Difficulties encountered in the defence of the victims of cults
Meeting of European Lawyers of June 9, 2001
This file deals with a topic that may be surprising to some as it seemingly is not considered by public opinion to be as sensitive an issue as drugs, child pornography, sexual abuse, murder or money laundering. In actual fact, all these crimes are often committed in the sectarian ambit under cover of religion, philosophies, therapies, personal fulfilment, psychological or even psychiatric help.
The purpose of this work is to raise the awareness of the European Authorities, the Ministers of Home Affairs and of Justice, Members of Parliament, European Commissioners, Representatives at the Council of Europe, and other officials about these issues.
For this purpose, we brought together 23 legal experts from 9 European countries who spent a whole day comparing their experiences. We wish to thank them for their efforts, in particular, Marie Anne Donsimoni, attorney-at-law at the Marseilles bar who analysed and drafted a synopsis of these very enriching exchanges of views.
As a preliminary step, some background information to the problem is provided, the issue is appraised and the few decisions, interventions and interesting positions taken up or implemented so far are outlined.
For this, we refer to the book written by Pierre Rancé and Olivier de Baynast - L’Europe judiciaire, published by Editions Dalloz in 2001.
The Necessity for Establishing a Judicial Europe
« Mutual trust between judicial systems cannot be simply ordered from above. Hence, it must be based on a common judicial culture and knowledge of judicial and legal systems that are necessarily different. Magistrates must therefore receive instruction about the realities of Europe ».
(L’Europe judiciaire - Pierre Rancé and Olivier de Baynast - Ed. Dalloz 2001)
«We must now go beyond the customary reflex of considering justice to be the preserve of national sovereignties. That is quite obvious in the criminal area so blatantly does crime increasingly disregard our borders.To be effective in fighting it, it is critical for the the police and the courts to be organised on a European scale.»
«But it is equally true in the civil area since freedom of movement of people, as it becomes effective, has generated border disputes that affect all walks of life – health, work and safety, but also marriage, divorce and children ».
(Elisabeth Guigou speaking at the Symposium for European Magistrates for Democracy and Freedoms ( Medel).
« Council of Europe, Treaty of Rome, Schengen Agreement, Maastricht Treaty – in the shadow of this visible, official and respectable process of building Europe, hides another Europe – a more covert, disreputable Europe. The Europe of tax havens that shamelessly prosper thanks to capital they knowingly give cover to. The Europe of financial markets and banking establishments for which secrecy is all too often an alibi and a facade. This Europe of nameless accounts and money laundering used to re-inject the proceeds of drug trafficking, terrorism, sects, corruption and organised crime. »
(The Geneva Appeal which was initiated by seven magistrates including the French judge Van Ruymbeke and the General Prosecutor of Geneva, Bernard Bertossa, thereafter followed by 400 French magistrates)
HOW MUCH PROGRESS HAS THE EUROPE OF JUSTICE MADE ?
Judicial powers and prerogatives today continue to be shared between the two Europes :
WHERE DO THE DECISION-MAKING POWERS LIE ?
At the European Union :
On the Community level, the right to initiate measures, and indeed sometimes joint decisions, are shared between the European Commission and the Parliament. This is the first pillar, covering mainly economic matters which, in 2004, is to be extended to judicial co-operation in civil matters.
At the intergovernmental level, decisions are taken on a sovereign basis by the States. This is the second pillar, i.e., essentially the Common Foreign and Security Policy (CFSP), and the third pillar, i.e., European co-operation in the area of justice and home affairs, including criminal justice (as for civil justice, the 1999 Treaty of Amsterdam, will come under community supervision in 2004, while police action and criminal judicial co-operation will remain in the third pillar).
It is useful to recall a number of agreements, conventions and important decisions that illustrate the fact that setting up a European Judicial Area will soon cease to be the utopia berated by some. FECRIS wishes to make its contribution to this process.
TRAINING FOR JUDGES
The Bordeaux Ecole nationale de la magistrature (French National Magistrates College) and its counterparts in the Netherlands, Portugal, Greece, Germany and Great Britain, soon followed by the European Centres at Maastricht and Trevi, and finally, the "Lisbon Network", i.e., institutions belonging to the Council of Europe, have all taken initiatives that have led to the establishment of:
Meeting of European lawyers
June 9, 2001
This meeting, which was organised by FECRIS, brought together a number of European 1awyers, magistrates and legal advisors to compare their experiences in the area of sects and sectarian practices. It was particularly valuable in terms of the knowledge exchanged by the various participating professionals who compared, on a European scale, their respective judicial proceedings and the difficulties they encounter in defending victims of' cults.
On the basis of a stock-taking exercise that identified the legal weight assigned by the various legislations to combating the sect phenomenon and of the progress and significant headway made with a number of laws, the group collectively brought forward several recommendations aimed at producing solutions and means to better assist the victims of sects and better combat cult practices.
It is clear from this meeting that FECRIS has become aware that one of the major means for combating sects is to start by comparing the various European legal systems, and, in spite of their differences, begin to identify a much-needed common judicial foundation for dealing with sects.
FECRIS, represented by its President, Jean Nokin, emphasised the need to provide instruction to some magistrates about the working of sects so that their experience forms a true European network of judicial training in this area with a view to promoting a shared legal and judicial culture.
FECRIS wishes to participate in this new civil and criminal judicial network so as to establish, with the help of legal experts, true judicial co-operation, i.e., simplified assistance to the European victims of the sect phenomenon with more ready access to civil and criminal courts in all countries of the European Union.
With the implementation of the civil judicial network in 2002, a link will be established between the contact points appointed by the Member States, namely, judges and officials from central government departments in charge of supervising the proper application and use of judicial co-operation in the civil area, particularly as regards family matters, They will be responsible for suggesting suitable reforms. The relevant authorities will be encouraged to ensure that existing laws are abided by.
The network will also be setting up an information system designed to help the general public to understand how to seek justice in other countries.
In the area of criminal law, the European Council has also decided to intensify the fight against serious forms of organised transnational crime, which unfortunately includes some cult movements.
FECRIS intends to take part in creating this new European judicial space by asking that its research and studies be considered for the purposes of devising new legal provisions.
The June 9, 2001 meeting is a first step in developing, exchanges about good practices, reinforcing the network of national authorities responsible for crime prevention as well as co-operation between associations whose aim is to combat sects and the development of national prevention programmes against this very, serious form of crime, comparable to other types of crime such as street crimes, juvenile delinquency in connection with drugs, etc.
The Community is in fact about to fund a programme.
The purpose of this synopsis is to collect and summarise the various proposals that arose from the examination of the June 9, 2001 meeting’s agenda. The various interviews provided insight on the judicial approach to the problem of cults in the various European countries represented at FECRIS.
Basing himself on his professional experience as judge and his contribution to preventive actions against the cult movement, the rapporteur for the meeting took stock of events over the last ten years. This period began with the first trial in France against the Church of Scientology, which at the time was very poorly perceived by the judicial authorities and ends with the passing of the ABOUT-PICARD law in May 2001. This was a very important law that went through thanks in particular to the work of associations that combat sects. It at last recognises the offence of abuse of a state of weakness and maintaining in a state of subjection.
Each of the countries represented at FECRIS were asked in turn to provide its input to an overview and assessment of the shortcomings of European national laws in the area of combating sects (PART 1) with a view to improving present legislation, and identifying the difficulties involved in implementing tile latter (PART 2).
PART 1– An overview of the fight against the sectarian phenomenon
This part reviews the contributions made by European legal experts as concerns the area of civil law and the voluntary sector.
It would seem that the difficulties always arise when one of the spouses expresses the problems he or she encounters in the relationship (connections involving a sect, diet).
The magistrates, who are often the judges specialising in family affairs, do not realise the full extent of the dangers represented by sects.
Although they are certainly cautious, they tend to rely heavily on psychologists or even social workers who, via what is called a social enquiry measure, investigate the child's family environment. When the latter is seen and consulted, he or she is generally apparently, healthy in spite of being morally in danger. Paradoxically, as a result of the report that is then drafted, the child tends to be put into the custody of the parent who belongs to the sect.
Thus the child, the hostage of the divorce, is not considered to be a victim or, if so, just an ordinary victim.
The problem of the "verticalisation" of the judicial system was criticised in the area of family law too, i.e., that it is the same judge who after awarding the divorce sentence is subsequently called upon to settle family disputes concerning child custody. All too often, the judge will be unwilling to go back on his or her previous judgement whereas family circumstances may have deteriorated in the mean time or their gravity might have totally escaped the judge’s notice.
However, the precedent set out by a divorce case involving Jehovah witnesses was quoted. The county court (Tribunal de Grande Instance) placed the interest of the children, who were minors, above all others by deciding that the way in which this sect works was contrary to the interests of the child.
Furthermore, during a single conciliation hearing, family affairs magistrates typically have to rule on more than a dozen cases and lawyers therefore have very little time to explain that a sect is involved. It is therefore preferable to come before the Children's Magistrate who has greater leeway and concentrates solely on the child's interest by deciding for instance to apply an AEMO (educational care measure in an open environment).
It is worth mentioning, however, that the French speakers criticised the lack of a specialised magistrate's position to cover all family law proceedings that involve sects, along the same lines as in criminal law.
Unawareness and lack of information among magistrates in charge of applying family law were criticised.
Parental authority is exercised until the child comes of age (18 years) and remains in the hands of the parents even if the child is entrusted to a social welfare department. Victims are not granted the status of victim by the authorities because the latter do not realise how freedom of choice is annihilated by mental manipulation techniques.
The interest that prevails in Belgium is the child's (who is entrusted to the Childhood Magistrate). The child's Educational Plan is devised on a joint basis.
In the case of divorce proceedings, sect membership is not per se an impediment.
Religious freedom and freedom of thought are the prevailing principles. Adults are held responsible for their deeds.
There are however interim measures for protecting minors and a right to appeal whose effect is to prolong proceedings, thereby entailing substantial practical difficulties.
The social welfare department may issue a number of recommendations but they lack knowledge regarding the cult phenomenon.
This is an area where all speakers at the June 9, 2001 meeting concur, emphasising that public authorities have enormous difficulties with sects that profess to exercise alternative forms of medical care.
They also denounced diets that are damaging to people's health, the manipulation of drug addicts and vulnerable persons who are, of course, ideal victims.
The problem of insidiously obtained successions is inevitably tied with abuse of people in a state of weakness such as elderly persons who are ideal victims for collecting funds for sects.
Spain stressed the need to draft common European legislation in this area and spoke of the difficulty of recovering funds that have been misappropriated in this way.
Seeking awards on grounds of psychological violence is therefore worthwhile.
PART 2– Solutions and practical proposals
Was legislation specially designed to deal with cults needed?
Existing legislation provides means for prosecuting sects that commit certain offences such as:
Was additional special legislation needed?
Significant progress had already been made in latter years and the major breakthrough achieved by associations as a result of their battle was to be entitled to join in a criminal prosecution as a party claiming damages.
Thereafter, a lot of thought was given to the notion of "mental manipulation" and to whether it should be considered an offence.
When the About-Picard law was passed, "aimed at stepping up prevention and control of sectarian movements that infringe human rights and fundamental freedom", an essential provision was introduced in the criminal area.
The wording of the law extends the range of elements constituting the offence of abuse of weakness for the purpose of suppressing cult movements when they represent a real danger to persons.
The new definition, which is derived from the offence of mental manipulation, provides a basis for prosecution in the event of fraudulent abuse of a state of ignorance or weakness of a person in a state of physical or psychological subjection as a result of the exercise of heavy or repeated pressure or the use of techniques likely, to alter a person's judgement, to induce that person to act or refrain from acting in a way that is seriously, prejudicial to his or her own interests.
The definition given to abuse of weakness will enable the courts to take action before violations whose consequences are sometimes far more serious are committed. Moreover, the law covers anybody, not just vulnerable people.
Furthermore, a distinction is made between:
The law is not specific to sects but rather to all sectarian behaviour (including families, businesses. etc.)
The major difficulty with this law will be to provide evidence for all 6 elements that constitute the offence, by all appropriate means (witnesses, expert assessments, etc.):
That being said, the law does nonetheless provide for objective elements to be brought to the attention of the courts rather than just expert reports.
Proof is afforded by psychologists but the concept is extremely vague. In this case, criminal responsibility is personal and relates to individuals and their behaviour. There are no restrictions on establishing associations and their legal representatives are rarely prosecuted.
Italy states that it is in favour of prolonging the statute of limitation. Furthermore, it is important to distinguish between the applicable statutes in the case of criminal vs civil proceedings.
The lawyers and judges must demonstrate the existence of mental manipulation. Sects can be dealt with only through the violations they lead to, and not directly because of the doctrine.
The notion of injury has been extended. In the past, only physical injury was recognised whereas today mental injury tends to be considered more and more. In these cases, judges order measures of separation if the victim so wishes.
The idea of having a law allowing for temporary supervision to provide followers in difficulty with an opportunity to reflect was discussed.
Placing adults under supervision for period of reflection was therefore considered.
What is needed is a law to protect consumers in the area of "psycho products".
In practise, former followers are more in need of psychological assistance and a team to help them in their endeavours. Furthermore, the approach should be one of overall reintegration. In France, however, there are currently no provisions capable of meeting that need. Perhaps the legislation on exclusion could solve that difficulty.
In short, a law on protective supervision does not appear to be appropriate and would be too demanding and unrealistic.
Although some representatives thought that this too was inappropriate (inasmuch as exceptions to the statute of limitation periods must be avoided), others thought it would be useful in view of the fact that it takes some time to become aware that victims are being manipulated.
Many speakers stressed that seeking evidence for the purpose of combating sects is a costly and difficult process that lasts several years. There is furthermore a financial imbalance between the plaintiff who is the victim and the sect that often has the financial means to defend itself.
FECRIS proposes to become a database for the fight against sects and to provide the impetus for creating a specialised publication for lawyers. Subsidies could then be sought from the European Commission and the Council of Europe for the purposes of such co-operation.
Awareness must be promoted not only among magistrates and prosecutors in Europe but also the government authorities, particularly those departments that have responsibilities in the area of the protection and welfare of minors.
Establishing co-operation networks between bodies in charge of training European magistrates.
The conclusion reached on the basis of an assessment of the differences within Europe in the means for combating the cult movement at the end of the June 9, 2001 meeting, that allowed for common reflection and exchanges of ideas in this area, was that each state must be willing to alter its own legislation in the area of sectarian misdoings. This should not necessarily lead to a single system but at least ones that are compatible so that within the European Union decisions can be taken rapidly to increase the effectiveness of the fight against sectarian crime.
FECRIS wishes to make its contribution to the establishment of a European judicial area by requesting that the following recommendations be taken into account :
For that purpose, the wish of FECRIS would be :