(Elisabeth Guigou speaking at the Symposium for European Magistrates for Democracy and Freedoms ( Medel).

Judicial powers and prerogatives today continue to be shared between the two Europes :

1. Those of the European Union, with its fifteen member countries, fashioned by its consecutive treaties: Rome (1957), the Single Act (1986), Schengen (1985-1990), Maastricht (1992), Amsterdam (1997). This is the Europe of community law. Community law is interpreted by the Court of Justice of the European Communities in Luxembourg. It supervises the application of the treaties and produces the Union’s caselaw.
2. Those of the Council of Europe, with its 41 member states, that was established by the Treaty of London in May 1949. This is the Europe of Human Rights. Judicial co-operation was for a long time the preserve of the Council of Europe. It is now also attended to by the European Union. The law deriving from the European Convention on the Protection of Human Rights is interpreted by the judges that arbitrate at the « European Court of Strasbourg », a Council of Europe entity.

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.

• The unit for judicial co-operation, Eurojust, was created by unanimous decision at the European Summit of Nice in December 2000. This decision to place judicial co-operation on an equal footing with police co-operation was a symbolic one that reflected a political will to transcribe this field into the Union’s treaties
• At Tampere, on October 16, 1999, the heads of state and of government requested the Union to establish an « area of freedom, security and justice » by May 2004.
  The objectives set out at Tampere involves three crucial areas:
  1. Mutual recognition of court decisions whether civil, criminal or commercial by means of the « joint judicial instrument or the « enforceable European instrument » in particular as regards family law, divorce and parental authority
  2. The fight against organised transnational crime.
  3. Intensification of judicial co-operation by the creation of Eurojust and the European Network of Magistrates.

• The Brussels Convention 1 became a Regulation by Council of Ministers’ decision of December 22, 2000 and enters into force on March 1, 2002. This Regulation simplifies, inter alia, the exequatur procedures. It is planned that the exequatur will initially be abolished for decisions relating to right of access, and later to all divorce and family matters other than marriage. It covers civil law and family law. In particular, it sets out the jurisdiction of courts under contract law and provides that a person domiciled in one member State may be tried in another member State. For corporations, it grants jurisdictional powers to the courts as regards the validity, nullity or liquidation of legal entities whose headquarters are located in a member state.
• As regards criminal law, at the JHA meeting of November 30, 2000, a plan of action as regards mutual recognition of criminal decisions was adopted by the Ministers of Justice and of Home Affairs.
• The European Convention on Mutual Assistance in Criminal Mattersestablishes the principle that requests for mutual assistance shall be dispatched directly from one magistrate to another without requiring the involvement of central administrations. The aim is to make the conditions for co-operation set out by the Council of Europe’s Convention of April 1959 more flexible and hence more efficient.

• « European judicial training network » aimed at promoting a common legal and judicial culture (the secretariat is attached to the European Commission). Its objective is to set up training programmes starting in 2001.
• « Judicial Network For Civil Matters » aimed at simplifying procedures for European nationals by facilitating access to civil courts in all the countries of the Union.

1. Civil Law:

   1. Family law:

      • France emphasised issues relating to family law, which are often the direct consequence of the sect phenomenon, in particular with divorced couples' children.

        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.

      • Switzerland has a special feature - the grounds for a divorce are not assessed and hence the issue of sects has no relevance to this type of proceedings. The only area in which it is raised is in relation to the children and the exercise of parental authority.
      • The United Kingdom stated that there continues to be real confusion both in judicial and social welfare circles between the sectarian phenomenon and religion. The criminal law is not applied. The country’s government is reluctant to take any action against sects because it does not fully understand the scope of Article 9 of The European Convention on Human Rights relating to freedom of belief. The police do not understand the concept of sect and sees victims as being consenting. Whenever a sect is associated with an ethnic minority, the latter plays on the race issue to persuade authorities that they should not interfere. The "Charity Commission" does not understand the concept of sect to the extent that it even recognises some of them as having religious status thus conferring respectability and tax benefits on them, even in cases where child pornography has be ascertained.

        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.

      • Belgium expressed its concern over the lack of a definition for sects and the legal vacuum that entails.

        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.

      • In Spain - Family law: sects generally choose to register under the Associations Register as cultural bodies. They may also be registered under the Religious Bodies Register. Associations are not subject to a preliminary audit to examine their status relative to sects. Any association that maintains it is a cultural body can easily register and hide its sectarian character, inasmuch as registration is performed by three persons and that it files standard by-laws. Under Spanish family law, the child’s interest always prevails, and if a child is maltreated by means of group psychological manipulation practices (via one of the child’s parents for instance), there are a number of mechanisms that provide for measures to be taken by the public authorities although it is more difficult to prove psychological than physical mistreatment.
      • In Italy, membership of a sect is not grounds for divorce or separation, but behaviour imposed by the sect leading to conduct that is contrary to the obligations that arise from marriage or to the duty to assist, raise, maintain and educate children can be held against parents.

        There are however interim measures for protecting minors and a right to appeal whose effect is to prolong proceedings, thereby entailing substantial practical difficulties.

      • Sweden has no automatic custody rules. There again, the child's interest prevails (problem of tangible risks for the child).

        The social welfare department may issue a number of recommendations but they lack knowledge regarding the cult phenomenon.

   2. Sects and Health :

      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.

   3. Successions obtained by insidious means :

      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.

      • In Spain, insidiously obtained successions and donations made over to sects can be handled by the courts on the basis of legislation concerning incapacity and protection of incapacitated people, including interim protection. The problem lies in raising awareness among magistrates and prosecutors about how cults function. Lack of awareness is responsible for problems encountered in proving incapacity.

        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.

      • Italy spoke of the major obstacles that stand in the way of passing legislation on financial interests and on declarations that disqualify people as heirs. Flow of money to and from cults should be subjected to monitoring, particularly in the case of large sums. Regarding associations, a distinction should be made between the sect, an association that is not recognised, and a non profit-making one, and the various activities of companies working inside those sects.
      • In France, the Court of Cassation recently ruled that a donation made to a sects was null and void on the grounds that the victim of the sect had been manipulated and been subjected to mental violence.

        Seeking awards on grounds of psychological violence is therefore worthwhile.

2. Strengthening the legislation pertaining to associations

   • Spain described how readily an association can be established. In spite of there being ample means to suppress associations that are declared unlawful, the legislation is rarely applied. Furthermore, there is unfortunately little awareness among magistrates and public prosecutors.
   • In Germany, gradually, as legal proceedings are taken against them, a number of cults are likely to lose their special status as associations because they are in fact profit-making entities and as such, are in breach of the by-laws of an association.
   • In Sweden, sects are also associations declared as non-profit making entities. It is not considered desirable to ban them inasmuch as the legal obligation of making a declaration provides information on cult doings and is helpful in finding means to combat them.
   • The United Kingdom stressed how dangerous sectarian associations that are involved in purported humanitarian actions are. Under cover of apparent respectability, they have enormous latitude to extract funds from people. In the United Kingdom, the absence of any obligation to keep official accounts has led to a real problem with elderly, retired people being targeted to strip them of their assets.
   • In France, since 1994 all legal entities are theoretically criminally responsible and as such can be dissolved by the courts. The About-Picard law also provides for the possibility of sects being dissolved by the courts (governmental decree was not chosen as a means of dissolution.). Will it be effective?

1. - Criminal control of cult deviations :
   • The French example - the About-Picard law

     Was legislation specially designed to deal with cults needed?

     Existing legislation provides means for prosecuting sects that commit certain offences such as:

     • fraud, racketeering, embezzlement,
     • sexual prejudice, abduction of minors,
     • labour law infringements,
     • abuse of weakness as an aggravating circumstance for another breach, etc.

     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:

     • Manipulation : whereby an individual enters a sect and feels a sense of fascination.
     • Subjection : which is a more comprehensive concept whereby the individual is confined in the sect and undergoes pressures that prevent him or her from leaving it.

     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.):

     • fraudulent misappropriation
     • state of ignorance or subjection
     • heavy or repeated pressure
     • alteration of judgement,
     • acting or refraining from action
     • damage

   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.

   • The legislation for these matters in Sweden goes back to the 70's but does not work in practice. Indeed, it has never been enforced. It recognises only excessive loans, usury but not mental manipulation. Its scope is general and punishes anyone who uses the victim's vulnerability to derive unlawful advantages. The penalty is either civil or criminal in nature and translates as the annulment of the contract.
   • Italy has provisions against the so-called plagio offence, (i.e. maintaining another person in a state of dependency). What remains today is "abuse of popular credulousness", which is rarely accepted and lightly punished.

     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.

   • In Germany, legal entities are not criminally responsible and legal means are lacking.

     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.

   • In Spain, there is an offence referred to as injury. This is covered by the Criminal code and can solve many, problems as long as the provisions are enforced.

     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 United Kingdom recognises "undue influence" which consists in forcing a person to commit a deed that he or she would not have done normally. This relates not only to bodily violence but also to wills. In fact, this principle is rarely applied and as such ineffective. A will is enforceable only after the victim’s death, at which time of course it is difficult to establish the "undue influence".
   • Belgium has no specific charge and is wary of the idea of subjection, which is allowed only in cases of fraud and rape.
   • Tunisia mentioned the possible reactions of sects confronted with such legislation - they change and take root more effectively elsewhere under a different form.
2. - Laws concerning assistance for former followers and the notion of protective supervision

   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.

   • Austria has given some thought to such a proposal but there are doubts about its effectiveness. Indeed, there is no assurance that an adult under supervision would be able to get assistance in this area. Supervisory control would be too strong, and measures of this type should be rejected.
   • Once again. Germany mentioned the need for definitive European laws in this area.

     What is needed is a law to protect consumers in the area of "psycho products".

   • France is against protective supervision.

     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.

   • As rightly pointed out by our correspondent from Tunisia, "you cannot just substitute one form of coercion by another".
3. - The question of prolonging the statute of limitation :

   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.

4. - Practical proposals :
   • Establishing a common fund:

     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.

   • The need to train teams of specialists comprising psychiatrists, psychologists, social workers and magistrates and adapting legislation relating to associations in view of the lack of awareness among magistrates and prosecutors in general.
   • European co-operation between lawyers and other professionals.

   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.