Video and text of the paper by Professor Germana Carobene, member of the Scientific Committee of FOB, at the International Convention, Law and Freedom of Belief in Europe, an arduous journey, held in Florence on 18-19 January 2018.
Religious Affiliation and Legal Reaction in a democratic, pluralist and tolerant society
ABSTRACT: A reconsideration of the problems of the protection of individual liberty arising from a recent decision of the Criminal Court of Nuoro in July 2017, with particular reference to membership of religious movements. In this case discussion centred on whether membership of a minority movement could be considered in relation to the seizure and ill-treatment of a young woman. Even though it had obtained considerable visibility in the media, centring on the dangerous nature of the movement, the Court’s findings made it possible to exclude the above concerns in their entirety with the declaration that the factual basis of an offence did not exist and that the movement was entirely unconnected with the facts of the case.
From the 1970s onwards public attention, fuelled by notorious events reported in the news, has been directed towards the observation of new religious movements on the basis of theories of “brain washing”. In Italy the discussion has had a particular resonance with the decision of the Constitutional Court of 1981 when it declared undue influence to be unconstitutional. The Court held that even though it did not exclude its existence it did exclude its punishment because of the impossibility of delineating a juridical description whose outlines were sufficiently clear and well-defined. It is well-known however that France and Belgium have recently introduced specific provisions of criminal law creating offences of “sectarian drift” and providing protection against abus de faiblesse in particular.
In the face of those seeking to criminalise religious movements, a more fruitful approach would be to fit the individual cases within the existing structures of the ordinary criminal law, penalising only behaviour in breach of the provisions in force. The value of secularism within a democratic, tolerant and pluralist society must indeed, be founded on a fundamental axiom,: to believe in people’s ability to act entirely consistently with their own ethical values.
Religious freedom, with particular reference to affiliation with new religious movements, provides an interesting perspective for the assessment of the effective guarantee of rights in democratic political systems. [1] Indeed it is accepted that this freedom, connected with the freedom to express and disseminate one’s thoughts, represents the “keystone of the democratic order” [2], the fundamental value of so-called pluralism in its dual meaning of active and passive freedom, adopted with the status of an overarching principle and forming part of the genome of democratic constitutions. The difficulties experienced by public authorities in managing such questions are currently demonstrated by a series of governmental and parliamentary initiatives in many European countries, motivated by the need to understand the phenomenon, by the desire to protect the weak and easily influenced and by fear of external and deviant pressure on the exercise of individuals’ free will and on their powers of self-determination by sects considered dangerous and with implosive tendencies. [3]
A recent decision of the Criminal Court of Nuoro handed down in July 2017 has opened the way to reconsider such problems. The case involved the discussion of whether membership of a minority church could be taken into account in relation to the seizure and ill-treatment of a young woman. Even though it had attracted considerable media attention, centring on the dangerous nature of the movement, the Court’s findings made it possible to exclude the above concerns in their entirety with the declaration that the factual basis of an offence did not exist and that the allegation of the church’s involvement was entirely unfounded. [4] The anomaly of this case, classifiable under criminal law as unlawful detention and ill-treatment, was the continual judicial references to the religious affiliation of the alleged offenders as if their criminal conduct were attributable to such affiliation and not to non-religious unlawful acts. [5]
Currently such problems are in part changed and amplified by the emergence of the phenomenon of proselytisation by some Islamic fanatical fringes which sing the praises of jihad and encourage the commission of terrorist acts. These are new phenomena for the European juridical fabric including as a result of the special nature of Islam, which is not just a single religious experience but involves the individual’s entire existence. [6] Such groups have been considered as truly destructive sects, stimulating a reconsideration of the limits on religious freedom and leading a number of European countries to enact specific and dangerously authoritarian anti-terrorism legislation. [7]
This has allowed further reflections on the public fear of so-called “sectarian criminality”. It is well-known that such phenomena can be dated back to the 1970s when public attention, fuelled by dramatic events in the news [8], was drawn to the observation of new religious movements and to the related psychological and social implications of membership of such groups prior to the involvement of the law. This is not the place to emphasise the continuing confusion and, sometimes, the inter-changeability of the terms new religious movements, cults and sects where the negative connotations of these terms are clear, usually associated with behaviour considered deviant, within given cultural and juridical categories. [9] It is important in any case, to emphasise that currently the use of the term “new religious movement” is preferred which does not present an immediate ideological colouring, maintaining a neutral attitude of greater respect to these new ways of structuring society.
The phenomenon now also affects European countries and provides jurists interested in the question with interesting points of reflection particularly with regard to criminal implications and (real or presumed) personality manipulation, right up to so-called brainwashing. [10] The basic analysis seems to have been influenced for a long time by an attitude of mistrust in relation to these movements deriving from the defence of traditional religiosity and closure against new forms of, and approaches to, the transcendental, emphasising the element of coercion, if not indeed outright suppression of individual liberties in these new forms of religious communities.
The theories of brainwashing, more precisely defined as coercive persuasion, have their remote origins in the difficulties experienced in explaining choices which appear to society to be unclassifiable and inexplicable. Faced with the impossibility of finding reasons for given behaviour by reference to common sense categories, the preference has been to maintain that such phenomena have to be associated with forces external to the person concerned, forced to act without being fully conscious of his or her acts. This problem has interested many countries and international organisations over recent years - it is enough in this context to recall the report on sects drawn up by the European Parliament in 1999. [11] France was the first, from 2001, to feel the need for more complete protections under the criminal law for individuals to deal with the so-called fraudulent exploitation of a state of ignorance or weakness – a concept considered preferable to the imprecise definition of “mental manipulation”, translating the above into a special law [12]; ten years later in 2011, Belgium introduced a similar new criminal offence with a supplement to its criminal law code. [13]
In Italy the debate relating to psychological coercion had a particular resonance following the decision of the Constitutional Court in 1981, declaring that Article 603 of the Italian Criminal Code which rendered “undue influence” a criminal offence in circumstances where anyone “subjects a person to his power in such a way as to reduce him to a total state of subjection”. [14] Many objections were advanced in relation to this provision of the law from the early stages of its preparation when fears were expressed that the indeterminate nature of the provision could give rise to “excessive and dangerous interpretations”. [15]
The Court emphasised that the discussion had concentrated, on the one hand, “on the intelligibility of the concept and, on the other, on whether the investigation that the phenomenon hypothesised by the legislature could be properly assessed by the interpreter on the basis of rationally admissible criteria in accordance with the current state of knowledge and experience”. Article 25 of the Constitution, a juridical point of reference in criminal matters, made it possible to emphasise that “consequential to the said principle, there is a requirement on criminal law ... to define the criminal offence precisely so that the party responsible for its interpretation, when matching actual circumstances to a legal provision, is able to express a judgement of correspondence based on foundations subject to verification”. In the light of these considerations the Court described Article 603 “as a floating mine loose within our legal system which could be applied to any facts implying the dependence of one human being on another”.
The re-introduction of an offence involving an unspecified course of conduct is particularly problematic and undoubtedly dangerous from the legislative point of view especially when also connected with a result which is both imprecise and impossible to render precise in accordance with standards of juridical certainty. If, indeed, the paradigm for offences of an unspecified course of action is that of murder, such an offence is nonetheless connected with an event of absolute certainty such as the death of a person. In the above case however, concepts such as “conditioning of the personality” or “state of subjection” do not represent events characterised by the axiomatic necessity of certainty and make the identification of the criminal conduct complex to say the least.
Influence and “psychic subjection” are “normal” elements in relations between human beings. This allowed the Court to emphasise the indeterminate nature of the provision, thus concluding that Article 603 had to be struck down given that it made provision for “a hypothesis which in practice could not be verified in relation either to its performance or its result since the activities which had to be carried out in order to reduce a person to a total state of subjection could neither be identified nor ascertained, and further it was not possible to define such a state objectively, the total effect of which as described in the legislation, has never been judicially ascertained … Again, it was not possible to demonstrate, on the basis of the current state of knowledge and experience, that people existed who were capable of achieving the total subjection of another person by purely psychological means”. In effect, the Court excluded the possibility of punishing undue influence but not its existence when faced with the impossibility of describing a legal concept of the offence delineated in clear and definite terms.
The technical problem turns on the dialectic relationship between persuasion and suggestion. [16] In psycho-analysis the first is defined as the exercise of ascendancy by one person over another which does not appeal to the concept of authority. Thus, persuasion is not a process of convincing which aims to induce another individual to act against his or her will by pressuring it or indeed, nullifying it by the use of violent means: threats, blackmail or a sense of guilt. It takes the form of an action not damaging the other’s liberty which tends to bring about a change of opinion solely by the transfer of ideas.
Reference to suggestion raises questions of greater delicacy and complexity. It tends to operate through the total transfer of ideas from one person to another, eliminating any possibility of critical analysis but above all, it takes the form of a tendency by the recipient of the suggestion to implement the ideas so received, taking them over as if they were his or hers. The difficulties in separating the two concepts is abundantly clear. While they may be possible to define at a theoretical level, they are unable to provide support for the party responsible for interpretation in the assessment of the phenomenon in practice.
In the United States the discussion of these concepts and of “brainwashing” [17] was particularly intense during the Cold War as an attempt to explain belief in communist ideology, then employed subsequently to delineate persuasion techniques for affiliation to religious sects, [18] emphasising the intrinsic dangerousness of such sects for society. The models of brain-washing have, however, been definitively superseded in the most recent psychological guidelines in that they represent a category which is ill-defined and indefinable. [19] Psycho-analytical observations prefer to emphasise that analysis concerned with membership of such organisations must be concentrated for the most part on the subject’s personality. It is pointed out, indeed, how more or less accepted and acceptable forms of persuasion may easily be exercised in many types of social structures ranging from families to other communities.
The different explanations for such affiliations appear to have been developed along an axis of passivity-activity. [20] The paradigm of passivity tends “to apply to those who have newly joined religious movements who are the victims of induction, manipulation, coercive persuasion, ignorance or collective psychosis with a more or less accentuated psychiatrisation of the problem”. [21] The opposite, active model concentrates attention on an active subject in the search for responses which traditional religiosity is unable to satisfy, whose needs are at the borderline between religious, transcendental and psychological expectations, for a means of construction of themselves and their own identity. [22] Another archetype is introduced between these two opposing positions, definable as an intermediate model, “who takes account of the interactional field of inductions from the exterior and the subject’s internal positions … developing himself on the basis of the construct of transitional phenomena … capable of making a psychological evaluation as he or she gains increasing personal autonomy and maturity, regarding the specific and individual modalities of conversion, membership and cohesion of religious groups”. [23] If the subject’s conduct, following an alleged psychological conditioning, is characterised by destructive or criminal acts, whether for the subject or for others, with dysphoric effects on the individual, we are in the psychological context of manipulation or undue influence in which it is considered that the subject would never have carried out such acts unless as a result of psychological pressure of such a nature as to distort his or her actions, exercised by persons with a strong charisma and power of suggestion. It is thus necessary to have a clear idea of the distinction between persuasion and manipulation. In the first case the subject is free to choose whether to listen or not, to accept the other’s reasons or not, in substance, he has freedom of choice.
The line between education and undue influence is in free will, which experts consider to be made up of a biological component and educational, cultural and social conditioning. It is also important to emphasise that religious experience is an extremely complex phenomenon which involves a variety of thoughts, emotions, sensations and behaviour. There is not a single area of the brain devoted to religious experience but a whole system, influenced by a multitude of social-cultural factors. [24] It is thus essential also to give consideration to the context in which it takes place, supplementing the analysis with data from other areas of investigation such as evolutionary psychology, anthropology or cognitive science in the hope of fully understanding the complexity of this phenomenon, for use as the basis for the connection of a possible juridical category.
The Italian parliamentary bill on mental manipulation, currently before the Senate’s Justice Commission, appears to retrace, even though with a number of additional clarifications, the provisions of Article 630 of the Italian Criminal Code struck down by the Constitutional Court. [25] The report by the promoter from the majority states that the provision will expressly define the means and modalities (violence, threats, chemical means, surgical operations and psychological practices) of such a nature as to produce a clear and defined event: “conditioning of the subject’s personality leading to a state of subjection which excludes powers of judgement and to remove one’s self from being imposed on by another ... an event must be involved which produces seriously prejudicial acts”. [26] Under the old Article 603 the event consisted in a “total state of subjection”, in the current bill, the effect of the conduct consists in “placing someone in a state of continuing subjection of such a nature as to exclude or greatly limit that person’s freedom of self-determination”. The terminological amendments do not however, correspond to an analogous substantive change of such a nature as to make the identification of the commission of an offence in a particular case easy. Notwithstanding the addition of the above specifications indeed, doubts and uncertainties have already been expressed during the Parliamentary debate, centred firstly on doubts as to its constitutionality but also on considerations of a wider, more philosophical nature with reference to the categories of secularism and pluralism, in effect, the founding values of the Italian legal system.
Indeed, the reference to “techniques of personality conditioning or suggestion” do not appear sufficiently certain or definable just as the provisions defining the consequences of criminal action which have to be translated into “a state of continuing subjection of such a nature as to exclude or greatly limit freedom of self-determination”, do not seem very different from the undue influence provisions struck down previously. Provision has also been made for special aggravating circumstances when the offence has been committed “in the ambit of a group which promotes or practices acts designed to create or exploit psychological or physical dependence”. The true discrimen of the offence is thus connected to the arbitrary interpretation of the investigation which will be required to assess the positive or negative nature of the hypothesized conditioning and the dependence that this may have caused. Indeed it appears difficult to identify and punish mental manipulation in the context of the indefinite nature of the juridical good to be protected and the manner in which this has been attacked.
There is no denying the difficulties faced by the legislature in this most delicate of fields, in the search for a reconciliation of the different requirements between those who are the victims of the suggestion of given messages and the freedom of choice in joining given ideologies.
The identification of a new criminal offence should be effected on two levels in order to avoid dealing with the problem of the legitimacy or otherwise of a particular religious persuasion, limiting itself rather to the latter’s compatibility with the values and principles of importance set out in the Constitution and the criminal law. The risk of arbitrary interference in a sphere which so clearly relates to the individual and is so personal to the latter, is nonetheless so great that there can be no support for the introduction of new types of offence. In the face of those wishing to criminalise the phenomenon of new religious movements as a whole, a form of action which would be both more correct philosophically and of greater use for a precise juridical interpretation, would be to fit individual cases within the scope of the ordinary law, punishing only that conduct in breach of the existing criminal provisions by reference to Article 600 (reduction into slavery), Article 640 (fraud) and Article 643 (exploitation of persons suffering from incapacity).
A democratic state which includes its secular nature as part of its juridical fabric, should guarantee its neutrality in relation to different religious persuasions, encouraging all possible extrinsic characteristics requisite to the fundamental right of freedom of religion, one of the value parameters of greatest importance for the level of freedom to be protected by a civil community. From this perspective any form of interference or mistrust employed against movements which come within the ambit of religiosity must be avoided. Social alarm connected to a variety of faith-based practices cannot and should not justify granting a power of interference to public authorities. The protection of a person’s freedom of self-determination cannot give rise to the suppression of subjective rights of an equal level and dignity (such as the freedom of speech, religious and political proselytisation etc.), and must not lead to an imbalance in majority/minority relations, with the encouragement, or indeed, the creation, of forms of discrimination against the latter. [27]
A serious juridical consideration of religious freedom can only be conducted on the basis of an affirmation of a conception of mankind as inexorably potential and hence free and responsible. Religious freedom must therefore be understood as the expression of individual emancipation with the only contextual limit being its juxtaposition to other freedoms, or rather, to other codifications of individual liberty. This latter aspect indeed, cannot be legislated for in abstract terms. What is important here is only the juridical consideration of the management of the juridical codes. A firm juridical response is required to “cultophobia” [28] and to the creation of the sense of danger of sectarian deviance, and the sense of the danger of sectarian deviance created through forms of persuasive communication. Such response must clearly emphasise the individual responsibility for criminal conduct. Free will must be protected from any interference and restriction but above all, it is necessary to understand the significance of the use of criminal law in a religious context.
In the modern criminal law systems of western democracies, religion has always been considered to be an absolute value to be protected, part of the founding values used in the organisation of society. It is by now accepted that religion’s claim to public importance is, of itself, in line with the principle of secularism. Finally, it is important to emphasise how the value of this principle is founded on the fundamental and axiomatic importance of the belief in people’s capacity to act freely in full observance of ethical values – representing the tendential aim of every pluralist society incorporating both the principle of the inviolability of a number of human rights and the importance of cultural/religious pluralism. [29] The definition of religious freedom must thus include the value of the free formation of an individual’s conscience and religious affiliation, in observance of the interior needs of individuals to find responses and to manifest such internal beliefs in society. If it is true that no religion can claim to violate the personality and liberty of individuals, it is equally true that no-one is permitted to limit such liberty even in the name of a true/presumed secularism of the state. [30]
Professor Germana Carobene
Notes
[1] ⬆︎ The recognition of a function of religion is not new - from the well-known Marxist conception of the same as “opium of peoples” to its recognition as a fundamental element of social cohesion, up to the latest sociological theories which prefer to emphasise it as an expression of human transcendence, not easily classifiable in the usual functional categories: cf. K. MARX, Per la critica della filosofia del diritto di Hegel, on K.MARX- F. ENGELS, Sulla religione, Roma, 1969, p. 29 ff.; E. DURKHEIM, Le forme elementari della vita religiosa, Meltemi, Sesto S. Giovanni (MI), 2005. Cf. also N. LUHMANN, Funzione della religione, Morcelliana, Brescia, 1991 for which religion manifests the non-exhaustiveness and contingency of the world, the unrepresentable, the transcendent, through contingency formulas.
[2] ⬆︎ Cf. Costitutional Court, n. 84/1969, in http://www.giurcost.org/decisioni/1969/0084s-69.html.
[3] ⬆︎ France, after having commissioned reports and studies, enacted a law on 12 June 2001, Loi tendant à renforcer la prévention et la répression des mouvements sectaires portant atteinte aux droits de l’homme et aux libertés fondamentales, published on legifrance.gouv.fr. Other European countries like Belgium and Switzerland have commissioned specific reports on this subject: cf. Rapport de la Commission d’enquête Parlamentaire de Belgique sur les sectes, on 1997, on www.dekamer.be and Rapport du Conseil National Suisse, 1999, sur les “sectes” et mouvement endoctrinants, published on www.prevensectes.com/rapports.htm.
[4] ⬆︎ The decision of the Court of Nuoro (Italy), n. 696/2016, filed on July 24, 2017, in which the Court also emphasised that the Church of Scientology was entirely unconnected with the case under consideration. Page 8 of the decision.
[5] ⬆︎ A similar decision from the case law is to be found in an unreported decision of the Court of Matera which acquitted four people in the religious community “Cuore immacolato di Maria - Casa del divin fanciullo”, founded in the 1990s. The charge was criminal association with the intention of the commission of offences against the person such as provoking a state of incapacity. In this case too one can see evidence of alarm within the community, solicited by the family members of the presumed victims, when faced with a new religious movement.
[6] ⬆︎ Cfr. S. FERRARI, Lo spirito dei diritti religiosi: Ebraismo, cristianesimo e islam a confronto, Il Mulino, Bologna, 2002. In Islam “la condición religiosa afecta a la ciudadana, al apóstata, al que abandona el Islam, aún en países donde no rigen las sanciones penales, se le priva de parte de sus derechos civiles”: Z. COMBALÍA SOLÍS, Nuevos desafíos sociales y jurídicos derivados de la presencia el Islam en les sociedades occidentales del siglo XXI, in Albolafia, Revista de Humanidades y Cultura, 5, 2015, in particular page 115.
[7] ⬆︎ A. LÓPEZ- SIDRO LÓPEZ, Yihadismo y libertad religiosa. Reflexiones desde la jurisprudencia espanola y de TEDH, in Rev.gen. derecho canónico y derecho eclesíastico del Estado, 45, 2017, pages 1-66 notes that jihadism has all the characteristics of a sect: religious affiliation (which is not just a façade but real); fanaticism, capture and proselytising, close groups with few members, charismatic leaders and criminal acts,. Cf. also J. DE LA VEGA-HAZAS, El complejo mundo de las sectas, Grafite, Bilbao, 2000. The Spanish Constitutional Court has referred to the danger of sects characterised for the most part by co-option of members with illegal procedures: cf. STC, 46/2001, of 15 Feb 2001 (BOE, no. 65, 16 March 2001): “no se puede ignorar el peligro que para las personas puede derivarse de eventuales actaciones concretas de determinadas sectas o grupos que, amparándose en la libertad religiosa y de creencias, utilizan metodos de captación que pueden menoscaber el libre derarollo de la personalidas de sus adeptos, con vulneración del art. 10.1 de la Constitición. Poe ello mismo, en este my singular contexto, no puede considerarse contraria a la Constitución la exeptional utilización preventiva de la citada cláusola de orden público, siempre que se oriente directamente a la salvaguardia de la seguridad, de la salud y de la moralidad públicas proprias de una sociedad democrática”. In a decision of the Spanish Supreme Court STS, 17 February 2017, in https://supremo.vlex.es/vid/670489689, such groups were defined as a “comunidad ideológica de base patogena” and it underlined the fact that religion should be understood as based on an ideology when its ends are not purely spiritual but when it pursues the transformation of society as its objective.
[8] ⬆︎ In this context it is possible to think of the following: the dramatic mass suicide of the followers of the Reverend J. Jones in November 1978 in Jonestown, Guyana involving more than 900 people; more recent cases include the mass killing of the Branch Davidians in 1993 in Waco, Texas involving the deaths of 80 sect members, that in the following year taking place in Switzerland and Canada with the death of 53 members of the Order of the Solar Temple and lastly, the events of 1997 in San Diego, California with the deaths of 50 members of the Heaven’s Gate cult: cf. M. INTROVIGNE, Idee che uccidono. Jonestown, Waco e il Tempo solare, Milano, 1995; E. POZZI, Il carisma malato. Il People’s Temple e il suicidio collettivo di Jonestown, Napoli, 1992.
[9] ⬆︎ Cf. in general J.F. MAYER, Nouveaux mouvements religieux: une perspective historique et interculturelle, in AA.VV., Diritti dell’uomo e libertà dei gruppi religiosi. Problemi giuridici dei nuovi movimenti religiosi, S. Ferrari (ed), Padova, 1989, page 17 et seq.; G. FILORAMO, I nuovi movimenti religiosi. Metamorfosi del sacro, Bari, 1986; M. INTROVIGNE, Le nuove religioni, Milano, 1989; M. INTROVIGNE - J.F. MAYER - E. ZUCCHINI, I nuovi movimenti religiosi. Sette cristiani e nuovi culti, Torino, 1990; E.PACE, Le sette, Bologna, 1997.
[10] ⬆︎ Psychological analysis has shown how this latter concept has immediately taken on a negative meaning, indicating all the techniques of brain programming which are associated with phenomena such as isolation from the world, total dependence on authority and physical and psychic debilitation also obtained by sleep and food deprivation.
[11] ⬆︎ Cfr. M. INTROVIGNE, Rapporti parlamentari e governativi sulle “sette” in Europa occidentale,1996-1999, in Quad.dir.pol. eccl., 1999, 2, pp. 397-421. In the Résolution du Parlament Européen sur la situation des droits fondamentaux dans l’Union européen, A5- 0223 del 2001, published on the site www.unadfi.org, one can read at point 49, the recommendation to Member States to maintain “une attention toute particulière aux activités parfois illégales ou criminelles de certaines sectes qui mettent en pèril l’intégritè physique et psychique de la personne” particularly through careful training and awareness programmes but above all through the implementation of judicial initiatives also involving tax and criminal law, capable of preventing the illegal activities of sects.
[12] ⬆︎ Loi 2001-504 du 12 juin 2001, published on the internet site legifrance.gouv.fr. Loi tendant à renforcer la prévention et la répression des mouvements sectaires portant atteinte aux droits de l’homme et aux libertés fondamentales.
[13] ⬆︎ The law, in addition to providing that such exploitation could be treated as an aggravating circumstance for a series of offences, also introduced a clause in the Criminal Code at Article 442 quater: 1. Anyone who, even though being aware of the physical or psychic weakness of a person, seriously alters such person’s powers of discernment and fraudulently exploits this weakness to cause such person to carry out an act or omission which seriously damages his physical or mental well-being or property, will be punished on conviction with imprisonment of between 1 month and two years and a fine of between one hundred and one thousand Euros or only one of such punishments. The punishments will be increased to imprisonment of between 1 month and four years and a fine of between two hundred and two thousand Euros or only one of the above punishments only in the following cases: (1) if the act or omission described in section 1 derives from physical or psychological limitations caused by the conduct of serious or repeated techniques capable of compromising the powers of discernment; (2) if the exploitation referred to in section 1 has been exercised against a minor, (3) if an illness which appears to be incurable, permanent disability in the performance of personal work, the complete loss of the use of an organ or serious mutilation is found to form part of the act or omission referred to in Section 1; (4) if the exploitation described in section 1 constitutes an act forming part of the main or auxiliary activities of an association. § 3. Punishment will be imprisonment for between ten and fifteen years if the person’s act or omission causes his death. § 4. The Court may, pursuant to sections 1 and 2, deprive any person convicted under such provisions in whole or in part, of the rights listed under the first paragraph of Article 31, for a period of between five and ten years. § 5. The Court may order that the judgment or a summary of the same be published at the expense of the convicted offender in one or more newspapers or in any other manner. The Law of 26 November 2011 entered into force on 2 February 2012, in http://www.ciaosn.be/Moniteur_belge-120123-loi_abus_faiblesse-111126.pdf. Other European countries, including Russia and the Czech republic, have imposed restrictive measures against sectarian movements, although not using the same kind of legislative provisions as those set out above.
[14] The sentence of the Italian Constitutional Court of 8 June 1981, n. 96, was published on Giust. pen., 1981, I, c. 226 ff.; on Riv.it. dir.proc.pen, 1981, p. 1147 ff. with note of M. BOSCARELLI, A proposito del "principio di tassatività", p. 1147 ff.; on Giur. Cost., 1981, p. 806 ff. with note of P.G.GRASSO, Controllo sulla rispondenza alla realtà empirica delle previsioni legali di reato, p. 808 ff.; on Dir. famiglia 1982, p. 311 ff. with note of F. DALL'ONGARO, L'illegittimità costituzionale del reato di plagio, p. 311 ff.
[15] Cf. Preparatory work for the penal code, Rome, 1928, vol. III, Observations and proposals, IV, in particular p. 245 ff. Cf. A. DESSI', Appunti in materia di plagio, on Arch.pen., 1961, p. 354 ff; G.M. FLICK, La tutela della personalità nel delitto di plagio, Milano, 1972, A. USAI, Profili penali dei condizionamenti psichici, Milano, 1996.
[16] “There are no secure criteria for defining either the one or the other activity or separating the one from the other and for ascertaining the exact boundary between them. If it is stated that in the case of persuasion the passive subject conserves the power of decision based on the arguments made to him and is thus capable of refusing and criticising such arguments while in the case of suggestion, the process of convincing is achieved directly and irresistibly, profiting from the other’s inability to criticise and decide, this implies an assessment not only of the intensity of the psychical activity of the active subject but also of its quality and results”.
[17] The increase in the use of the term seems to be due to an American journalist who worked for the C.I.A.: E. HUNTER, Brainwashing in Red China, New York, 1951.
[18] Cfr. R. LIFTON, Thought Reform and the Psychology of Totalism: A Study of "Brainwashing" in China, New York, 1963. The author proposes the abandonment of the term brain-washing, preferring that of “thought reform”, the official translation of the Chinese communist programme. “Thought reform” combines external force or coercion with an appeal to internal enthusiasm: cf. M. DI FIORINO, on Sette e nuovi movimenti religiosi, edited by E. FIZZOTTI, publisher Paoline, 2007, pages 129 et seq.; E.H. SHEIN- I. SHNEIER, C.H. BECKER, Coercitive Persuasion, New York, 1961. Cf. Also M.T. SINGER, Cults in our midst. The hidden menace in our everyday lives, San Francisco, 1995 which takes up the positions adopted by Lifton.
[19] This discussion has been taken up again in M. ALETTI – C. ALBERICO, Tra brainwashing e libera scelta. Per una lettura psicologica dei nuovi movimenti religiosi, in Ricerca di sé e trascendenza, edited by M. Aletti e G. Rossi, Turin, 1999, pages 34 et seq.
[20] Cf. M. DI FIORINO, Conversione ai "nuovi movimenti religiosi". Alcune annotazioni sugli studi psicologici, in Orientamenti Pedagogici, 39, 1992, pp. 185-192; M. INTROVIGNE, Nuove forme di religiosità e ricerca di autenticità religiosa, in Orientamenti Pedagogici, 44, 1997, pp. 1055-1068; L. PINKUS, I nuovi movimenti religiosi tra "anelito verso la libertà" e patologia, in AA.VV., Religione o psicoterapia? Nuovi fenomeni e movimenti religiosi alla luce della psicologia, M. Aletti (ed), Roma, 1994, pages 323-336.
[21] M. DI FIORINO- R. ERMENTINI- L. PARLAVECCHIO – F.M. SAVIOTTI, Lo psichiatra e il "brainwashing", on M. DI FIORINO, La persuasione socialmente accettata, il plagio e il lavaggio del cervello, vol. I, Forte dei Marmi, 1990, pages 142-158.
[22] Cfr. E. FIZZOTTI, Psicoterapia delle religioni, religione delle psicoterapie. Salute e salvezza tra religione e psicoterapia, and M. ALETTI, Religione o psicoterapia? Le ragioni di un confronto, entrambi in AA.VV., Religione o psicoterapia?...cit., rispectively pp. 142-158 and pages 13-21.
[23] The reference is to the theories drawn up by D.W. WINNICOT, L'apprendimento dei bambini, on Various Authors, Dal luogo alle origini, Milano, 1990, pages 147-155 and ID., La capacità di essere solo, on Various Authors, Sviluppo affettivo ed ambiente. Studi sulla teoria dello sviluppo affettivo, Roma, 1970, pages 29-39. These positions were taken up and developed by M. ALETTI, Per una lettura psicoanalitica del simbolo religioso. Verso nuovi punti di vista clinico-ermeneutici, on Various Authors, Simbolo, metafora,invocazione tra religione e psicoanalisi, Bergamo, 1998, pages 13-45.
[24] Cf. the interesting research effected in the field of neuroscience to explain the scientific effects of religious affiliation, in particular M. VAN ELK, The effect of manipulability and religion on the multisensory integration of objects in peripersonal space, on Cognitive Neuroscience, 2014, pages 36-44; ma anche M. VAN ELK – A. ALEMAN, Brain mechanism in religion and spirituality: An integrative predictive processing framework, in Neuroscience Biobehavioral Review, 73, 2017, pages 359-378.
[25] Parliamentary Bill no. 1777 – Provisions concerning the offence of mental manipulation – approved by the Senate Justice Commission on 4 March 2004, makes provision for the insertion of Article 613 bis of the Italian Criminal Code – Mental manipulation- : "Save where the facts constitute a more serious offence, anyone using techniques of personality conditioning or suggestion effected with material or psychological means who places another person in a state of subjection of such a nature as to exclude or greatly limit that person’s powers of self-determination will be punished on conviction by imprisonment for a period of between two and six years. – If the offence is committed in the context of a group which promotes or practices activities designed to create or exploit the psychological or physical dependency of the persons participating in the same or if the convicted offender acts for the purposes of committing an offence, the punishments imposed under the first paragraph will be increased by between one third and one half. The text and the report by the bill’s proposer, Senator E. Casellati (FI) can be found at the link www.senato.it search for DDL text.
[26] The speech of the honourable Ziccone (FI) during the parliamentary sitting of 16 June 2005, no. 820, in www.senato.it/leg/14/BGT/schede/Ddliter/18457.htm.
[27] At point 10 of the Recommendation 1412 (1999), the Council of Europe asked for the following: I. where necessary, the establishment or support of national or regional independent information centres on religious, esoteric or spiritual groups; II. the inclusion of information on the history of important schools of thought and on religion in general in school curricula; III. the use of the normal procedures of criminal and civil law against illegal practices carried out in the name of religious, esoteric or spiritual groups; IV. The guarantee of strict application of compulsory child education laws and the intervention of the competent authorities in case of non-compliance. V. where necessary, the encouragement of the establishment of non-governmental organizations for victims, or families of victims, of religious, esoteric or spiritual groups, particularly in Central and Eastern European countries; VI. The encouragement of an approach to new religious groups that fosters understanding, tolerance, dialogue and conflict resolution; VII. The taking of firm measures against any action that is discriminatory or that marginalizes minority groups. In the Résolution du Parlament Européen sur la situation des droits fondamentaux dans l'Union européen, A5- 0223 of 2001, published on the site www.unadfi.org, a recommendation is made to Member States at point 49 to devote “une attention toute particulière aux activités parfois illégales ou criminelles de certaines sectes qui mettent en pèril l’intégritè physique et psychique de la personne”, specifically through the careful management of information and awareness activities but above all by means of judicial, tax and criminal law provisions capable of preventing illegal conduct on the part of sects.
[28] B. K. KILBOURNE- J.T. RICHARDSON, Cultophobia, on Thought, 61, 1986, page 259 et seq. where it is ironically defined as a new mental illness.
[29] G.E. RUSCONI, Come se Dio non ci fosse, Einaudi, Torino, 2000. The author emphasises that the secularism of a democracy overlaps “with the public democratic space within which citizens, believers and non-believers, exchange their views ... What counts is reciprocal persuasion, and fair observance of procedures” (page 7).
[30] B. CROCE, Etica e politica, Laterza, Bari, 1945, in particular page 228.