by Germana Carobene — associate professor of Ecclesiastical and Canon Law at the University of Naples "Federico II", Department of Political Sciences; councillor of FOB.
* Contribution subject to evaluation. Report presented at the Conference of the University of Milan, Excluded religious minorities. Religious pluralism in Italy between politics and law, 6 may 2021, Scientific Coordination professors S. FERRARI, C. CIANNITTO.
TABLE OF CONTENTS:
1. On the notion of religion, religious denomination and cult
2. The Church of Scientology and its framework
3. Jurisprudential problems in the recognition of Scientology
4. Configuration of the criminal association crimes
5. The plagio and the abus de faiblesse
6. The “anti-cult” movements. Concluding remarks
1. On the notion of religion, religious denomination and cult [⬆︎]
Sociological and philosophical investigations, which are prodromal to a juridical reflection, show a difficulty in the conceptual framing of the term 'religion', both by those who claim a knowledge, a behavior - secular, agnostic or atheist - and by those who, questioning the beliefs, symbols, systems of representation of reality, produced by a certain society, want to safeguard the objects of investigation, leading them back to a claim of unquestionable scientificity[1]. This term can, however, be used in its polyvalence, provided that it is not used to discriminate in a positive/negative sense the values and forms in which it is variously presented, since at its basis there must be the need to understand and protect the inmost area of individual freedom.
Talking about religion or religions means, therefore, highlighting a double difficulty or, even better, a double diversity: of the religious fact and of the theories about it, not only on the basis of the opposition between believers and non-believers, but also on the basis of the different perspective from which the phenomenon is observed (social, political, juridical).
History and ethnology bear witness to the universality and variety of religions[2] and this calls for two observations. Firstly, that this diversity is not incompatible with the principles and rituals of the different systems, the existence of which grounds the identity of the religious object; secondly, it is evident that it poses a problem of definition, ultimately to delineate the common element of the different religious forms, which allows them to be defined as such. Characteristic of religions is, therefore, the double need to define themselves, on the one hand, through the obligations of an individual discipline, and on the other, through a pattern of life that guides the latter, and this is even more evident in religions without God.
The juridical interest in the definition of 'religion' or 'religious denomination' has, moreover, a further objective, being, above all, fundamental in the dynamics between freedom of conscience and juridical equality[3]. In the philosophical-psychological analysis, conscience is delineated along an ambivalent line between a normative conception - in which it is an organ of production of values, constitutive of ethical rules - and a cognitive one - which would consist in an organ of knowledge of a moral law or a law of nature, already written down. The former admits the coexistence of a plurality of consciences; there will therefore be as many different normative systems as there are individuals with consciences, and thus an extremely fragmented picture will be created, which it will be difficult for legal systems to bring back into unity[4].
In our country, moreover, the dynamics of State-religious denominations relations, constitutionally structured along the lines of the concordat definition of relations with the Catholic Church, constitutes a point of reference but also a preamble, prejudicial to any innovation in relations with 'non-traditional' religious phenomena[5]. Under this perspective Scientology is a case in point to demonstrate the need of breaking the common categories of religious feeling. This was particularly evident in the well-known and lengthy trial in Milan against the movement, which can be considered paradigmatic for the definition and understanding of our concepts of freedom and democratic secularism[6]. This judicial path can be compared with the trials that took place in France and Belgium, which should be assessed together, since in all these cases the charges essentially concerned Scientology as a whole.
In modern societies, it is evident that the sociological definition of religion does not correspond to the juridical category. Moreover, the incompetence to univocally elaborate this concept is not accompanied by a “neutral” legislation but, on the contrary, by the provision of a series of rights to groups or categories, identified as religion, without, however, giving them the appropriate legal qualification. It is not, therefore, an important definition only on a theoretical level, but it has consequences in the concrete sphere, based on the demands for legal protection by subjects who claim forms of spirituality without affiliation to specific fideistic belongings.
While in the past the concept of religious denomination tended to coincide with the structures traditionally qualified as such, the transition to increasingly open and multicultural societies has imposed the adoption of a more inclusive approach, which has ended up challenging those parameters. It is not correct to start from the contraposition between cult and religion: it is well known that hairesis/αί́ρεσις in Greek, equivalent to the Latin secta, can be translated as option, opinion, cult. The word heresy originally designated, therefore, the choice or preference for a doctrine, before having a pejorative connotation that the Catholic Church has associated with it: that of a dissident belief. This, moreover, was echoed in the widely held ethnocentric idea that the ideology of others can only be aberrant or “abnormal” [7]. The issue becomes even more complicated when some legislations associate the noun 'cult' with the expression 'sectarian drift' in order to include in the penal system special forms of protection of individuals from potentially dangerous groups, without, however, being able to give it a precise qualification. It is characterized "par la mise en œuvre, par un groupe organisé ou par un individu isolé, quelle que soit sa nature ou son activité, de pressions ou de techniques ayant pour but de créer, de maintenir ou d’exploiter chez une personne un état de sujétion psychologique ou physique, la privant d’une partie de son libre arbitre, avec des conséquences dommageables pour cette personne, son entourage ou pour la société"[8]. The introduction - or attempted reintroduction - of this juridical category provides interesting grounds for reflection, especially with regard to alternative religious movements such as Scientology. This 'non-neutral' expression implicitly promotes a certain political agenda, justifying not only the establishment of information and opinion centers, but also of administrative units for the coordination of the fight against harmful sectarian organizations and, above all, the legalization of state security practices in this area[9]. This is based on a transformation of the conception of the object and the notion of dangerousness[10]. The use of the concept of "sectarian drift" offers, in fact, some significant advantages for the public authorities, as it allows them to overcome the operational difficulties inherent in the other designations, while offering the possibility of legitimizing the extension of dangerous control practices.
2. The Church of Scientology and its framework [⬆︎]
The Church of Scientology is one of the most recent religious movements that have settled in our system, born from the doctrinal elaborations of L. R. Hubbard, a charismatic character, writer of an infinite number of science fiction books, explorer around the world who, in the fifties of last century, published Dianetics in which he illustrated the fundamental principles of mind and spirit, considered a basic text of the movement. The book quickly became a best seller and from this an association was born, in Phoenix, the first real headquarters of that group which, developing rapidly, first in the U.S.A. and in various parts of the world, became, in 1954 in Los Angeles, the 'Church of Scientology'.
L. R. Hubbard believed he had found the means to develop a technology capable of freeing the very essence of the human spirit, providing evidence that all the procedures he had devised were indeed valid. Precisely because it meets all three criteria identified by scholars worldwide to determine the 'religious' nature of a movement - belief in a 'fundamental reality', practices directed towards understanding or attainment of that reality, and a community of believers - it is considered a faith in its own right.
The main core of the religiously oriented activities, with precise and differentiated characteristics according to the level, are training and auditing, carried out in classrooms called academies, with a qualified member of the denomination acting as supervisor. In more advanced levels of auditing, a special device, the E-meter, is also used to detect areas of spiritual distress and anguish in the believer and eliminate them. It is believed that a person's spiritual growth depends on the elimination of engrams (negativity). Together with courses and materials, this is the main source of income for the Church. In addition to auditing, there are courses, which are provided within the association itself and for which a fee is charged, which are displayed on price lists in the place of worship, and, finally, the possible taking of vitamins, saunas etc.
According to its founder's own definition, Scientology is an applied religious philosophy, the purpose of which is to bring the individual to an understanding of himself and his life as a spiritual being and in relation to the universe as a whole. It develops, therefore, a religious way of being human, which is realized in relation to the sacred and superhuman dimensions of life. L. R. Hubbard first stated that Scientology was neither a psychotherapy nor a religion, but a body of knowledge that, when used properly, leads to freedom and truth. Later, he would further specify that Scientology is a religion in the oldest and fullest sense of the word and that it is a religious wisdom rather than a religious practice. It establishes a spiritual path - referred to as "the bridge" - that marks man's progression to freedom. This process is the attainment of ideal harmony and is achieved through worldly activities. The ultimate goals - freedom, knowledge and harmony - thus present elements of affinity with oriental faiths, but Scientology, in addition to stating the ideal goals, also provides the practical means for their realization. It also presents elements of affinity with the alternative religious movements of antiquity, especially Gnosticism.
There are many critical elements that have emerged in the alternating judicial events involving the movement, especially in Italy, France and recently also in Belgium. The long Milanese trial, which lasted about twenty years, from 1991 to 2000, resulted in two judgments by the Court of Cassation and three second-degree verdicts[11]. In its first intervention, the Court of Cassation set out, as a firm point, the need to assess the religious nature of the movement, in order to understand the dynamics within the group and verify the existence of the alleged crimes. These concepts were further reiterated in the subsequent decision of the Court of Cassation, up to the last decision of the Court of Appeal, which acquitted the movement. In the French trial, however, which ended with the Cassation ruling in 2015, the Scientology Associations in France were hit, essentially leading to an indictment of the entire movement[12]. In Belgium, the 2016 first-instance ruling followed a different line of reasoning and denied the guilt of the Scientology-related associations.
IFirst of all, it should be noted that in all these proceedings, the difficulty of framing the movement as a true religious denomination has emerged, from which a series of consequences have followed. First of all, the identification of the status of adept of this denomination; the understanding of the famous 'personality test', which represents both a way of entering the movement and an instrument that the faithful use to verify their spiritual path; the management of the religious feeling and therefore, for example, the particular proselytism; finally, the spiritual progression (the “bridge”) through the use of methodologies (auditing) or mechanical instruments (the E-meter) or, again, the administration of vitamins. The misunderstanding of these phenomena has led to criminal charges in some cases: fraud, extortion, violation of privacy, abusive exercise of the medical or pharmacist's profession[13].
The second critical point, which raises different and more complex issues, is linked to the configuration of the crime of criminal association, which presupposes an accusation of the religion in toto, therefore, with a presumption of guilt of the defendants, as followers of the same. The third point, which is particularly interesting to highlight, is that clearly underlying these issues is the issue of mental manipulation or plagiarism. This is evident, from the reading of some of the most important judgments, albeit it remains in the realm of the “unspoken”. The last critical element is related to the cultural background of the concerned countries, which are linked to the religious cultures of the Jewish-Christian tradition and are suspicious of alternative religious movements. This has led, for example, in France and Belgium, albeit ten years apart, to the adoption of specific criminal legislation to protect the state of weakness of individuals against sectarian drifts. In addition to these regulatory measures, there is also, especially in these countries, the active presence of groups or governmental missions on the sectarian phenomenon, which create social alarmism, not always justified, acting as a sounding board for news that is not always reliable and, rather than protecting the individual against possible abuses, seem to want to defend society against external forms of interference/cultures.
3. Jurisprudential problems in the recognition of Scientology [⬆︎]
With reference to the first problem – whether Scientology can be considered a religious denomination - we must observe that a religious movement, in the world of law, is a “fact”, an axiom. Our Constitution, for example, uses the syntagm of religious denominations, only to highlight their equal freedom before the law, but does not provide any kind of indication of what its paradigmatic contents might be[14].
Jurisprudence has tried to provide definitions and, to this day in Italy, the point of reference continues to be the famous and lacunose decision of the Constitutional Court of 1993, which clarified some of the criteria on the basis of which it is possible to speak of a religious denomination: "it is not enough for the applicant to self-qualify as a religious denomination. Nulla quaestio when there is an agreement with the State. In the absence of such an agreement, the nature of a denomination may also result from previous public recognitions, from the statute that clearly expresses its characteristics, or in any case from common consideration"[15]. Article 1 of the Statutes of the Church of Scientology states that the association is non-profit-making, while Article 3 clearly states that “its purpose is to preach, practice and disseminate the Scientology religion”. And it is on the basis of these aims that the Court of Cassation, in its well-known and well-written 1997 judgment, recognized the association as a religious denomination, confirming the orientation of previous ordinary and tax jurisprudence. The risk to be avoided, in the absence of a correct interpretation of the concept of religious denomination, is that the “equal freedom” degenerates into a discriminatory, differently graduated freedom.
The first Italian judgment, related to the same trial on Scientology, of the Court of Appeal in 1993 had correctly started from the consideration that it must be absolutely indifferent whether L. R. Hubbard's doctrines could qualify or not as a religion since, like any other manifestation of thought, they must receive protection in our legal system[16]. Moreover, it was pointed out that the judge's task was not to assess the meaning and scope of the practices carried out by the association, but only to ascertain the lack of criminal relevance of the methodologies applied. However, even starting from these agreeable statements, the Court implicitly denied the religious nature of the movement, based on the consideration that the association's activities were characterized by the aim of acquiring significant amounts of money, in order to maximize profits. Again, it is not clear why the judgment defines religion as a complex of doctrines, and not as a complex doctrine, centered on the assumption of a supreme Being, using only the defining criteria of the Abrahamic religions. Such statements are axiomatic in nature: they are neither a fact nor an argument, and exclude religions without God or which in any case do not contemplate, solicit or promise God's direct intervention in human affairs, such as Buddhism.
Against these remarks, the first judgment of the Court of Cassation, in 1995, had stressed that the carrying out of a commercial activity, even if it was carried out to a significant extent, was in itself insufficient for a church to lose the connotation of a religious denomination[17]. Rejecting the observations of the second instance judgment, the Court of Cassation laid down a fundamental principle and clarified that the task of the judges had to be, first of all, to ascertain whether the Scientology organization was a religious denomination. The absence of such a notion in our legal system is not at all accidental, but inspired by the complexity and polyvalence of the same and by the consequent need not to limit with a pre-constituted, and therefore restrictive, definition the wide-ranging religious freedom guaranteed by constitutional law. This aim was rigorously pursued by the constitutional legislator, who never used the noun religion, preferring instead to use 'religious denomination', identifying on a philological level a group with a common profession of faith. This accentuates, on the one hand, the reference to the person and, on the other, the secular detachment from doctrines[18]. The Court of Cassation also correctly reiterated the impossibility of basing the religiousness of the movement on the lack of scientific or proper therapeutic purposes of auditing or other Scientology practices, considering that even the Catholic religion has ascetic and painful practices (e.g. flagellation): any religious path must disregard scientific evaluations because faith has nothing demonstrable.
In the French trial, the judges preferred not to discuss the religiosity of the group, following a logic that was absolutely acceptable. However, by not logically developing the argumentative path, and therefore not assessing the religiosity of the practices, they struck down the movement because it lacked scientific foundations, which obviously do not exist because they are unrelated to a religious path.
Even in the most recent Belgian trial, it was evident that the defendants' indictment was only related to their fideistic adherence[19]. The court noted that all elements of the case were based, in fact, on an assessment of the adherence, functioning and practices within the Church of Scientology, which would present all the characteristics of a dangerous cult, with the sole aim of unlimited enrichment, based on the strict application of its dogmatic principles. Most of the oral bill of indictment was devoted to the reading of passages from L. R. Hubbard's texts, directives and instructions, with the aim of demonstrating the criminal design contained in his doctrine: from this point of view, the defendants were presented as instruments that allowed the realization of the aims, considered criminal, of the Scientological philosophy. In other words, instead of being an accusation against well-defined subjects, a trial was developed against Scientology, in the doctrinaire sense of the term, even making explicit reference to files taken from a case, judged in Lyon in 1996-97, in order to derive decisive arguments from it, despite the fact that the hypotheses of crime did not concern the same subjects. In both court cases, in fact, the accusation concerned, although not explicitly, the group as a whole[20].
More recently, some scholars of the history of religions have made more in-depth examinations of the movement's religiosity, also in relation to other established beliefs. Among the elements to be evaluated could be the relationship between health and salvation, the modes of communication and the original datitude, connected to the theme of knowledge and self-knowledge, going so far as to underline that Scientology, while renouncing classical forms of religiosity, also invites one to be an "ascetic in the search for a better life"; in this way it stimulates one to be a new "athlete of spirituality". Consequently, it perhaps pushes one to discover another way of being "close to God" after God"[21].
Again, it was stressed that the legal definition of religion should be examined in two stages. The positive elements to be considered would be: the existence of a community of believers, the sharing of a creed, having an international diffusion, accumulating recognition by States. To these are added, finally, two negative elements that make it possible to identify 'sectarian aberrations': the impossibility for a member to leave the community; the commercial drift of the structures. Applying these principles to Scientology, it is evident that, from a positive point of view, the elements are satisfied: all Scientologists constitute a community, they share a common dogma, the movement has an international scope and there are no cases in which the interruption of the spiritual path has been prohibited, nor has it been ascertained that the costs are higher than those of other conventional training[22].
It is not within my competence to carry out analyses of this kind, but I would just like to observe how Scientology, by introducing a different spirituality, has imposed a new narrative of the religious phenomenon, undoubtedly breaking with the more traditional approaches of common “religious feeling”. The understanding of this movement is linked to the identification of the deep grammar of experiential and spiritual modalities. And it is important to reiterate that only its correct framing as a religious denomination can make it possible to evaluate all its activities as a normal manifestation of a mystical phenomenon and not as marketing, aimed at selling goods or services, distorting and distorting them from the reference to the spiritual sphere[23].
4. Configuration of the criminal association crimes [⬆︎]
An even more legally complex problem is the fact that this offence has been charged not only against physical persons, possible “deviant minorities”, but also against the association as a whole. This has affected all three trials on which we are focusing our attention. It is evident that it is particularly dangerous to accuse a religion in toto, on the basis of the teachings enucleated from the writings of its founder, which in the case of L. R. Hubbard are truly numerous, and read, moreover, by extrapolating sentences from their argumentative context. It should have been proved that the activities of Scientology associations were not based on religious motivations, but on concerted fraudulent manoeuvres on the part of the community. A correct legal classification of the offence of criminal association, on the other hand, involves identifying the group to which the defendants must be expected to belong[24]. But if this association is entirely identified with the religious group - and the subjects are the followers of the same - it is evident how such charges can degenerate into a trial of religion tout court. This would, however, entail a real attack on “heresies”, which could seriously collide with the rights of freedom guaranteed by a democratic society, setting the hands back centuries in European history.
The uniformity of the methodology applied, due to its objective invariability, should demonstrate the common inspiration of the conduct of the individual operators, mere material executors of precise general directives. This would logically give rise to the criminal liability of the organizers, since the individual defendants would not have been able to commit the crimes without the tool offered by the structures of the organization as a whole[25]. The task of the Court must be, instead, to judge concrete facts, committed by well-defined subjects, in delineated circumstances and not behaviors presumably inferable from doctrinaire teachings. Especially in the criminal field, the prosecution can and must focus its investigation only on the probable crimes committed and cannot assess the ideology or philosophy contained in the doctrinal teachings of a church.
It is also evident that, if one denies the religiousness of the movement, one requires a scientific nature and certainty in the promises of salvation, which are absolutely incompatible with the concept of religious faith; likewise, one seeks a scientific preparation of those who perform the acts of the “minister of worship”, which is absolutely not required in a religious context. But this would lead to the impasse of having to distinguish between true and false beliefs. The judges would have to show subjectively that religious practices are perceived as a fraudulent manoeuvre. Developing the argumentative process followed in some decisions, one would have to arrive at the absurdity of considering that each of the thousands of faithful - followers, regardless of the identification of specific intent and unjust profit, had committed the crime of association for the sole fact of joining, forgetting that this hypothesis of crime is placed to protect public order and becomes unconstitutional if referred to religious organizations.
In Italy, in the Milan trial, the charge of criminal conspiracy was dropped and possible deviant minorities were discussed[26]. In France, on the other hand, the associations of the Church of Scientology were condemned in two levels of judgment and the decision was also confirmed by the Court of Cassation. The French judge stressed, as mentioned, the futility of legally qualifying the movement, but this failure to do so led to the absurdity of wanting to assess the scientific nature of an instrument, e.g. the personality test, which cannot be analyzed using the tools of scientific investigation, because it is linked to faith and the irrational. It should, however, be remembered that in France there is a strong policy against sectarian movements, which led in 2001 to the approval of a law for abuses of weakness within them[27].
This latter provision provides, inter alia, that following the criminal conviction of a legal person pursuing sectarian activities, or the criminal conviction of its leaders, in fact or in law, for one of the offences - listed exhaustively among the most frequent in this type of trial[28] – the judicial authority may proceed to dissolve the group. This hypothesis, however, was not applied in the French trial against Scientology, since it was modified by a provision intervened a few months before the church trial, and was not even taken up in the more recent legal debate on extremism in 2021.
In fact, the Projet de loi confortant le respect des principes de la République et de lutte contre le séparatisme[29] established that it is not possible to dissolve a religious association because it exerts psychological pressure on its members, contrary to what had been envisaged in the initial draft. The clear indications of the Conseil d'État, which stressed that human dignity is a concept that can be subject to different interpretations, were therefore accepted. The notion of "psychological pressures" recalls the theory of "brainwashing", allegedly used by cults, which is rejected by the majority doctrine in psychological and psychiatric circles[30].
This could have been aimed at introducing an instrument for the administrative winding-up of groups labeled as sectarian, without following the judicial process, thus jeopardizing religious freedom and democratic secularism. The fear, in the face of such legislative approaches, is linked to the possible introduction of rules that could indiscriminately target dissent or opinions that differ from those formulated by the majority. Even scholars who have been dealing with the phenomenon for some time have stressed that the problem of so-called unwelcome affiliation to cults or movements by families cannot be solved through punitive legislation, which would have exactly the opposite effect..
The Belgian judgment of 2016, also based on similar hypotheses, more correctly noted that this would lead to a presumption of guilt and a total lack of objectivity, with a violation of the right to a fair trial, which is the foundation of any democratic state. In the accusations brought, it was actually suggested that what had been violated was not so much the behavior, i.e. the individual offences of each subject, but, in a general way, the scientological ideology or philosophy.
5. The plagio and the abus de faiblesse [⬆︎]
Another point on which it is interesting to focus attention is related to a dynamic, not highlighted in the trials against Scientology, but which is underlying them, and that is the issue of mental manipulation[31]. In the Milan trial, of course, this offence was not discussed at all, partly because in Italy in 1981 we had the well-known and beautiful ruling of the Constitutional Court, which decriminalized the plagio[32]. Tale ipotesi, tuttavia, non è This hypothesis, however, was not even contested in the Parisian trial, where a law specifically dedicated à renforcer la prévention et la répression des mouvements sectaires, dated 2001, has existed for some time, followed by a similar provision in Belgium[33]. French legislation also provides for punishment for the distribution, by whatever means, of messages intended for young people, for the promotion of such groups, if they have already been convicted. In the Dispositions relatives à l’abus frauduleux de l’état d’ignorance ou de faiblesse concepts already outlined in other penal provisions have been taken up, with the additional provision that such abuse is carried out against a person "en état de sujétion psychologique ou physique résultant de l'exercice de pressions graves ou réitérées ou de techniques propres à alterer son jugement"[34]. It is clear, however, that concepts such as “conditioning of the personality” and “state of subjection” do not represent events having the axiom of certainty and make the identification of criminal conduct at least complex[35]. The risk of such regulations is that of failing to target phenomena that are actually dangerous, unnecessarily complicating the ascertainment of the crime and the possible assessment of liability, which would be easier to identify through the use of the categories already provided for by the Criminal Code.
Influence and "psychic subjection" are "normal" realities in relations between human beings; this allowed our Constitutional Court to highlight the vagueness of the rule, concluding, therefore, that it should be repealed as it provided for "a hypothesis that cannot be verified in practice in its implementation". In essence, the Court ruled out the punishability but not the existence of plagio, in the face of the impossibility of outlining a juridical figure with clear and defined contours.
Modern psychiatry, rather than the fluid categories of 'brainwashing' and 'mental manipulation', prefers that of “transformation psychologique sur des sujets qui donnent leur accord pour entrer dans un processus dont ils ignorent le résultat final"[36]. Sometimes, in current language, the term 'to convince' is used as if it were a synonym of 'to persuade'. In fact, convincing means overcoming rational obstacles, by means that have the appearance of logic, to overcome resistance and doubts through well-structured arguments. Persuading, on the other hand, appeals to emotional and passionate mechanisms, it uses the same arts that we see at work in seduction and for its subsistence there must be both objective requirements (of the environmental, social and cultural context) and subjective ones, specific to the recipient. In other words, you cannot persuade someone who is not willing to be persuaded[37].
In the Italian trial, against the clear and precise first-instance judgment in 1991, in the appeal, presented by the public prosecutor, the complaint was substantially related to the omitted consideration of the context delineated by an indiscriminate proselytism, which identified its own priority objectives in the so-called weak groups of the population, pursuing psychic subjugation through mechanisms well known to modern psychological science. Thus, in the first second-instance decision in 1993, it was pointed out that the marketing activity had not stopped before a state of psychic deficiency of some neophytes: this, as is evident, makes an implicit reference to mental manipulation, not better identified. The second decision of the Court of Appeal, on the other hand, pointed out that the recruitment of followers was carried out by means of deceptive methods, by means of questionnaires designed to mislead the unwary respondents as to their real physical and mental health conditions and induce them, therefore, to take advantage of the services offered to them, with the promise of recovery. It is evident from reading these decisions that the underlying theme, once again, was that of mental manipulation, since it is typical of any religion to promise healing or, even better, eternal salvation.
In the French trial, although the offence of abus de faiblessewas not alleged[38], a court-appointed expert was called in to explain what had happened to the applicants while attending Scientology. The professional stated that the subjects had been attracted to the movement at a vulnerable stage, hoping to receive help and spoke of 'abuse of transfer', which was not in the service of the subject, but of his subjugation (with implicit reference to mental manipulation). He also introduced the concept of 'delirium', in relation to a previous life experience (typical of Scientologists but also of other religions), highlighting the need to frame everything according to the cultural context: in the Hindu religion, for example, speaking in such terms might not be considered at all delirious, in Western culture it was more problematic[39].
Even in Belgium, where a law was adopted in 2011 along the lines of the French one, some of the accusers speak of plagio, mental manipulation and psychological violence[40]. Again, during the trial, reference is made to the E-meter, which is considered a fraudulent staging device, intended to impress the faithful and exercise psychological violence in order to reduce free will. It is reiterated that an attempt is being made to give a scientific aspect to it and that its price is not commensurate with its benefits; these elements, moreover, would be demonstrated by reports taken from the file of a different case, discussed in Lyon, without wishing to call into question these approaches. However, it is clear that the mere reference to parts of a file, judged abroad for facts that are not at all identical to those concerning the defendants, which are completely unrelated to the present case, should have been considered with the greatest caution.
The examination of these judicial passages shows that the risk to be avoided is related to an assessment of individual ideologies, whereas, instead, the jurist should stop his own arguments to a simple observation, external, of behaviors and actions that affect the concrete social reality, with a careful analysis "of the meaning and the limits that can take the principle of incompetence in religious matters in the contemporary state"[41]. The European Parliament has also intervened on the subject, stressing the danger of a specific discipline and inviting States to prefer the use of common categories of offence[42].
6. The “anti-cult” movements. Concluding remarks[⬆︎]
However, the last point on which I would like to focus my analysis relates to the political level, to the influence that "anti-cult" groups have within certain state structures that are able to mobilize and influence public opinion, in ways that are not always correct. These are non-neutral bodies, sometimes financed with public money, which could act as a sounding board for information without data or scientific reliability. It is important to note, moreover, that the level of problematization in some countries is also fuelled by an incisive presence of victims' associations, and by the influence of two types of people involved in the so-called Anti-Cult Movements: former victims' associations and the Anti-Cult Movement. Anti-Cult Movements: ex-members who have left the movement as a result of deprogramming, who are more inclined than others to see their past affiliation as the effect of "mental manipulation" and anti-cult therapists who cannot be considered neutral and whose activity of psychological assistance to ex-members is, for this reason, very different from that of non-ideologized professionals[43].
In France, the MIVILUDES, the Mission Interministérielle de Vigilance et de Lutte contre les Dérives Sectaires (Interministerial Mission to Monitor and Combat Sectarian Drifts), has been active since 2002, has been denounced by the main NGOs specializing in religious freedom and by governments, including the United States, which publish reports on freedom of religion or belief at an international level. It was created with a dual task: to monitor and fight sectarian drifts and with the obligation to submit an annual report to the Prime Minister[44]; In addition, since 2009, it has carried out intensive information activities, producing guides on the sectors most at risk of sectarian drifts: health, professional training and the protection of minors[45]. It is also linked to FECRIS (European Federation of Sect Research and Information Centers), a very active organization, identified by the American Commission on International Religious Freedom (USCIRF) as one of the main international threats to religious freedom[46]. Some recent studies speak of "religiocide"/genocide of a religious group, also with reference to the particular situation in France, which has an official policy of "war on cults"[47].
In Belgium, on the other hand, there is a Centre d' information et d'avis sur les organisations sectaires nuisibles (CIAOSN), linked to an administrative unit for the coordination of the fight against harmful sectarian organisations[48]. In 1996-97 a Commission of Enquiry was set up which, also on the basis of the French experience, proposed an evaluation of the situation, in the light of a continuum between the notion of "cult" which is "in itself respectable" as it simply translates a normal use of freedom and religious association, and that of "harmful sectarian organization" which qualifies "cults" that engage "in illegal harmful activities, damaging individuals or society or violating human dignity"[49]. In Italy, at the Ministry of the Interior, there is a Department of Public Security, of the Central Directorate of the Prevention Police, which has had the task of drawing up reports on sectarian movements[50].
The examination of the problems relating to emerging cults and the attempt at reflection, prodromal to the search for a balance between protection and freedom of the individual, must start from a necessary methodological premise: the law cannot cultivate an axiological neutrality, since it must perform protective functions that are not neutral with respect to the world of values and the different conceptions of the common good. Moreover, when our legal system links a series of consequences in the legal sphere to this qualification, a careful interpretative assessment is naturally required. Only a correct interpretation of pluralism can provide a real guarantee for religious minorities, who are not subjected to vagaries of political and administrative discretion. The problem is linked to the semantic framework, which is limited in its use of traditional identification criteria.
Our democratic system should make every effort to ensure that the "promotional status" of the religious phenomenon, which might appear to be in contrast with the principle of tendential secularism, can be accessible to all religious movements on an absolutely equal footing[51]. An attempt should therefore be made to broaden the rigid definition, which in some cases tends to emphasize the organized dimension of religions, starting from a paradigmatic analysis of the most consolidated religious systems in an attempt to find the characteristic elements and to measure, in an analogical way, the religious character of the new systems. A religion could therefore be broadly defined as a fideistic system, of a global nature, which conditions the life of the individual, in its meaning of the concept of life and death, the role of the universe, the indication of a moral code and the nature of good and evil. Alongside these elements, which we might define as cultural, are those of an organizational nature, which may include the identification of charismatic subjects or ministers of worship, the indication of feasts or other traditional events, a series of determined duties of an ethical-moral nature, etc.
The difficulties in dogmatically constructing the concept of religious denomination seem to be caused by a complex of cultural and political inertia that has resulted in an inability to cope with the transformations that have problematized cultural perceptions and the most socially shared representations of what is to be understood as religion. The way out of this cultural, political and legislative impasse can be represented by a regulatory project aimed at defining a framework of guarantees that concerns all religious denominations, articulated on an incisive redefinition of the legal qualification of denomination, religious association; on a reconstruction of the regulatory instruments adequate to protect and enhance the rights of individuals within the organization, communities or those who are indifferent, critical or extraneous to a perspective of belonging. A system of common law for all religious forms, possibly supplemented with detailed rules, during specific negotiations, centered on the protection of human rights, could be the only instrument capable of giving a start to the overcoming of the disharmonies and imbalances that currently exist.
A secular and pluralist system should present itself as ethically neutral with regard to the various religious movements that develop and operate within it, provided, of course, that they do not threaten the stability of social relations[52]. The preliminary point of departure is a careful assessment of the limits of religious freedom, even though it should be natural to respect the criminal law, which cannot be disregarded, even in the case of requirements linked to the protection of this fundamental right.
The “Scientology case” represents under this perspective the possibility of examining the degree to which the freedoms of a democratic system can hold, allowing the individual to acquire and use the grammar of intersubjective relations contained in the alphabet of the Constitution[53].
Published in the telematic journal Stato, Chiese e pluralismo confessionale (https://www.statoechiese.it), fascicolo n. 13 del 2021 ISSN 1971- 8543
Notes
[1] ⬆︎ Cfr. G. GUIZZARDI, I nuovi movimenti religiosi: prospettive sociologiche, in S. FERRARI (ed.), Diritti dell’uomo e Libertà dei gruppi religiosi. Problemi giuridici dei nuovi movimenti religiosi, Cedam, Padova, 1989, p. 41 ss.; A. GARAY, « Nouveaux mouvements religieux », variabilités sociologiques et normes juridiques, in Derecho y Religion, 2000, p. 109 e ss..
[2] ⬆︎ M.WEBER, Sociologia delle religioni, trad.it., Edizioni di Comunità, Milano, 1982 distinguished between ritual religions of redemption and soteriological religions, but also took into consideration the monotheistic - polytheistic character of religion, without ignoring that there are religions without God - gods. See also P. BOURDIEU, Un’interpretazione della teoria della religione secondo Max Weber, in ID., Il campo religioso. Con due esercizi, Accademia University Press, Torino, 2020, p. 15 and following. For legal issues in Italy see e.g. A. FUCCILLO, Lo statuto della Chiesa Taoista d’Italia e l’art. 8, comma II, della Carta costituzionale: epifania sociale di una confessione religiosa, in Diritto e Religioni, 2013, 2, pp. 493-515.
[3] ⬆︎ In the 1990s the European Union supported a project involving scholars of various countries, aimed at finding a possible shared definition of religion: The Pragmatics of Defining Religion, J.G. PLATVOET, A.L. MOLENDIJK (eds.), Brill Academic Pub, Leiden, 1999. The Authors concluded that there is no academic definition or shared legal religion; the notion was built socially and negotiated politically, with different results in different contexts.
[4] ⬆︎ Cfr. P. LILLO, Globalizzazione del diritto e fenomeno religioso3, Giappichelli, Torino, 2012.
[5] ⬆︎ See the classic references of N. COLAIANNI, item Intese (diritto ecclesiastico), in Enciclopedia del Diritto, vol. VIII, Milano, Giuffrè, 1961, pp. 424-486; G. CASUSCELLI, Concordati, intese e pluralismo confessionale, Giuffrè, Milano, 1974. More recently, A. MANTINEO, Associazioni religiose e nuovi movimenti religiosi alla prova del diritto comune in Italia e del diritto comunitario, in Stato, Chiese e pluralismo confessionale, www.statoechiese.it, october 2009; J. PASQUALI CERIOLI, Interpretazione assiologica, principio di bilateralità pattizia e (in)eguale libertà di accedere alle intese ex art. 8, terzo comma, Cost., in Stato, Chiese e pluralismo confessionale, www.statoechiese.it, 2016.
[6] ⬆︎ See Court of Milan (Public Prosecutor's Office), 13 July 1988, in Dir. Eccl., 1988, p. 590 ff.; Court of Milan, I, 2 July 1991, in Dir. Eccl., 1991, p. 419 ff.; Court of Milan, I, 2 July F. FINOCCHIARO, L’organizzazione di Scientology e i suoi fini; Court of Cassation, 9 February 1995 and Court of Appeal of Milan, 5 November 1993, in Foro it., II, 1998, p. 395 ff, with a note b N. COLAIANNI; Court of Appeal of Milan, 5 October 2000, no. 4780, in Giur. It., 2001, p. 1408 with a note by P. COLELLA, Ancora a proposito di Scientology. See also G. CASUSCELLI, Ancora sulla nozione di “confessione religiosa”: il caso Scientology, in Quad. dir. pol. eccl., 1998, p. 816 ss.; G. D’ANGELO, Ultime vicende giudiziarie della Chiesa di Scientology, in Dir. Eccl., 1998, p. 384 ff.
[7] ⬆︎ M. INTROVIGNE, Audition at the Senate, 2011, for Cognitive investigation on the phenomenon of mental manipulation of weak subjects, with particular reference to the phenomenon of the so-called "cults", pubished in http://www.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=SommComm&leg=16&id=616006&part=doc_dc-sedetit_pi: "it is necessary to deconstruct the ambiguous notion of " cult" .... (which) is in the common understanding a "dangerous" group. But the notion is ambiguous. A 'dangerous cult' can be understood as a group that commits crimes under common law (murder, fraud, violence). Or one can say that a cult is someone who spreads such absurd ideas and practices that only through 'mental manipulation' can anyone really be persuaded to join. This is where the danger to religious freedom comes in, because which ideas are "absurd" can be assessed differently depending on the ideological prejudices of the person judging" (p. 20). The literature on this subject is vast, inter alia, see S. FERRARI, New religious movements in Western Europe, in Scritti in onore di G. Barberini, A. TALAMANCA, M. VENTURA (eds.), Giappichelli, Torino, 2009, p. 285 ff.; J. ROSSEL, Nuevos movimientos religiosos y su inscripciòn registral: el ejempio de la Cienciologìa (a propòsito de la sentencia de la Audiencia Nacional de 11 de octubre de 2007), in Anuario de la Facultad de Derecho, XXVI, 2008, p. 113 ss.; G.E. GUENZI, I nuovi movimenti religiosi: aspetti psico-giuridici dall’adesione all’abbandono, in Psicologia e Giustizia, 3, 1, 2002, p. 1 ff., also in https://www.psicologiagiuridica.com/numero%20005/guenzi%20ita.PDF; G. FILORAMO, Religione e modernità: I nuovi movimenti religiosi, in G. FILORAMO, M. MASSENZIO, M. RAVERI, P. SCARPI (eds.), Manuale di storia delle religioni, Laterza, Roma-Bari, 1998, p. 553 ss.; C. HATCHER, I culti e le sette religiose: aspetti criminologici, in Trattato di criminologia, medicina criminologica e psichiatria forense, F. FERRACUTI (ed.), vol. X, Giuffrè, , Milano, 1988, p. 403 and following.
[8] ⬆︎ MIVILUDES, Interministerial mission of vigilance and fight against sectarian drifts, Qu'est-ce qu'une dérive sectaire ? | Miviludes (derives-sectes.gouv.fr). The adoption of the term "sectarian drift" by the French public authorities corresponds the objective of focusing solely on the behaviour and practices of a group, avoiding any judgment on its doctrine or ideology. In the absence of a clear and precise definition of the concept, this reorientation of the action offered to public authorities the possibility of extending the scope of the investigation and has encouraged an increase in the number of groups that could be examined.
[9] ⬆︎ See with reference to Belgium: the law of 2 June 1998 establishing an information and opinion centre on harmful sectarian organisations and an administrative unit for the coordination of the fight against harmful sectarian organisations, Moniteur Belge of 25 november 1998 and the organic law of 30 November 1998 on intelligence and security services, Moniteur Belge of 18 december 1998. Cfr. B. MINE, La régulation du phénomène sectaire en Belgique, in Revue de droit pénal et de criminologie, 6, 2006, pp. 617-654; G. CAROBENE, The meaning of “religion” in Belgian Case Law, in Stato, Chiese e pluralismo religioso, www.statoechiese.it, no 39, 2017, pp. 54-72.
[10] ⬆︎ See mainly the Circular of the Prime Minister, 27 May 2005, relating to the combat against sectarian drifts, Journal Officiel of 1 June 2005; and also the annual reports of the Interministerial Mission of Surveillance and Control of Sectarian Drifts.
[11] ⬆︎ See G. CAROBENE, Scientology tra religione e sanzione, Liguori, Napoli, 2012; ID., Il binomio laicità-libertà religiosa nel sistema francese ed in quello italiano di fronte alle problematiche dei nuovi movimenti religiosi, in Il Diritto Ecclesiastico, 2004, 3, pp. 699-720. It’s important to remember that the first procedural document of the Milan trial is actually dated 1981, an investigation initiated by Judge N. Cerrato
[12] ⬆︎ See G. CAROBENE, Le minoranze religiose tra normativa penale e diritti di libertà: rilevi a margine di una recente sentenza di Scientology, in Stato, Chiese e pluralismo religioso, www.statoechiese.it, June 2010; ID., Problems on the Legal Status of the Church of Scientology, in Stato, Chiese e pluralismo religioso, rivista giuridica online fascia A, n. 21/2014. On the European context and the European Court of Human Rights, see ID., L’affaire di Scientology. La qualificazione in via giudiziaria di una confessione nel contesto ‘europeo’ della libertà di religione, in Stato, Chiese e pluralismo religioso, www.statoechiese.it, 2008.
[13] ⬆︎ Further issues are related to financial management and tax matters: see G. CAROBENE, Strumenti e modalità finanziarie della Chiesa di Scientology in Italia, in I mercanti nel tempio. Economia, diritto, religione, edited by A. Fuccillo, Giappichelli, Torino, 2011, pp. 107-139.
[14] ⬆︎ See, inter alia, G. ANELLO, Organizzazione confessionale, culture e Costituzione. Interpretazione dell’art. 8 cpv. cost., Soveria Mannelli, Rubbettino, 2007, who stresses that one could "admit that the function of the concept of denomination is simply 'denominative' or 'declarative' rather than 'definitional' or 'constitutive'" (p. 112).
[15] ⬆︎ Constitutional Court, judgment no. 195 of 1993, in www.giurcost.org/decisioni/1993/0195s-93.html. The Constitutional Court also uses the adverb to imply that there may be "other" criteria. This legal reference continues to remain, unfortunately, the fundamental point of reference for the identification of a group as a religious movement, as a church. See S. DOMIANELLO, Giurisprudenza costituzionale e fattore religioso. Le pronunzie della Corte costituzionale in materia ecclesiastica (1987-1998), Giuffrè, Milano, 1999. Most recently, the Constitutional Court addressed the problem with decision no. 52 of 2016, concerning the request of the UAAR, Unione Atei Agnostici e Razionalisti, to enter into an agreement: see, among others, F. ALICINO, La bilateralità pattizia Stato-confessioni dopo la sentenza n.52/2016 della Corte Costituzionale, in Osservatorio sulle fonti, www.osservatoriosullefonti.it/mobile-note-e-commenti/note-e-commenti-n-2-2016/1021-osf-2-2016-alicino/file; A. LICASTRO, La Corte costituzionale torna protagonista dei processi di transizione della politica ecclesiastica italiana?, in Stato, Chiese e pluralismo confessionale, www.statoechiese.it, n. 26/2016; G. MACRÌ, Il futuro delle intese (anche per l’UAAR) passa attraverso una legge generale sulla libertà religiosa. Brevi considerazioni sulla sentenza della Corte costituzionale n. 52 del 2016, in Osservatorio Costituzionale, 3/2016, www.osservatorioaic.it/images/rivista/pdf/il_futuro_delle_intese.pdf.; V. PACILLO, La politica ecclesiastica tra discrezionalità dell’Esecutivo, principio di bilateralità e laicità/neutralità dello Stato: brevi note a margine della sentenza della Corte costituzionale n. 52 del 10 marzo 2016, in Lo Stato, 6/2016, p. 255 and following.
[16] ⬆︎ Court of Appeal of Milan, 5 November 1993, in Il Foro Italiano, 1995, Parte II, 1995, pp. 689-730. See in general, S. FERRARI, La nozione giuridica di confessione religiosa (Come sopravvivere senza conoscerla), in Principio pattizio e realtà religiose minoritarie, a cura di V. Parlato, G.B. Varnier, Giappichelli, Torino, 1996, p. 19 and following.
[17] ⬆︎ Court of Cassation, no. 5838, 9 February 1995, in Cd Juris Data, Sentenze della Cassazione Penale, testo integrale, 1995-1998, I sem., Giuffrè Editore.
[18] ⬆︎ Court of Cassation, 2nd Criminal Section, 8 October 1997, in Foro It., 121, 6, p. 395 ss., with note by N. COLAIANNI, La via giudiziaria alla religiosità: la vicenda di “Scientology, cit.
[19] ⬆︎ Tribunal de Bruxelles, 11 March 2016, unpublished, esp. p. 149. No appeal was lodged against that judgment.
[20] ⬆︎ Concluded on 8 October 1996: see Le procès de l’Église de Scientologie textes réunis par. C. Erthel -R. De La Baume, ed. A. Michel, Paris, 1997.
[21] ⬆︎ A.N. TERRIN, Scientology. Libertà e immortalità, Morcelliana, Brescia, 2017, in particular p. 262. Among the religious elements, it is enough to think first of all of the reference to the thetan, which is a spiritual concept and the immortal spirit, the divine, just as the process of the Scientology bridge that allows the achievement of the 'clear' level is certainly comparable to the path of freedom towards redemption and salvation that we see in Hinduism and Buddhism. What makes the difference is precisely the link between the concept of religion in Scientology and the idea of salvation, because the basic idea that there can be no religion without the idea of health or salvation is that religion would have no reason to exist if it could not carry a saving message. See also M. LEONARDI, Le religioni spiegate ai giovani. Convivenza e dialogo nella diversità, ed. Diarkos, Rome, 2020: 'Scientology means "knowing how to know"... Scientology is not a dogmatic religion... Instead, it proposes a path, a way to follow to rediscover one's true immortal spiritual nature' (p. 35).
[22] ⬆︎ Cfr. F.-J. PANSIER, La Scientologie est-elle une religion?, in The Journal of CESNUR, 2, 2018, pp. 26-27.
[23] ⬆︎ As E. ROUX, in his chapter in Reactions to the Law by Minority Religions, E. BARKER, J.T. RICHARDSON (eds.), Routledge, Milton Park, UK, 2020 it was at this stage that Scientology entered the legal arena and managed to change the rules of the game through a series of court victories.
[24] ⬆︎ G. DODARO, Interpretazione laica del delitto di associazione per delinquere. Riflessioni a margine del caso Scientology, in Quad. dir. pol. eccl., 3, 2001, pp. 837- 861 notes that the contrasting attitude of the two courts - the Court of Appeal and the Court of Cassation - "seems to derive from a different conception of the boundaries and extent of religious freedom: while for the former, the legal system would impose general limits on freedom of conscience, valid and effective in the same way in all fields in which it may be manifested, for the Court of Cassation, religious freedom would enjoy privileged protection compared to other forms of freedom of conscience" (pp. 845-846).
[25] ⬆︎ See Court of Cassation 1997, cit., factual observations.
[26] ⬆︎ A judicial problem has arisen in this regard in Italy with reference to two opposing orientations - of the Court of Appeal of Milan and the Court of Cassation, with reference to the application of Article 416 of the Criminal Code (criminal association) to Scientology.(criminal association) for Scientology. The Supreme Court ruled out the possibility of incriminating those responsible, not because of the religious nature of Scientology but because of the lawfulness of its corporate purpose, as set out in its Statutes.
[27] ⬆︎ See Tribunal Correctionnel de Nantes, 24 November 2004, which sentenced A. Mussy to three years' imprisonment, plus five years probation and a fine of €90,000; sentence confirmed by the Cour d'Appel de Rennes, 12 July 2005. For a comment see S.J. PALMER, France: la loi About-Picard et Néo-Phare: première application de l’"Abus de Faiblesse", in www.cesnur.org/2006/sd_palmer_fr.htm, (2006), p. 1 and following.
[28] ⬆︎ The hypotheses envisaged by Article 1, Chapter I - Civil dissolution of certain legal persons - concern 1) voluntary or involuntary attack on the life or physical or psychic integrity of the person, endangering the same; attack on his freedoms, dignity, personality, endangering minors; 2) illegal practice of medicine or pharmacy; 3) false advertising, fraud and forgery. The dissolution procedure takes place at the request of the public prosecutor or any interested party. It is also provided that the court, in the course of the proceedings, may rule on the dissolution of several legal persons when it appears that they pursue the same objectives and are united by common interests. A law passed on 12 May 2009, shortly before the opening of the trial, prohibited such dissolution. This is the law of "simplification and clarification of the law and streamlining of procedures" which put an end to the possibility of dissolving legal persons convicted of fraud: LOI n° 2009-526 du 12 mai 2009 de simplification et de clarification du droit et d'allègement des procédures, in www.legifrance.gouv.fr/loda/id/JORFTEXT000020604162/.
[29] ⬆︎ On the process and the text approved at first reading on 16 February 2021, see www.legifrance.gouv.fr/dossierlegislatif/JORFDOLE000042635616/; attached are all documents, reports, interventions by the Council of State and parliamentary sessions, up to April 2021.
[30] ⬆︎ Division 36 of the APA (American Psychological Association, Division of Psychology of Religion) passed a resolution stating that there is no consensus that there is sufficient research in the field of psychology to scientifically equate undue non-physical persuasion (also called "coercive persuasion", "mind control", or "brainwashing") with the influence techniques that are normally practiced by one or more religious groups (APA, 1991). The attempt to assert the existence of particular psychological processes operating in cults is, therefore, doomed to failure since those who adhere to a minority religion do so for the same reasons as those who adhere to a religion recognised and accepted by society. Religious conversion and religious behaviour, by a few isolated members of the world of mental health professionals, is included in the disorders described in the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders). The Internet sites of anti-cult associations and those of former members, hostile to the group they left, are therefore full of references to this Diagnostic Manual in order to corroborate an alleged scientific basis of the notion of a specific "brainwashing": the one carried out by the " cults" that would cause, in the followers, the dissociative disorder. In reality, in all the manuals, when one speaks of brainwashing, one refers to forms of psychological pressure carried out in a state of captivity (where deprivation of sleep, food, harassment and psycho-physical humiliation, torture etc. are practised), and, furthermore, the detail relative to captivity within groups of religious fanatics has been completely eliminated in the DSM IV, (the current edition of the Manual): see R. DI MARZIO, DDL n.569 - - Indagine conoscitiva sul fenomeno della manipolazione mentale dei soggetti deboli, con particolare riferimento al fenomeno alle cosiddette “sette”. The same author underlined that mental manipulation "is a very simplistic explanation in the face of responsibilities that are not only of the group of the leader of the alleged cult but also of the social groups of reference of the adept that often fail to support the individual" (p. 15).
[31] ⬆︎ It has been pointed out that 'when the ego's inward autonomy becomes embrittled and diminished, due to the loss of autonomy towards the external world, primary processes may emerge and break through to the level of consciousness. A semi-hypnotic state then occurs, a state of alienation in which any pressure that arrives from outside the subject (especially if coordinated with fear or the urgency of primary physiological stimuli such as hunger, thirst, sleep, sexuality) is able to penetrate directly into his deep world and then re-emerge presenting itself to his mind as a coercive message that comes from the unconscious and that imposes itself as true": L. ANCONA, L’individuo come oggetto di manipolazione sociale, in Prospettive nel mondo, 51, 1980, p. 42 and following.
[32] ⬆︎ The judgment was published in full in Foro it., 1981, I, c. 1815 ff. and in Riv. it. dir. proc. pen., 1981, p. 1147 and following with a note by M. BOSCARELLI, A proposito del “principio di tassatività”, p. 1147 and following in Giur.cost., 1981, p. 806 and following with a note by P.G.GRASSO, Controllo sulla rispondenza alla realtà empirica delle previsioni legali di reato, p. 808 and following. See also M. C. DEL RE, L’adesione al culto emergente: conversione e/o plagio?, in La persuasione socialmente accettata, il plagio e il lavaggio del cervello, M. DI FIORINO (ed.), I, Forte dei Marmi, Centro Studi di Psichiatria e Territorio, 1990-1991; M. DI BELLO, Il plagio: nostalgia di un ritorno. Breve riflessione sul tema della tutela dell’integrità psichica della persona, in Rivista di Criminologia, Vittimologia e Sicurezza, IV, 3, 2010, p. 1 and following; E. DIECKMANN Jr., Beyond Jonestown. “Sensibility Training” and the Cult of Mind Control, Torrance, Noontide Press, 1982; G. FLORA, Il plagio tra realtà e negazione: la problematica penalistica, in Rivista Italiana di diritto e procedura penale, I, 1990, p. 86 and following; A. NISCO, La tutela penale dell’integrità psichica, Giappichelli, Torino, 2012; B. UGOLINI, Il dibattito sul plagio in relazione ai culti abusati: evoluzione e problematiche, in Tigor: Rivista di Scienze della Comunicazione, IV, 1, 2012, p. 101 and following; G. CAROBENE, Adesione religiosa e reazione giuridica. Limiti alla libertà di credo in una società democratica, pluralista e tollerante/ Religious Affiliation and Legal Reaction. Limitations to Freedom of Belief in a Democratic, Pluralist and Tolerant Society, in Diritto e libertà di credo in Europa. Un cammino difficile/Law and Freedom of Belief in Europe. An arduous journey, Pacini Giuridica, Ospedaletto (PI), 2018, pp. 288-313.
[33] ⬆︎ Loi 2001-504 du 12 juin 2001, published in http://www.unadfi.org/. Loi tendant à renforcer la prévention et la répression des mouvements sectaires portant atteinte aux droits de l’homme et aux libertés fondamentales.
[34] ⬆︎ Article 223-15-5, inserted into the Criminal Code, section 6a, entitled De l’abus frauduleux de l’état d’ignorance ou de faiblesse. If a natural person is sentenced to three years' imprisonment and payment of a fine, additional penalties are attached, including disqualification from civic, civil and family rights, disqualification from exercising public functions or professional or social activities for at least five years, closure of business establishments and confiscation of property.
[35] ⬆︎ P.J. Parquet, professor of psychology and member of the MIVILUDES advisory board, has outlined the criteria for identifying the victims of sectarian movements in https://www.unadfi.org (website of the National Union of Associations for the Defence of Families and Individuals who are victims of sects): "Five criteria must be met in order to diagnose a mental hold: 1. Rupture with the previous modalities of behaviour, conduct, judgements, values, individual, family and collective sociability.2. Occultation of previous reference points and rupture in the coherence with the previous life. 3. Acceptance by a person that his personality, his affective, cognitive, relational, moral and social life are shaped by suggestions, injunctions, orders, ideas, concepts, values, doctrines imposed by a third party or an institution: this leads to a general and permanent delegation to an imposed model. Unconditional emotional, behavioural, intellectual, moral and social adherence and allegiance to a person or a group or an institution, leading to: demanding and complete loyalty, absolute obedience, fear and acceptance of sanctions, impossibility of believing it possible to return to a previous way of life, or to choose other alternatives given the imposed certainty that the new way of life is the only legitimate one. 5. A complete, progressive and extensive surrender of one's life to a person or institution. 6. An increased sensitivity over time to ideas, concepts, prescriptions, injunctions and orders, to a "doctrinal corpus", with possibly a proselytising of these. 7. Deprivation of a person's competences with emotional anaesthesia, impaired judgement, loss of reference points, values and critical faculties. 8. Impairment of freedom of choice. 9. imperviousness to the opinions, attitudes, values of the environment with the impossibility of questioning oneself and promoting change 10. inducing and carrying out acts that are seriously harmful to the person, acts that were not previously part of the subject's life. These acts are no longer perceived as harmful or contrary to the values and ways of life usually accepted in our society."
[36] ⬆︎ See A. FOURNIER, M. MONROY, La dérive sectaire, P.U.F., Paris, 1999; D. HERVIEU- LÉGER, La religion en miettes ou la question des sectes, Calmann-Lévy, Paris, 2001; F. PIGNIER, Les dérives sectaires face au droit français, CCMM, Paris, 2011.
[37] ⬆︎ See D.E. COWAN, Conversion New religious Movements, in Oxford Handbook on Religious Conversion, L.R. RAMBO, C.E. FARHADIAN (eds.), Oxford University Press, Oxford, 2014, pp. 687-705; N. CAVAZZA, Comunicazione e persuasione, il Mulino, Bologna, 1997; V. MASTRONARDI, Le strategie della comunicazione umana, la persuasione, le influenze sociali, i mass media, F. Angeli ed., Milano, 1998; M. INTROVIGNE, Il lavaggio del cervello. Realtà o mito?, Leumann, Torino, 2002.
[38] ⬆︎ See In Journal officiel de la République française , 13 June 2001, n. 135, p. 9337 and following. M.C. IVALDI, Alcune considerazioni sulla regolamentazione dei movimenti a carattere settario nell’ordinamento francese, in Stato, Chiese e pluralismo confessionale, www.statoechiese.it, n. 29/2012. For a detailed examination of the subject in the previous period, see Les «sectes» et le droit en France, F. MESSNER (ed.), Puf, Parigi, 1999; H. CLAYSON SMITH, Liberté, Egalité et Fraternité at Risk for New Religious Movements in France, in Brigham Young University Law Review, 2000, p. 1099 and following.
[39] ⬆︎ Cour d’Appel de Paris, 2 frbtuary 2012, and, in the first instance, Tribunal Correctionnel de Paris, 12ème chambre, n. 9835623114 c. Association Spirituelle de l’Église de Scientologie, SARL SEL, et autres, del 27 oct. 2009; both unpublished. In an indictment in 2006, the Public Prosecutor requested that the two legal persons not be prosecuted, stating that “il n’apparaît pas que les diverses infractions poursuivies soient suffisament caractérisées, soit dans leur élément materiel, soit dans la preuve d’une implication personnelle frauduleuse des mis en examen pour justifier leur renvoi devant le Tribunal correctionnel” ed ancora che “au vu de l’organisation particulièrement cloisonnée des structures de l’Eglise de Scientologie, l’adhésion voire le relais apporté dans la promotion de la doctrine de cette église ne saurait suffire pour caractériser des faits d’escroquerie ou de complicité d’escroquerie. En ce sens, la qualité de dirigeant ou de responsabile du centre de Scientologie ne saurait présumer d’une implication pénale personnelle dans les agissement particuliers dont se sont plaint un certain nombre de personne”.
[40] ⬆︎ Tribunal de Bruxelles, cit., one of the accusers speaks of a 'sect'; another speaks of influence on her husband as if it were plagi; another (no.3) also speaks of mental manipulation on her niece which he calls mental destruction (p. 76).
[41] ⬆︎ S. FERRARI, Introduzione, in Diritti dell’uomo…, cit. iwho goes on to emphasize that this reflection must "have a single guiding criterion: that indicated by Queen Elizabeth I of England when she warned that windows should not be opened in people's consciences to see what is happening inside” (p.15).
[42] ⬆︎ On the interventions of the European Parliament, see the well-known Resolution on common action by the Member States of the European Community in the face of various infringements of the law committed by recent organisations operating under the protection of religious freedom, 1984, in op.europa.eu/it/publication-detail/-/publication/68a0bfd6-96e0-447b-9715-b4f660227523/language-it. See M. INTROVIGNE, Parliamentary and governmental reports on "cults" in Western Europe, 1996-1999, in Quad. dir. Pol. Eccl., II, 1999, p. 400 and following.
[43] ⬆︎ S.A. WRIGHT, Disengagement and Apostasy in New religious Movements, in Oxford Handbook on Religious Conversion, R.L. RAMBO, C.E. FARHADIAN (eds.), Oxford University Press, Oxford, 2014, p. 720 ss., ma cfr. anche A.D. SCHUPE Jr., D.G. BROMLEY, S.E. DARNELL, The North American Anti-Cult Movement: Vicissitudes of Success and Failure, in The Oxford Handbook of New Religious Movements, J.R. LEWIS (ed.), Oxford University Press, New York, 2004, pp. 184-205. Reports on the above have been published both in Italy and in other European countries such as France, Switzerland, Belgium and Germany. On this subject, see Ministero dell’Interno, Dipartimento della Pubblica Sicurezza, Direzione Centrale Polizia di Prevenzione, Sette religiose e movimenti magici in Italia, Rome, 2001; Assemblée Nationale, Les Sectes en France. Rapport fait au nom de la Commission d’Enquête sur le Sectes (document n. 2468), Paris, Les Documents d’information de l’Assembée Nationale, 1996, (also known as “Guyard Report”), available in Italian at http://xenu.com-it.net. Cfr. anche Audit sur les dérives sectaires. Rapport du grupe d’experts genovois au Département de Justice et Police et des Trasports du Canton de Genéve, Genéve, ed. S. Hunter, 1997; Chambre des Rapresentants de Belgique, Session ordinaire 1996-1997, 28 avril 1997, Enquête parlamentaire visant à élaborer une politique en vue de lutter contre les pratiques illegals des sects et le danger qu’elles représentent pour société et pour les personnes, particulèrement les mineurs d’âge. Report made on behalf of the Commission of Inquiry by M.M. Duquense and Willems, Part I, document n. 313/7, third session of the 49th Legislature, 1995/96, 12. See also I.F. VASINI, Libertà religiosa, pratiche illegali delle sette e pericolo che esse rappresentano per la società e per le persone: il rapporto della Commissione d’inchiesta belga dell’aprile 1997, in Diritto di famiglia e delle persone, II, 1998, p. 1299 and following.
[44] ⬆︎ La MIVILUDES is the successor to the Observatoire Interministérielle sur les Sectes (1996-98) and the MILS, Mission Interministérielle de Lutte contre les Sectes (1998-2002) and currently reports to the Ministry of the Interior. Its tasks, as written on its own website, include informing other countries, through cooperation with the French Ministry of Foreign Affairs, of "its activities in monitoring and combating sectarian drifts"and "promoting at European level [and beyond] an attitude of combating sectarian drifts". In France, moreover, an association was founded in 1981 by the writer R. Ikor, an association, which was also chaired for some years by the socialist member of parliament A.. Vivien, who subsequently took on the presidency of the Interministerial Mission to Combat Cults (MILS). The work of the CCMM is aimed at victims of mental disorders, their families and citizens. The association's mission is to provide information on the sectarian phenomenon, prevention and assistance to victims. See Centre Roger Ikor, Les sectes, état d’urgence, Albin Michel ed., Paris, 1995; A. VIVIEN, Les sectes, Odile Jacob, Paris, 2003.
[45] ⬆︎ The text - like that of the other reports to date (2004, 2005, 2006, 2007, 2008, 2009 and 2010) - is available on the Mission website at www.miviludes.gouv.fr.
[46] ⬆︎ The English version of the Statute of the FECRIS is at http://fecris.org/wp-content/uploads/2015/05/FECRIS_STATUTS_EN.pdf. On the anti-cult groups, with ample examination of their evolution and of the different interventions both in Europe and in the U.S.A., see R. DI MARZIO, The anti-cult Movement: history, characteristics and activism, in Coscienza e Libertà, nn. 57-58, 2019 who underlines, among other things, that the FECRIS is the most active organization in the fight against the abuses of the "cults", founded in 1994 in Paris. At its foundation it counted seven member groups, while today it claims thirty, in thirty countries, including Italy, (11) where it is represented by two associations: CeSAP (Center for Psychological Abuse Studies) and FAVIS (Family Association of the Victims of the Cult Movements). Its aim is to oppose " cults " and " gurus " without any clear distinction or definition, attributing criminal and manipulative activities to these social groups on the basis of reports from hostile ex-members or controversial and widely discredited theories such as that of "mental manipulation". On the Italian situation see M. INTROVIGNE, Anti-Cult and Counter-Cult Movements in Italy, in Anti-Cult Movements in Cross-Cultural Perspective, A. SCHUPE, D.G.BROMLEY (eds.), Garland, New York-London, 1994, pp. 171-197.
[47] ⬆︎ See M. INTROVIGNE, Something Peculiar about France: Anti-Cult Campaigns in Western Europe and French Religious Exceptionalism, in The Oxford Handbook of New Religious Movements, cit., pp. 206-220; M. STRAUSBERG, S. A. WRIGHT, C. M. CUSACK, The Demise of Religion: How Religions End, Die, or Dissipate, Bloomsbury, London and New York, 2020.
[48] ⬆︎ Belgium created the CIAOSN, Centre for Information and Advice on Harmful Sectarian Organisations, by a law of 2 June 1998; it is similar to MIVILUDES, although with fewer powers. It does not intervene directly in the "fight" against "sects", but forwards its advice and recommendations to other branches of government: www.ejustice.just.fgov.be/cgi_loi/change_lg_2.pl?language=fr&nm=1998009893&la=F.
[49] ⬆︎ Doc. Parl., Ch., sess. Ord. 1996-1997, n. 313/8, 95. Cfr. B. MINE, L'appréhension des « sectes » par le système d'administration de la justice pénale belge, in Archives de sciences sociales des religions, n.162, pp. 203-218.
[50] ⬆︎ A 1998 report is published at www.gris.org/wp-content/uploads/sites/2/2019/02/RAPPORTO-OLIR-MINISTERO1998.pdf. The first census of the Ministry of the Interior on alternative religions dates from 1994. Among the 'psycho-sects', the Ministry's document dedicates much space to Scientology (41 branches and 7,000 adherents) where, it is stated, among other things: 'Those who decide to continue therapy are induced to attend increasingly onerous courses, during which they are subjected to physical stress (exhausting work, hypervitaminic and hypoproteinic diets) and psychological stress (forced readings, pressure and intimidation)'. The report emphasises that there is a risk that criminal proceedings against organisations of this kind will not be sufficiently effective: there is still no crime of "assault on psychological freedom" and there is no longer any provision for the crime of plagio. See also Religious Sects and Magical Movements in Italy, edited by the Ministry of the Interior, Department of Public Security, Central Directorate of Police and Prevention, ed. Sapere 2000, Rome, 2001. In 2019, a bill was submitted to the Chamber of Deputies, No. 1523, for the establishment of a new parliamentary Commission of Inquiry into the phenomenon of cults, and in particular of sectarian drifts "inextricably linked to the performance of abuses and psychic manipulation and do not constitute a particular declination of the religious phenomenon, since they can refer to any belief or ideology": www.camera.it/leg18/995sez.
[51] ⬆︎ On the concept of laicity see, among others, S. FERRARI, La nozione di laicità tra identità e pluralismo, in Laicità e stato di diritto, edited by A. Ceretti, L. Garlati, Giuffrè, Milano, 2007, p. 99 and following; S. PRISCO, Laicità. Un percorso di riflessione, Giappichelli, Torino, 2007; P. STEFANÌ, La laicità nell’esperienza giuridica dello Stato, Cacucci, Bari, 2007; N. FIORITA, L’insostenibile leggerezza della laicità italiana, in Stato, Chiese e pluralismo confessionale, www.statoechiese.it., June 2011; S. DOMIANELLO, Sulla laicità nella Costituzione, Giuffrè, Milano, 1999.
[52] ⬆︎ “The neutrality of the law with respect to ethical differentiations within it derives simply from the fact that, in complex societies, the totality of citizens can no longer be supplemented by a substantive consensus on values, but only by a consensus on procedures relating to legitimate legal production and the legitimate exercise of power”: J.HABERMAS, Lotta di riconoscimento nello Stato democratico di diritto, in J.HABERMAS- C. TAYLOR, Multiculturalismo. Lotte per il riconoscimento, Milano, 2001, in particol. p. 95. It has also been argued - Dizionario costituzionale, A. AINIS (ed.), Laterza, Bari, 2000 - hat the "principle of laicity, acting both as a guarantee for the presence of all cultures and as a limit for the exclusive self-assertion of some of them, well beyond the religious phenomenon alone, operates as a primary factor of the model of pluralist democracy, and is intimately and indissolubly linked to it” (p. 270).
[53] ⬆︎ On the value of constitutional identity in a general sense see M. RICCA, Culture interdette. Modernità, migrazioni, diritto interculturale, Bollati Boringhieri, Turin, 2013, particular p. 186 ff. See also F. ALICINO, La legislazione sulla base di intese. I test delle religioni “altre” e degli ateismi, Bari, Cacucci, 2013, defined "confessional pluralism [lato sensu] a gradient differentiated", as well as a "lobbying" practice (not yet regulated by a law) also an expression of a distorted interpretation of the democracy of interests (p.40). On this point also G. MACRÌ, Organizzazioni religiose e attività di lobbying, in Percorsi costituzionali, 3/2012, p. 79 and following.
