by Nicola Colaianni
Former councilor of the Supreme Court of Cassation and full professor of ecclesiastic law, University of Bari
Freedom of conscience, religion and thought is the most fragile and vulnerable of all because it can be compressed and suppressed even subliminally, with messages and stimuli below the perception of the subjects. And the offense can come, not only from the public authorities, but also from the same communities in which individuals perform, in particular, their religious personality. These social formations, rather than serving the full development of the human person when unquestionably directed by a charismatic leader, become the master of the consciences of the adepts, greatly limiting or even annulling their freedom of determination. In this case, the State intervention to protect the inviolable rights of the person is a duty that article 2 of the Constitution also prescribes within the social formations, adhering to which, in principle, we accept a compression of our rights.
But is the type of state intervention implemented so far enough to give an answer to the many victims of the estimated over five hundred sectarian organizations – we do not know actually how reliable this is – operating on the Italian territory? There is an "anti-cult squad" in the organizational chart of the Ministry of Interior, which also works in collaboration with other similar structures of victims' associations and voluntary organizations. Together, in November last year, they participated in a meeting organized at the Lumsa University in Rome, in which the speakers, describing the characteristics of the manipulator, the personality of the followers and the baiting techniques, highlighted the recurrent criminal offences in these practices: private violence, fraud, extortion, circumvention of incapable persons, sexual violence, pedophilia, instigation to suicide and even murder. They are all offenses prosecuted ex officio, on whose interpretation there is a consolidated jurisprudence and therefore a certainty of the law, so it is justified to believe that the legal system possesses the normative instruments to adequately oppose the phenomenon of "cults" (equivocal term, legally unusable) when crimes are committed within them and/or by their leaders or adepts (see for example the convictions for sexual violence and ill-treatment in the "Forteto" affair, decision of the Supreme Court of Cassation, December 22, 2017, No. 24979).
The problem, for these as for other criminal offenses (think of the mafia crimes), is therefore constituted, not by the lack of incriminating norms but rather by the difficulty of the investigations, hindered by the conspiracy of silence or by the reticence of the religious seeker himself and, especially in the case of minors, by the vulnerability of the newcomer. With reference to which, however, it is worth remembering a law that allows intervening to protect them in advance: it is the law 1423 of 1956, which establishes the prevention measures of the special surveillance, the prohibition to reside, the duty to reside. They can be applied independently of the ascertainment of crimes and already in the presence of danger to all "those who, due to their behavior, on the basis of factual elements, must be considered as offending or endangering the physical or moral integrity of minors”. To counter - as recommended by the Council of Europe, 1412/99, # 10 – “the illegal practices carried out in the name of religious, esoteric and spiritual groups”, therefore, the criminal system is already sufficiently equipped with criminal provisions, not only at a repressive level but also at a preventive one.
Nonetheless, there is a widespread perception that – according to the title of a 2015 reportage published in the weekly magazine L’Espresso - "Cults and gurus are growing, the institutions are silent". To underline the groundlessness of alarmism it is the content of the article itself, in which legal cases were also mentioned, such as that of “Arkeon, an Apulian organization shattered by heavy judicial inquiries that led to a final conviction for sexual abuse of a master, while others were convicted at first instance for criminal association". However, the thesis formulated was that of an “inexplicable regulatory vacuum by which the world of occult thrives”.
This common, but unfounded perception, which seems appropriate to report here – not with the words of the anti-cult associations but with those of a guarantist weekly magazine beyond suspicion of justicialism, – explains why a law bill is punctually presented at the beginning of each legislature to introduce a new crime into our legal system: that of mental manipulation. It happened again this year and also due to the resonance of another journalistic investigation, published in the book by Piccinni and Gazzanni Nella setta (Note of translator In the Cult). Announced on February 5 in the Chamber of Deputies with number 1565, subject of a subsequent press conference reported by various newspapers, the proposal which sees as the first signatory deputy Santelli is, however, unknown because - the site of the Chamber bears - the text is not available. Apart from the singularity of officially registering a proposal that does not materially exist, it can be deduced that, at least, the urgency of the intervention on the subject, announced at the press conference following the presentation of the empty shell, is not particularly felt. However, it is probable that, apart from the news that the report will perhaps contain, the legislative text will not deviate from the ones that managed to land in the Senate in 2005 without being scheduled and it was then slavishly repeated until the last legislature. It is a question of introducing into the criminal code one of the "crimes against moral freedom", an article 613 bis concerning the "Mental manipulation", consisting in the fact of "anyone, by means of conditioning of the personality or through suggestion techniques practiced with material or psychological means, puts someone in a state of continuous subjection such as to exclude or greatly limit the freedom of self-determination”.
Would there be a difference compared to the old article 603 of the Criminal Code, which constitutes the crime of plagio, which the Constitutional Court, with the decision of 8 June 1981, #96, declared illegitimate because in contrast with articles 21 and 25 of the Constitution? That type of crime consisted in the fact of "Anyone who submits a person to his power so as to reduce her in a state of total subjection" but, according to the Court, "It was lacking all its constituent elements of clarity”. The legislator, foreseeing a criminal sanction for whoever subjects a person to his power in order to reduce her in a total state of subjection, would have actually entrusted to the arbitrary determination of the judge the concrete identification of the constitutive elements of a crime of generic malice, free conduct and non-determined event”.
It does not seem that the new formulation can overcome these objections. It is not enough to evoke the techniques of conditioning and influencing the personality" to make the specific conduct not "free”: in fact, moreover, when practiced with psychological means that can be the most varied and that is impossible to define scientifically, and to distinguish them from those lawfully utilized – besides those of advertising and teaching – especially in religious organizations. Therefore, in violation of the principle of strict legality, the proposed wording also ends up delegating to the judge the specific identification of the conduct constituting the crime. The judgment of the Court with regard to the "subjection" event is completely overlapping with the new formulation: a “continuous” subjection and such as to exclude or greatly limit the freedom of self-determination” is nothing but a "total "subjection, as in the old text: the substance does not change but only the linguistic enunciation. Therefore, as denounced by the Court, “the danger of arbitrariness, from the viewpoint of the excessive dilation of the criminal case in point, would be all the more evident considering how the reference can lead to an application of the law to completely legitimate situations of psychological subordination, often recognized and protected by the legal system, such as religious, political or union proselytism ".
Criminal law must be minimal ("limited to the minimum necessary", the Court wrote in the decision 487/1989) and not stuffed with criminal provisions devoid of typical characteristics and, therefore, destined to come to nothing in a subsequent trial. When the legislator nevertheless proposes them is because, as described in a 1980 report of the European Committee on crime problems, "he often undergoes a pressure by the public opinion or groups that push him to crack down on certain undesirable phenomena", but their effectiveness is merely symbolic. In fact, they limit themselves to act on an emotional level through the stigmatization of a conduct, but - this is the enduring relevance of the Constitutional Court warning - they risk to put other constitutionally protected goods into real danger: as, in the case, freedom of religion, in terms of proselytism and membership.
An unnecessary danger, because the criminal laws in force are sufficient to counter the phenomenon of "cults", and to which, however, the legal system is recurrently exposed. There is a compulsion to repeat, so I gladly accepted the invitation from the editorial staff of Freedom Of Belief, which I therefore thank, to republish my critical essay against a dating, but not of a different inspiration, Ministry of Interior's report. Both of them date back to twenty years ago but, except for the references that everyone can make to more recent events and initiatives, the debate is always the same.
Religious cults
and new magical movements
The "confidential" report of the Ministry of Interior
(Afterword to the work Religious Cults and New Magical Movements by Nicola Colaianni, Sapere 2000 series directed by Giuseppe Salerno; Council of Europe Publishing)
Note of the Editor-in-chief Angelo Ruggieri
In recent years there has been a continuous announcement of the birth of cults or religious, magical, occult and non-occult movements. The daily press talks about it, relegating the news in the crime news section. The Ministry of Interior has prepared a map of all the cults existing in Italy. For each organization, there is a description of creeds and practices, consistency and locations, representatives and any other useful information.
A dangerousness judgment of each movement concludes the report. The Ministry sent the text to all the security forces to alert them against possible attacks during the Jubilee.
Nicola Colaianni emphasizes how this publication is in contrast with our Constitutional principles and with the decisions of the Constitutional and the Cassation Courts. Moreover Colaianni dwells on the current policy that the government has towards new religious movements, oscillating, even if not to the extent of other European countries, between prevention and constitutional guarantees.
Religious freedom in the Italian Constitution
by Nicola Colaianni
1. The police report: a preventive action against the treaties?
The document published here (www.aiiap.org/PDF/informe06.pdf) is historically important, because it is the first one compiled under the guidance of the Ministry of Interior by an exponent of the Left Party - heir of the Italian Communist Party – and therefore lends itself to being used as a source of cognizance of the attitude of the Left – now at the government – towards religious minorities. It is not that its content is not important, but it is clear that its evaluation cannot ignore this novelty, which is such as to load it with expectations: unfortunately, partially disappointed, because the document is unsuitable to represent a solution of continuity in the consolidated policy of that Ministry.
It is a police document, born from the need to verify the existence, "especially in view of the jubilee year", of a "real danger to order and security": it must be evaluated, therefore, under a practical function of intelligence. On balance, in turn of the end of the jubilee year without having recorded a slightest episode of intolerance or contrast by sectarian groups (also the only initiative that raised concerns and that turned out to be groundless was, in fact, the World Gay Pride), you can ask yourself on which concrete elements the suspicions of the police were based: it is in fact a further confirmation that the impression that the danger feared in this field is above all ideological (like once it was that for the "Communist danger": also in view of that, we would have expected a different approach from this different ministerial leadership).
But apart from this evaluation, which may appear to be the result of hindsight, one remains, however, quite puzzled by the fact that the competence of the Religious Affairs of the Ministry itself has been neglected, which, if only for the purpose of instructing the practices for the recognition of the juridical personality of the various confessions, is suitable to reconstruct with greater completeness some profiles and the overall image. The fact that even in the sectors under the responsibility of other departments of the same Ministry, the Italian police operates in an autarkic manner, does not advocate a full and comprehensive understanding of the social phenomena it may possibly face.
On the other hand, this initial confidentiality clumsily clashes with the publicity that about two months later (29 April 1998) it was decided to give to the document, by sending it officially to the Constitutional Affairs Commission of the Chamber of Deputies, from which, inevitably, ended up in the press. Too much democratic grace, one could observe; but does the absolute transparency, even of the studies that support investigations, not contraindicated for a successful prevention?
The incomprehensibility, from a police perspective, of this disclosure has corroborated the inference of an intervention in pure "First Republic" style, without discontinuity: an alarm is launched on the proliferation of cults (which the press, regardless of what the document actually says, immediately will define "dangerous") indeed to the Commission that is examining the government bill on religious freedom and that it will take care of how, in fact, to deal with the treaties that the government had (at the time) in the process of negotiating with some confessions, which, although not addressed by specific cards in the document, escape the path of traditional religions in our country: Jehovah's Witnesses and Buddhists.
The coincidence, in fact, does not seem to be casual. The government bill provides for easy conditions for the recognition of the juridical personality of confessions, making it a consequence the right to freely perform certain functions (from spiritual assistance to the celebration of marriages), now subject to authorizations and controls, and to take advantage of old benefits (such as the free distribution of publications) and new ones (for example, the granting of buildings or the provisions to construct buildings of worship).
Legitimacy and accreditation, which would be conferred by this law to confessions, would therefore result in a restriction of police powers against them.
Against the above treaties, however, a certain opposition is being organized in the Parliament: by a group of parliamentarians who are transversal to the center and to the right of the political deployment, particularly towards Jehovah's Witnesses but, at least indirectly, also towards the Buddhists (a couple of years ago there was an initiative by a group of Democratic Left parliamentarians sensitive to the demands of a faction of Monasticism). But the reasons for the opposition are deeper than those resulting from institutional projections of dissent within the individual confessions.
Although theologically belonging to the Christian-Jewish stock, the Jehovah's Witnesses Congregation is surrounded by hard to die prejudices and it is considered dangerous for its uncompromising fidelity to the contents of one's creed (from total conscientious objection to rejection of blood transfusions). As far as Buddhism is concerned, it is true that it does not hurt a fly (in a literal meaning for some schools) but it has the original sin of having a Eastern origin, so as to make it fear that its recognition can pave the way not only to other orientalist groups, but above all to the "technological Buddhism" of Scientology: which, as clearly evidenced by the amplitude and harshness of the card dedicated to it as the most organized of the "psycho-sects" or "destructive cults" (as are called the "movements for the development of human potential"), seems in effect the main recipient (apart from magical movements) of the attention of the police.
If we then add to it that on the waiting list of the religious groups awaiting full recognition, or even a treaty, there are Islamic organizations that for different reasons raise concern and initial refusal – as shown by the invitations to rethink the reasons for reception and multiculturalism, which in recent weeks authoritative men of the church (Cardinal Biffi) and of the world (the political scientist Sartori) have widely performed - the hypothesis of an alarm that the police wanted to provoke in the Parliament – with the political coverage of the top management of the Interior – seems likely.
2. An unjustified alarm
The alarm, however, has been aroused – with consummate mass media skills – more with the tools of communication (the title, as we will see, and the form used) than with the content. Both from the introduction and from the two chapters dedicated respectively to the "new religious movements" (34) and to the "new magical movements" (36), there are concerns about the usual accusations of "subtly plagiarizing one's own affiliates and pursuing unlawful purposes" and also, in the abstract, criminally relevant aspects, but not without warning that there is no certainty about them, because no judgment was issued, if not a negative one.
Indeed, in the introduction it starts from the consideration – actually rather generic – that the national public opinion would sometimes attest to positions of distrust or aggressive intolerance due to criminal incidents which occurred, however, abroad (from mass suicides to massacre with nerve gas in the Tokyo subway) to explain the purpose of the document: "to understand if in the message transmitted, in the purposes pursued and in the methods used, anti-juridical or antisocial aspects can be identified".
Afterwards, in the same introduction, it is emphasized that the greatest attention must be brought, as already mentioned, to "movements for the development of potential" owing to the accusations – addressed to them and that are evidently shared by the editors of the document – of "mental dismantling" ("brainwashing" or other methods to limit the individual’s freedom of self-determination) or undue enrichment to the detriment of affiliates (through collection of contributions with aggressive methods and sale of goods or services, therapeutic sessions and specialization courses) or the concealment of illicit conducts under the guise of a religious group.
But it is the same introduction to remind that the crime of plagiarism is no longer provided for by the criminal code and that the other aims, where proven, are not either incompatible with the group's religiosity or are criminally punishable by ordinary means, without the possibility that the probable religious nature of the group acts as a cover. The cards, if one excludes the one on Scientology, only confirm this judgment. And indeed the category used to distinguish these formations from the magical movements is that of "new religious movements", which gives them for granted, in fact, a religious character.
On closer inspection, therefore, the alarmist message is conveyed in a subliminal manner by the title of the document, which, having abandoned this definition, incorporates the traditional and persecutory one, of "religious sects". The all-political meaning of this phrase cannot escape and is, in fact, completely clear to the writers of the document who, right from the start, highlight the negative value taken at the expense of the technical meaning. It is not meant, that is, with "sect" a community of discipleship or a community detached from a mother church, but a religious minority unpopular to the majority and dominant confession and, therefore, suspected and to be prevented. The first Christians were considered, and still are to be considered a Jewish sect, according to reports prepared by some Parliamentary Committees (for example, in Belgium), at least some Catholic associations, such as the Renewal in Spirit and the Opus Dei, as well as different cults such as Zen Buddhism and Quakers: the meaning is that these are movements to beware and to subject to strict control.
With the title adopted, the document casts a shadow of general suspicion on new movements, not only magical but also religious ones, while expressly cautioning that from the study carried out - preliminarily and with the exception of Scientology – on which we will come back – no concrete elements of suspicion come up. The cards refer, in fact, to "unverified voices", to "indirect sources" and of course, not to be missing in a police report, to "anonymous reports". If you ignore the pseudo-news so insinuated, it turns out that the document is only a hundred of news taken from current encyclopedic works, now available in economic edition, such as those of Massimo Introvigne, or from websites, such as that of Cesnur. In some cases – and Scientology is among these – the information is based on material provided by ex-members that also passed the scrutiny of judicial organs (in the case of Scientology by the Court of Appeal of Milan, decision of 2nd December 1996, but then canceled by the Supreme Court of Cassation with decision of 8th October 1997). In short, the aim is to alarm but, in practice, one is not able to adduce specific arguments: a situation without a way out.
3. Oscillation between techniques of promotion and prevention towards the new religious movements
Albeit easily intuitable, it is opportune to notice, however, how the impasse is general and, in different forms, it also concerns the other countries, as can be seen from the documents approved at European level.
A common point of reference is the freedom of conscience and religion guaranteed by art. 9 of the European Convention on Human Rights, signed in Rome on 4th November 1950 that, with the Treaty of Maastricht (Article F, paragraph 2) on the European Union, found for the first time an explicit position between the general principles of Community law and will probably be codified with the approval of the European Charter of Fundamental Rights (it appears at Article 10 of the draft approved by the special treaty). This principle, however, is differently applied to new religious movements, depending on the attitude of greater or lesser tolerance, with the recommendation of techniques now of promotion, now of dissuasion or repression.
In the first meaning – that would seem dominant and enduring, but turning out to be contradicted by the most recent resolution of the European Parliament – there is, first of all, the orientation of the Recommendation 1178/92 of the Parliamentary Assembly of the Council of Europe. Although adopted in the wake of the emergency (determined by the explicit concern for the agissements, the "manipulations of the cults", of which various families and associations declared themselves to be victims), it suggests to the Committee of Ministers to invite the member states to foresee in the general system of education additional information on the nature and activity of cults and new religious movements by independent bodies, but excluding the use of special legislation. Moreover, the specific suggested legislative measures, such as the conferral of juridical personality and the protection of the persons employed by the sects, even when they decide to leave them, denote a recognition of the new religious movements and their integration into the legal system, as well as a recognition and guarantee of the fundamental rights, and therefore inviolable ones, of the members, in line with the resolution of 22nd May 1984 of the European Parliament.
Indeed the latter, however, on the wave of emotion caused in France by the death of sixteen people, including three children, due to the activities of a "cult", with the resolution of 29th February 1996, invited the member states to a greater prevention activity and in particular not to grant "automatically the status of religious organization", which ensures tax advantages and a certain legal protection.
Promotional techniques, favoring integration and inclusion, on the one hand, techniques of prevention and repression, on the other: also the European resolutions and recommendations, therefore, oscillate, although mainly dependent on contingent concerns, without succeeding to offer a solid preamble to national legislation.
However, in some countries the message has found sensitive ears. Last 22nd June the French National Assembly unanimously approved an anti-cult law, not yet definitive but already strongly criticized by the Catholic and Protestant churches, as well as by Catholic ecclesial movements such as the Focolari and the Chemin Neuf, which could be affected from rigid, if not tortuous, interpretations of the ambiguous crime of "mental manipulation", feasible – according to the formulation approved – in a group "that has the purpose or effect of creating or exploiting the psychological or psychological dependence of the people participating in the activities, to exercise on one of them serious and repeated pressures or to use the proper techniques to alter his judgment so as to bring it, with his favor or in spite of it, to an act or abstention that is gravely prejudicial to him ".
4. The recognition of the status of religious organization
It is to be hoped that the resolute position taken in France does not affect our country, also crossed by a similar oscillation, albeit in asymmetric forms.
Indeed, the recognition of the status of religious organization – if not "automatic", as advised against by the last European resolution – is certainly very broad and characterized by the offer of a wide range of organizational models: from the confession organized according to its statutes, to the association, even de facto. But the tax advantages and the special legal protection, advised against in the European resolution, are mainly contained in the treaties, which, as we have said, the government has only stipulated with the traditional confessions or however, as far as the rights of the citizens guaranteed by the state are concerned, those "tested".
In particular, it is not foreseen any prior control both of the consistency (from the constitutional rules there is not a minimum number of members either for the confession or the association) and of the actual religious purpose of the so-called self-appointed entity, since also the limit of the legal system of the state, set only for the statutes of the confessions, refers to the rules of operation and not to those of purpose, in particular relating to the "religious ideology practiced”: on the other hand, such control is structurally impeded by the lack of a normative definition of the concept of "religious confession" and, even less, of "religion", to the point that, as it was considered for the Buddhist communities, even "the circumstance that an institution does not perform the rites or performs them minimally cannot be used to restrict the scope of the article 2" of law 1159/29.
The recognition of the juridical personality of the Italian Buddhist Union, which took place with the Presidential Decree of January 3, 1991, certainly represented a turning point for its innovative contents and it is susceptible of further applications, because for the first time the confessional character of an a-theist social formation was recognized, in the sense that it disregards the existence of divinity and pays attention rather to the three jewels (Buddha, Dhanna and Shanga), and with a worship consisting of meditation sessions in which the spiritual and psychological aspects are hardly distinguishable.
But the extension of the "paradigm" of religion, relevant to the Italian legal system contained in that decree – devoid of the power to innovate the legislative order – finds a legislative precedent in the treaty approved with Law 101/89 that was concluded with a social formation, the union of Jewish communities, which does considered itself a confession – because "in Judaism religion and nation overlap in a tense way" (Levi della Torre) and that, however, has represented itself as such for the sole purpose of stipulating the treaty.
According to the testimony of Guido Fubini, who led the Jewish delegation, the Government Commission considered "several times [...] to remind us that the Constitution of the Republic, although providing for the protection with appropriate rules the linguistic minorities, does not provide for treaties nor with linguistic minorities, or with different cultural components, but only with religious confessions", for which "the juridical commission of the Jewish Union was aware of the opportunity to accept the status of religious confession for the purpose of the treaty". The assumption of the treaty - that Judaism is a confession - has no other proof than the self-reference (instrumental, as we have said, to the treaty) of the Jewish communities. Accordingly, the law approving this agreement gives rise to a norm that emphasizes the confessional self-qualification of the social formation, precluding the state from the possibility of a control (which in the case would have been resolved in a negative meaning given the ordinary non-confessional representation that Judaism gives of itself).
To tell the truth, the existence of this rule – and therefore the sufficiency of self-qualification – has been formally denied by the Constitutional Court in the decisions 467/92 and 195/93, but it essentially derives from the third criterion to identify the confession, indicated in the second sentence: in succession and also separately, the stipulation of treaty, the previous public recognition, the status of the (self-styled) confession and the common consideration. It follows that, where the religious entity has a "statute that clearly expresses its characteristics", it is necessary to refer to it, to an act that, as remitted to the autonomy of the social formation indicating its purpose (art. 10 RD 1289/1930), qualifies it as a religious confession: it is therefore a self-qualification, although denied as a thesis by the Court.
5. (continued) Sufficiency of self-qualification (in particular: the story of Scientology)
And indeed the most interesting part of the new ruling by the Supreme Court on Scientology (ruling of 8th October 1997) is certainly that relating to the self-certification of the statute. The judge of legitimacy with a dissimulating but contradictory attitude, dating back to the Constitutional Court, continues in the premise to exclude the sufficiency of self-qualification, but then censors the decision of the Court of Appeal of Milan for not having considered "safe indices" of the religious character either the recurrence in the statute of nouns "church and religion" or the "reference to religious works, rituals and care of spiritual needs" or to the "faithful": that is to say, the self-qualification of Scientology in the statute as a church.
According to the Court of Appeal, indeed, it would be "self-qualifications of convenience, sometimes instrumental to achieve the advantages offered by legislation to religious confessions" and in any case to mislead the criminal investigations launched on the organization in the eighties, as demonstrated by the introduction of the new denomination of "church" only in the 1985 statute. As a matter of fact, this name occurs several times already in the statute of the "Dianetics Institute of Milan" of 1.7.1982, as also recognized in another point of the decision of the same Court of Appeal, and it is reasonably traceable by way of interpretation to some references, such as that to the "immanent and immortal nature" of the person, contained in the statute of the "Hubbard Dianetics Institute" of 20.1.1977, also cited by the Court, and commonly assumed in sociology, as they are usually found in a religion, as evidence of the religiousness of the association.
But, apart from these negligences that appear to be the result of a partial reading of the statutes, it observes that the criteria indicated by the Constitutional Court are, according to the Supreme Court of Cassation, "merely formal" and therefore they do not allow - if not starting from a prejudicial definition of religious confession, hindered by the aforementioned constitutional limits - a control aimed at highlighting an "intrinsic contradiction", that is, on the substantive level, of the purposes indicated in the by-laws. The statutory self-qualification is thus assumed to be a "sure index" of religiosity, until proven the contrary, of its actuality. Therefore, on the procedural level, the power of the public administration is to examine the real "operational characteristics" (for the entities, State Council 10.5.1989, No. 767) and to try to conceal the aims actually pursued (for example, for exemptions and tax reliefs) or even the criminal relevance of the concrete activity carried out by the so-called religious confession. On this level, self-qualification is a mere presumption which, as the Constitutional Court noted in its judgment 467/92, "is not subtracted from the assessment of its real nature, according to the criteria that can be deduced from the set of rules of the legal system".
6. Repressive techniques: criminal protection
Recognizing that, in accordance with their self-qualification and without a contrary judicial proof, we are at the presence of religious social formations does not lessen or much the less excludes – if it this, as it is right, the concern – the protection of the rights of the citizen within them. The fundamental rights of citizens within the new religious movements receive the same protection guaranteed by the state in the context of every social formation, as recognized by the Constitutional Court in its judgment 239/84.
It is however important to mention the criminal protection of those rights which, following the first (1984) resolution of the European Parliament, refer to the possibility of "freely abandoning an organization, maintaining contacts with family and friends both directly and through correspondence or telephone; seeking advice from outside, both legal and otherwise; asking for medical assistance. "The aim is to provide the proselytes with space for reflection and freedom to resist the denounced attempts at "conditioning of one's own self "(Botta) through aggressive proselytism, deprogramming or in any case "undue influence” (Del Re).
In spite of the often alarmed tones that can be grasped in this regard, sometimes even in legal literature, it must be said that, to a great extent, we are facing a false problem. It is not in fact doubtful that such criminal activities are already punishable without that the need is felt to create new criminal offenses based on the common criminal law, which cannot stop in front of allegedly religious motives of illicit conduct. In that which perhaps may be considered the leading case of conflict between norms imposed by a confessional precept (in the case, a prohibition of blood transfusion for Jehovah's Witnesses) and criminal norms, the Supreme Court of December 13, 1983 established that, even if these counts [which avoid the observance of those prohibitions and those impositions contained in the criminal laws] find direct source in a precept of religious faith qualified as mandatory, [...] we cannot claim to condition or lessen the obligatory nature of laws by deducting the relevance of a precept that is unconnected to them".
This orientation corresponds to a conception of the criminal law based on the principle of secularism (now declared "supreme" by the Constitutional Court 203/89), in which religion as such cannot have an “absence of liability” effectiveness, nor even "quality of legal good" (Hassemer).
The principle, in a multi-religious context such as ours, is also valid in the relations between confessions and religious groups, without that - under the criminal profile - can be attributed to the more recent confessions and new religious movements a less guaranteed position than that of the historical confessions, and in particular of the dominant ones. The question was again dealt with recently by the Supreme Court (decision 7.10.1998, No. 1693) with reference to the Congregation of Jehovah's Witnesses, who had sued for defamation a person interviewed on a parish bulletin and the editorial parish priest responsible for the publication: these were the usual accusations of brainwashing, enslavement of adepts by a pseudo-religious cult, in reality a criminal association.
The Court ruled that defamation cannot be justified by the performance of the right to criticize (Article 51 of the Criminal Code) because the aforementioned sentences "seriously affected the honor and the reputation of the religious congregation", among other things through "the offensive of the disregard of the religious nature of the congregation". In particular, then, the Court found irrelevant the reference to art. 2 of the Concordat that ensures to the Catholics full freedom of expression of thought and "the freedom to publish and disseminate acts and documents relating to the mission of the church", since the Concordat rules according to a constant teaching of the Constitutional Court cannot contrast the supreme principles of the Constitution and, therefore, the "primary rights" it enshrines: in essence, "the peculiar nature of religion, so as not to encroach in intolerance and fanaticism, postulates that in the defense and dissemination of its values the other's confession is respected, even though one has the right to challenge".
7. The criminal jurisprudence of the Supreme Court
However, in recent years, the attempt to increase the rate of effectiveness of the judicial "response", using the procedural instruments and the precautionary measures envisaged for the most serious crimes, has frequently led to the prosecution of criminal proceedings also for association crimes. The formulation – in the presence of a repeated series of crimes against the person or against the patrimony by members of a religious movement – of the equation religious association=criminal association (simple or sometimes mafia) allows you to call to answer the same association and for it, its managers, even if not personally competing in individual crimes.
These then do not become a pathology, even if religiously motivated in this case, but a structural element of the association, a physiological way of being and acting: criminal and criminogenic.
Therefore, to justify the nature of criminal association of the church of Scientology – whose members were accused of extortion, frauds, circumlocutions of incapacitates and other similar offenses against proselytes – the Court of Appeal of Milan, 5.11.1993, affirmed that it had "manifested itself in its essence, from the beginning, as a commercial activity, aimed at selling, with all the methods provided by the manuals on the subject, of a particular product", as if – then observed on this point the Supreme Court, 9 2 1995, which annulled the decision – "a commercial activity carried out by a religious organization" is "likely to make it lose the connotation of 'confession', referred to in Article 8 of the Constitution".
A similar logical procedure has been adopted by the Milan court in the review, 14.7.1995, concerning an association configured as operating in the structure of the Islamic Cultural Institute to impose hegemonic control within the Islamic community in Milan over all the activities of butchery with sale of meat from animals slaughtered according to the Islamic rite, "under penalty of the public declaration of non-compliance of the slaughter from the list of those approved by the Imam as being respectful of the same rule". The court has identified the intimidating force, which determines the conditions of subjugation and omertà characteristic of the Mafia crime organization, in the association bond of the Islamic Cultural Institute of Milan in relation to "unjust pressures, bolstered by the support expressed publicly by the Imam of the mosque, of the threat of putting the merchants themselves under the ban of the faithful and from the conspiracy of silence of the others belonging to the Islamic community".
The Supreme Court of Cassation clearly refused such automatisms, noting in the second case that "the threat of sanctions and consequences, typically connected to essentially religious rules (and for Muslims also otherwise obligatory as norms operating outside the sphere of ethical conscience), freely acclaimed and accepted by the members of the community", as foreseen by the minor order of a social community expressive of the "ratio" of an also religious pluralism (article 2 of the Constitution) and therefore operating in full legality, arises ontologically in antithesis with the intimidating force – such as art. 416-bis of the Italian Criminal Code means – of an unjust, oppressive and violent instrument which must necessarily be prevented by the entire community of the nation ".
As for Scientology, the Supreme Court 13.10.1997, did not consider it an obstacle to its self-representation as a religious association the fact that it is a "paid religion" and that the services (except the first one, apparently) are offered – differently, however not to be overestimated, from the traditional churches – exclusively for consideration, even onerous. This is not enough to consider commercial activities, that is to say, for profit, the sale of goods and services, as also concluded, evidently in agreement with the ruling of the Supreme Court and truncating a ten-year litigation, the Ministry of Finance (decision of 16 December 1997, confirmed by analogue others of 27 August 1998).
On the other hand, the risk of self-qualifications of convenience formulated for the sole purpose of benefiting from favored norms is inherent in the welfare state, which thus promotes the desired activities, and can be remedied, besides with the intensification of verification and control activities, also in a preventive manner, with the generalization of those rules towards all non-profit social organizations, with altruistic or humanitarian purposes, so as not to induce the associations to qualify themselves as religious or cultural for the sole purpose of benefitting from them.
Moreover, this risk is irrelevant at the criminal level, because the religious motive of a constituting crime does not eliminate its anti-juridical nature and therefore nothing prevents the members of Scientology and those of any religious confession even of a majority, such as the Catholic Church, of being prosecuted for any crime including criminal association: provided that it is contested to the members who have actually been associated to this purpose and not generically to all the members of the association as such. As the Supreme Court has indeed pointed out, it is illogical to assert the participation of all Scientology followers to a criminal association constituted only for profit purposes when the profits are not intended to be divided among them but remain available to the organization: that, beyond the misleading dispute over the religiosity of Scientology, constitutes in the constitutional perspective of a secular criminal law the actual point of crisis of judgments that base the sentence on the non-religious opinion of an organization.
It should be noted, again with reference to Scientology, against which the police report published here is particularly cruel without any arguments, that this lack of incompatibility between the religious nature of an association and the sale of goods and services for consideration is the object of widespread recognition also in other countries: even in Germany, where the administration is particularly prejudiced and the jurisprudence itself was more oscillating, the orientation that recognizes Scientology as a religious community does not consider its "method of financing through donations" a commercial activity ( in this sense, the Hamburg Superior Court, ruling of 5.1.1998, has recently been issued).
However, after the two pronouncements of the Supreme Court on Scientology, which led to the annulment of two decisions of the Court of Appeal of Milan, this may have put the word "end" if the General Prosecution will not recur by cassation in the long and contrasted affair with the decision of acquittal read on October 5, 2000. But there is no need to cultivate overwhelming illusions about the consequences of this decision.
Despite the dicta of the Supreme Court, indeed, the recourse to the contestation of association crimes is quite frequent and responds, not unlike the preventive use of ecclesiastical law, to the need or the illusion of cutting the "bad plant" at the root, here as in other fields. Criminal law is used for its symbolic effects, thus passing from extrema to prima ratio, which can be used to affirm certain values or to reassure the community in the emergence of episodes or criminal phenomena.
8. New religious movements and freedom rights in multicultural society
Ecclesiastical law and prima ratio criminal law are evidently the result of the concern that "in addition to the venerated, highly respectable confessions that we all know, strange and bizarre cults (America teaches) may arise which does not correspond to the Italian legal system". These words were spoken by the President of the Commission for the Constitution, Ruini, to the Constituent Assembly and show how much diffidence there is towards the new religious movements.
Without removing the nucleus of foundation, and therefore the need to protect the weak subject of this relationship with the new religious movements, we must not overlook that it is also the result of the convergence of will, on the one hand, of the confessions of a traditional system of occupying a prominent position or social and institutional advantage in society, and on the other hand, of the state of privileging the confessions that offer greater contributions to socio-cultural integration, which have more followers and/or are more influential and able to legitimize the established social order.
In this way it is not possible to avoid – as instead recommended by the Parliamentary Assembly of the Council of Europe (February 2, 1993, No. 1202), - that the contact among different religious beliefs, produced by migratory movements towards Europe, is resolved, rather than in a "better understanding and a greater mutual enrichment", in a "strengthening of separatist tendencies and in an encouragement of integrisms": an aspect of the wider phenomenon of globalization that regards minorities in general and, in particular, those that are labile, precarious, formed for example by sans papiers immigrants.
Beyond the critical notations, which may be present on the individual cards, it is the function of this police document that indeed appear to be censurable, which, with its targeted advertising has ended up assuming, of encouragement of the integrisms and distrust of new religious movements. It is objectively uncoordinated with the positive policy towards religious confessions inaugurated by the Presidency of the Prodi Council: the establishment of two commissions, for religious freedom and treaties, presentation to the Chamber of Deputies of the bill on religious freedom, negotiations for treaties with confessions such as the Buddhists and Jehovah's Witnesses, concluded with the stipulation on March 20, 2000 (however, still lying in Parliament).
The impression – perhaps beyond the intentions, but in this case the distances from the authors should be taken and publicized – is a contrast emerged on this positive policy in Prodi’s Government between the Ministry of the Interior and the Presidency of the Council, the old and the new subject of ecclesiastical politics: a contrast which, as demonstrated by the parliamentary initiatives mentioned above, could be extended to parliamentary sectors, even of majority. The fact that D'Alema’s government has only approved by a majority the two treaties indicated, with the opposition of the ministers of the central parties, is not a good viaticum for a parliamentary debate: that it is desirable that it should live up to the situation because its character is not only multi-religious but, for what has been said, also multicultural and multiethnic of our country.
In fact, religious freedom is historically the testing bench of the guarantees of minorities also in relation to other freedoms. One can be sure that the expansion of other freedoms would also be compressed if for the religious one would be asserted a sort of "sustainable freedom" from the system, limited to traditional confessions or otherwise responding to "classic" or shared canons by the public, perhaps ascertained through surveys.
A freedom of the new religious movements "compatible" with the "common feeling" in this matter would end up reinforcing the current and not sufficiently opposed tendency to reduce the rights of citizenship to a variable that is ultimately dependent on market conditions, in direction of cultural uniformity.
It is the myth of the tower of Babel – to create such a narrow unity as to climb the sky – that reappears in new forms, preventing the construction of "paths that can lead us to overcome our provincialism, without pushing us all in the same bag, in the same worship, in the monotony of the same culture "(Panikkar).
Bibliographic note
The works mentioned in the text are:
M. Introvigne, Le nuove religioni, Milano 1989;
Id., Il cappello del mago. I nuovi movimenti magici dallo spiritismo al
satanismo, Milano 1990;
S. Levi della Torre, Essere fuori luogo. Il dilemma ebraico tra diaspora e ritorno, Roma 1995;
G. Fubini, L'intesa, in La rassegna mensile di Israel, 1986, n. 1;
R. Botta, Manuale di diritto ecclesiastico, Torino 1998;
M. Del Re, Per una disciplina legislativa a tutela dell'integrità psichica, in Movimenti religiosi alternativi, 1989, n. 3;
W. Hassemer, Religionsdelikte in der siikularisierten Rechtsordnung, in Lombardi Vallauri-Dilcher (a cura di), Cristianesimo, secolarizzazione e diritto moderno, Milano 1981.
On the notion of religious confession cf.
N. Colaianni, Confessioni religiose, voce dell'Enciclopedia del diritto, Agg. IV, Giuffrè, Milano, 2000, 363 ss.
On Scientology and criminal matters
v. F. Finocchiaro, Scientology nell'ordinamento italiano, in Il diritto ecclesiastico, 1995, I, 603 ss.;
N. Colaianni, Tutela della personalità e diritti della coscienza, Cacucci, Bari, 2000.
