29 November 1991

Doc. 6535

Report

on sects and new religious movements

(Rapporteur: Sir John HUNT, United Kingdom, Conservative)


Problem

The activities of certain sects disrupt public order.

Is there a need for legislation to curb the freedom of sects or even prohibit them? Or, on the contrary, is there a need for a framework within which sects can pursue their activities freely, provided that these match certain objective criteria?

Proposed measures

Consider the introduction of legislation to require the registration of all sects and new religious movements

Provide the public - and particularly adolescents - with maximum information on the nature, activities and aims of sects.

       I. DRAFT RECOMMENDATION

1.        The Assembly is concerned at certain problems connected with the activities of sects and new religious movements.

2.       It has been alerted by various associations and families who consider that they have been harmed by the activities of sects.

3.       It has taken account of the invitation, given to the Council of Europe by the European Parliament in the Cottrell report, to consider this problem.

4.       It has asked all the member states to indicate what practices they follow and what the legal problems are.

5.       It considers 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.

6.       It considers, however, that legislative and other measures should be taken in response to the problems raised by some of the activities of sects or new religious movements.

7.       To this end, the Assembly recommends that the Committee of Ministers call on the member states of the Council of Europe to adopt the following measures:

i.       consideration should be given to introducing legislation, if it does not already exist, which grants corporate status to all sects and new religious movements which have been registered, together with all offshoots of the mother sect;

ii.       objective factual information on the nature and activities of sects and new religious movements should be widely circulated. Independent bodies should be set up to collect and circulate this information;

iii.       to protect minors and prevent abductions and transfers abroad, member states which have not yet done so should ratify the European Convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children (1980) and adopt legislation making it possible to implement it;

iv.       existing legislation concerning the protection of children should be more rigorously applied. Additionally, those belonging to a sect must be informed that they have the right to leave;

v.       persons working for sects should be registered with social welfare bodies and guaranteed social welfare coverage, and such social welfare provision should also be available to those deciding to leave the sects.

       TABLE OF CONTENTS

Page

1. Introductory remarks ............................... 4

2. Aim of the report .................................. 5

3. What is a sect? .................................... 5

4. Is a sect a religion? .............................. 6

5. The legal status of sects in Council of Europe

member states ...................................... 6

6. Restrictions on the activity of sects in Council of

Europe member states and sanctions applied ......... 7

7. Case-law on sects .................................. 8

8. Should there be special laws or regulations on

sects? ............................................. 9

9. Conclusions ........................................ 10

1. Introductory remarks

Should this report have been called "freedom of religion" or "sects and new religious movements"?

The two motions for recommendations which provided the report with its starting point were headed "freedom of religion", but they both concerned sects. We shall see, in fact, that the two things are closely linked.

André Malraux's famous phrase, "The 21st century will be spiritual, or it will be nothing", is proving prophetic. As the 21st century approaches, sects are proliferating, while the fundamentalist tendencies inherent in all religions are growing stronger. The phenomenon may not be a new one, but it is growing and spreading internationally in a way which has often brought it to the headlines. Very recently, indeed, sects were reported to be threatening the very basis of government in Latin America.

Sociologists and churchmen who have looked at the reasons for the trend, have come up with two possible explanations which complement each other:

- firstly, there is a waning of interest in and support for

churches of the traditional kind, which are blamed for

failing to keep pace with social trends, losing their

purity and shedding their mystery, thus leaving a yawning

gap in the field of spiritual quest;

- secondly, secular alternatives to religion have not been

properly considered, and this has left an ethical void.

These two explanations may be put in a nutshell by saying that sects have taken advantage of the vacuum left by waning interest in the traditional institutions which once answered the great questions of existence.

Before we look at the problem in more depth, some preliminary points should be clarified.

The Rapporteur has deliberately chosen not to provide a list of sects, or to name and describe some of the best known. Lists of this kind can easily be found in published sources, such as the Vivien report, prepared for the French Prime Minister in 1985, on "Sects in France: expressions of moral freedom or means of manipulation?". Most sects are actually found in many countries, since the phenomenon undeniably has an international dimension.

Similarly, he has chosen not to describe the activities of these sects or the abuses of which some of them are accused, which are detailed in the Cottrell report presented to the European Parliament (doc. 1-47/84).

At one stage, it was also suggested that a hearing of representatives of sects might be organised. This would have spared the Assembly the criticism levelled at Mr Alain Vivien, namely that he had derived his information solely from the Ministry of the Interior, anti-sect groups and former members of sects and had not interviewed representatives of the various well known movements. It would have also met the wishes of sects themselves.

Various problems would, however, have arisen. It might have seemed that anti-sect movements should be heard to balance the hearing of sects. Above all, what sects should have been invited? Any choice would have been arbitrary, since there were no obvious criteria for making it - membership, public impact, controversies generated? There was a real danger of providing a platform for sects already well equipped to publicise themselves, which would have lost no time in making use of the "recognition" thus accorded them by the Council of Europe. Indeed, the Council of Europe's name is already being used by some such movements.

Finally and above all, your Rapporteur thought it unlikely that a hearing of this kind would have thrown much additional light on the phenomenon.

This was why two experts specialising in the question were called in: Mr Francis Messner, lecturer at the CNRS (France), (doc. AS/Jur (41) 9) and Mr Alan Tyrrell, Queen's Counsel of Gray's Inn and S H Hancox, barrister of the Inner Temple, London (doc. AS/Jur (41) 4).

The present report is based on their two reports and on replies to a questionnaire sent to all the delegations on the legal situation of sects in member states and the case-law to which they have given rise.

2. Aim of the report

In the light of the above and considering that he had all the information which he needed, the Rapporteur wishes to help to calm the debate and to make a number of practical proposals which, without being spectacular, should open the way to solutions.

His problem was that of deciding whether special legislation was needed to regulate the activities of sects or indeed, as some people would certainly like, to prohibit them.

We shall see why this approach cannot be recommended.

3. What is a sect?

The "Robert" French dictionary gives the following definition: "An organised group of people sharing the same doctrine within a religion", as well as a more up-to-date definition: "A group with a religious or mystical basis whose members live in a community under the psychological influence of one or more persons".

A study carried out in the Netherlands ("Overheid en nieuwe religieuse bewegingen") offers the following description:

- a group of people which has recently emerged in the spiritual

field, characterised either by a leader or by religious

conceptions or by a particular form of behaviour as a group

or by a combination of these aspects.

This study went on to distinguish three types of movement: oriental, evangelical and syncretic.

Alain Vivien, in his report, began by emphasising the difficulty, indeed the impossibility, of defining sects. He nonetheless drew a distinction between splinter groups of the major religions and groups or associations of a philosophical, spiritualist or mental development type, dividing them into three categories which overlapped with those previously mentioned, namely orientalist, syncretical and racist.

In other words, there is no generally accepted definition of the term sect. Most sects themselves object to this designation, which has acquired pejorative connotations and prefer the term new religious movement, or even religion. Be this as it may, and with all due respect to those who deny the existence of any connection between sects and religions, any attempt at definition makes it clear that there is indeed a link.

4. Is a sect a religion?

First of all, what is a religion?

Professor Jacques Robert, who had the task of summing up the Parmer Seminar on New Religious Movements (9-11 May 1988), did not think it possible to give a legal definition of religion, any more than of sects.

He did try, however, to list their essential components:

Religion, he said, consisted of two elements:

- one objective: the existence of a community, a legal

entity or a collective phenomenon;

- the other subject: faith.

To characterise religious belief, he selected the following criteria:

- reliance on divinity, a supernatural power;

- possibly, therapeutic value;

- the promise of happiness;

- a certainty.

In legal terms, the courts see then constituent elements of religion as: permanent ministers, a rite, a liturgy and a comprehensive and supernatural explanation of the world.

The "Robert" French dictionary offers the following definition: "Recognition by man of a superior power or principle on which his destiny depends and to which obedience and respect are due: intellectual and moral attitude which results from that belief, in conformity with a social model which may constitute a rule of life". It must be said that some of the constituents of religion recur in any attempt to define a sect, and some people who are fond of pithy formulas even say that religions are merely sects which have succeeded.

We shall see that national legal systems confirm this approach.

5. The legal status of sects in Council of Europe member states

In general, there is no special legal status for sects; they are protected by (constitutional or statutory) provisions guaranteeing freedom of conscience and religion. The separation of church and state also guarantees state neutrality towards both religions and sects, in countries such as France.

In that country, most sects take the form of non-profit making associations (under the Act of 1 July 1901, which normally exempts them from any form of supervision). This means that they are not subject to taxation.

Switzerland does not normally accord them the status of public law corporations.

Iceland makes it a conditon that associations must be registered before they can enjoy rights. There are at present 12 registered religious associations.

In the United Kingdom, religious associations may set up tax exempt charitable trusts if they match one of the classifications defined in law. The public authorities support an organisation called INFORM, which was set up to provide objective information on the true identity and nature of sects.

In Finland, sects or new religious movements are free to act once they have been registered as religious communities. Their articles of association are examined to ensure conformity with the law.

There is no special status in Belgium. Associations may exist in various legal forms: public interest bodies or non-profit making societies, for example.

The Spanish Parliament adopted a report on sects in February 1989, in which it made a number of recommendations to the government. Its recommendations are that the authorities should:

- monitor compliance with the law;

- supervise application of the statutes of organisations

applying for registration;

- study and adopt any amendments needed to the legal

system, especially as regards non-profit bodies and

charities, in order to facilitate supervision of their

financial and fiscal affairs;

- circulate information to magistrates, judges and tax

authorities on violations of individual liberties;

- provide specialised information concerning the

prevention and reporting of offences committed by

sects;

- draw up and apply very strict criteria for granting

subsidies, particularly to rehabilitation centres;

- appoint guardians for minors, especially those

abandoned by parents who have joined sects which may

prevent them from fully exercising their parental

authority and providing their children with the

necessary care;

- ratify international agreements on the abduction of

minors and generally disseminate information on sects.

The other member states refer to freedom of religion or to freedom of conscience and worship.

6. Restrictions on the activities of sects in Council of Europe

member states and sanctions applied

The delegations' answers to the questionnaire paint a fairly uniform picture: generally, there are no special restrictions on the activities of sects, which are protected by the principles of freedom of conscience and religion. Potential restrictions are thus the same as those which apply to that freedom.

Belgium, Switzerland, Denmark, France, Ireland, Luxembourg and Liechtenstein make compliance with public policy (ordre public) a condition. Public decency and/or morals must be respected in Belgium, Switzerland, Denmark, Finland, the United Kingdom and Ireland.

Some countries impose other conditions:

- Switzerland indicates that public policy (ordre public)

covers security, tranquillity, public health and morals and

good faith in business transactions, and that the

restrictions needed to protect public policy apply to

spoken and written propaganda, hawking or peddling and

collections. Some forms of religious therapy are

prohibited.

- Conformity with the law is a conditon in Belgium,

Finland, Luxembourg, Liechtenstein and

Norway. Presumably, this also applies even in

countries which have not expressly said so.

- In Cyprus, all religions whose teaching or rites

are not secret may operate freely.

- In Spain, the severest sanction is being declared

unlawful; banning is provided for in Finland and

Switzerland.

7. Case-law on sects

The delegations' replies indicate that there is very little case-law on sects.

Portugal points out, for example, that there can be no case-law on the activities of sects, in view of the declaration on the elimination of all forms of intolerance and discrimination based on religious or other convictions.

It does, however, speak of proceedings at present under way concerning the refusal of certain Jehovah's Witnesses to perform military service or, in some cases, alternative community service.

Norway speaks of accusations brought against the Church of Scientology, whose recruiting and funding methods are criticised.

Spain speaks of several cases, such as unlawful proselytism, duress, threats, offences against individual freedom and safety, fraud, tax evasion, currency fraud and employment offences.

The United Kingdom speaks above all of disputes concerning tax exemptions granted to charitable associations.

The courts in France have had to deal with complaints both from sects themselves and from individuals - relatives of members or former members - complaining of certain aspects of their activities.

Sects or their members base their complaints either on defamation or the exercise of freedom of religion.

Defamation is alleged when information on sects is published (see, for example, the judgment of 10 November 1982 of the Paris Regional Court, quoted in "Les Petites Affiches" of 27 April 1988). Some sects conceal their true activities or aims behind a cultural, philosophical or other facade, and accordingly regard any information on their true activities as defamatory.

In the case referred to, the court, having compared the documents issued by the sect itself with the claims made in the article complained of, concluded that those claims were true.

This brings us to one of the elements that distinguish a sect from a religion. While a religion implies free, informed consent on the part of those who join it, people joining certain sects may be free when they join it, but are not informed, and, once they are informed, they are usually no longer free.

As the father of one victim bitterly remarked, sects usually succeed because they advance under cover.

Another ground for complaints by members of sects concerns the exercise of freedom of religion. Thus, the European Commission of Human Rights has had to deal with several cases (1) concerning the practice of religion by sects or some of their members. All these complaints were declared unfounded, since they concerned specific practices beyond the reach of law and were thus covered by paragraph 2 of Article 9 of the European Convention on Human Rights. This paragraph provides for restrictions on freedom of religion, provided that these restrictions are prescribed by law and are 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.

And here we come to the nub of the whole problem of sects, namely the fact that they lie at the point where the balance between freedom (either individual or collective) and public order is upset.

The concept of public order is extremely hard to define, this being a highly subjective and variable notion, on which states enjoy considerable discretion.

This leads us to start thinking about sects as minorities. We must not forget that the main religions are legitimised in individual states by being mass religions (they were once state religions, and still are in some countries) and that the religious observances which they generate are imposed on the minority as a cultural phenomenon.

8. Should there be special laws or regulations on sects?

Most of the activities of which certain sects are accused constitute common law offences. And when manifest offences are repeated, a sect can be banned.

Even so, there are certain difficulties which should not be overlooked. In the case of minors, eg children of sect members, where the problem of initiating proceedings to protect them arises, two

measures are advisable:


(1) See, inter alia:

- Case 7805/77, 5 May 1979, Vol XXII, p. 244

- Case 2299/64, Vol VIII, p. 324

- Case 7705/76

- Case 8282/78 of 14 July 1980, D.R. 21, p. 109.

- firstly, states which have not yet done so should be urged

to ratify the European Convention on custody of children;

- secondly, public prosecutor's departments should be

given authority to institute judicial proceedings,

whenever this is not already possible.

The problem of a possible legal vacuum arises particularly in the case of adult "victims" of sects. This would seem harder to solve, since it involves questions of individual freedom and ethics.

Should there be regulations on "dangerous" sects as such? How to distinguish between them ? Should the risk be taken of interfering with the freedom of conscience or religion of a large number of people for the sake of protecting a minority?

Surely the solution should be to prevent rather than cure? Preventing would primarily mean informing the public for, as we have seen, sects are mainly dangerous because people know so little about them.

9. Conclusions

To permit genuine monitoring of their activities:

- sects should be obliged to register, indicating all their

offshoots, and a priori supervision should be possible on

the basis of their statutes;

- it should be possible to give the status of religious

or cultural associations to all movements whose aims

satisfy the relevant statutory criteria;

- information on the nature and activities of sects should

be provided, particularly for adolescents. Independent

bodies could be given the task of collecting and

circulating this information;

- to protect minors and prevent abductions and transfers

abroad, the member states should ratify the European

Convention on recognition and enforcement of decisions

concerning custody of children and on restoration of

custody of children (1980; STE 105) and adopt legislation

giving it effect;

- to protect members who work for sects - often without pay -

the authorities should ensure that they are registered and

enjoy social welfare protection, such as health insurance,

unemployment insurance (on leaving the sect), pension scheme

contributions, etc.

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Doc. 5737 and 5767, Reference No. 1568 of

1 July 1987

Draft recommendation: unanimously adopted by the committee on 13 November 1991

Members of the committee: Lord Kirkhill (Chairman), Mr Altug (Vice-Chairman), Mrs Ekman (Vice-Chairwoman), MM. Akçali, Amaral, Arnalds, Bindig, Brincat, Collette, Colombo, Columberg, De Decker, Espersen, Esteves, Fodor, Fuhrmann, Ghalanos, Gundersen, Stig Gustafsson, Hyland, Jansson, Karcsay, Mrs Lentz-Cornette, MM. Meimarakis, Negri, Nunez, Oehry, Petitpierre (Alternate: Mrs Haller), Pontillon, Posluch, Rodotà, Rokofyllos, Ruiz (Alternate: Cuatrecasas), von Schmude (Alternate: Zierer), Schwimmer, Sir Dudley Smith, Mrs Soutendijk van Appeldoorn, Mrs Staels-Dompas, MM. Stoffelen, Vogel, Ward, Worms.

N.B. The names of the members who took part in the vote are underlined.

Secretaries of the committee: Mr Plate and Ms Coin.