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Home arrow In Brief arrow ECHR f.Jurisconsult prof.V.Berger: Religious Freedom at Risk by Salles'Report on Sects+minors at CoE

ECHR f.Jurisconsult prof.V.Berger: Religious Freedom at Risk by Salles'Report on Sects+minors at CoE

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Written by ACM
Tuesday, 08 April 2014

vberger_on_salles_report_religious_fredom_particularly_of_new_movements_400 

 *Strasbourg/CoE/- Religious Freedom could be "undermined" and exposed to undue "Risks" because of several Controversial points contained at a Draft Report on Sects and Minors, prepared by MEP Salles, which is scheduled to be debated and voted at CoE's Parliamentary Assembly on Thursday, denounces the experienced ECHR's former Jurisconsult, Vincent Berger, professor at the European School of Bruges, in a CoE sidelines' event organized by the President of its PanEuropean Parliamentary Assembly's Social, Health and Development Committee, MEP Valeriu Gihletchi from Moldova, of the ChristianDemocrat/EPP Group. 

Exceptionaly, without endorsing any side's position without a thorough examination of the respective arguments at debate, but given the Timely proximity of Thursday's debate and vote at CoE's Assembly, "EuroFora" publishes Berger's critical presentation (that he read and discussed at a special Hearing in the CoE and kindly gave us) in full , so that all those interested at this issue can have a chance to form their final stance by taking into account also these Legal observations :

vincent_berger_ 

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THE PROTECTION OF MINORS AGAINST EXCESSES OF SECTS:

THE SALLES REPORT1

Note by Vincent Berger2

(24 March 2014)


1. Obviously, the protection of minors is a legitimate concern in the democratic societies composing the Council of Europe. The Salles Report is however far from responding to this concern satisfactorily.

A. Diversion targets

2. Despite its title, the Salles report contains many passages which are of general scope and suggest that minors are used as a collateral or a pretext for an offensive against "sects" .

a) A specific target

3. The draft recommendation3 deals exclusively with the protection of minors. It therefore corresponds to the official purpose of the report.

b ) A general target

4. As to the draft resolution, it is aiming at a much larger target4. Indeed, half of its points do not refer to children and teenagers: they concern "religious and spiritual sectarian groups" (§ 6.3) , "sectarian excesses" (§ § 6.6, 6.7 and 6.8) and "cult phenomenon" (§ 6.6).

5. This is also the case with the explanatory memorandum, including important developments that have no relationships with minors (§ § 11-13 , 22-26 , 28, 35 , 37 and 42-44) .

6. The same applies to the summary of the responses by parliamentary delegations of Member States to the questionnaire sent by the Rapporteur (§ § 1 a) -d) and 2 b) - d)), which was also often of a general nature .

B. Unfounded premises

7. Salles report is based on premises whose relevance is questionable, whether explicit or implicit.

a) Explicit premises

8. A European approach is necessary to protect minors: this is far from obvious, to the extent that, according to the Rapporteur himself, many countries do not face serious cases of "sectarian excesses" affecting minors and that the vast majority of the States deem useless to legislate on this issue.

9. The " sectarian excesses " against minors are a "deeply worrying phenomenon" (explanatory memorandum, § 38) and "remains very worrying" (explanatory memorandum, § 46 ): this is contradicted by the available data on rare abuses recorded in some States.

b) Implicit premises

10. "Cults" present a priori a danger to minors: this discredits and throws suspicion on all non traditional churches and communities and on all new religious and spiritual groups, while only a tiny minority of these entities may – or may have in the past – given rise to such criticism.

11. The legislation of Member States, and particularly criminal law, is not sufficient to protect minors: this is a serious accusation against national legislators, suspected of negligence, or even complacency, towards dangerous groups.

12. Public services of Member States do not perform their duties properly, in particular to ensure schooling and health of minors: here again, this is an accusation aimed at national authorities.

C. Questionable models

13. In a veiled yet clearly way, the draft resolution and especially the explanatory memorandum are campaigning for combative systems against "sectarian excesses", that are supposed to be effective and valid throughout all of Europe.

a) The French "model"


14. The French system, in particular, is presented as a model that should be adopted by all other Member States. But it has not proven its effectiveness, as shown by the paltry number of abuse cases reported by Miviludes. As to the About / Picard law, it has aroused the concern of the Parliamentary Assembly, which invited the French government to reconsider it (Resolution 1309 (2002) Freedom of religion and religious minorities in France, § 6), without success. However, the draft resolution advocates repression – without, however, any reference to minors – of the "abuse of psychological and / or physical weakness of persons ". This is a concept that lies at the heart of the French law but is devoid of scientific value.

b) The German "model"

15. The German system is also portrayed favorably, although less emphasized. Catholic and Protestant churches play an important role in "counseling victims of ‘sectarian excesses’ and gathering information on sectarian groups" (explanatory memorandum, § 38). The Rapporteur encourages the authorities to grant them financial support for this purpose. However, we can question the neutrality of such churches, which are in direct competition with "cults". One must also consider the risk for the State to delegate its powers to private institutions, to the point that they become the armed branch of public authorities.

D. Redundant initiatives

16. Apart from the aforementioned dangers and drawbacks, the Salles report does not provide any "added value" to the works of the Parliamentary Assembly on the issue and is often only repetitions.

a) Previous works

17. The works of the Parliamentary Assembly on the protection of children against abuses led to Resolutions 1530 (2007) and 1952 (2013) and Recommendations 117 (2007) and 2023 (2013). They have a triple character. First, they are very recent. Then they remedy what seems to appear, in the eyes of the Rapporteur, a deficiency of the European Parliament in the considered field. Finally and most importantly, they cover all issues related to violations of the physical or moral integrity of children. They appear therefore amply adequate.

b) The draft resolution

18. On a general level, the Parliamentary Assembly adopted Recommendations 1178 (1992) and 1412 (1999): the first is about sects and new religious movements, the second about the illegal activities of sects. Yet the draft resolution includes two invitations that are already contained in Recommendation 1412 (1999) (§ 8 and § 10 ii and iv.) "to provide teaching in the history of religions and the main philosophies in schools" (§ 6.4) and "to make sure that compulsory schooling is enforced and ensure strict, prompt and effective monitoring of all private education, including home schooling"(§ 6.5).

E. Inaccurate assumptions

a) The explanatory memorandum

19. The Salles report notes that "The ECHR has never issued judgments directly concerning minors who have been victims of the influence of sects either directly or through their parents or persons caring for them" (explanatory memorandum, § 14). He explains this in part by "the specific nature of proceedings before the Court" and the "lack of legal capacity to act" of minors under domestic law ( ibid.). He adds that " it is hard to imagine a situation in which parents or legal guardians – followers of a sect – would turn to the courts to protect the children concerned against themselves" (ibid.). He thus suggests that children are helpless, which is incorrect .

b) The Strasbourg jurisprudence

20. States party to the European Convention on Human Rights have a positive obligation to protect individuals. This obligation applies primarily to minors and may be invoked before the national courts by relatives who deem that they are in danger. It is the same in Strasbourg: an indirect victim of a violation of the Convention can complain since he/she has a specific and personal connection to the direct victim. This would be the case of close relatives such as grandparents and aunts or uncles. The absence of ECHR judgments concerning minors affected by "sectarian excesses" is therefore not explained by any impossibility to file applications meeting the conditions of admissibility.

F. Conclusion

21. If they were adopted as such by the Parliamentary Assembly , the draft resolution and the draft recommendation would be likely to seriously undermine religious freedom and freedom of association guaranteed by the European Convention on Human Rights. Indeed, they cast aspersions on all new religious and spiritual groups that have emerged in Europe alongside traditional churches and denominations, in suspecting them, a priori, of "sectarian excesses" unlawful and harmful to minors.

----------------------------------------

1 Report by M. Rudy Salles, Committee on Legal Affairs and Human Rights, Parliamentary Assembly of the Council of Europe.

2 Attorney at law at the Paris Bar and professor at the Collège d’Europe in Bruges and Warsaw; former jurisconsult of the European Court of Human Rights.

3 Adopted by the Committee on March 3, 2014.

4 Adopted by the Committee on March 3, 2014.

 ---------------------------------------------------------------------------------

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    The incoming Swedish EU Presidency (July-December 2009) may still remain in favour of Turkey's controversial EU bid, despite June 2009 EU Elections' results, but it has "very strong demands on Turkey"'s obligation to respect EU Rules, said the Head of Swedish Foreign Ministry's Press Service, Cecilia Julin, to "EuroFora", reacting to critical Press reports.

    - "I know (that) the link is often made also to Sweden's position on Turkey"'s controversial EU bid. Indeed, "we (Swedish EU Presidency) are very much engaged in the future membership of Turkey, but not without fullfiling all the Criteria".

    - "It's very clear that we (Swedish EU Presidecny) have very Strong Demands on Turkey, in a sort of concept for Future membership of the Union, ...which will be a Long Process...", she stressed.

    This means, in particular, "the Copenhagen Criteria (on Human Rights, Democracy and Rule of Law), and also the adaptation to the Acquis of the European Union".

     - "If you listen to what Mr. Bildt (the Swedish Foreign Minister) says on Turkey at different occasions, it's very clear : We want Turkey to become part of the Union, in the Future. But we want it to fullfil all the Criteria : The Acquis of the European Union. That's very clear", she concluded.

    The Senior Official of the Swedish Foreign Ministry was reacting to critical Press Reports, from Brussels' Journalists invited by EU Commission's secretariat to Stockholm, who claimed that Bildt was abusing of a ..."Whip" (sic !) against Cyprus, by "threatening" the presence of UNO's Peace-keeping force at the "Green line" which separates the island's Government-controlled areas from the territories occupied by Ankara's army, if Nicosia didn't accept any political solution, regardless of Turkey's demands, before the end of 2009.

        Governing AKEL Party's new Secretary General, Andros Kyprianou, reacted by declaring that no-one can threat the People of Cyprus : -"We shall decide for our Future, and nobody else",  he reportedly said, asking to "keep calm". "In order to find a Solution soon, certain basic Principles must be respected", he stressed, calling those who feel an urgency to use their influence on Turkey. Other Political Parties were more critical.

    This was a reference to recently reported statements by Turkish Minister Bagis, Prime Minister Tayip Erdogan and Turkey's National Security Council (a Military-Political body), accused to push towards a partitionist "2 States" solution, contrary to UNO SC Resolutions for Cyprus' reunification.

    December 2009 is a crucial moment for EU's appraisal of Turkey's controversial EU bid, because EU Council has decided to review then Ankara's compliance with the European position on the recognition of Cyprus' Government, which was clearly set out by an EU reply of 21 September 2005 to Turkish Prime Minister Tayip Erdogan's claims, refusing to recognize even the existence of EU Member Cyprus, in controversial statements he made to London (former EU chair) on July 29, 2005.

    EU Parliament's latest Resolution on Turkey, adopted on March 2009 in Strasbourg, warned Ankara that "the non-fulfillment of Turkey's commitments... by December 2009, may further seriously affect the process of Negotiations" with the EU.

    In practice, the issue boils down to Ankara's "embargo" against Ships and Airplanes using Cyprus' seaports or airports at the strategic EU island, which traditionaly hosts one of the World's biggest Shipping flags. EU has already "freezed" 6 relevant Chapters in EU - Turkey Negotiations since December 2006, after Ankara refused to fullfil a commitment it had undertaken when EU had decided to open controversial "accession" negotiations with Turkey, back on December 2005.

    - "As far as EU - Turkey relations are concerned, it's clear that Turkey needs to fullfil its obligation of full, non-discriminatory implementation of the additional Protocol (to "EC-Turkey Association Agreement"),  This is an important issue....and should be addresseed as soon as possible as it clearly affects the pace of the accession negotiations.Issues covered by the Declaration of September 2005 will continue to be followed up, and progress is urgently awaited", warned earlier in Strasbourg the out-going Czech EU Presidency (former vice-Prime Minister Alexander Vodra).

    But the Head of the Swedish Foreign Ministry's Press Service, Cecilia Julin, dismissed "interpretations" by "some" that Foreign Minister Carl Bildt was reportedly "threatening" Cyprus with consequences on the UNFICYP, if it doesn't accept any solution until December 2009, while Turkey is reportedly delaying in an attempt to impose a partitionist "2 States" solution.

    On the contrary, Julin, stressed that "Sweden has strong demands on Turkey'"s respect of "Copenhagen Criteria and EU Acquis".

    Meanwhile, Sweden  is "concerned" about the risk of "Stalemate" in Cyprus' Talks, but is well aware that "the main responsibilities lie with the two leaders and the UNO", Europe playing only a role of "facilitator".

    After carefully verifying, the Head of Swedish Foreign Ministry's Press Service, stressed to "EuroFora" that Bildt's reference to UNFICYP "was not linked to a Threat", and dismissed those who "interpreted" it so.

    On the contrary, the Swedish EU Presidency acknowledged the fact that Peace Talks are mainly for the UN and the leaders of the Cypriot communities, EU's role being limited into that of a "facilitator".

    As for Turkey's reported attempts to impose a "2 States' solution", the Head of the Swedish Foreign Ministry's Press Service sharply replied by stressing that Turkey must respect the "EU Acquis" rules.

    In particular :

    - "Basically he (Bildt) underlined that it's the leaders of the two communities in Cyprus and the UN that have the main responsibilities for solving the problem", started to say the Swedish Senior Official to "EuroFora", referring to the above-mentioned "briefing".

    - "But the EU had a role in sort of pointing out the benefits and facilitating a little bit the outcome for the settlement of the whole Cyprus' issue", she added.

    - "And he did state the Fact, that the rest of the World (i.e. USA, etc) will, of course, look at the differend issues which are at the table, and the future of the UN Peace keeping force is part of what is at the table", she admitted.

    - "I understand that some have interpreted that as a Threat, by the Swedish Minister" "But", in reality, "it's a statement of a Fact, that, when we'll look at the differend issues, one of the issues on which we shall have to take a stand on, is the future of the UN Peace keeping force in Cyprus".

    Indeed, one of the questions usually raised for a Solution of Cyprus' issue is what International and/or European or other Guarantees, by a Peace-keeping force, might be needed afterwards, eventually for a transitory period.

    Questioned anew by "EuroFora" whether (according to critical Press Reports) this could be taken as a veiled warning that, if Cyprus didn't accept any Turkish demand for any solution whatever, it might be left alone to face Ankara's Military Invasion/Occupation, she denied :

    - "He (Bildt) didn't say it in that way"... "It was not linked to a threat, or anything like that", the Head of the Swedish Foreign Ministry's Press Service stressed.

    On the contrary, "he (Bildt) underlined that the main responsibility lies with the parties concerned on the island". "The EU can try to facilitate and show the benefits of reaching a settlement. But also, when the EU and the rest of the World (i.e. USA) will have to look at it, they will look at all the Facts on the table, and the presence of the UN Peace-keeping force is one".

    And "he (Bildt) didn't speak about that at all", she replied to "EuroFora" question on Turkey's reported attemps to impose, in one way of another, a partitionist "2 States solution".

    Asked whether Bildt's aim was to incite both parties to move forward efficiently, she agreed :

    - In fact, "the EU is really very concerned with the Stalemate in the situation. Yes !", the Head of Sweden's Foreign Ministry's Press Service anounced. That's why Bildt "was hoping for the two parties (i.e. for Turkey's also) to engage and break, a little-bit, the present stalemate, come to a solution of the issue" of Cyprus.

    But, replying  to a "EuroFora"s question on the risk, denounced by several politicians in case of strict Time Deadlines, for Turkey to provoke a stalemate and wait for the time to come to impose a partitionist "2 States' solution", she reacted by pointing at Turkey's obligation to respect "EU Acquis" :

    - "Turkey must fullfil the EU Acquis : That's clear !", the Swedish Senior Official stressed.

    More details are expected when Swedish Prime Minister Reinfeldt will debate his Programme with new MEPs at EU Parliament's plenary mid-July in Strasbourg, that he has visited already in 2008.

    Foreign Minister Carl Bildt became familiar with Strasbourg's CoE last year, when Sweden chaired the PanEuropean organization of Human Rights. As EU chairman-in-office, he will also chair the 27-member States strong EU Group inside the 47-member States strong CoE.

    Minister for EU affairs, Cecilia Malmstrom is well known at EU Parliament, where she has been an active MEP of the Liberal Group for many years, following also Press Freedom issues.

    Both have already made various statements at "EuroFora", on differend topical matters.

    ***

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