www.AGPF.de
Infos über Sekten, Kulte und den Psychomarkt
AGPF - Aktion für Geistige und Psychische Freiheit
Bundesverband Sekten- und Psychomarktberatung e.V., Bonn
Adresse dieser Seite: http://www.AGPF.de/Europarat+Frankreich.htm  Zuletzt bearbeitet am 21.11.2002
Zur Homepage | Zur Inhaltsseite | Zum Begriff Sekte | AGPF-Spendenkonto

Europarat: Bestrebungen gegen das französische Sekten-Gesetz


Inhalt dieser Seite: Zum Thema auch: In anderen Websites:
Impressum

 
 
 
http://permanent.nouvelobs.com/societe/20021119.OBS2895.html
Le Nouvel Observateur Mardi 19 novembre 2002 - 22h50

Le Conseil de l'Europe contre la loi anti-sectes

Le Conseil de l'Europe estime que "l’existence de quelques mouvements dangereux ne suffit pas pour condamner l’ensemble" du phénomène sectaire.

La loi française contre les sectes promulguée en juin 2001 a été visée lundi par le Conseil de l'Europe qui a demandé à la France de "revoir" ce texte.
Réunie à Malte, la Commission permanente de l'Assemblée parlementaire du Conseil de l'Europe -dont les membres sont désignés par les parlements nationaux- a adopté à la majorité une résolution présentée par un parlementaire turc, Cevdet Akçali (groupe des démocrates européens) dans le cadre d'un rapport intitulé "liberté de religion et minorités religieuses en France".
Les conclusions sont les suivantes:
- Ce ne sont pas les “sectes” mais “les activités illégales des sectes” qui doivent être condamnées.
- La législation actuelle est suffisante pour sanctionner ce type d’activités.
- L’existence de quelques mouvements dangereux ne suffit pas pour condamner l’ensemble d’un phénomène.
- les termes “secte, dirigeant de fait, sujétion psychologique ou physique” ne sont pas définis par la loi.
- La dissolution d’une association pour un délit commis par le dirigeant de droit ou de fait de la secte s’oppose au caractère individuel des délits et est une sanction individuelle comme l’exil ou le bannissement.
Dans sa résolution, la Commission a invité le gouvernement français à "réexaminer" cette loi et à "clarifier" la définition des termes "infraction" et "auteur de l'infraction".

"Scandaleux"

Le représentant de la délégation française, le sénateur Michel Dreyfus-Schmidt (groupe socialiste), a estimé qu'il était "scandaleux" de demander au Parlement français de se pencher à nouveau sur cette loi "sous prétexte qu'il y a deux mots à revoir". "Les termes d'infraction et auteur de l'infraction sont suffisamment clairs pour qu'ils n'aient nul besoin d'être clarifiés. Nous nous ridiculiserions si nous acceptions cela", a-t-il ajouté.
Le parlementaire britannique David Atkinson (conservateur) a plaidé en faveur de l'adoption de cette résolution en laissant entendre qu'il est inutile de légiférer en la matière. "Beaucoup de pays comme les Etats-Unis autorisent tous
les mouvements et en cas d'abus les auteurs sont jugés selon les lois existantes", a-t-il argumenté.

Inquiétudes

Le projet de résolution avait déjà suscité l'inquiétude du sénateur français Nicolas About (groupe républicain indépendant), président de la commission des Affaires sociales, qui avait été à l'initiative de la loi française avec la députée Catherine Picard.
Dans une lettre en date du 8 novembre et diffusée lundi, le sénateur a fait part de sa "préoccupation" au président de l'Assemblée parlementaire du Conseil de l'Europe, Peter Schieder. Il a par ailleurs exprimé sa crainte de voir l'adoption de la résolution "interprétée comme un message quelque peu intempestif à l'heure de l'expression de nombreux fanatismes, d'absolution d'actes qui n'ont rien à voir avec la liberté de croyance".
La loi française est uniquement destinée à "renforcer la prévention et la répression des mouvements sectaires portant atteinte aux droits de l'Homme et aux libertés fondamentales", écrit Nicolas About.
La loi française avait été promulguée notamment après le suicide collectif des adeptes du "Temple solaire". Parmi les victimes se trouvaient de nombreux enfants dont l'un n'avait que 2 ans et un autre âgé de 4 ans.
Dans un arrêt rendu le 6 novembre 2001, la Cour européenne des droits de l'Homme, saisie par les témoins de Jéhovah de France, a donné raison à Paris en dénonçant un "procès d'intention fait au législateur, soucieux de régler un problème brûlant de société". Cet arrêt fait l'objet d'un recours.

Le Conseil

Crée par le traité de Londres en 1949, le Conseil de l'Europe est une organisation internationale dont le siège est à Strasbourg et qui rassemble 44 Etats démocratiques de l'Europe. Il a adopté dès 1950 une Convention de sauvegarde des Droits de l'Homme et des Libertés fondamentales, premier instrument juridique international garantissant la protection des droits de l'homme.
Le Conseil de l'Europe ne doit pas être confondu avec l'Union européenne : les deux organisations sont distinctes. Néanmoins, les 15 Etats membres de l'Union européenne font également partie du Conseil de l'Europe. Le Conseil de l'Europe n'a en outre aucun rapport avec le Conseil européen, qui est la réunion des chefs d'Etat et de gouvernement des Quinze pour orienter la politique communautaire.

Le Nouvel Observateur Dienstag 19. November 2002
Privatübersetzung

Der Europarat ist gegen das Anti-Sekten Gesetz

Der Europarat glaubt, dass "die Existenz einiger gefährlicher Bewegungen nicht ausreicht, um die Gesamtheit" des sektiererischen Phänomens zu verurteilen.

Das im Juni 2001 veröffentlichte französische Gesetz gegen die Sekten wurde am Montag vom Europarat ins Visier genommen, der Frankreich aufgeforderte, diesen Text "zu revidieren". Die in Malta versammelte ständige Kommission der parlamentarischen Versammlung des Europarats - deren Mitglieder durch die nationalen Parlamente ernannt werden - hat mehrheitlich eine Resolution angenommen, die durch den türkischen Abgeordneten Cevdet Akçali (Europäische Demokraten) im Rahmen eines Berichtes mit der Bezeichnung "Religionsfreiheit und religiöse Minderheiten in Frankreich" vorgestellt wurde.

Sie umfasst die nachstehenden Folgerungen - Es sind nicht die "Sekten", sondern die "illegalen Tätigkeiten der    Sekten", die verurteilt werden müssen - Die derzeitige Gesetzgebung ist ausreichend, um Massnahmen gegen diese Art der Tätigkeit zu ergreifen.
- Die Existenz einiger gefährlicher Bewegungen reicht nicht aus, um die Gesamtheit eines Phänomens zu verurteilen.
- die Begriffe "Sekte, Anstifter der Tat, psychologische oder physische Unterwerfung" werden nicht im Gesetz definiert.
- Die Auflösung einer Organisation für ein Vergehen, das rechtlich und tatsächlich durch eine Führungskraft einer Sekte begangen wurde, steht dem individuellen Charakter der Vergehen entgegen und entspricht einer individuellen Sanktion wie Exil oder Verbannung.

Mit ihrer Resolution ersucht die Kommission die französische Regierung, dieses Gesetz "nochmals zu überprüfen", und die Definition der Begriffe "Verstoss" und "Urheber des Verstosses" zu klären.

"Skandalös"

Der Vertreter der französischen Delegation, Senator Michel Dreyfus-Schmidt (groupe socialiste), schätze es als 'skandalös' ein, vom französischen Parlament zu verlangen, sich erneut mit diesem Gesetz zu befassen "unter dem Vorwand, dass es zwei nochmals zu untersuchende Wörter enthält". "Die Begriffe des Verstosses und Urheber des Verstosses sind klar genug, sie müssen mitnichten geklärt werden. Wir würden uns lächerlich machen, wenn wir dies akzeptieren würden" fügte er hinzu. Der britische Abgeordnete David Atkinson (konservativ), plädierte zugunsten der Annahme dieser Resolution, indem er verlauten liess, dass es unnötig ist, in diesem Bereich Gesetze zu erlassen. "Viele Länder wie die Vereinigten Staaten erlauben alle diese Bewegungen und bei Missbräuchen werden die Täter nach bestehenden Gesetzen verurteilt", argumentierte er.

Bedenken

Der Resolutionsentwurf, der bereits beim französischen Senators Nicolas About(unabhängige republikanische Gruppe), Präsident der Kommission für soziale Angelegenheiten, welche  aufgrund des französischen Gesetzes durch die Initiative der Abgeordneten Catherine Picard entstand, Bedenken hervorgerufen. In einem am Montag verbreiteten Brief vom 8. November hat der Senator dem Präsidenten der parlamentarischen Versammlung des Europarats, Peters Schieder, seine "Besorgnis" mitgeteilt. Er hat ausserdem seine Befürchtung geäussert, die Annahme der Resolution könnte "als eine zurzeit ziemlich unangebrachte Botschaft interpretiert werden, unter zunehmend fanatischem Druck, gegenüber Handlungen die nichts mit Glaubenfreiheit zu tun haben Nachsicht zu üben". Das französische Gesetz ist nur dazu bestimmt, "die Prävention und Bestrafung sektiererischer Bewegungen zu stärken, die den Menschenrechten und Grundfreiheiten Schaden zufügen", schrieb Nicolas About.

Das französische Gesetz war insbesondere nach dem gemeinsamen Selbstmord der Anhänger des "Sonnentempels" veröffentlicht worden. Unter den Opfern befanden sich zahlreiche Kinder, von denen eines nur 2 Jahre und ein anderes 4 Jahre alt waren. In einem am 6. November 2001 gefällten Urteil hat der europäische Gerichtshof für Menschenrechte, der von den französischen Zeugen Jehovas angerufen wurde, Paris recht gegeben indem er einen "'Prozess in provokativer Absicht' gegen den Gesetzgeber anprangerte, der sich darum kümmert, ein brennendes Gesellschaftsproblem zu lösen". Dieser Erlass ist Gegenstand eines Rekurses.

Der Rat

Durch den Vertrag von London im Jahre 1949 geschaffen, ist der Europarat eine internationale Organisation mit Sitz in Strassburg und vereinigt die 44 demokratischen Staaten Europas. Er hat 1950 die Konvention zum Schutz der Menschenrechte und der Grundfreiheiten angenommen, das erste internationale Rechtsinstrument, das den Schutz der Menschenrechte garantiert. Der Europarat darf nicht mit der Europäischen Union verwechselt werden: die beiden Organisationen sind zu unterscheiden. Trotzdem gehören die 15 Mitgliedstaaten der Europäischen Union ebenfalls dem Europarat an. Der Europarat hat ausserdem nichts mit dem Europäischen Rat zu tun, der die Sitzung der Staats- und Regierungschefs der Fünfzehn ist, um die Politik der Gemeinschaft zu regeln.


 
 

Doc. 9612 vom 31.10.2002

http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2F%2FDocuments%2FWorkingDocs%2Fdoc02%2FEDOC9612.htm
 

Freedom of religion and religious minorities in France

Doc. 9612

31 October 2002
 
 

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Cevdet Akçali, Turkey, European Democratic Group

For debate in the Standing Committee — see Rule 15 of the Rules of Procedure


Summary

Is the French Act of 12 June 2001 to reinforce the prevention and suppression of sects which infringe human rights and fundamental freedoms compatible with the European Convention on Human Rights? The Committee on Legal Affairs and Human Rights is of the opinion that, should the case arise, it will be for the European Court of Human Rights to answer this question. In the meantime, it invites the French Government to reconsider this law and to clarify the definition of the terms "offence" and "offender".

I.          Draft resolution

1.         On 30 May 2000 a private member’s bill to counter more effectively and tighten legislation against sect-like groups was tabled in the French parliament. Act No 2001-504 to reinforce the prevention and suppression of sects which infringe human rights and fundamental freedoms became law on 12 June 2001.

2.         The Assembly recalls its Recommendation 1412 (1999) on the illegal activities of sects, in which it concluded that it was unnecessary to define what constituted a sect, but that it was essential to ensure that the activities of groups, whatever religious, esoteric or spiritual description they adopted, were in keeping with the principles of democratic societies and, in particular, the provisions of Article 9 of the European Convention on Human Rights (ECHR).

3.         In this text the Assembly also called on the governments of member states “to use the normal procedures of criminal and civil law against illegal practices carried out in the name of groups of a religious, esoteric or spiritual nature”.

4.         Although a member state is perfectly at liberty to take any measures it deems necessary to protect its public order, the authorised restrictions on the freedoms guaranteed by Articles 9 to 11 (freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association) of the ECHR are subject to specific conditions.

5.         The Assembly cannot but conclude that ultimately, should the case arise, it will be for the European Court of Human Rights, and it alone, to say whether or not the French law is compatible with the ECHR.

6.         The Assembly invites the French government to reconsider this law and to clarify the definition of the terms "offence" and "offender".

II.       Explanatory memorandum

          by Mr Akçali, Rapporteur

A.      Introduction

1.         On 30 May 2000 a private member’s Bill to reinforce the prevention and repression of groups of a sectarian character was tabled in the French parliament.

2.         A motion for a resolution presented by Mr McNamara and others on 6 October 2000 (Doc 8860) recommended that a rapporteur be assigned to investigate the provisions of the Bill and determine whether they were in line with the European Convention on Human Rights and other Council of Europe and international human rights standards. Subsequently a written declaration on the same issue was tabled (Doc 9064 rev, see Appendix I).

3.         The Committee on Legal Affairs and Human Rights appointed me as Rapporteur and decided to commission an expert to prepare a study on the Bill’s compatibility with the European Convention on Human Rights (ECHR) and with the Council of Europe’s values more generally. The expert commissioned was Joseph Voyame, Honorary Professor at the University of Lausanne and former Director at the Swiss Federal Office of Justice.

4.         The French Bill became law on 12 June 2001.

5.         Professor Voyame’s study was presented to the Committee on 27 June 2002. This study, which includes the text of the act, is reproduced at Appendix II to this report. At its meeting on 27 June 2002, the Committee decided against consulting other experts on this matter. While preparing his report, the Rapporteur received many complaints regarding the expert report.

6.         This report examines the following points:

B.     The title of the act

C.     The purpose of the act

D.     The act’s compatibility with the European Convention on Human Rights

E.     The case law of the Court with respect to the act

F.     The conclusions which may be drawn from these analyses


B.      The title of the act

7.         The act promulgated on 12 June 2001 is entitled  “Act to reinforce the prevention and repression of sects which infringe human rights and fundamental freedoms” (Loi tendant à renforcer la prévention et la répression des mouvements sectaires portant atteint aux droits de l‘homme et aux libertés fondamentales).

8.         Two objections have been raised to this title: It appears to indicate that the purpose of the act is to target religious minorities, which, says the motion for a resolution, are derogatorily referred to as sects. Also the fact that sects - the object of the report – have not been defined. In support of these objections, the authors of the motion cite the Nastase report on the illegal activities of sects (Doc 8373) and in particular an excerpt from it concerning the definition of “sect”: “… the word ‘sect’ has taken on an extremely pejorative connotation. In the eyes of the public, it stigmatises movements whose activities are dangerous either for their members or for society. Today, this world contains dozens, perhaps even hundreds, of larger or smaller groups, with various beliefs and observances, which are not necessarily dangerous or prejudicial to freedom. It is true that among these groups are some which have committed criminal acts. Nevertheless, the existence of a few dangerous movements is not enough to condemn all the rest (…)”.

9.         Two points may be made here:

-           first, although it refers explicitly to sectarian movements, the act in fact applies to “any legal entity, irrespective of its legal form or purpose, which pursues activities with the objective or effect of achieving, maintaining or exploiting the psychological or physical subjection of persons participating in those activities (…)”;

-           second, from Mr Nastase’s report we may also cite Recommendation 1412 (1999): “The Assembly has come to the conclusion that it is unnecessary to define what constitutes a sect or to decide whether it is a religion or not. However, there is some concern about groups which are considered as sects, whatever religious, esoteric or spiritual description they adopt, and this needs to be taken into account”.

10.       In the report proper, Mr Nastase discussed the definition of the word “sect” at some length. He considered the difficulties encountered and the dangers facing state authorities if they attempt to define it; their responsibility is to take a stand on the activities of the groups concerned, not on the nature of their beliefs.

11.       He concluded that “the only means of avoiding this trap is to eschew any kind of classification of the beliefs concerned as non-religious beliefs or as religions” and proposed that reference be made to the existence of groups of a “religious, spiritual or esoteric” nature. Other qualifiers should perhaps be added if the list is intended to be exhaustive.

12.       France, as a secular republic, in other words a republic which recognises no religion and respects them all, considers that it is not for it to decide whether a particular group is or is not a religion.

13.       There is, however, a growing tendency to use the question of a term’s definition in order to prevent any discussion of a problem. This is true of minorities, both national and other. Moreover, the Framework Convention for the Protection of National Minorities does not define them. This has not prevented work from being done for many years now, and everyone knows what is being talked about.

14.       In the present case, the expert came to this conclusion too: “(…) However, this uncertainty [regarding the definition] is of little importance, (…) The title is undeniably part of the [Act], but has no legislative authority in itself. Although it may be useful for the purposes of interpretation, it cannot be used in making a ruling that runs counter to a clear legal provision.”  He then goes on to say, “As we will see, [Sections] 1, 19 and 20 of this [Act] identify the targeted legal entities and groups with the greatest possible precision. It is these standard-setting texts that are decisive.”

C.      The purpose of the act

15.       The act comprises six chapters:

Chapter 1 - Civil dissolution of certain legal entities ( Section 1)

Chapter II - Extension of the criminal liability of legal entities to certain offences (Sections 2 to 15)

Chapter III - Provisions relating to the penalty of dissolution incurred by criminally liable legal entities (Sections 16 to 18)

Chapter IV - Provisions restricting advertising by sects (Section 19)

Chapter V - Provisions concerning fraudulent abuse of a state of ignorance or weakness (Sections 20 to 21)

Chapter VI - Miscellaneous provisions (Sections 22 to 24)

16.       Section 1 of the act providing for the civil dissolution of certain legal entities stipulates that an entity may be dissolved where it or its managers have been finally convicted of offences under various articles of the Criminal Code, the Code of Public Health, the Code of Consumption or the New Code of Civil Procedure.

17.       Sections 2 to 15 contain the amendments to the articles of the codes cited in Section 1.

18.       Section 16 sets out the amendment made to Section 8 of the Act of 1 July 1901 on association contracts (the Act on non-profit-making associations).

19.       Section 17 sets out the amendments to the Criminal Code relating to maintenance or reconstitution of a legal entity that has been dissolved and to repeat offences.

20.       Section 19 punishes the distribution of messages targeted at young people that promote a legal entity … which pursues activities with the objective of achieving, maintaining or exploiting the psychological or physical subjection of persons participating in those activities, where the legal entity itself or its managers, in law or in fact, have been finally convicted of one or more of the offences named in the section and provided for in the Criminal Code, the Code of Public Health and the Code of Consumption.

21.       Section 20 inserts a new section in the Criminal Code entitled “Fraudulent abuse of a state of ignorance or weakness”.

22.       Lastly, Section 22 enables associations recognised as being in the public interest to sue for damages in criminal proceedings relating to the offences set out in Section 1.

23.       Sections 19 and above all 20 are the ones that have been most strongly criticised because of their alleged threat to freedom of expression in one case and the impreciseness of the terms used – psychological subjection in particular – in the other.

24.       Section 19 refers to the offences mentioned in Section 1.

25.       Section 20 is designed to protect minors and persons who are particularly vulnerable on account of their age, illness, infirmity or other physical or mental disability. It is this section that appears to be the most innovative, as it is the only one to create new offences.

26.       In fact, as Professor Voyame observed, this section also takes up the terms of Section 1, which it extends to the fraudulent abuse of a person’s state of ignorance or submission.

27.       In Recommendation 1412 the Assembly first recalls that care must be taken to ensure that the activities of religious, esoteric or spiritual groups are in keeping with the principles of our democratic societies and then goes on to attach great importance to protecting those most vulnerable, and particularly the children of members of religious, esoteric or spiritual groups, in case of ill-treatment, rape, neglect, indoctrination by brainwashing and non-enrolment at school, which makes it impossible for welfare services to exercise supervision.

28.       Dissolution pursuant to Section 1 must be ordered by a court but is not obligatory. Section 1 stipulates “… may be dissolved …”.

29.       The penalty provided for in Section 19 is, in contrast, obligatory: “… shall be incurred …”. The same is true of Section 20.

30.       It must be noted that these penalties have to be ordered by a court and are therefore subject to inter partes proceedings.

D.      The act’s compatibility with the European Convention on Human Rights

31.       The articles of the European Convention on Human Rights mentioned by the authors of the motion for a resolution are Article 9 – Freedom of thought, conscience and religion, 11 – Freedom of peaceful assembly and of association, and 14 – Prohibition of discrimination.

32.       The case-law of the European Court of Human Rights has found that these freedoms are not only applicable to the expression of well-known or traditional ideas. Subject to the provisions in the second paragraphs of Articles 9-11, they also cover little-known religions or expressions of opinions that may be shocking or disturbing.

33.       Articles 9 and 11, like other articles in the Convention, set out a right or rights in the first paragraph and restrictions on such rights or rights in a second paragraph. These restrictions are themselves subject to certain conditions: they must be prescribed by law and constitute measures necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

34.       We therefore have to ask whether the provisions of the act meet these conditions. Professor Voyame’s answer is that they clearly do.

35.       Any restriction must be prescribed by law: this is the case, and the offences are clear. The only reservation he makes concerns the use of the word “subjection”, which is imprecise, but he goes on to say that the lack of precision is due to the phenomenon being described and that it will be for the court to evaluate it.

36.       Is the measure necessary?  Here too Professor Voyame replies that the dissolution of a legal entity pursuant to Section 1 of the act clearly responds to a need, and illustrates this by referring to a large number of cases that have hit the headlines. Recommendation 1412 makes this same point when it says that the groups considered as sects give cause for concern and that this needed to be taken into account.

37.       Is it proportional to the sought-after objective?  The measure is radical, but it is also effective and reliable. It is surrounded by judicial guarantees and in particular by the inter partes character of the attendant proceedings.

38.       For their part, the provisions limiting advertising by sects and those concerning the protection of particularly vulnerable people also meet the conditions laid down in the European Convention of Human Rights: their objective is legitimate, and the measure is a response to a serious need and is proportional to the objective being pursued.

39.       Professor Voyame concludes that the French Act of 12 June 2001 is not incompatible with the Council of Europe’s values.

40.       He adds that depending on the case law to which the act gives rise, his evaluation may have to be reconsidered. Each application of the act could be referred to the European Court of Human Rights, subject to the conditions set out in the European Convention.

E.         Case-law of the European Court of Human Rights on the act

41.       Now the European Court of Human Rights has already had occasion to express a view on the act in its decision of 6 November 2001 on the admissibility of an application lodged by the Christian Federation of Jehovah’s Witnesses of France.

42.       The Court ruled as follows:

“(unofficial translation) As to the Act of 13 June 2001, the Court notes that its purpose, as its title indicates, is to reinforce the prevention and repression of sects which infringe human rights and fundamental freedoms. It is not the Court’s task to rule on legislation in abstracto, and it cannot therefore express a view as to the compatibility of the provisions of the new legislation with the Convention (Findlay v. United Kingdom, Judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, § 67). It of course notes that in so far as it concerns sects, of which it gives no definition, the act does provide for their dissolution, but this can only be ordered by a court and only when certain conditions are met, in particular when sects or their managers have been finally convicted of one or more of a finite list of offences which the applicant ought normally not to fear. Making accusations against parliament, which is anxious to settle a burning social question, on the basis of its supposed intentions does not demonstrate the probability of a risk incurred by the applicant. Furthermore, the applicant cannot, without being inconsistent, claim that it is not a movement that threatens freedoms and, at the same time, maintain that it is, potentially at least, a victim of the future application of the act.”

43.       The last question we may attempt to answer is whether France needed to pass specific legislation.

44.       In its Recommendation 1178 (1992) on sects and new religious movements, the Assembly considered that “the freedom of conscience and religion guaranteed by Article 9 of the European Convention on Human Rights makes major legislation on sects undesirable, since such legislation might well interfere with this fundamental right and harm traditional religions”.

45.   In its Recommendation 1412 (1999) it invited the governments of member states among other things “… 10.iii to use the normal procedures of criminal and civil law against illegal practices carried out in the name of groups of a religious, esoteric or spiritual nature”.

46.       The act for the most part simply reiterates existing provisions in the Criminal Code, the Code of Consumption, the Code of Public Health and the New Code of Civil Procedure and does so for a precise purpose in conformity with the European Convention on Human Rights, as we have just seen. Consequently, even if it had been possible to achieve the same objective by recourse to existing provisions, there is nothing to prevent the passing of an act which has the advantage of grouping together all the provisions necessary to achieve that objective.

F.         Conclusions

47. The act for the most part simply reiterates existing provisions in the Criminal Code, the Code of Consumption, the Code of Public Health and the New Code of Civil Procedure and does so for a precise purpose in conformity with the European Convention on Human Rights, as we have just seen. Consequently, even if it had been possible to achieve the same objective by recourse to existing provisions, there is nothing to prevent the passing of an act which has the advantage of grouping together all the provisions necessary to achieve that objective.

48. There are three points which were underlined in the report prepared by Mr: Nastase:

a) It is not the “sects” but “the illegal activities of sects” which should be punished;

b) The current legislation is enough to punish such activities;

c) “Few dangerous movement is not enough to condemn all the rest”

49.       Professor Voyame indicates in his report: “It cannot be said that this law is not in line with Council of Europe standards”. However, in the same report it is also indicated that the terms “sect, de facto leader, psychological or physical subjection” is not defined in the law.

50.       Offences should be clearly defined in penal law. Since the above-mentioned terms are not well defined, there will be some hesitations in practice.

51.       Although it has been pointed out in Professor Voyame’s report that this uncertainty will be cleared out by expert reports and decisions of the ECHR, it is not enough. Because determining on the elements of crimes is a legal issue. The interpretation and implementation of law solely belong to judges. Experts can only be consulted for technical information.

52.       The closure of  the organization due to the crimes of de jure or de facto leaders of the sects is:

a) against the individuality of crimes;

b) The closure of associations is an individual crime such as exile and political bans.

53.       It is of no doubt that each country has the right to take the necessary precautions to protect its legal and public order. We are in no position to discuss the power of the French Government to adopt the laws it wants to adopt. However, the free movement of thousands of people is better than unfair punishment an innocent person.

54.       This law adopted in France should be reconsidered and the definition of “offence” and “offender” should be more clearly defined.
 

APPENDIX I

Doc. 9064 rev

26 April 2001

Religious freedom and religious minorities in France

APPENDIX II

14 November 2001

Freedom of religion and religious minorities in France

Expert paper

prepared by Mr Joseph Voyame,

Honorary Professor at the University of Lausanne,

former Director of the Swiss Federal Office of Justice

Terms of reference

Law N°2001-504 of 12 June 2001 has been adopted by the French National Assembly and Senate and promulgated by the President of the Republic. Its aim is to improve the prevention and repression of sectarian movements which violate human rights and fundamental freedoms.[1]

As early as 6 October 2000, Mr McNamara, a member of the Parliamentary Assembly, and thirteen of his colleagues, tabled a motion for an Assembly resolution, entitled “Freedom of religion and religious minorities in France”. Its conclusion reads as follows[2]:

“6. Due to the urgency and the potentially widely-damaging effect that this law could have, the Assembly calls:

i. upon members of the French Senate and the National Assembly to remember that France, as a full member of the Council of Europe, is committed to the European Declaration of Human Rights and that freedom of expression, religion and association are basic guaranteed rights which must be protected by the state;

ii. for a Rapporteur to be assigned to investigate the provisions of the law and determine whether they are in line with the European Convention on Human Rights and other Council of Europe and international human rights standards and to investigate complaints concerning religious discrimination”.

By contract N°4 of 28 September/17 October 2001, the Secretary General of the Council of Europe commissioned the under-signed to prepare a short report on “freedom of religion and religious minorities in France”. At meetings held prior to signature of the contract, it was clearly stated that the report should focus on the compatibility of French Law N°2001-504 of 12 June 2001 with the Council of Europe’s values.

The French Law of 12 June 2001

1.         Introduction

After undergoing various metamorphoses during the legislative process, the Law of 12 June 2001 has remained a relatively composite entity.

Articles 1, 19, 20 and 22 refer directly to legal entities or groups of people which pursue activities with the objective or effect of achieving, maintaining or exploiting the psychological and physical subjection of persons participating in those activities.

Articles 2 to 12 extend legal entities’ criminal liability to certain offences set out in the Code of Public Health, the Code of Consumption and the Criminal Code, and state the penalties incurred by such entities.

Article 13-16 and 21, which concern the Criminal Code and the Law of 1 July 1901 on association contracts, indicate or amend the penalties envisaged for various offences and contain some formal changes.

Article 17 and 18 make it a criminal offence to maintain or reconstitute legal entities which have been dissolved; Article 1(5) does the same for the specific legal entities dissolved under Article 1(1).

Article 23 amends the Code of Criminal Procedure with regard to placement under the supervision of an administrator.

Finally, Article 24 governs the Law’s territorial scope.

2.         The Law’s scope

According to its title, the Law targets sectarian movements which infringe human rights and fundamental freedoms. This wording is used again in Chapter IV.

There is unanimous agreement that it is difficult, if not impossible, to provide a legal definition for the term “sect”. Dictionaries refer to a group of persons professing the same doctrine or who subscribe to tenets that have been denounced as heresy or error (Littré, Quillet); to a group of persons who subscribe to the same philosophical tenets, or to an organised group of persons who share the same tenets within a religion (Grand Robert, which describes the first definition is old or historic). However, this uncertainty is of little importance. The title is undeniably part of the Law, but has no legislative authority in itself. Although it may be useful for the purposes of interpretation, it cannot be used in making a ruling that runs counter to a clear legal provision. As we will see, Articles 1, 19 and 20 of this Law identify the targeted legal entities and groups[3] with the greatest possible precision. It is these standard-setting texts that are decisive.

In addition, it should be noted that a significant portion of the Law goes much further than the title’s wording and refers to legal entities in general. This is particularly the case in Articles 2 to 12.

3.         Article 1

The first paragraph of this provision allows for the dissolution of all legal entities that correspond to the prescribed conditions. Accordingly, it is not limited to those legal entities that could be considered “sects”. Equally, these legal entities are not necessarily religious, as the writers of the motion for a resolution seem to believe.

Some of the Law’s criteria concern the activities of the legal entities in question; others refer to their previous convictions or those of their managers.

Under the first set of criteria, the legal entity’s activities must have the objective or effect of achieving, maintaining or exploiting the psychological or physical subjection of persons participating in those activities. In my opinion, the wording is unambiguous. The expression “psychological or physical subjection” is the only one that could possibly cause hesitation. According to dictionaries, subjection is a state in which a person is constrained or obliged to something (Quillet), or a state in which someone is subject to an authority or sovereign rule (Grand Robert). During the law’s passage through parliament, this term was added to replace “dependence”, which was considered less precise. Accordingly, psychological subjection occurs, for example, where a person is rendered powerless to take unimpeded decisions about his or her opinions, behaviour or property. Physical subjection concerns, inter alia, where a person is held against his or her will. This is much more than the influence that a speaker might have on his or her hearers, or the pressures which traditional religious congregations could exert on their members.

Under the second set of criteria, the legal entity itself or its managers in law or in fact must have been convicted, at final judgment, of one of the listed offences on at least two occasions. During parliamentary discussions, these offences were considered to be those most frequently committed by “sects” or their managers. However, it should be noted that the criteria are imperfectly worded, since a legal entity prosecuted for infringement of human rights could be dissolved even if it or its managers have been condemned only for unlawfully practicing pharmacy.

Finally, it should be noted that, even where all the required conditions are met, the legal entity in question may (or may not) be dissolved; the court always has a margin of discretion.

Paragraphs 2 to 4 and 6 of Article 1 govern procedural issues. We will return to them below.

4.         Article 19

This provision makes it an offence to distribute messages targeted at young people, seeking to promote a legal entity which corresponds to the criteria listed in Article 1, or constituting an invitation to join such a legal entity. Article 19 prompts only one remark, namely that the courts have no margin of discretion in such cases: conviction is automatic whenever the required criteria are met.

5.         Article 20

The draft law initially introduced a special offence of “mental manipulation”. This idea was abandoned during the legislative process and replaced by former Article 313-4 of the Criminal Code, which dealt with fraudulent abuse of a state of ignorance or weakness; its scope was extended in two areas. Firstly, new Article 223-15-2 of the Criminal Code extends the criminal offence to include fraudulent abuse of the state of ignorance or weakness of a person resulting from the use of severe or repeated pressures or of techniques such as to impair that person’s judgment [with the aim of inducing that person … to commit an act or omission seriously harmful to his or her interests]. Thus, it reuses the terms of Article 1 of the Law of 12 June 2001, adding the requirement that the state of psychological or physical subjection should result from serious or repeated pressures or techniques such as to alter a person’s judgment. Secondly, by moving this provision from Book III (fraud and related offences) to Book II of the Criminal Code (indictable offences against the person), the legislator ruled that the harm suffered by the victim need not necessarily concern property.

Two questions may be raised at this point.

Firstly, should we deduce from the additional provisions cited above that the state of subjection referred to in new Article 223-15-2 of the Criminal Code is more serious than that referred to in Articles 1 and 19 of the Law of 12 June 2001? It would appear that this is not the case and that the legislator merely wished to clarify the causes of subjection in the first example.

Secondly, it is not clear that physical subjection necessarily results from the use of pressures or techniques such as to alter a person’s judgment. Or should the concept of physical subjection be interpreted differently from the above outline for Article 1? This is an interesting question, but need not be resolved here.

6.         Procedure

It was initially planned that dissolution, as referred to in Article 1(2), would be pronounced by the President of the Republic. The legislator subsequently decided that proceedings would be instituted before the Tribunal de Grande Instance at the public prosecutor’s request. In so doing, it wished to guarantee that the parties would have access to an ordinary court and inter partes proceedings. Under paragraphs 3 and 4, requests are lodged, investigated and determined in accordance with the expedited “fixed-date” procedure. The time-limit for filing an appeal is fifteen days.

Finally, Article 22 of the Law amends Article 2-17 of the Code of Criminal Procedure, by ruling that any association meeting the criteria in this provision may, on the commission of an offence by any individual or legal entity through a movement or organisation which has the objective or effect of achieving, maintaining or exploiting the psychological or physical subjection of others, assert the rights conferred on civil parties with regard to the offences listed in the provision. This Article is intended to compensate for the fact that victims or members of their families are afraid or reluctant to bring legal proceedings on their own behalf.

The Council of Europe’s values

The values under discussion are mainly expressed in Articles 9-11 of the European Convention of Human Rights (ECHR), which respectively guarantee freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association. These are all relevant here. In this respect, one might note that the European Court of Human Rights’ case-law has found that these freedoms are not only applicable to expression of well-known or traditional ideas. Subject to the provisions in the second paragraphs of Articles 9-11, they also cover little-known religions or the expression of opinions that may be shocking or disturbing.

However, the ECHR accepts restrictions to the freedoms guaranteed in Articles 9 to 11. The limitations set out in the second paragraphs of these Convention articles must fulfil clearly-defined criteria. They differ slightly in their wording from one article to the next, but in this context it is enough to observe that they share the following features: the restriction must be prescribed by law and must be necessary, in a democratic society, for public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others.

The Court has produced a substantial body of case-law on all these points, which cannot be rehearsed here. Accordingly, we will merely refer briefly to the principles that may be deduced from it.

The restriction must be prescribed by law. However, any such legislation must meet certain conditions: it must be sufficiently accessible and must be predictable, i.e. its wording must be clear and precise enough to enable anyone, taking informed advice if necessary, to adjust their behaviour in consequence (in accordance with the principle that offences and punishments shall be defined by law). Admittedly, absolute certainty is impossible, and legislators must often use relatively general formulae that cover a wide range of diverse cases and enable the case-law to adapt to new situations as required.

Secondly, the restriction must relate to at least one of the legitimate objectives listed by the ECHR.

Finally, the restriction should be necessary in a democratic country. This implies three criteria: it must enable the legitimate objective in view to be achieved, it must not limit fundamental rights any more than necessary, and it must respond to a pressing need (a description that the Court applies in particular with regard to restrictions on press freedom). A correct balance must be struck between the positive values protected by the restriction and infringement of the guaranteed freedoms. At the same time, it should be noted that the freedoms protected by Articles 9 to 11 of the ECHR are the very foundations of democracy and fundamental elements of human dignity; accordingly, provisions that limit their scope may be interpreted only narrowly.

Admittedly, national authorities enjoy a certain degree of autonomy in this area, particularly with regard to deciding on the existence and urgency of the need to restrict the freedom in question. However, exercise of this autonomy remains subject to the European Court’s supervision, both with respect to the law itself and to decisions made in application of it.

The Council of Europe’s values have been confirmed by universal international rules, which may be mentioned briefly here.

Articles 18 to 20 of the Universal Declaration of Human Rights, of 10 December 1948, proclaim freedom of thought, conscience and religion, freedom of opinion and expression and freedom of assembly and association. However, Article 29 of the Declaration allows for restrictions on the exercise of these freedoms that are substantially similar to those authorised by the ECHR.

Similarly, Articles 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights, of 16 December 1966, guarantee freedom of thought, conscience and religion, freedom of expression, freedom of peaceful assembly and freedom of association. Each of these articles authorises restrictions on these freedoms corresponding to those permitted by the ECHR.

Compatibility of the French Law of 12 June 2001 with the Council of Europe’s values

1.         Introduction

Firstly, it should be noted that the Law of 12 June 2001 does not target all “sects”. It is undeniable that many movements, groupings or associations that are viewed as sects may conduct highly beneficial activities.

“Sects sometimes enable people to become part of a warm group; certain individuals find new meaning in life, and others begin to develop as people. Some of my patients have joined sects. I wouldn’t want them to leave for anything in the world, since the sect is acting as their temporary guardian”.[4]

In addition, many “sects” are inoffensive, to say the least.

The Law of 12 June 2001 targets legal entities, groupings and movements that pursue activities aimed at achieving, maintaining or exploiting the psychological or physical subjection of persons participating in those activities, subject to the further condition that these entities, groupings or movements, or their managers, have already been convicted of certain offences.

We must now consider whether this law remains within the limits established by the second paragraphs of Articles 9 to 11 of the ECHR.

2.         The legal basis

As we have seen, any restriction on the freedoms guaranteed by Articles 9 to 11 of the ECHR must be prescribed by an accessible and precise law.

In this case, we are clearly dealing with a law which has been published and is thus accessible to all. Is it precise enough to ensure that interested parties can use it to adjust their behaviour? This is beyond doubt. The criteria defining offences and possible penalties are clearly and precisely set out. Admittedly, the word “subjection” in Articles 1, 19, 20 and 22 requires a certain margin of appreciation, but this is due to the phenomenon being described and could probably not be defined more precisely. In any event, we have seen that even criminal law, where offences and punishments must be strictly defined, is frequently obliged to use general terms. Its application will occasionally create difficulties for judges when evaluating whether subjection has occurred. However, they may be assisted by an expert if necessary.

3.         Objective and necessity

This Law’s primary objective is to protect members and followers of the targeted groups from subjection and its possible consequences, such as loss of their decision-making freedom or freedom of movement. This is a legitimate objective, and is covered by the provisions of Articles 9-11 (paragraphs 2) of the ECHR.

As we have seen, there are three elements to necessity: the appropriateness of the restriction, pressing need and proportionality. In reaching conclusions on this point, it is best to consider each of the four major articles in question separately.

a)         Article 1

It is evident that dissolution of the legal entities in question is an appropriate measure in terms of protecting or at least contributing effectively to protecting their members and followers from the feared consequences.

In my opinion, this measure responds to a need. It is common knowledge that certain “sects” have embroiled their members in tragedies: collective suicides, murders; we are aware that other sects demand exorbitant donations that ruin their members and followers; the indoctrination of young men and women, with whom their families have enormous difficulty in maintaining contact, is also a problem. All these instances arise either from psychological manipulation that removes the victims’ ability to make independent decisions (usually with their consent), or from measures depriving them of physical freedom. Given the risks, we can consider that there is a pressing need to act. In such circumstances, we cannot expect the authorities to wait until these incidents are repeated in order to take legislative action.

Finally, it is necessary to consider whether dissolution is proportional to the sought-after objective, or whether the same legitimate outcome could be achieved by measures which would less restrict the freedom of the legal entities in question. Admittedly, dissolution is a radical measure. However, it is difficult to see what other measure could be equally effective and reliable, essential attributes in this situation. In any event, we have seen that national authorities must be allowed a certain degree of discretion in this area.

Three further points should be made.

An additional guarantee is provided by the criteria that the targeted legal entity itself, and/or its managers, must already have been found guilty on at least two occasions of offences considered by the legislator as those most frequently committed by “sects”. We have seen that this requirement is imperfectly worded. However, it does help in establishing a sect’s dangerousness.

In addition, even if all the legal criteria are met, the courts are not obliged to impose dissolution. They may decide not to do so if, for instance, circumstances demonstrate that this measure would be of no benefit in a particular situation.

Finally, the targeted legal entity enjoys the guarantees of ordinary procedure, especially its inter partes aspect. The procedure introduced in paragraphs 2 to 4 is certainly more rapid than ordinary procedure, but gives the legal entity under suspicion sufficient time to prepare a defence.

b)         Article 19

Most of the comments made about Article 1 are valid here. The aim of Article 19 is to protect young people, especially those who are “destabilised” and are particularly likely to be seduced by the legal entities targeted in the Law. The objective is legitimate. The measure responds to a serious need. Finally, it seems necessary that the State act via criminal law; this measure and the prescribed penalties are adequate and, like the measure’s proportionality, would appear not to exceed the national authorities’ margin of discretion.

c)         Article 20

As we have seen, this article merely adds two points to former Article 313-4 of the Criminal Code. These additions have a legitimate goal, which is to provide greater protection, not only for minors and other particularly vulnerable individuals, but also for persons who are in a state of psychological or physical subjection arising from the fact of serious or repeated pressure or of techniques such as to alter their judgment. The objective is a legitimate one, the method appears to be appropriate, and neither the statute creating the offence nor the penalties envisaged seem to exceed the national authorities’ discretion.

d)         Article 22

The option enabling certain clearly defined associations to act as civil parties in the proceedings set out in the Law of 12 June 2001 is legitimate and adequate. It responds to a need and is not excessive.

Conclusion

On the basis of the foregoing, I conclude that the French Law of 12 June 2001 is not incompatible with the Council of Europe’s values.

However, so far as I am aware, the Law has not yet been applied. Depending on the national case-law to which it gives rise, this evaluation may have to be reconsidered. It will also be possible to refer each application of the Law to the European Court of Human Rights, subject to the conditions set out in the ECHR.

APPENDIX I  to Professor Voyame's expert paper

[Unofficial translation]

ACT No. 2001-504 of 12 June 2001 to reinforce the prevention and suppression of sects which infringe human rights and fundamental freedoms (1)

NOR: JUSX9903887L

The National Assembly and the Senate have adopted,

The President of the Republic hereby promulgates the following Act:

Chapter I

Civil dissolution of certain legal entities

Section 1

Any legal entity, irrespective of its legal form or purpose, which pursues activities with the objective or effect of achieving, maintaining or exploiting the psychological or physical subjection of persons participating in those activities, may be dissolved under the conditions laid down in this section, where the legal entity itself or its managers, in law or in fact, have been finally convicted of one or more of the offences listed below:

1.         The offences of deliberately or unintentionally killing or causing physical or mental harm to others, of endangering others, of infringing personal freedoms, of violating human dignity, of interfering with privacy and personal rights, of imperilling minors or the offences against property provided for in Articles 221-1 to 221-6, 222-1 to 222-40, 223-1 to 223-15, 223-15-2, 224-1 to 224-4, 225-5 to 225-15, 225-17 and 225-18, 226-1 to 226-23, 227-1 to 227-27, 311-1 to 311-13, 312-1 to 312-12, 313-1 to 313-3, 314-1 to 314-3 and 324-1 to 324-6 of the Criminal Code;

2.         The offences of unlawfully practising medicine or pharmacy provided for in Articles L. 4161-5 and L. 4223-1 of the Code of Public Health;

3.         The offences of misleading advertising, fraud or forgery provided for in Articles L. 121-6 and L. 213-1 to L. 213-4 of the Code of Consumption.

Dissolution proceedings shall be instituted before the Tribunal de Grande Instance at the request of the public prosecutor, acting ex officio, or on an application by any interested party.  The application shall be lodged, investigated, heard and determined in accordance with the expedited "fixed-date" procedure.  The time-limit for filing an appeal shall be fifteen days.  The President of the division to which the case is allocated shall promptly set the date of the hearing at which the presentation of the case is to be discussed with counsel.  On the specified date the procedure followed shall be that set out in Articles 760 to 762 of the New Code of Civil Procedure.

Maintaining or openly or covertly reconstituting a legal entity which has been dissolved under this section shall constitute commission of the offence provided for in the second paragraph of Article 434-43 of the Criminal Code.

The Tribunal de Grande Instance may pronounce the dissolution of a number of legal entities, as referred to in the first paragraph, during the same proceedings, where those legal entities pursue the same objective and are united by common interests and where at least one final conviction of an offence mentioned in indents 1 to 3 above has been pronounced against each legal entity or its managers in law or in fact.  The legal entities concerned must be parties to the proceedings.

Chapter II

Extension of legal entities' criminal liability to certain offences

Section 2

I.          After the words "shall be punished" the end of the first paragraph of Article
L. 4161-5 of the Code of Public Health shall read "with one-year's imprisonment and a fine of FRF 100,000."

II.         After Article L. 4161-5 of the same code an Article L. 4161-6 shall be inserted, worded as follows:

"Art. L. 4161-6 - Legal entities may be held criminally liable, in accordance with Article 121-2 of the Criminal Code, for the offences set out in Article L. 4161-5.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38 of the Criminal Code;

2.         the penalties specified in indents 2 to 9 of Article 131-39 of the Criminal Code.

The ban referred to in indent 2 of Article 131-39 of the Criminal Code shall relate to the activity in the performance of which or in connection with which the offence was committed."

III.         In Article L. 4223-1 of the same code the words "with a fine of FRF 30,000 and, for a repeat offence, six-months' imprisonment and a fine of FRF 60,000" shall be replaced by "with one year's imprisonment and a fine of FRF 100,000".

Section 3

1.         After Article L. 213-5 of the Code of Consumption an Article L. 213-6 shall be inserted, worded as follows:

"Art. L. 213-6 - Legal entities may be held criminally liable, in accordance with Article 121-2 of the Criminal Code, for the offences set out in Articles L. 213-1 to L. 213-4.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38 of the Criminal Code;

2.         the penalties specified in indents 2 to 9 of Article 131-39 of the Criminal Code.

The ban referred to in indent 2 of Article 131-39 of the Criminal Code shall relate to the activity in the performance of which or in connection with which the offence was committed."

II.         Article L. 121-6 of the same code shall be supplemented with a paragraph worded as follows:

"The provisions of Article L. 213-6, whereby legal entities may be held criminally liable, shall be applicable to these offences."

Section 4

After Article 221-5 of the Criminal Code an Article 221-5-1 shall be inserted, worded as follows:

"Art. 221-5-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in this section.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in Article 131-39.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 5

After Article 222-6 of the Criminal Code an Article 222-6-1 shall be inserted, worded as follows:

"Art. 222-6-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in this paragraph.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in Article 131-39.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 6

After Article 222-16 of the Criminal Code an Article 222-16-1 shall be inserted, worded as follows:

"Art. 222-16-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in this paragraph.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in Article 131-39.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 7

After Article 222-18 of the Criminal Code an Article 222-18-1 shall be inserted, worded as follows:

"Art. 222-18-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in this paragraph.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in indents 2 to 9 of Article 131-39;

3.         the penalty specified in indent 1 of Article 131-39 for the offences defined in Articles 222-17 (second paragraph) and 222-18.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 8

After Article 222-33 of the Criminal Code an Article 222-33-1 shall be inserted, worded as follows:

"Art. 222-33-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in Articles 222-22 to 222-31.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in Article 131-39.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 9

After Article 223-7 of the Criminal Code an Article 223-7-1 shall be inserted, worded as follows:

"Art. 223-7-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in this section.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in indents 2 to 9 of Article 131-39;

3.         the penalty specified in indent 1 of Article 131-39 for the offences defined in Articles 223-5 and 223-6.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 10

After Article 223-15 of the Criminal Code an Article 223-15-1 shall be inserted, worded as follows:

"Art. 223-15-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in this section.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in indents 2 to 9 of Article 131-39;

3.         the penalty specified in indent 1 of Article 131-39 for the offence defined in the second paragraph of Article 223-13.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 11

Section 4 of chapter V of title II of book II of the Criminal Code shall be supplemented with an Article 225-18-1, worded as follows:

"Art. 225-18-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in Articles 225-17 and 225-18.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in indents 2 to 9 of Article 131-39;

3.         the penalty specified in indent 1 of Article 131-39 for the offences defined in

Article 225-18.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 12

After Article 227-4 of the Criminal Code an Article 227-4-1 shall be inserted, worded as follows:

"Art. 227-4-1 - Legal entities may be held criminally liable, in accordance with Article 121-2, for the offences defined in this section.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties specified in indents 2 to 9 of Article 131-39;

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 13

Article 227-17-2 of the Criminal Code shall be amended as follows:

1.         In the first sentence the words "for the offence defined in the second paragraph of Article 227-17-1" shall be replaced by "for the offences defined in Articles 227-15 to 227-17-1";

2.         In the second indent the words "in indents 1, 2, 4, 8 and 9 of" shall be replaced by the word "in".

Section 14

In the second paragraph (indent 1) of Article 131-39 of the Criminal Code the words "more than five years" shall be replaced by the words "more than or equal to three years".

Section 15

I.          Article 132-13 of the Criminal Code shall be supplemented with a paragraph worded as follows:

"In the cases provided for in the preceding two paragraphs the legal entity shall in addition incur the penalties mentioned in Article 131-39, subject to the provisions of the last paragraph of that article."

II.         In the last paragraph of the same article the words "of more than FRF 100,000" shall be replaced by the words "of at least FRF 100,000".

Chapter III

Provisions relating to the penalty of dissolution incurred by criminally liable legal entities

Section 16

In the second paragraph of section 8 of the Act of 1 July 1901 on association contracts the words "with a fine of FRF 30,000 and one year's imprisonment" shall be replaced by the words "with three years' imprisonment and a fine of FRF 300,000".

Section 17

Article 434-43 of the Criminal Code shall be supplemented with two paragraphs, worded as follows:

"Any individual who participates in maintaining or openly or covertly reconstituting a legal entity which has been dissolved in accordance with indent 1 of Article 131-39 shall be liable to three years' imprisonment and a fine of FRF 300,000.

Where dissolution was pronounced in respect of a repeat offence or the offence provided for in the preceding paragraph, the penalty shall be increased to five years' imprisonment and a fine of FRF 500,000."

Section 18

Before the last paragraph of Article 434-47 of the Criminal Code an indent 5 shall be inserted, worded as follows:

"5.        For the offences provided for in the second and third paragraphs of Article 434-43, the penalty of dissolution mentioned in indent 1 of Article 131-39."

Chapter IV

Provisions restricting advertising by sects

Section 19

A fine of FRF 50,000 shall be incurred for distributing, by any means whatsoever, messages targeted at young people, seeking to promote a legal entity, irrespective of its legal form or purpose, which pursues activities with the objective or effect of achieving, maintaining or exploiting the psychological or physical subjection of persons participating in those activities, where the legal entity itself or its managers, in law or in fact, have been finally convicted on a number of occasions of one or more of the listed below:

1.         The offences of deliberately or unintentionally killing or causing physical or mental harm to others, of endangering others, of infringing personal freedoms, of violating human dignity, of interfering with privacy and personal rights, of imperilling minors or the offences against property provided for in Articles 221-1 to 221-6, 222-1 to 222-40, 223-1 to 223-15, 223-15-2, 224-1 to 224-4, 225-5 to 225-15, 225-17 and 225-18, 226-1 to 226-23, 227-1 to 227-27, 311-1 to 311-13, 312-1 to 312-12, 313-1 to 313-3, 314-1 to 314-3 and 324-1 to 324-6 of the Criminal Code;

2.         The offences of unlawfully practising medicine or pharmacy provided for in Articles L. 4161-5 and L. 4223-1 of the Code of Public Health;

3.         The offences of misleading advertising, fraud or forgery provided for in Articles L. 121-6 and L. 213-1 to L. 213-4 of the Code of Consumption.

The same penalties shall apply where the messages referred to in the first paragraph of this section constitute an invitation to join such a legal entity.

Legal entities may be held criminally liable, in accordance with Article 121-12 of the Criminal Code, for the offences defined in this section.  The penalty incurred by legal entities shall be a fine in accordance with the provisions of Article 131-38 of the Criminal Code.

Chapter V

Provisions on fraudulent abuse of a state of ignorance or weakness

Section 20

After Article 223-15 of the Criminal Code, a new section 6 bis shall be added, worded as follows:

"Section 6 bis

Fraudulent abuse of a state of ignorance or weakness

Art. 223-15-2     -           A penalty of three years' imprisonment and a fine of
FRF 2,500,000 shall be incurred for fraudulent abuse of the state of ignorance or weakness of a minor, a person whose particular vulnerability on account of age, illness, infirmity, a physical or mental disability or pregnancy is apparent and known to the perpetrator, or a person in a state of psychological or physical subjection resulting from the use of severe or repeated pressures or of techniques such as to impair that person's judgment, with the aim of inducing that minor or person to commit an act or omission seriously harmful to his or her interests.

Where the offence is perpetrated by the manager in law or in fact of a grouping pursuing activities which have the objective or effect of achieving, maintaining or exploiting the psychological or physical subjection of persons participating in those activities, the penalties shall be increased to five years' imprisonment and a fine of FRF 5,000,000.

Art. 223-15-3     -           Individuals guilty of the offence provided for in this section shall also incur the following additional penalties:

1.         deprivation of civic, civil and family rights, in accordance with Article 131-26;

2.         disqualification for five years at most, in accordance with Article 131-27, from holding public office or carrying on the occupational or social activity in the course or on the occasion of which the offence was committed;

3.         closure, for five years at most, of the place of business or of one or more places of business of a company used to commit the offences charged;

4.         confiscation of property used in or intended for use in committing the offence or constituting the proceeds of the offence, with the exception of objects that might be restored to a rightful owner;

5.         a ban on being present in certain places, in accordance with Article 131-31;

6.         a ban, lasting five years at most, on issuing cheques other than those permitting the drawer to obtain funds from the drawee or certified cheques;

7.         posting or publication of the judgment, in accordance with Article 131-35.

Art. 223-15-4     -           Legal entities may be held criminally liable, in accordance with Article 121-2, for the offence defined in this section.

The penalties incurred by legal entities shall be:

1.         a fine as provided for in Article 131-38;

2.         the penalties set out in Article 131-39.

The ban referred to in indent 2 of Article 131-39 shall relate to the activity in the performance of which or in connection with which the offence was committed."

Section 21

I.          Article 313-4 of the Criminal Code shall be repealed.

II.         The reference ", 313-4" shall be deleted from the first paragraph of Article 313-7 of the same code.

III.         At the end of the first paragraph of Article 313-9 of the same code the words "to 313-4" shall be replaced by the words "to 313-3".

Chapter VI

Miscellaneous provisions

Section 22

Article 2-17 of the Code of Criminal Procedure shall be worded as follows:

"Art. 2-17 -        Any association recognised as being in the public interest, which has been lawfully registered for at least five years at the material time and which states in its articles of association that its intended purpose is to defend and assist individuals or to defend individual and collective rights and freedoms may, on the commission of an offence by any individual or legal entity through a movement or organisation which has the objective or effect of achieving, maintaining or exploiting the psychological or physical subjection of others, assert the rights conferred on civil parties with regard to the offences of deliberately or unintentionally killing or causing physical or mental harm to others, of endangering others, of infringing personal freedoms, of violating human dignity, of interfering with privacy and personal rights, of imperilling minors or the offences against property provided for in Articles 221-1 to 221-6, 222-1 to 222-40, 223-1 to 223-15, 223-15-2, 224-1 to 224-4, 225-5 to 225-15, 225-17 and 225-18, 226-1 to 226-23, 227-1 to 227-27, 311-1 to 311-13, 312-1 to 312-12, 313-1 to 313-3, 314-1 to 314-3 and 324-1 to 324-6 of the Criminal Code, the offences of unlawfully practising medicine or pharmacy provided for in Articles L. 4161-5 and L. 4223-1 of the Code of Public Health, and the offences of misleading advertising, fraud or forgery provided for in Articles L. 121-6 and L. 213-1 to L. 213-4 of the Code of Consumption."

Section 23

Article 706-45 of the Code of Criminal Procedure shall be amended as follows:

1.         After the fifth paragraph (indent 4) an indent 5, worded as follows, shall be inserted:

"5.        Placing under the supervision of an administrator appointed by the investigating judge for a renewable six-month period, as regards the activity in the performance of which or in connection with which the offence was committed."

2.         The following sentence shall be added to the penultimate paragraph:

"The measure provided for in indent 5 may be ordered by the investigating judge only where the legal entity cannot be sentenced to the penalty provided for in indent 3 of Article 131-39 of the Criminal Code."

Section 24

This Act shall be applicable in New Caledonia, French Polynesia, the Wallis and Futuna Islands and the Territorial Community of Mayotte.

For the purpose of applying this Act in New Caledonia, French Polynesia, Wallis and Futuna, the Territorial Community of Mayotte and Saint-Pierre-et-Miquelon, the words "Tribunal de Grande Instance" shall be replaced by the words "Tribunal de Première Instance".

For the purpose of applying this Act in New Caledonia, French Polynesia, Wallis and Futuna and the Territorial Community of Mayotte, the references to the legislative provisions of the Code of Public Health, the Code of Consumption and the Code of Civil Procedure shall be replaced, if necessary, by references to the locally applicable legislation on the same subjects.

This Act shall be enforced as a law of the State.

Done in Paris, on 12 June 2001

                                                                                  by the President of the Republic,

                                                                                  Jacques Chirac,

the Prime Minister,

Lionel Jospin,

                                                                                  the Minister for Justice,

                                                                                  Marylise Lebranchu,

the Minister of the Interior,

Daniel Vaillant,

                                                                                  the State Secretary with

                                                                                 responsibility for Overseas

                                                                                  Territories,

Christian Paul

(1) Travaux préparatoires: Act No. 2001-504

Senate:
Bill No. 79;
Report by Mr Nicolas About on behalf of the Legislation Committee, No. 131;
debated and passed on 16 December 1999.
National Assembly:
Bill passed by the Senate No. 2034;
Report by Ms Catherine Picard on behalf of the Legislation Committee, No. 2472;
debated and adopted on 22 June 2000.
Senate:
Bill amended by the National Assembly, No. 431 (1999-2000);
Report by Mr Nicolas About on behalf of the Legislation Committee, No. 192 (2000-2001);
debated and passed on 3 May 2001.
National Assembly:
Bill passed, with amendments, by the Senate on second reading, No. 3040;
Report by Ms Catherine Picard on behalf of the Legislation Committee, No. 3083;
debated and adopted on 30 May 2001.
 

APPENDIX II to Professor Voyame's expert paper

Doc. 8860


Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8860, Reference No 2550 of 9 November 2000

Draft resolution adopted by the Committee on 28 October 2002 with 21 votes in favour, 2 votes against and 2 abstentions

Members of the Committee: Mr Lintner (Chairperson), Mr Magnusson, Mrs Gülek, Mr Marty (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev (alternate: Mr R. Huseynov), Mr Andican, Mr Arabadjiev, Mrs van Ardenne-van der Hoeven, Mr Arzilli, Mr Attard Montalto (alternate: Mr Asciak), Mr Barquero Vázquez (alternate: Mrs Posada), Mr Berisha, Mr Bindig, Mr Brejc, Mr Bruce, Mr Bulavinov (alternate: Mr Shishlov) Mr Chaklein, Mrs Christmas-Møller (alternate: Mrs Auken), Mr Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mrs Frimansdóttir, Mr Frunda, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty (alternate: Mr Shybko), Mr Jansson, Mr Jaskiernia (alternate: Mr Markowski), Mr Jurgens, Mr Kastanidis, Mr Kelemen, Mr S. Kovalev, Mr Kresák, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Libane, Mr Lippelt, Mr Manzella (alternate: Mr Budin), Mrs Markovic-Dimova, Mr Martins, Mr Masson (alternate: Mr Hunault), Mr Mas Torres, Mr McNamara (alternate: Mr Lloyd), Mr Meelak, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pellicini (alternate: Mr Naro), Mr Penchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs Stoisits, Mrs Süssmuth, Mr Symonenko, Mr Tabajdi, Mrs Tevdoradze, Mr Toki?, Mr Vanoost, Mr Wilkinson, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Sich, Ms Kleinsorge, Mr ?upina, Mr Milner


[1] The text of this law is given in Appendix I.

[2] The full text of the motion for a resolution is given in Appendix II.

[3] However, for simplicity’s sake, the word “sect” will be used in this report for any grouping that is habitually referred to by this term in its widest sense.

[4] Statement by a doctor to the Committee of Inquiry on Sects, set up by the French National Assembly, in this Committee’s report of 20 December 1995, p.66.



 
 
 

Doc. 9064 rev vom 26.4.2001 Written Declaration No. 321

Gemeinsame Erklärung von etwa 50 Abgeordneten (Tenor: Frankreich soll mit Gesetz warten, bis Europaratsbericht fertig ist)
http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2FDocuments%2FWorkingDocs%2FDoc01%2FEDOC9064.htm
 
 
 

Religious freedom and religious minorities in France

Doc. 9064 rev
26 April 2001
Written Declaration No. 321

 
 

This written declaration commits only the members who have signed it



            Considering that the Parliamentary Assembly Rapporteur of the Council of Europe is currently working on a report and recommendations on “religious freedom and religious minorities in France” (Doc. 8860, 6 October 2000) which is specifically looking into a proposed law that is causing considerable concern because of its potential to create religious discrimination in France.
            Considering that the proposed law is possibly in violation of international and European human rights standards – a matter the rapporteur is looking into.
            Considering that the French Senate has now assigned the law proposition for a debate and vote on 10 May 2001 and this does not give enough time for the rapporteur to complete his report.
            Considering that the French Senate and National Assembly could benefit from the work of the Council of Europe rapporteur in formulating any law proposition, so it is not discriminatory and violating international human rights standards.

            The Council of Europe Parliamentary Assembly requests the French Senate to delay any further debate and to only vote on the law proposition after the Council of Europe rapporteur has submitted his report to the Parliamentary Assembly of the Council of Europe.
 
 

Signed [1] :

Patarkalishvili, Georgia, EPP/CD

Akgönenç, Turkey, EDG
Andreoli, San Marino, SOC
Bársony, Hungary, SOC
Begaj, Albania, SOC
Belohorská, Slovakia, EDG
Biga-Friganovi?, Croatia, SOC
Billing, Sweden, EDG
Björnemalm, Sweden, SOC
Blaauw, Netherlands, LDR
Brînzan, Romania, SOC
Büchel, Liechtenstein, EPP/CD
Calner, Sweden, SOC
Chapman, United Kingdom, EDG
Dees, Netherlands, LDR
Dmitrijevas, Lithuania, NR
Duka-Zólyomi, Slovakia, EPP/CD
Eversdijk, Netherlands, EPP/CD
Frimannsdóttir, Iceland, SOC
Gjellerod, Denmark, SOC
Hajiyeva, Azerbaijan,EPP/CD
Haupert, Luxembourg, EPP/CD
Herczog, Hungary, SOC
Higgins, Ireland, SOC
Holovaty, Ukraine, LDR
Huseynov R., Azerbaijan, EPP/CD
Jaskiernia, Poland, SOC
Judd, United Kingdom, SOC
Juri, Slovenia, SOC
Kirkhill, United Kingdom, SOC
Lörcher, Germany, SOC
Lotz, Hungary, LDR
Podobnik, Slovenia, EPP/CD
Položhani, “the former Yugoslav Republic of Macedonia”, EDG
Ponsonby, United Kingdom, SOC
Popovski, “the former Yugoslav Republic of Macedonia”, SOC
Poptodorova, Bulgaria, SOC
Reimann, Switzerland, LDR
Rise, Norway, EPP/CD
Shishlov, Russia, LDR
Simonsen, Norway, NR
Št?pová, Czech Republic, SOC
Szinyei, Hungary, EPP/CD
Tevdoradze, Georgia, EDG
Van’t Riet, Netherlands, LDR
Vis, United Kingdom, SOC
Wurm, Austria, SOC
Yañez-Barnuevo, Spain, SOC
Zvarych, Ukraine, EDG
Zwerver, Netherlands, SOC
_________________

Total =  50
 



 
 

1            SOC: Socialist Group

                EPP/CD: Group of the European People’s Party

                EDG:European Democratic Group
LDR : Liberal, Democratic and Reformers’ Group
                UEL : Group of the Unified European Left
                NR : Not registered in a group

 




 

Doc. 8860 vom 6.10.2000
 

Entschliessungsantrag von 2000 McNamara ua
http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.coe.int%2FDocuments%2FWorkingDocs%2FDoc00%2FEDOC8860.htm
 
 

 
Doc. 8860
6 October 2000

 
 

Motion for a resolution

presented by Mr McNamara and others

This motion has not been discussed in the Assembly and commits only the members who have signed it


1. The Assembly is concerned at a proposition for a new law which would restrict religious freedom and which has been proposed and is close to final adoption in France.
2. On 30 May 2000 a law proposition was introduced entitled “To reinforce the prevention and repression of groups of a sectarian character” (à renforcer la prevention et la repression à l’encontre des groupements à caractère sectaire). In an unusually short time period the law proposition was examined and passed by the Law Commission of the French National Assembly on 14 June and shortly after voted by the National Assembly on 22 June.
3. The purpose of this law appears to be the targeting of religious minorities which are derogatorily referred to as “sects” throughout the proposal. The Parliamentary Assembly’s own recent study of the phenomena (Recommendation 1412, June 1999) specifically disclaimed this approach towards religious minorities and urged member states not to use such discriminatory language:
« the word « sect » has taken on an extremely pejorative connotation. In the eyes of the public, it stigmatises movements whose activities are dangerous either for their members or for society. Today, this world contains dozens, perhaps even hundreds, of larger or smaller groups, with various beliefs and observances, which are not necessarily dangerous or prejudicial to freedom. It is true that among these groups are some which have committed criminal acts. Nevertheless, the existence of a few dangerous movements is not enough to condemn all the rest. Hence we can refer to groups of a “religious, spiritual or esoteric” nature. Thus the various facets of beliefs are accommodated in a general formula which is not negative per se.”
4. In a democratic society laws cannot be written to target a sector of society simply because they are unpopular or out of favour with the current political powers. Such conduct contravenes the right to non-discrimination on religious grounds protected by Article 14 of the European Convention on Human Rights in conjunction with other rights specified in the Convention, such as the right to freedom of thought, conscience, and religion guaranteed by Article 9; the right to freedom of association, including the right to form minority organisations guaranteed by Article 11 of the Convention, as well as Section II, Article 6 of the Council of Europe’s Framework Convention on Minority Rights.
5. Furthermore, creating new penal offences which are not based on any accepted legal or scientific evidence and which focus only on targeted minorities, especially when this concerns a fundamental right, opens the door to discriminatory and intolerant practice that could undermine the very basics of democratic society.
6. Due to the urgency and the potentially widely-damaging effect that this law could have, the Assembly calls:
i. upon members of the French Senate and the National Assembly to remember that France, as a full member of the Council of Europe, is committed to the European Declaration of Human Rights and that freedom of expression, religion and association are basic guaranteed rights which must be protected by the state;
ii. for a Rapporteur to be assigned to investigate the provisions of the law and determine whether they are in line with the European Convention on Human Rights and other Council of Europe and international human rights standards and to investigate complaints concerning religious discrimination.
Signed : [1]
McNamara, United Kingdom, SOC
Bársony, Hungary, SOC
Browne, Ireland, LDR
Cox, United Kingdom, SOC
Daly, Ireland, LDR
Etherington, United Kingdom, SOC
Fyfe, United Kingdom, SOC
Jaskiernia, Poland, SOC
Jurgens, Netherlands, SOC
Lloyd, United Kingdom, SOC
Moeller, Denmark, EDG
O’Hara, United Kingdom, SOC
Solonari, Moldova, SOC
Vis, United Kingdom, SOC



 
 
[1]SOC: Socialist Group
EPP/CD: Group of the European People’s Party
EDG: European Democratic Group
LDR : Liberal, Democratic and Reformers’ Group
UEL: Group of the Unified European Left
NR: not registered in a group
 
 
 
 
 
 
 
 


Impressum:


1. Version dieser Seite installiert am 20.11.2002


Verantwortlich für Inhalt und Gestaltung:
Ingo Heinemann
D-53579 Erpel Grabenstrasse 1
Tel. 02644-98013-0
Fax 02644-98013-1
Email: Ingo.Heinemann@t-online.de

Diese Website wurde eröffnet im September 1998