banned from the priesthood were usually placed in a monastery for a time or permanently. At the cathedrals there were special rooms for guilty clergy.

Until 1917, in the Charter of Spiritual Consistories, which guided the diocesan courts of the Russian Orthodox Church, there were the following punishments for clergy: 1) defrocking of clergy, with exclusion from the ecclesiastical department; 2) defrocking, with retention in the ecclesiastical department in lower positions; 3) temporary prohibition from the priesthood, with removal from office and appointment as a cleric; 4) temporary prohibition in priestly service, without dismissal from the place, but with the imposition of penance in the monastery or on site; 5) temporary probation in a monastery or in a bishop's house; 6) detachment from place; 7) out-of-state exception; 8) strengthening of supervision; 9) fines and monetary penalties; 10) bows; 11) severe or simple reprimand; 12) remark (see: Charter of Spiritual Consistories, 176). The Charter of the Consistories describes in detail the order for which crimes of the clergy should be punished with one or another (Articles 177-194).

5. Regulations on the church court in the Charter of the Russian Orthodox Church (2000).

At the Jubilee Consecrated Bishops' Council of the Russian Orthodox Church, held on August 13-16, 2000 in Moscow, it was adopted a new version"Charter of the Russian Orthodox Church". Among the additions made to the new Charter is Chapter VII, entitled “Church Court”.

According to Art. Chapter 1 VII “Church Court” of the Statute of the Russian Orthodox Church: “Judicial power in the Russian Orthodox Church is exercised by church courts through church proceedings. No other church bodies or persons have the right to assume the functions of a church court.”

In Art. Chapter 9 I “General provisions” of the Charter indicate persons who, due to issues relating to internal church life, cannot appeal to “external” courts. The content of the article reads as follows: “Officials and employees of canonical departments, as well as clergy and laity, cannot apply to state authorities and civil courts on issues related to intra-church life, including canonical administration, church structure, liturgical and pastoral activities.”

The judicial system in the Russian Orthodox Church is established by the sacred canons, the Charter of the Russian Orthodox Church and the “Regulations on the Church Court” (Article 2, Chapter VII “Church Court” of the Charter). The legal procedure for all courts of the Russian Orthodox Church is established by the Council of Bishops (Article 4, paragraph t, Chapter III “Council of Bishops” of the Charter).

The unity of the judicial system of the Russian Orthodox Church is ensured by:

a) compliance by all ecclesiastical courts with the established rules of ecclesiastical proceedings;

b) recognition of the mandatory execution by canonical units and all members of the Russian Orthodox Church of judicial decisions that have entered into legal force (Article 3, Chapter VII “Church Court” of the Charter).

According to the current Charter, court proceedings in the Russian Orthodox Church are carried out by church courts of three instances:

a) diocesan courts having jurisdiction within their dioceses;

b) a church-wide court with jurisdiction within the Russian Orthodox Church;

c) the highest court - the court of the Council of Bishops, with jurisdiction within the Russian Orthodox Church (Article 8, Chapter I “General Provisions” of the Charter; Article 4, Chapter VII. “Church Court” of the Charter).

The proceedings in all church courts are closed (Article 9, Chapter VII “Church Court” of the Charter).

A) The Diocesan Court is the court of first instance (Article 10, Chapter VII “Church Court” of the Charter; Article 44, paragraph e, Chapter X of the “Diocese” Charter).

Judges of diocesan courts can be clergy, vested by the diocesan bishop with the authority to administer justice in the diocese entrusted to him.

The chairman of the court can be either a vicar bishop or a person in presbyteral rank. Members of the court must be persons in presbyteral rank (Article 11, Chapter VII “Church Court” of the Charter).

The chairman of the diocesan court is appointed by the diocesan bishop for a period of 3 years (ibid., art. 12, part 1).

The diocesan assembly elects, on the proposal of the diocesan bishop, at least two members of the diocesan court (Article 12, Part 2, Chapter VII “Church Court” of the Charter; Article 29, paragraph b, Chapter X of the “Diocese” of the Charter).

Early recall of the Chairman or member of the diocesan court is carried out by order of the diocesan bishop, followed by consideration of this decision by the Diocesan Assembly (Article 13, Chapter VII “Church Court” of the Charter).

Church legal proceedings are carried out in a court session with the participation of the Chairman and at least two members of the court (Article 14, Chapter VII “Church Court” of the Charter).

The competence and legal procedure of the diocesan court are determined by the “Regulations on the Church Court” (ibid., Art. 15).

Decrees of the diocesan court are subject to execution after their approval by the diocesan bishop (Article 16, Part 1, Chapter VII “Church Court” of the Charter; Article 19, Chapter X of the “Diocese” Charter).

If the diocesan bishop disagrees with the decision of the diocesan court, he acts at his own discretion. His decision comes into force immediately, but the case is transferred to the general church court, which makes the final decision (Article 16, Part 2, Article 18, Article 24, Chapter VII “Church Court” of the Charter).

Diocesan courts are financed from diocesan budgets (Article 17, Chapter VII “Church Court” of the Charter).

B) The general church court is a court of second instance (Article 18, Chapter VII “Church Court” of the Charter).

According to Art. Chapter 19 VII “Church Court” of the Charter: “The general church court consists of a Chairman and at least four members in the rank of bishop, who are elected by the Council of Bishops for a period of 4 years.”

Early recall of the Chairman or member of the church-wide court is carried out by the decision of the Patriarch of Moscow and All Rus' and Holy Synod with subsequent approval by the Council of Bishops (Article 20, Chapter VII “Church Court” of the Charter).

The right to appoint an acting Chairman or member of the general church court in the event of a vacancy belongs to the Patriarch of Moscow and All Rus' and the Holy Synod (Article 21, Chapter VII “Church Court” of the Charter).

The competence and legal procedure of the general church court are determined by the “Regulations on the Church Court” (Article 22, Chapter VII “Church Court” of the Charter).

Decrees of the general church court are subject to execution after their approval by the Patriarch of Moscow and All Rus' and the Holy Synod (Article 25, Chapter V “Holy Synod” of the Charter; Article 23, Part 1, Chapter VII “Church Court” of the Charter).

If the Patriarch of Moscow and All Rus' and the Holy Synod disagree with the decision of the church-wide court, the decision of the Patriarch of Moscow and All Rus' and the Holy Synod comes into force. In this case, for a final decision, the case may be referred to the court of the Council of Bishops (Article 5, Chapter III “Council of Bishops” of the Charter; Article 23, Parts 2 and 3; Article 26, VII “Church Court” of the Charter).

The general church court is the ecclesiastical court of the highest instance of the Self-Governing Church (Article 12, Chapter VIII “Self-governing Churches” of the Charter). Also for the Exarchate, the ecclesiastical court of the highest instance is the general church court (Article 4, Chapter IX “Exarchates” of the Charter).

The general church court exercises judicial supervision over the activities of diocesan courts in the procedural forms provided for in the “Regulations on the Church Court” (Article 24, Chapter VII “Church Court” of the Charter).

The church-wide court is financed from the church-wide budget (Article 25, Chapter VII “Church Court” of the Charter).

C) The Court of the Council of Bishops is a church court of the highest instance (Article 5, Chapter III “Council of Bishops” of the Charter; Article 26, Chapter VII “Church Court” of the Charter).

In Art. 5 (Chapter III “The Council of Bishops” of the Charter) indicate in which cases the Court of the Council of Bishops is competent to consider and make decisions. This:

In the first and last instance on dogmatic and canonical deviations in the activities of the Patriarch of Moscow and All Rus';

In last resort:

a) due to disagreements between two or more bishops;

b) on canonical offenses and doctrinal deviations of bishops;

c) on all cases referred to him by the general church court for final decision.

The Council of Bishops carries out legal proceedings in accordance with the “Regulations on the Church Court” (Article 27, Chapter VII “Church Court” of the Charter).

The Court of the Council of Bishops is the ecclesiastical court of the highest instance of the Self-Governing Church (Article 12, Chapter VIII “Self-Governing Churches” of the Charter). Also for the Exarchate, the highest ecclesiastical court is the court of the Council of Bishops (Article 4, Chapter IX “Exarchates” of the Charter).

The activities of church courts are ensured by the apparatus of these courts, which are subordinate to their chairmen and act on the basis of the “Regulations on the Church Court” (Article 28, Chapter VII “Church Court” of the Charter).

Canonical punishments, such as lifelong ban from the priesthood, defrocking, excommunication from the Church, are imposed by the diocesan bishop or the Patriarch of Moscow and All Rus' and the Holy Synod only on the proposal of the church court (Article 5, Chapter VII “Church Court” of the Charter) .

The procedure for conferring powers on judges of church courts is established by the sacred canons, the Charter of the Russian Orthodox Church and the “Regulations on the Church Court” (Article 6, Chapter VII “Church Court” of the Charter).

Legal claims are accepted for consideration by the church court in the manner and under the conditions established by the “Regulations on the Church Court” (Article 7, Chapter VII “Church Court” of the Charter).

Decrees of church courts that have entered into legal force, as well as their orders, demands, instructions, summonses and other instructions are binding on all clergy and laity without exception (Article 8, Chapter VII “Church Court” of the Charter).

NOTES

1 See: In. 20, 22-23.

2 Bulgakov Macarius, Metropolitan of Moscow and Kolomna. Orthodox dogmatic theology. M., 1999, p. 187.

3 Ibid., p. 188.

4 Compare: 1 Cor. Ch. 5; Gal. 6, 1-2; Jacob 5, 19-20; 2 Cor. 13, 1; 1 Tim. 5, 19-20; 2 Thess. 3, 6, 14-15; Titus 3, 10.

5 See: 1 Cor. 6, 1-6.

7 Pavlov A. S. Course of Church Law. Holy Trinity Sergius Lavra, 1902, p. 396-397.

8 The mandatory execution of the verdict of this court had only a moral side.

9 In 393, at the Council in Ippon and in 397, at the Council in Carthage, a decision was made according to which a cleric who turned to a civil court in civil disputes would lose his rank.

10 Bolotov V.V. Lectures on the history of the ancient Church. M., 1994, book. III, p. 130-131.

11 Ibid., p. 131.

12 Wed: Gal. 6, 1-2; Jacob 5, 19-20; 2 Thess. 3, 6, 14-15 and church rules: VI Ecumenical. 102, Vas. Vel. 3, Grig. Nissk. 8.

13 Milas Nicodemus, Bishop of Dalmatia and Istria. Canon law. B. M., B. G., p. 493-494.

14 You. Vel. 6.

15 you. Vel. 84, Grig. Nissk. 8.

16 See: canons of St. Basil the Great

17 Penal Code. Article 1472.

18 Apr. 29 (against simony) and Ap. 30 (against obtaining ordination through extortion through worldly authorities).

20 According to Art. Chapter 2 I “General provisions” of the Charter under “canonical divisions” should be considered: “Self-governing Churches included in the Russian Orthodox Church, Exarchates, dioceses, Synodal institutions, deaneries, parishes, monasteries, brotherhoods, sisterhoods, Theological educational institutions, missions, representative offices and metochions. "

21 Today, the Self-governing Churches of the Moscow Patriarchate, according to Art. 16 and 17 chapters VIII “Self-governing Churches” of the Charter are: the Latvian Orthodox Church, the Orthodox Church of Moldova, the Estonian Orthodox Church and the Ukrainian Orthodox Church with rights of broad autonomy.

22 Today, according to Art. 15 of Chapter IX “Exarchates” of the Charter in the Russian Orthodox Church there is a Belarusian Exarchate, located on the territory of the Republic of Belarus. “Belarusian Orthodox Church” is another official name of the Belarusian Exarchate.

Abstract of the speech of Archpriest Pavel Adelgeim, which took place on May 13, 2008 at the St. Philaret Institute as part of the course of lectures he gave on the problems of canons and ecclesiology. The course is devoted to problematic issues of application of canons in modern church life

Reanimate the court or create anew?

The Russian Empire entrusted the church-judicial power to the spiritual consistory, which at the same time decided the administrative and financial affairs of the diocese. The activities of consistories mixed judicial and administrative functions. The executive branch found itself a judge in its own case. The generally accepted dissatisfaction of the consistory court was expressed by an expert on church law, Professor of Moscow University N.K. Sokolov: “The court has been turned into a submissive instrument to cover up administrative arbitrariness and communicate its actions, if necessary, formal legality."

The judicial reform of 1864 stirred up church and public consciousness. Reform of the church court was required. It didn't happen. The preparation of the Local Council at the beginning of the century again raised the problem of church court. Projects, statutes and other materials on church legal proceedings were prepared at numerous forums. The revolution of 1917 drew a line under all reforms. Church court based on laws Russian Empire, died with them. Is it possible to resuscitate him? The first attempt to revive the church court on previous principles was made by the Charter of the Russian Orthodox Church in 1988." The rights of church courts are vested in the Local Council, the Council of Bishops, the Holy Synod and Diocesan Councils. The diocesan council has the rights of an ecclesiastical court of first instance. The Diocesan Council exercises the right of the ecclesiastical court in accordance with the procedure for ecclesiastical legal proceedings adopted in the Russian Orthodox Church." Notes: "As an annex to this Charter, a “Procedure for Church Legal Proceedings” must be drawn up.

The 1988 statute granted judicial power to the legislative and executive branches. Time has revealed the inconsistency of this act. "Procedure of ecclesiastical legal proceedings" was not written. Not a single trial took place in 12 years. The 1988 church court, established without discussion or legal justification, remained an unconscious and unrealized claim. The charter did not answer the question: "who", "for what" And "How " going to judge the church court. The Consistory Court of the Russian Empire cannot be revived after the separation of the Church from the Russian Federation.

The second attempt to revive the consistory court is now being completed by Prof. Tsypin, still ignoring the changes that have taken place in the country:

1. The court of the Russian Empire proceeded from the symphony of state and church. IN Russian Federation Church is separated from state.

2. The Church Court of the Russian Empire fit into the state judicial system, which recognized canon law, and relied on secular legislation, abolished a hundred years ago.
The legislation of the Russian Federation excludes canon law and church court.

3. Mandatory registration of all parishioners in the Russian Orthodox Church established their formal relationship with a specific church.

The Russian Orthodox Church received a new internal structure. The parish is limited to a dozen legal parishioners. The rest of the parishioners have no formal relationship with the temple. Legally and practically, they dropped out of parish life.

These obstacles are insurmountable for the resuscitation of a church court, just as the onset of biological death is for the revival of a corpse. Questions about the court's task remain unanswered. "Whom", "why" and "how" going to judge the church court? Let's try to answer these questions.

The first question is: “whom to judge”?

The history of law indicates the conditions without which justice cannot be achieved. The first of them is a single legal space, impartial for all subjects of law. They have equal rights before the law and bear equal responsibility before the court, regardless of their official or other position. For example, the law of the Russian Federation establishes legal equality of citizens: "Everyone is equal before the law and the court" (Constitution, art. 19). That is, from the president, standing on the highest rung of the social ladder, to the ordinary citizen.

Equality of rights of all the people of God before church canons and courts is an indispensable condition of justice in the Church. By freely accepting the sacrament of baptism, every Christian enters the legal space of the Church, which, according to the thoughts of Her Fathers and canons, should be impartial. Church canons establish equal responsibility for church crimes, regardless of hierarchical and official position.

They place responsibility for violating church rules on the culprit, no matter what hierarchical position he occupies, and primarily on the bishop. Regardless of the status of a violator of church rules, every Christian must bear an equal measure of responsibility for his guilt.

"Do not judge according to personalities, but judge righteous judgment." - Christ commands ( John 7:24).

"The rules regarding those in the clergy are laid down indifferently. They command that the fallen be given a single punishment, expulsion from service, whether they are in the degree of the priesthood, or undergo a service that does not have the ordination of the priesthood" (Basil. 51).

Rules of St. The Apostles, Ecumenical and Local Councils confirm the above rule of the Holy Fathers. The canons equalize the responsibility of bishops, presbyters and laity in crime and retribution.

"Or a bishop, or a presbyter, or a deacon, or anyone from the sacred list...” (Ap. 8:51);

“If anyone is a bishop, or a presbyter, or a deacon, or in general from the sacred rank, ... if a layman does this.” (Ap.63).

“If anyone is a clergyman or a layman...” (Ap.12);

“If anyone, a bishop, or a presbyter, or a deacon, or anyone ranked among the clergy, or a layman... (Six. 80).

In these specific terms, the numerous canons address their demands to the entire people of God. . The contradictory legal provisions of Chapter 7 of the Charter leave an impression of deliberate uncertainty.

The Charter of the Russian Orthodox Church MP characterizes jurisdiction by two characteristics: territory and persons:

"Jurisdiction of the Russian Orthodox Church extends to persons of the Orthodox confession living in the canonical territory of the Russian Orthodox Church..., as well as to voluntarily joining Orthodox Christians living in other countries" (Chapter 1, Article 3).

In this characteristic, the Charter defines one unknown through another unknown, closing a “vicious circle.” The defined concept “jurisdiction of the Russian Orthodox Church” is explained through the defining concept “canonical territory of the Russian Orthodox Church,” which is left undefined. The jurisdiction of the Russian Orthodox Church MP is limited by the boundaries of its canonical territory. “The canonical territory of the Russian Orthodox Church” is a new concept that the Charter introduces and leaves without explanation. The “Fundamentals of the Social Concept of the Russian Orthodox Church” recognize the territorial sovereignty of the state (3, 5). The Church has neither sovereign territory nor extraterritoriality. The Creed does not endow the Church with a territorial attribute.

Since not only Orthodox Christians belonging to the jurisdiction of the ROC MP live within the territorial limits specified by the Charter, the territorial criterion turns out to be insufficient to determine the boundaries of the jurisdiction of the ROC. It is necessary to identify the circle of specific persons living in the legal space of the church, not by chance, such as place of residence, but by their conscious recognition of the jurisdiction of the Russian Orthodox Church MP. It is not clear why the Charter recognizes the right Only “Orthodox Christians living in other countries” can voluntarily join the Russian Orthodox Church? Are Orthodox Christians living in Russia deprived of this right? Is it really their jurisdiction? forcedly determined by place of residence?

For citizens of the Russian Federation, a sign of unity is “citizenship of the Russian Federation”. The Charter does not contain a formal sign of unity uniting Orthodox Christians within the jurisdiction of the Russian Orthodox Church MP. There is no collective term in the Charter that can at least designate the fullness and integrity of the people of God - the Church. Term "all members of the Russian Orthodox Church", used once in the text of the Charter, designated persons for whom " court orders are required"(Charter 7, 3 "b"). This term could have a collective meaning for all Christians united under the jurisdiction of the Russian Orthodox Church MP. However, article of the Charter (7, 8) limits it: " decisions of church courts are binding on all clergy and laity without exception.". The collective meaning of the term " members of the Russian Orthodox Church" does not have. It combines only two categories: " clergy and laity". Defining the structure of the church court (Chapter 1, Article 8), the Charter specifies three categories of persons located in the legal space of the church, who deprived of the right to “apply to state authorities and civil courts.” These are "officials and employees of canonical units, as well as clergy and laity"(Charter, Chapter 1, Article 9). The Charter is silent about the legal position of the hierarchy: it is located “inside” the legal space of the Russian Orthodox Church or “above” its boundaries. Let's compare two articles: "binding all members of the Russian Orthodox Church court decisions" (Charter. Chapter 7, Article 3) creates the impression that within the legal space " all members of the Russian Orthodox Church"However, the next article leaves only clergy and laity: “decrees of church courts are binding on all clergy and laity without exception” (Charter Chapter 7, Art. 8).

Terms that have lost their identity

Reading the Charter, we learn terms that for centuries have designated specific subjects of church law. We believe that the terms “hierarchy,” “clergy,” and “laity” retain an unchanged meaning in the Charter. We are mistaken. Today, familiar terms have new content, take on a double meaning, or denote an empty concept. New subjects have appeared in the legal space, not imprinted by canon law and patristic tradition. If terms are used in an ambiguous sense, puns and substitutions occur. Sophistry and anecdotes are based on this principle.

A. Hierarchy

The word "hierarch" is formed from the word "bishop" by rearranging the two roots that make up this word. Bishop is an ancient, biblical word. The Jewish high priests were called by this name. God gave this rank to Aaron. In him God laid the root of sanctification. “A priest according to the order of Aaron” demonstrated sanctifying grace, rooted in the Old Testament tradition. The source of holiness is always the Holy Spirit. God chose man as the first fruit of the sanctification of creation. Just as in Adam the creature first realizes itself and the creative plan for itself, so in Aaron God chooses the root of sanctification. The evangelist designates Anna and Caiaphas by the title of bishops: not their personal merits, but the continuity of tradition, the effectiveness of which cannot be stopped by human unworthiness.

The word “hierarchy” arose later and acquired a broader meaning, encompassing not only the rank of bishops. With this word, the Church defined the “heavenly hierarchy”, which contains three faces and nine ranks of angels. With this word the Church defined the “church hierarchy.” Its completeness, according to the Areopagite, contains three degrees of priesthood: bishop, priest and deacon. The word “hierarchy” expanded beyond the boundaries of church life and expressed secular concepts: hierarchy of values, bureaucratic, military and other hierarchies.

In the Charter of the Russian Orthodox Church the concept of “church hierarchy” has lost the original image of a staircase connecting steps in ascending order. The unity of the three degrees of the priesthood has acquired new meaning. With the word “hierarchy” the Charter of the Russian Orthodox Church designated one degree of priesthood - bishops (Charter: 1, 6; 2.13; 3, 1 and 14; 4, 7c and 17c; 5, 21 and so on). Jacob's ladder, reaching to heaven, had its support on earth. The bishop did not immediately receive episcopal consecration. According to ancient tradition, he was certainly elevated first to deacon, then to presbyter. Each bishop ascended these steps, testifying to the continuity of hierarchical unity. The practice remains the same. Its meaning has changed. The Charter excluded laity, deacons and elders from the ranks of the “church hierarchy”. The highest stage lost the support of its ascent and remained suspended on nothing. In the “hierarchy” translated into Russian, the ontological meaning of the “beginning”, expressed by the first verse of the book of Genesis “Bereshit bara Elohim” and the first verse of the Gospel of John “εναρχη” (John 1:1; Gen 1:1), completely faded.

The ontological depth of the biblical "beginning" was overshadowed by the pragmatic function " sacred authorities". The adoption of this name by only one of the three degrees of the priesthood, which exercises legal authority in the church, identified the concept of "hierarchy" with the concept of "oligarchy". Closed in an impenetrable caste, the "oligarchy" is not connected with the people of God by either common interests or a common life, nor spiritual communication.

“Over all of these, between you and us, a great abyss has established itself, so that those who want to pass from here to you will not be able, nor those from there, will pass to us.” (Luke 16:19). Where did the abyss come from? There is no feedback between the bishops' corporation and the people of God. The people do not choose the bishop and do not accept his appointment. For the bishop, the diocese is an unfamiliar place. He hasn’t been here, doesn’t know anyone, didn’t promise his flock love and care. When appointing a bishop, the Holy Synod is not interested in the opinion of the local church. She must joyfully accept a stranger as her own father and trust him unconditionally. Relationships will develop, good. If it doesn’t work out, endure it until you die. The opinion of the congregation is not asked. Her questions are not answered. Complaints are not listened to. The government's disregard for the opinion of the local church digs a gap between them. The catastrophic gap between the people of God and their hierarchical Olympus is becoming the main problem of the Russian Orthodox Church MP. Before we were together, we were bound by common sorrows. Now the church oligarchs have acquired new circle friends. General well-being connects them with presidents, generals and ministers. Embarrassed to recognize us as their former comrades, they graciously agree to accept divine honors, slavish worship and tribute from us.

Clericalism distorts the Gospel teaching about the spiritual kinship of Christians in the sacraments of Baptism and Communion from the same Chalice. The teaching of patience, meekness and humility applies only to clergy and laity. The doctrine of love and power is forgotten: "The princes of the nations rule over them, and the nobles rule over them. But let it not be so among you. But whoever wants to be between youto be great, let him be your servant; and whoever wants to be first among you must be your slave. For the Son of Man did not come to be served, but to serve, and to give His life as a ransom for many.” (Matthew 20:25–28).

Like all people, bishops are different: good and bad. By virtue of his position, the bishop determines the nature of personal relationships within the diocese. "The hierarchical principle in the Church is revealed in the hierarchy of ministries, the hierarchy of love. As the highest hierarchical ministry, the episcopal ministry should be likened to the sacrificial love of Christ. Here, as at the highest point, all ministries converge. All begin and end in love. Without love, every ministry is outside Church, for the Church is Love. The ministry of governance without love ceases to be a ministry. Without love, there is no grace by its nature, the highest manifestation of love, as the highest service in the Church."

The Charter vests the bishop with " the fullness of hierarchical power in matters of doctrine, priesthood and shepherding" (Charter Chapters 10, 11). This declaration is not confirmed by specific articles of Chapter 10 of the Charter. The articles do not at all reveal the gospel image of “I am the Good Shepherd.” They paint a tough image of an administrator with unlimited power. The Charter did not express pastoral concern for the person, did not oblige the bishop to respect the individual, to politeness in dealing with clergy. The image of the Shepherd fell out of the Charter. What remained was the administrator, devoid of human traits.

Christ does not allow church power to be viewed as the possession of a person. Christ understands power as the caring service of the higher to the lower. Even 30 years ago, the character of the bishop’s service was emphasized by the ritual of “washing the feet.” Like Christ who washed the feet of the disciples, the bishop seated the priests in the middle of the temple, wrapped himself in a towel and washed the feet of the priests one by one, " showing us the kindest path of humility"It is difficult to imagine this rite in our days, when a bishop hovers over a flock unworthy of his greatness.

b. Clergy

The concept of “clergy” and its appearance have completely changed compared to the era of the Council of 1917-18. At that time, the “clergy” consisted of clergy and clergy. In our time, clergy have fallen out of the clergy. Currently, "clergy" is limited to two categories of those who have holy orders: priests and deacons. The rest of the clergy: psalm-readers, regents, readers, singers, bell-ringers, subdeacons, panomari and others are not members of the clergy. Contrary to the requirement of the saint. Basil the Great and the Ecumenical Council, they do not receive ecclesiastical tonsure, consecration and appointment from the bishop upon their installation.

“Whoever is accepted into church service without my permission will be a layman” (Vasil. 89). “Let no one be allowed from the pulpit to proclaim divine words to the people who are ranked among the clergy according to the rank, unless someone is worthy of initiation with tonsure, and receives a blessing from his shepherd in accordance with the rules. If anyone is seen to be doing contrary to what is prescribed, let him be excommunicated” ( Six.33)

Modern Statutes of the Russian Orthodox Church MP of the Soviet and post-Soviet periods use the term “clergy” without specifying its content. “The diocesan bishop ordains and appoints clergy to their place of service” (Charter 10, 12). In practice, the bishop does not appoint “clergy,” but only “clergy” or “clergy.” The concept of "clear" is limited to their limits. The bishop does not supply or appoint other “clerics”. Therefore, they occasionally appear here and there as a transitional step. The next article of the Charter clarifies the scope of the concept of “clergy”, identifying it with the concept of “clergy” (Charter, 10, 13). According to the literal meaning of the rule of Basil the Great, all modern clergy are laymen.

V. Lay people

“Laity” in the Russian Orthodox Church MP refers to Orthodox Christians who have not been ordained to the priesthood and have not been tonsured into monasticism. Official statistics calls 70–80% of the population of the Russian Federation “Orthodox”. In reality, it is impossible to determine their number, since there is no agreement on what we are defining. Those who have been baptized are considered Orthodox incorpora, but the absolute majority of them have neither formal nor practical connection with the parish.

The ancient church was represented by communities. Christians scattered among Jews and pagans could identify themselves in the congregation of the community. Those gathered participated in the Eucharist, shared a meal, and together prepared to receive the crown of martyrdom. The community was not connected by formal relations, but everyone knew each other personally. Lifestyle and family problems were transparent.

The parish arose when baptism became universal. The parish united parishioners on a territorial basis. All parishioners entered into the Parish Register and became formal participants in church life. Russian legislation obliged all parishioners of the temple to comply with church rules when carrying out civil legal relations. For example, in matters of marriage: “As all marriage matters are subject to the department and consideration of the spiritual authorities, violations of the above prohibitions are judged and their consequences are determined by the spiritual court according to the rules of the Church” (Code of Civil Laws, book 1; section 1; chapter 1; Section 1, art. 19) .

“Whoever wishes to get married must notify the priest of his parish about his name, title and rank or condition, as well as the name, title and condition of the bride. According to this notification, an announcement is made in the church in the next three Sundays, after the Liturgy, and then a search is carried out according to the rules prescribed by the Spiritual authorities. Upon announcement, everyone who has information about obstacles to marriage must inform the priest immediately” (Ibid., Section 2, v. 22–24).

Today, Christians in Russia are once again scattered among “strangers.” The temple unites parishioners at their place of residence with “baptized non-Christians” and is not a place of community identification. The parishioners do not know each other by sight and are not informed about family life each other, are not united by a common cause. The temple does not register parishioners and does not enter into formal relations with them. They are free to choose a temple at random. The principle of unity has lost its concrete expression in the Church.

The Church Court is a formal organization. Subjects of law must be bound by legal relations, from which the laity are excluded. There are no Parish books in churches that reflect the current life and condition of parishioners. Laymen deprived of registration do not legally exist. Neither the bishop nor the priest has their personal data: last names, addresses, year of birth, etc. Their affiliation to a specific temple and their number are unknown. The fact of baptism is not confirmed. Their actual participation in liturgical life is not reflected. They are baptized in one church, take communion in another, get married in a third and do not know each other. Many parishioners in the temple are random. They appear and disappear for years. Certificates of baptism or wedding are “filkina letters”, while there are no registration books to substantiate these records. The laity remain outside the legal field of the church. Church law is superfluous for them, just as they themselves are beyond the reach of canonical responsibility.

d. Church bureaucracy.

Along with the empty concept of “clergy” and the vague concept of “laity,” the Charter introduces the concept of “officials and employees of canonical units; employees of diocesan institutions” (Charter, 1.9; 10, 12). This is how an omnipresent bureaucracy arises in the legal space. There was bureaucracy in the church before, but the Charter did not separate it into a separate category from the laity. The participation of the bureaucracy in liturgical life cannot be understood from the Charter. Without being appointed, church officials receive an appointment that gives them the right to serve in office. If these officials are baptized and are in the position of laity, why was it necessary to allocate them to a special category? The Charter is silent about their ecclesiological status as distinct from the laity. The Charter does not say that episcopal appointment is sufficient for their functioning and does not oblige them to holy Baptism. The Charter does not impose on officials any moral requirements obligatory for clergy and laity. For example, church officials and bishops are not required to “decisions of church courts that have entered into legal force and are binding on all clergy and laity without exception” (Charter, Chapter 7.Article 8;)

The court does not limit the “right of the strong”

According to the Charter " canonical punishments, such as lifelong ban from the priesthood, defrocking, excommunication from the Church, are imposed by the diocesan bishop... only on the recommendation of the church court" (Charter, Chapter 7, Art. 5). At first glance, it seems that the court will limit the arbitrariness of the diocesan authorities and oblige it to justify punitive sanctions. Alas:

1. The establishment of the court does not abolish arbitrary dismissals and transfers of the clergy" according to ecclesiastical expediency" that is, not motivated (Charter 11, 25).

2. Punitive sanctions in the form "removal of clergy from their positions and temporary prohibition in the priesthood; temporary excommunication of the laity from church communion" (Charter 10, 19 a,b) remain virtually unlimited, since the term “temporarily” is not limited. Actually, life itself is temporary, and excommunication can continue until the death of the excommunicated person. The sanctions of the administrative authorities, which take place in the prohibitions of Archimandrite Zinon and priest Vladimir Andreev of the Pskov diocese, coincide with the sanctions " lifelong ban and excommunication"Diocesan bishops also apply other sanctions not permitted by the Charter.

3. In the Russian Orthodox Church MP there is no regulatory document defining the system of labor relations. Individual elements of labor relations have to be sought out in the Charter and collected into a general scheme. This painstaking work does not give full picture, since many elements of the employment relationship are not included in the Charter and may be implied. It can be assumed that in the diocese the employer is the diocesan bishop, who by his Decree moves, dismisses, " appoints rectors, parish priests and other clergy" (Chapter 10, Art. 18 j).

The bishop does not determine remuneration and does not pay appointed workers. The size of the contents of the clergy is determined by the Parish Assembly of the church: " The responsibilities of the Parish Assembly include approving the staffing table and determining the contents of the members of the clergy and the Parish Council" (Charter of the Russian Orthodox Church 2000. Chapter 11, Art. 43, l)

The charter does not specify who pays employees. It can be assumed that this function belongs to the Parish Council, which “manages the funds of the parish” (Chapter 11, Art. 46, f.)

An employment contract is not concluded between the bishop, as an employer, and the clergy. Their labor relations are not based on a contract, as is customary in a rule-of-law state. The Labor Code of the Russian Federation in Chapter 13 examines in detail the grounds for termination employment contract(dismissal from work) and " ensures the right of everyone to protection by the state labor rights and freedoms, including judicial procedure"(Labor Code Art. 2). The agreement defines the rights and obligations of both parties and involves the protection of their interests in court. The objective value of law is revealed in the protection of the legitimate interests of each of the litigants. If the right protects the interests of one of the parties to the detriment of the other, it turns into its opposite - lawlessness. Such relations are historically represented in serfdom, slaveholding and other types of lawless systems.

The relationship of clergy with the bishop is based on an oath, the text of which is used for official use and is not handed out or published ( Charter of the Russian Orthodox Church Ch. 11, art. 24, g). This virtual document forms the basis of the cleric’s dependence on the ruling bishop. The oath is a unilateral act containing no rights. The bishop takes an oath from the cleric, which does not oblige the bishop to anything. Duties and responsibilities fall solely on the cleric. The charter does not specify to whom the oath is taken: to the church or to a specific person. Submission to church discipline, which is often not canonically justified, becomes the rule for the clergy personal life And social behavior. Labor lack of rights arises due to the unacceptable division of rights and responsibilities: rights belong to one, and duties and responsibilities belong to another. The dependence turns out to be total: "In accordance with the 13th rule 1of the V Ecumenical Council, clergy can be accepted into another diocese only if they have a letter of release from the diocesan bishop" (Charter of the Russian Orthodox Church 2000, Chapter 11, Art. 30). A cleric is deprived of the right to move to another diocese without the consent of the bishop. “Here’s to you, grandma, and Yuri’s Day” - the only day of the year when a serf could leave a cruel landowner, has been cancelled. The Charter of the Russian Orthodox Church MP 2000 provides the employer with unlimited discretion in labor relations with employees. The cleric’s right to work is not defined or protected by the Charter. S.V. Chapnin illustrates the problem: “The rector in the episcopal rank dismisses a teacher from the theological academy, bringing him together personal accounts. The labor law was violated, but church formalities were observed. From the point of view of the charter, the situation relates to “issues of intra-church life” and is within the framework of church legislation. The victim is prohibited from going to civil court, but the competence of the ecclesiastical court does not include resolving issues of labor legislation". This situation violates labor Code The Russian Federation and canon law, “even if they can be convicted, as if they were condemned out of enmity or partiality, or were somehow pleasing to deception.”

The separation of bishops and church bureaucracy into a separate caste of masters, living by different rules than “clergy and laity”, does not correspond to the traditions of the Church. Clericalism upsets the legal balance , dividing God's people into masters and slaves. Instead of unity, which expresses its dogmatic attribute, clericalism introduces dominion, which Christ forbade to his disciples. (Matt. 20:25; Mark 10:42; Luke 22:25; 1 Pet. 5:2-3) Unity and dominion are not compatible. Christ denounced the clericalism of the religious politicians of Israel: “in the seat of Moses...” (Matthew 23:2-36). The medieval clericalism of the Western Church led it to the Reformation. The abyss, on one edge of which is hierarchy and bureaucracy, and on the other - clergy and laity, drags both into the bottomless depths of alienation. " The unity of the judicial system of the Russian Orthodox Church is ensured", first of all, recognition of the impartial legal space for all the people of God without exception: bishops, clergy and clergy, laity, church officials and everyone who recognizes themselves within the boundaries of the Church and its canonical field.

The second question: “Why judge?”

This question cannot be answered as long as there is no substantive and procedural law in the Church. The uncertainty of laws gives officials a free hand and becomes an obstacle to the administration of justice. S.V. Chapnin poses a dilemma:

1. "of all social institutions, only the Church has its own special legislation... Compliance with these norms and rules is mandatory for a Christian.”

2. "Church law introduces requirements that modern man cannot be taken seriously... However, until now no one has canceled this rule.” How to understand this: the rules are mandatory, they cannot be taken seriously, no one has canceled them?!!

"The issue of codification of church legislation is one of most important tasks current church authorities". The Church never had its own codification of laws.

Since Byzantine times, the practice of the Eastern Church has combined two traditions. The Christian state consolidated church norms and the establishment of generally binding laws in the civil code. The Code was supplemented by case law expressed in the rules of the Ecumenical Councils and the Holy Fathers. Canonical rules cannot be considered as a system of church law. They are fragmentary: the canons represent separate legal, moral and procedural norms that reflect the formation of the legal consciousness of the church over the centuries. Prohibitions and regulations of the canons allow for broad and restrictive interpretation of the law.

Judges can make mutually exclusive decisions based on the same canons. The canons do not contain a disposition that formulates the exact signs of a crime. The canons arose as a reaction of church consciousness to precedents that took place in the first millennium. In modern practice, they have to be applied by analogy, the legality of which is always debatable. This problem is illustrated by the condemnation of Archimandrite Zinon and priest V. Andreev.

Decree No. 880 of 1996, condemning Archimandrite Zinon, does not state his guilt. The decree authorizes the prohibition of eruption from the clergy, but does not define the elements of the crime seen in his actions. It is impossible to substantiate guilt by simply listing legal norms - the prosecution is obliged to correlate the incriminated actions with these norms. There is no such accusation in the Decree. Having failed to formulate the guilt of the convicted person, the bishop was unable to unambiguously qualify it and relate it to a specific norm of canon law. In the Apostolic Rules, to which Archbishop Eusebius refers, such a norm cannot exist by definition. The Great Schism occurred in the eleventh century. It could not have been foreseen by the Apostolic Rules, known since the 5th century. Archbishop Eusebius selected the canons by analogy and qualified the act of Archimandrite Zinon according to three different standards. One canon prohibits communication “with someone who has been excommunicated” (Apostle 10). The other is “with the one cast out from the clergy” (Apostle 11). The third is “with the heretic” (Apostle 45).

The three different estimates suggest different canonical positions for the rejected. However, the archbishop has one specific person in mind - Romano Scalfi, an employee Catholic priest, with whom Archimandrite Zinon took communion.

A bishop can ignore the canons, invent a canon, or justify a verdict with a false fact. In Decree No. 952 dated March 17, 1997 Archbishop Eusebius invents canonical norm. He "prohibits in clergy" priest Vladimir Andreev" in connection with public reproach of the Ruling Bishop". There is no such canon. To justify the verdict, the bishop invents a law and condemns the innocent, contrary to Carth.16.

By Decree No. 880, Archbishop Eusebius deliberately excommunicated monk John (V.I. Ledin) from the church on a deliberately false charge. In deciding the fate of clergy and laity, the bishop is guided solely by his sympathies and moods. There is no one to challenge such decisions, and who will listen or accept this kind of complaint? The irresponsible attitude of legitimate authorities towards the law deprives the law of its meaning.

In a report to the Local Council of 1917–18, prof. Fioletov writes: “In the current law, not only is there no systematic regulation on the punishments imposed by the spiritual court for the misdeeds and crimes of clergy and laity, but there is not even a complete listing of these offenses. Many of the offenses are not listed exhaustively, but are only named common name- “offenses against the office of decorum and good behavior.” For other offenses it is not precisely specified appropriate punishment - so that the court, when deciding many cases, does not find proper guidance in the law and finds it difficult to apply the law to a separate case, i.e. fulfill the most important task of our activities."

In 1918, the department “On Church Court” presented a new codification of church punitive rules for consideration by the Council. Since then, entire sections of substantive law (about illegitimate children, inheritance rights and acts civil status, deviations from the faith, leaving for another denomination, etc.) have lost their meaning or fallen out of church jurisdiction. Now substantive law will have to be created anew. There is no one to do this. S.V. Chapnin writes: Polemics at the beginning of the twentieth century revealed a number of complex legal and canonical problems that never found their solution.. In recent years, the Church has done nothing to complete the formation of its legal framework. Until now, nothing has been done to create an ecclesiastical court. During the years of the “church revival,” decisions to re-establish the court remained only on paper. The Charter is too controversial a document to be recognized as the main legislative document. Teachers of church law from theological academies teach courses of a superficial introductory nature. The conclusion sounds disappointing: in the Russian Orthodox Church there are no authoritative experts on church law capable of developing regulations on the church-judicial system.

The second difficulty is created by a de-churched consciousness. Those who were baptized in infancy because “everyone baptizes” live excommunicated from the Church for decades. Outside the Church, their consciousness takes shape, their life experience and hierarchy of values ​​mature. Outside the Church they loved and married. When fate returns you to the Church, you have to radically change your lifestyle and way of thinking: leave your beloved and return to your wife; register a marriage and get married; to confess and receive communion, to attend church on holidays and Sundays... parents and godparents heard all this at baptism. In answering ritual questions, they did not take their formal promises seriously. Years have passed. Who should I ask now? Why judge those who came? Who will be responsible for their lack of churching? From the temple they return to their former environment, to their usual way of life. Which side of the scale will tip?

... Embarrassed, I’ll say: “I’m sorry”!
Forgive us, God, we came from there,
Where to come from was a miracle.
Our gift is all in a handful.
(E. Pudovkina).

Who will raise his hand to throw a stone at them?

The third major problem is the uncertainty of the prosecution's task. According to the legislation of the Russian Empire, offenses of five categories were subject to the jurisdiction of the ecclesiastical court:

1. Property disputes have lost their relevance. The land and the churches built on it with all the property: icons and utensils do not belong to the parish, but are in its perpetual use. The community does not have documents certifying its property. Upon leaving, the USSR granted religious organizations “partial legal personality rights.” The new Russian law eliminated this restriction on paper. In practice, the right of a legal entity remains “partial”. The Charter of the Russian Orthodox Church MP does not at all recognize the property rights of parishes (Chapter 11.7–8). What is the use of arguing about property without owning property?

2. Decency and good behavior. Common requirements must be clearly defined in a document that has church-wide authority. No such document exists if " Church law introduces requirements that modern man cannot take seriously." The canons require the wearing of clothing appropriate to rank and gender, storage fast days and sobriety. It is necessary to place the accents correctly. You can defend the “handkerchiefs”, beards and braids of the clergy. You can continue the fight against trousers and women's cosmetics.

You may not go to the bathhouse with a Jew and not be treated by a “Jewish doctor,” but it is hardly worth doing this in court!

3 . Clerical malfeasance: careless storage of St. Gifts, peace and antimensions, violation of the order and conditions for performing the Sacraments, and others. The diocesan authorities should be concerned about implementation. The fish rots from the head. Over the past 15 years, I have never met a dean in my church. The bishop is not concerned about such problems and did not look into the Tabernacle, the Tabernacle and the baptismal box while attending Patronal Feasts. Preaching is dying out. Confession is used to monitor the trustworthiness of the clergy. At a diocesan meeting, I heard from the bishop that in some parishes the Divine Liturgy is not celebrated even on the day of Holy Easter. Who will pose the problem? What will the court change?

4. Divorces. Unregistered marriages cannot be counted. You have to take your word for it. Registered marriages are concluded in the registry office. Weddings make up a fraction of their percentage. Questions about church dissolution are addressed after divorce. The old family broke up long ago, a new one arose and exists in fact and legally. The Church is faced with a fact: get married, or we will remain unmarried. The Church recognizes civil marriage as legal and does not deprive those living without a crown of communion. So …?

5. Crimes of clergy and laity against faith and morality.

The legal fight against heresies and moral vices has long story and dubious success. The Catholic Inquisition, the persecution of heretics during the time of St. Joseph of Volotsky, bonfires and self-immolations under Patriarch Nikon have left sad pages in history. In the Russian Empire" Some of the crimes were subject to dual jurisdiction: crimes against faith and marriage. The participation of church authorities in the proceedings of such cases was limited to the initiation of a case and the determination of church punishment for the crime. The secular authorities conducted the investigation, and the civil court imposed punishment according to the criminal laws."

Secret sins are carefully hidden. Even obvious guilt is difficult to prove. The prosecution must establish the fact, accurately formulate guilt and propose an adequate punishment. This task cannot be accomplished without the help of a secular court.

An investigative apparatus, evidence, witnesses, and assistance from the law enforcement system are needed, as was the case before the revolution. Self-interest, which widely manifests itself in corruption, extortion, and simony, is condemned impersonally, “in principle.” The lust of the flesh, carried out in fornication, adultery, homosexuality, pedophilia, is hushed up. Canonical crimes of this kind are not condemned or prosecuted. Not a single precedent was made public. And he won't get it. Firstly, there is no evidence base. Secondly, the honor of the uniform obliges caution, even when the crime is obvious and the event has become public. Thirdly, in the church consciousness, offenses are not differentiated. The concept of sin unites heterogeneous categories: violation of church discipline, moral guilt against the commandments of God, failure to observe etiquette, criminal offenses - all have one price: “sin”.

Presumption of innocence

As a necessary prerequisite, justice requires recognition of the rights of the accused and, above all, the presumption of innocence. This principle, which has been included in international legislation, expresses the Christian faith in man. Christians accept the Incarnation of the Word as its basis. Another principle is possible, on which all inhuman regimes are built. One day, in the investigator’s office, I read a sign: “ If you have not been convicted, this is not your merit, but our shortcoming"In Dzerzhinsky's Cheka, arrest served as evidence of guilt. Without the presumption of innocence, everyone against whom the bishop initiates a case will be found guilty. Like millstones, the church court will grind all the grains that fall into its mill." Emphasis on rights is misplaced"if a Christian has no rights.

Chapter 7 of the Charter does not contain any mention of the rights of the people of God. Professor Tsypin explains the silence about the rights of clergy by the abundance of love realized in church life: "The emphasis on rights... is inappropriate in the Church, where everything is permeated with the spirit of love. A Christian needs rights not to protect his interests, but only to fulfill his duty.”

Silence about rights may indicate high degree freedom. If the Charter professed the principle “what is not prohibited is permitted,” there would be no need to list specific rights. It is enough to define the necessary prohibitions as the limits of individual freedom. Unfortunately, the Charter of the Russian Orthodox Church MP does not profess this principle.

In diocesan practice, the opposite principle is applied: “what is not permitted is prohibited.” To substantiate this principle, the bishop cites the Apostolic Canon: “Presbyters and deacons do nothing without the will of the bishop.”(Ap. 39). The rule sounds categorical: "Nothing"! Medieval commentators limited this rule. Zonara and Aristin explain that “a presbyter should not subject to penance and excommunication without the will of the bishop”. Balsamon believes that “You cannot dispose of church property without the will of the bishop”. If you neglect such restrictions, you can bring “nothing” to the point of absurdity. The silence of the Charter on elementary rights against the background of a literal understanding of the 39th rule may limit the freedom of clergy to the limits of physiological functions.

The presumption of innocence expresses the trust that God placed in Adam and Eve in paradise, giving them the commandment not to eat of the tree of the knowledge of good and evil. The presumption of innocence expresses the trust that Christ retains in Judas until the kiss in the Garden of Gethsemane. The presumption of innocence gives hope that the image of God in man will overcome temptation. It testifies that God takes man's freedom seriously and awaits his choice.

Secular law solves the problem of the presumption of guilt or innocence in favor of the presumption of innocence: " A person accused of committing a crime is considered innocent until his guilt is proven... and established by a court verdict that has entered into legal force" (Constitution of the Russian Federation, Art. 49)

With the same obviousness, the presumption of innocence is affirmed by the rules of the Universal Church: " If any of the bishops is accused, ... let the accused not be alienated from communion ... unless he appears in the court of the chosen to judge him at the appointed time" (Carth. 28). "Befitting research: If it is found out, he...may he remain in the clergy. If he... then let him be a stranger to the clergy" (Theoph.5).

"There must be research about Jacob. If... he was guilty of a crime... he will erupt from his degree, however, according to careful research, and noton a single suspicion" (Theoph.6)

Respect for man, his dignity and inalienable personal rights is justified in the Gospel by the image of God and the Incarnation of the servant who took on the image. In the parable of the sheep and the goats, Christ identifies Himself with the “little brothers: "just as you did it to one of the least of these my brothers, you did it to me." (Matthew 25:40). By protecting the personal rights of every Christian, the ecclesiastical court will protect the Church. By depriving an individual of rights, Professor Tsypin deprives Christ of rights in His Church. The Church is inseparable from Christ because it is His Body. Professor Tsypin is going to defend the Church from the individual with her " petty interests" And " imaginary rights", because he does not recognize the royal dignity of the people of God (Ap. 1, 6; 1 Peter 2: 9–10).

Third question: "Who are the judges?"

According to the Charter of the Russian Orthodox Church MP, " judges of diocesan courts can be clergy, endowed by the diocesan bishop with the authority to administer justice. The chairman of the diocesan court is appointed by the diocesan bishop. Early recall of the Chairman or member of the diocesan court is carried out by order of the diocesan bishop."

The Charter does not limit the reasons for early recall of judges. There is an unconditional dependence of judges on the diocesan bishop, " empowering judges"It is emphasized by two unique clauses of the Charter:

1. "Proceedings in all church courts are closed"No one will know what kind of atrocity is happening behind closed doors. No one will see the tears of the humiliated and insulted.

2. "Decrees of the diocesan court are subject to execution after their approval by the diocesan bishop. If the diocesan bishop disagrees with the decision of the diocesan court, he acts at his own discretion. His decision takes effect immediately".

It seems that the Charter deliberately emphasizes the worthlessness and helplessness of the court, its judges and judicial decisions before the authoritarian government. The Charter's reference to the controlling role of the Diocesan Assembly (7, 13) makes one smile.

This institution exists de jure and annually meets in practice, but leaves no trace of its existence, like a shadow or a mirage for those who are thirsty in the desert. It has no protocol, no regulations, no agenda, no voting, no decisions taken. Its existence can only be proven by eyewitness accounts. Only they can tell how, from 10 to 15 o’clock, in the unanimous silence of the Diocesan Assembly, two hundred priests listened to the Bishop’s speech about nothing. “The air does not want to overcome its drowsiness.”

S. V. Chapnin points to "an even more complex problem: where to find personnel to create a church court of lower instances? In this area, the situation is simply catastrophic - there are no personnel. In as soon as possible The Church needs to train hundreds of specialists in church canon law, otherwise the reform of the church court will again be postponed indefinitely." Urgent solves urgent problems always at the expense of quality. Considering the low educational level of the diocesan clergy, this problem will have to be recognized as insoluble.

The hopeless problem of financing must be mentioned. " Diocesan courts are financed from diocesan budgets". Perhaps there are generous bishops who spend money on diocesan institutions. The stingy bishop relies on the selfless enthusiasm of the priests. The incentive is clear: if you want to serve in the city, take on free work: teaching at a religious school, working with youth, in prison, etc. There are few enthusiasts who are attracted to the work. In other cases, the work is replaced by a checkmark on the report. It is difficult to say which is worse: a court based on the “disinterested” enthusiasm of judges or a court supported by the executive branch.

Decalogue of the Church Court.

"I am the Lord, I love justice" (Isa.61:8.)

An unjust court perverts its own nature. Justice expresses the nature of any court - ecclesiastical or civil. To implement justice, the court must be properly organized and based on legal principles. We find such principles in the holy canons. Why not find a place for them in ch. 7 of the Charter?

1. Complaints of presbyters and other clergy about their bishops are listened to by neighboring bishops and, with the consent of their own bishop, the displeasure that arises is stopped: Carth.11, 37, 139; Sard. 14.

2. Judge according to the law and conscience, and “not according to enmity, partiality or man-pleasing”: Carth.16. 3.

4.Remove suspected judges and provide time for defense: Kirill 1.

5. The accuser for slander is subject to equal punishment: Deut.6

6. The accused is personally present at the trial: Ap. 74

7. Limitation of the circle of witnesses and accusers. Ap. 74–75; Thursday 21;Carth.8, 28, 70, 143, 144, 145, 147; Deut.6.

8. The independence of judges is guaranteed by the court of bishops. According to the canons, the trial of a bishop is carried out by 12 bishops, of a presbyter by 6 and one of their own, and of a deacon by 3 and one of their own. Karf. 29 and 12.

9. By agreement of the litigating parties, you can choose judges Carf.17,107,136. If the judges disagree, they invite larger number bishops Ant.14.

10. Presumption of innocence: do not deprive of communication before trial. Feof. 6 and Carth. 28.

To justify the “judicial system in the Russian Orthodox Church,” the Charter relies on the “sacred canons” and the “Regulations on the Church Court.” The latter has not yet been invented. But the canons have existed for a thousand years. Why did the Charter not include a single canonical rule in the structure of the court?

Why does the Charter not refer to a single canonical rule to justify the judicial system? Why are the ecumenical canons excluded from the “judicial system of the Russian Orthodox Church”? Maybe they contradict the principles of this system (for example, Chapter 7, Article 8)?

Of course, the above decalogue does not exhaust the legal system. It is impossible to demand that the ancient fathers solve all our problems. The Church must form a court, however, not contrary to canonical principles, but in the spirit of these principles.

Conclusion.

The vague concept of "church court", introduced by the Charter of the Russian Orthodox Church MP, contradicts federal legislation. The task of the “court” is not defined. The procedural and substantive law necessary for its activities does not exist, and there is no one to create it. The principles of church “justice” prescribed by the Charter are in conflict with the canonical norms of the Universal Church and the current international and state law of the Russian Federation.

The issue of equality before the law and the court is resolved as in Orwell: "All animals are equal, but some animals are more equal." The rights of a Christian in church life are not defined and not protected. The executive branch arrogates to itself legislative power and invents canonical norms. Diocesan judges are placed in absolute dependence on the executive branch. Judicial decisions will express not the law and the conscience of the judges, but the will of the ruling bishop. The court will not condemn sin, but the clergy who are displeasing to the bishop.

Instead of a church court, a parody arises, for the legalization of which it is proposed to change the Constitution of the Russian Federation. This proposal has no prospects. It makes more sense to abolish the stillborn Chapter 7 of the Charter and bury the consistory court of the synodal era. It is impossible and unnecessary to revive him. The Church court can only be created anew. He must take as a basis the canonical principles of the Universal Church and reveal their timeless meaning in modern realities, so that the Charter of the Russian Orthodox Church " did not deduce the legal field of the church beyond the legal fields of the Russian Federation" and did not outlaw the Russian Orthodox Church MP.

Church Vestn. No. 289. 2004

Charter 1988 Charter on the management of the Russian Orthodox Church. Publishing house MP 1989: 1, 8; 7, 45; 7, 51; page 32.

Prot. N. Afanasyev "Church of the Holy Spirit". Riga 1994 p.301

http: //www.ng.ru/politics/2000-12-14/3_tserkov. htm1

http: //www.ng.ru/politics/2000-12-14/3_tserkov. htm1

GARF.F. R-3431.Op.1.d.266. ll.1-24

http: //www.ng.ru/politics/2000-12-14/3_tserkov. htm1

http: //www.ng.ru/politics/2000-12-14/3_tserkov. htm1

Prot. V. Tsypin "Church Law", M. 1996, p. 390.

Prof. Tsypin, “On cathedrals and conciliarity.” "Community", No. 12. 2003 Moscow.

Rules of the Orthodox Church with interpretations by Bishop. Nikodim Milosh St. Petersburg, 1911, T 1,2.

The scope of church government, as the second type of governmental power of the church, includes such functions as the establishment and abolition of church offices, their replacement, day-to-day administration, as well as church supervision.

New church positions, including new episcopal sees or even first thrones, are introduced or abolished by decrees of local church authorities. Church offices may also merge, merge, join each other, and the like. Changes may also concern the division of one position into two or more independent ones (for example, the division of one diocese into two), the transfer of part of the competence of one position to another, and the like.

As for the filling of church positions, it is usually carried out by the competent church authorities in accordance with the canons and other church regulations. In this area, throughout the history of the church, the influence of secular state power has been especially noticeable. The vast majority of this concerned senior positions. The Church does not recognize such influence as illegal if it does not contradict the will of the episcopate, clergy and church people, since it believes that the filling of the highest church positions is combined with the field of external church law. The forms of this influence changed in the history of the church and were determined primarily by the status of the church in the state.

Routine administration in the church is carried out through written or oral orders and messages.

A special type of administrative church power is supervision which is carried out by the same bodies that govern the church. The main means of surveillance include:

o receipt of written reports by higher institutions from lower ones, personal reports on the state of church affairs;

o visitation, i.e. a review by the bearer of church authority of the institutions and institutions under his jurisdiction;

o conducting audits.

Based on the results of inspections and control, written reports are drawn up (they are submitted, for example, by charities to their diocesan bishop). Sometimes, at the request of senior management, a personal report of a subordinate church person is submitted.

The most effective means of verification has long been a visit. It has always been practiced in the church, starting from apostolic times. The apostles themselves visited the communities they founded not only to teach the flock, but also to supervise. It is characteristic that in the Code of Canon there are no rules that would ascribe to a bishop visiting his flock. Obviously, this was the generally accepted norm in the ancient church. For the first time, the responsibility to tour subordinate districts was assigned to bishops by the law of Emperor Alexius Komnenos, issued in 1107. The “Spiritual Regulations” in Russia obliged each diocesan bishop to tour his diocese once a year or, in extreme cases, once every two years. And today the duties of the bishop include visiting parishes, monasteries, and religious institutions of the diocese. The Patriarch carries out visits to all the dioceses of his church, and within the dioceses the responsibility of regular visits to parishes rests with the dean.

Audits are usually an emergency means of oversight. They are carried out sporadically, if necessary. Usually, the reason for an audit is the unfavorable state of affairs in a church institution, and the audit itself is carried out by persons appointed by the legitimate church authority.

Church court

The judicial branch is part of the ecclesiastical government branch. The earthly church is a human community in which, as in any social organism, the interests of various subjects collide. Church members can commit crimes against the commandments, violate church regulations, and therefore the church cannot do without the judiciary, which would be a deterrent to all kinds of offenses. Judicial power is multifaceted: sins revealed in confession are subject to secret judgment by the confessor; crimes by clerics related to violation of their official duties entail public penalties. And if you look deeper into history, you can see that the competence of the church court at different periods included civil disputes between Christians and even some criminal cases, the consideration of which does not at all correspond to the nature of church authority.

The jurisdiction of the church in relation to its clergy, and even more so in relation to the laity, did not at all follow from Scripture or theological dogmas; its emergence had historical roots and was associated, firstly, with the desire of state power to rely on the church in solving public affairs; secondly, with the struggle of the church for its own privileges in the state.

Back at the end of the 4th century. The law of the emperors Arcadius and Honorius recognized the role of arbiters for Christian bishops in matters concerning the church, or those where the intangible or moral aspects of interhuman relations were affected. In the meantime, the church was supposed to be made a real participant in state court and administration.

The affairs of clergy among themselves immediately became the prerogative of the church organization. Subsequently, the church prohibited clergy from filing lawsuits and complaints in secular courts. And in 614, the Paris Local Council approved the complete judicial immunity of clergy, prohibiting any secular interference in the affairs of priests. And even in the case of claims between ecclesiastical and secular authorities, between secular and clergy, preference was given to the episcopal court. This was one of the most important class privileges of the clergy.

With the establishment of feudal relations, churches, monasteries, and bishops acquired the powers of a seigneurial court in relation to their vassals, subject populations and other dependent layers. The courts of canon law were based on a more complex judicial procedure than the ordinary feudal courts. These differences and features appeared back in the 12th century, when the traditions of Roman law, adapted to church requirements, became noticeable in canon law. The church treated the judicial procedures of barbarian times and feudal courts with contempt. In 1215, the Lateran Church Council forbade clergy to take part in judicial trials - ordeals. Thus, this method of finding “God’s truth”, which has been customary for centuries, is placed outside the church law. Also, the church persecuted and despised judicial duels.

In the courts of ecclesiastical law, absolute preference was given to written procedure and documentary evidence of “what is not in the documents does not exist at all.” Both the filing of the complaint and the defendant’s objections must be in writing. During the hearing, the parties asked each other questions in the form of notes. The court's decision was also recorded in writing. The testimony of witnesses under oath and under penalty of perjury was required to be recorded. The judicial procedure provided for representation of the parties. This rule increasingly appealed to merchants, traders and representatives of other financial classes who could not or did not want to be personally present in the courts. References to legal sources were required.

Unlike the secular courts, the courts of canon law predicted a very different goal. The meaning of the proceedings was not to establish the correctness of one of the parties and condemn the other, but to establish established truths even in the case when this was to the detriment of the one who violated the charges filed a complaint to the court. The judge had the responsibility to interrogate the parties himself, based on his own considerations of reason and conscience. Decisions were made on the basis of the judge’s inner conviction and canonical dogmas. The judge had to find out not only the vital, factual circumstances of the case, but also all sorts of motives, for example, “what the judge himself may not know, or, being embarrassed, wants. hide." And this, in turn, led to a harsh attitude of the canonical courts towards evidence. Some rules were developed for distinguishing evidence into those that do not relate to the case; unclear and uncertain evidence; evidence that creates ambiguity and confuses the consideration of the case; those which contradict nature and are therefore not taken into account.

Too formalized and strict requirements for the nature of evidence were especially characteristic of criminal prosecution. And the convictions of church courts in the original sinfulness of man and all worldly life, the resistance of the accused to repentance pushed canonical proceedings to exaggerate the significance of the accused’s own admission of guilt. This became an unconditional axiom of inquisitorial proceedings.

As already noted, the most important privilege of the church in the Middle Ages was the right to its own ecclesiastical court. All persons who belonged to the church - monks, priests, monastery peasants, etc., were subject to the court of the church in both civil and criminal cases, based on the fact that all crimes are related to sin. The Church assumed jurisdiction in cases of heresy (apostasy), witchcraft, sacrilege, theft of church property, violence against priests, adultery, incest, bigamy, perjury, slander, forgery, false swearing, usury with exaggerated interest rates, and fraud. Since property contracts were mainly sealed by religious oaths, the church declared the sphere of obligatory relations to be its competence.

In accordance with the decisions of the IV Lateran Council, the special responsibilities of the church authorities included the fight against manifestations of various heresies. Even those simply suspected of heresy or those who could not prove their innocence and refute the accusations were subject to persecution. In relation to such cases, church courts applied a special, inquisitorial procedure, based, first of all, on the presumption of guilt and sinfulness of a person. The persecution of heretics was entrusted to the monks of the knightly orders. For this purpose, the positions of special church judges - inquisitors - were introduced. They were endowed with immunity from insanity, were not subject to ordinary ecclesiastical court, had the right to personally appeal to the Pope and were placed outside the administrative control of the bishops. Independent of secular power, the church inquisition in the XIII-XVII centuries. was a formidable force in the hands of the church.

The Inquisition could initiate cases even based on rumors. In such courts, the same person conducted the preliminary investigation of the case, carried out the trial and passed the verdict. The negotiations were secret and accompanied by frightening and oppressive rituals. In the absence of a quick confession of guilt, torture was used, the limit of which was not regulated in any way. An atmosphere of general horror and hopelessness was created. The inquisitors believed that it was better to kill 60 innocent people than to miss one guilty person.

In 1252, Pope Innocent IV approved the creation of inquisitorial tribunals of 12 judges headed by a bishop. In criminal cases, one’s own confession has become the main type of evidence, which testifies to the correctness of the judge’s conclusion and the repentance of the sinful soul of the criminal. Self-confession was used especially masterfully in matters of accusation of heresy, since anyone could be prosecuted for this if desired, and there was no requirement to qualify the actions of the attacker in accordance with the norms of church canons. After After receiving a confession of guilt, the accused was forced to reconcile with the church through absolution. The accused signed the interrogation protocol, always indicating that his admission of guilt was voluntary and honest. If the testimony was refused or changed in person, she was again excommunicated from the church and was to be burned alive at the stake (this was done not only for the purpose of intimidating others, but also for “humane” reasons, since “the church did not shed blood”).

Confessing guilt helped avoid burning, but resulted in life imprisonment. Acquittal was extremely rare. Many prominent people of their time burned at the stakes of the Inquisition, including Joan of Arc, Jan Hus, Giordano Bruno. This deformed legal proceedings in the canonical courts for a long time. Church judicial procedure also revealed its influence on secular courts, which, in contrast to the Inquisition, spread the practice of delaying the consideration of cases, which lasted for months, or even years.

Following the precepts of the apostles, Christians of the first centuries avoided pagan courts and brought their disputes to the court of bishops. This was done not only in order to achieve the greatest objectivity and justice, but also in order not to lose the moral purity of their religious beliefs and the holiness of their faith in front of the pagans. In addition, Roman legal proceedings required the performance of a pagan rite - the fumigation of the statue of the goddess of justice Themis with incense. For clergy in general, turning to a pagan court was unacceptable. The episcopal court for the laity had the character of a fair and dignified hearing of the case with respect for both parties. 1 if after this any of the parties, being unhappy with the decision bishop, turned to the civil pagan court for protection of her rights, such a Christian received moral condemnation from his community.

It must also be borne in mind that during the era of persecution of the church, judicial decisions of bishops were considered invalid from the point of view of Roman secular law. In addition, the clergy did not have executive branch, did not have their own punitive-executive apparatus and relied solely on their spiritual authority.

After the publication of the Edict of Milan, the custom of Christians to sue their bishops received state sanction in Byzantium, and the judicial decisions of the bishops were based on the executive power of the state. Constantine the Great granted Christians the right to bring any claims to the court of the bishop, the verdict of which was considered final. Moreover, for such a transfer, the desire of one of the parties was sufficient. With the Christianization of the empire, the peremptory episcopal court, endowed with official state status, began to successfully compete with the jurisdiction of civil magistrates. This resulted in the bishops being overburdened court cases, many of whom were far from the spiritual sphere. In order to relieve the ecclesiastical courts, to narrow the judicial rights of the church, but not to affect the authority and respect for them, the rulers determined the competence of the episcopal court by two factors: the court considered only civil disputes; both parties must consent to the bishop's trial.

Civil cases regarding clergy were subject exclusively to ecclesiastical court, as stated in the 9th Rule of the Council of Chalcedon. And since all the decisions of this council were sanctioned by Emperor Marcian, they received the status of state laws.

In the Byzantine Empire, clergy had jurisdiction over their bishops according to civil cases was recognized as an unconditional canonical norm, although in terms of its content such cases could also be dealt with by secular courts. Another question is purely ecclesiastical matters, which, although they have the nature of litigation, by their nature could not be brought under the jurisdiction of non-church judicial institutions. For example, disputes between bishops about the belonging of a parish to a certain diocese, litigation between clergy about the use of church income, and the like. The Byzantine emperors repeatedly emphasized that jurisdiction in these matters belonged exclusively to the church, and this recognition did not take the form of some kind of concession, but came with high the authority of the church in the state and the justice of its law.

Litigations between clergy and laity were subject to the jurisdiction of both secular and spiritual judicial authorities. Before Emperor Justinian, the judicial rights of clerics and laymen were equal. But Justinian gave the clergy the privilege of answering civil claims only before his bishop. If one of the parties was dissatisfied with the bishop's judicial decision, it could take the case to a civil court. If in such a case the secular court supported the decision of the ecclesiastical court, the case was no longer subject to review and was carried out. And if the civil court decided differently solution than bishop's court, it was possible to file an appeal and review the case in court before the metropolitan, patriarch, or even at a church council.

In Kievan Rus in the era of its baptism, the current civil law has not yet gone beyond the scope of ordinary folk law. Of course, it could not be compared with the delicately developed Roman law, which was the basis of the legal system of Byzantium. Therefore, the church hierarchy, which came to us from Byzantium after the transformation of Christianity into the state religion, received under its jurisdiction many cases that in Byzantium itself were the jurisdiction of secular magistrates.

The competence of the church court in the Old Russian state was extremely broad. According to the “Act” of princes Vladimir the Great and Yaroslav the Wise, all relations of civil life that in one way or another related to religion and morality were referred to the church, episcopal court. The Church received into its exclusive competence matters related to married life and relationships between parents and children. With its authority the church defended both parental rights, and the inviolability of the personal rights of children.

Cases of inheritance were also placed under the jurisdiction of the church. In the first decades of the Christian history of Ukraine-Rus, such cases happened frequently, since many was “non-vintage”, and therefore illegal from the point of view of Christianity, marriages. The rights of children from such marriages to the parental inheritance were subject to consideration by the church court. Our arbitrage practice, unlike the Byzantine in such matters, was inclined to recognize the children’s right to part of the property. If a dispute arose regarding an existing spiritual will, then such cases were also considered by the church court. The legal norms of the princely "Charters" retained their full force in Russia until the time of Peter the Great.

The uniqueness of church legal proceedings in Rus' also lay in the fact that the competence of church courts also included some criminal cases. If we turn to the already mentioned princely Charters, it is not difficult to notice that crimes against the faith and the church were subject to the bishop's court, namely: the implementation of pagan rites by a Christian; sacrilege, witchcraft, desecration of the temple and shrines. And behind the “Helmsman’s Book” such crimes were blasphemy, heresy, schism, apostasy.

The episcopal court heard cases related to crimes against public morality (fornication, rape, unnatural sins, etc.); as well as marriages concluded in prohibited degrees of family; unauthorized divorce; husband's cruel treatment of his wife or parents; children's disrespect for their parents and parental authority. Some cases of murder were also subject to the church court: for example, murder within the family, deprivation of a fetus, or when the victims of murder had no rights - outcasts slaves Also, the saintly court had to consider cases of personal grievances - insulting the chastity of a girl with dirty language or slander; accusing an innocent person of heretism or witchcraft.

As for the clergy, in the pre-Petrine era, for all criminal charges, except for “murder, robbery and red-handed robbery,” they were held accountable before the bishop’s court. One cannot but agree with the words of Professor A. S. Pavlov, who pointed out that in ancient Russian law “the principle noticeably prevails according to which the jurisdiction of the church was determined not so much by the essence of the cases themselves, but by the class character of the persons: clergy, as predominantly ecclesiastical, were judged from the church hierarchy."

VII. Church court

1. Judicial power in the Russian Orthodox Church is exercised by church courts through church proceedings.

2. The judicial system in the Russian Orthodox Church is established by the sacred canons, this Charter and the “Regulations on the Church Court”.

3. The unity of the judicial system of the Russian Orthodox Church is ensured by:

a) compliance by all ecclesiastical courts with the established rules of ecclesiastical proceedings;

b) recognition of the mandatory execution by canonical divisions and all members of the Russian Orthodox Church of judicial decisions that have entered into legal force.

4. Court in the Russian Orthodox Church is carried out by church courts of three instances:

a) diocesan courts having jurisdiction within their dioceses;

b) a church-wide court with jurisdiction within the Russian Orthodox Church;

c) the highest court - the court of the Council of Bishops, with jurisdiction within the Russian Orthodox Church.

5. Canonical punishments, such as lifelong ban from the priesthood, defrocking, excommunication, are imposed by the Patriarch of Moscow and All Rus' or the diocesan bishop with subsequent approval by the Patriarch of Moscow and All Rus'.

6. The procedure for conferring powers on judges of church courts is established by the sacred canons, this Charter and the “Regulations on the Church Court”.

7. Legal claims are accepted for consideration by the church court in the manner and under the conditions established by the “Regulations on the Church Court”.

8. Decrees of church courts that have entered into legal force, as well as their orders, demands, instructions, summonses and other instructions are binding on all clergy and laity without exception.

9. The proceedings in all church courts are closed.

10. The diocesan court is the court of first instance.

11. Judges of diocesan courts may be clergy, vested by the diocesan bishop with the authority to administer justice in the diocese entrusted to him.

The chairman of the court can be either a vicar bishop or a person in presbyteral rank. Members of the court must be persons in the priestly rank.

12. The diocesan court consists of at least five judges holding episcopal or priestly rank. The chairman, deputy chairman and secretary of the diocesan court are appointed by the diocesan bishop. The diocesan assembly elects, on the proposal of the diocesan bishop, at least two members of the diocesan court. The term of office of judges of the diocesan court is three years, with the possibility of reappointment or re-election for a new term.

13. Early recall of the chairman or member of the diocesan court is carried out by decision of the diocesan bishop.

14. Church legal proceedings are carried out in a court session with the participation of the Chairman and at least two members of the court.

15. The competence and legal procedure of the diocesan court are determined by the “Regulations on the Church Court”.

16. Decisions of the diocesan court enter into legal force and are subject to execution after their approval by the diocesan bishop, and in the cases provided for in paragraph 5 of this chapter - from the moment of approval by the Patriarch of Moscow and All Rus'.

17. Diocesan courts are financed from diocesan budgets.

18. The General Church Court considers, as a court of first instance, cases of ecclesiastical offenses by bishops and heads of Synodal institutions. The General Church Court is the court of second instance in cases of ecclesiastical offenses by clergy, monastics and laity, within the jurisdiction of diocesan courts.

19. The Church-wide court consists of a Chairman and at least four members in the rank of bishop, who are elected by the Council of Bishops for a period of 4 years.

20. Early recall of the Chairman or member of the church-wide court is carried out by a decision of the Patriarch of Moscow and All Rus' and the Holy Synod, followed by approval by the Council of Bishops.

21. The right to appoint an acting Chairman or member of the general church court in the event of a vacancy belongs to the Patriarch of Moscow and All Rus' and the Holy Synod.

22. The competence and legal procedure of the general church court are determined by the “Regulations on the Church Court”.

23. Decrees of the general church court are subject to execution after their approval by the Patriarch of Moscow and All Rus' and the Holy Synod.

If the Patriarch of Moscow and All Rus' and the Holy Synod disagree with the decision of the church-wide court, the decision of the Patriarch of Moscow and All Rus' and the Holy Synod comes into force.

In this case, for a final decision, the case may be referred to the court of the Council of Bishops.

24. The general church court exercises judicial supervision over the activities of diocesan courts in the procedural forms provided for in the “Regulations on the Church Court”.

25. The church-wide court is financed from the church-wide budget.

26. The Court of the Council of Bishops is the ecclesiastical court of the highest instance.

27. Legal proceedings are carried out by the Council of Bishops in accordance with the “Regulations on the Church Court”.

28. The activities of church courts are ensured by the apparatus of these courts, which are subordinate to their chairmen and act on the basis of the “Regulations on the Church Court”.