

ECHR f.Jurisconsult prof.V.Berger: Religious Freedom at Risk by Salles'Report on Sects+minors at CoE
*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 :
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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.
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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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Ten Years of ECHR : 1998 - 2008 show need of Revival in 2009-2010 coinciding with 2009 EU Election
A threefold, coordinated move by new Top French Political actors in the 2009 EU Parliament Elections, expressed in Strasbourg a will to boost Europe's Political dimension close to Citizens' concerns, going from protection of Economy to defence of Human Rights.
The move met an exceptional ECHR's call for a "revival" of Human Rights' protection mechanism', in a Mega-Conference, early 2010.
Obviously focusing on June 2009 Elections to EU Parliament, it involved from the outset the recently nominated "dual" Head of French Governing Party (UMP) Michel BARNIER and Rachida DATI :

- "As President Sarkozy has clearly said, we (France) are in favor of a Strong, Sovereign and Independent, Political Europe, which protects its Citizens, and not for a large Super-Market, nor for a Europe under influence",
"This goes for everything, including Energy", added to "EuroFora" the experienced former EU Commissioner, Minister of Foreign affairs, currently of Agriculture and Sarkozy's new pick as Leader of the Governing party UMP to EU 2009 Election, Michel BARNIER .
- Human Rights are important because they are at the Heart of the Political Europe that we aspire for : I.e. a Europe able to act and protect its Citizens, stressed also the New French Minister for European affairs, Bruno LE MAIRE, while meeting Strasbourg's Journalists at his first visit to the CoE.
This is one of the main interests for CoE, which is also a natural place for cooperation between EU countries and Russia or Turkey, which was recently helpful at the Middle East crisis, he added.
The move gained momentum with French Minister of Justice, Rachida Dati's main observations at ECHR's 5Oth Anniversary :
- "While we are seeking Europe's Borders and Identity, you (ECHR) remind us also of its Values", Human Rights, Dati noted.
Citizens seek more and more often ECHR's help, and the tempo accelerates, Europa awaits a symbol, while national legal orders are not freezed
And she expressed "support" to ECHR President Jean-Paul Costa's call to satisfy the vital need to revigorate the PanEuropean Court by deciding big changes at a High-Level Conference open to a large audience, a kind of "Etats Generaux" of Human Rights, at the beginning of 2010.
It's not so much the recently growing number of applications for Russia or Ukraine etc, which seems to be Costa's main concern : In fact, the cases declared "admissible" are much fewer...
But rather the persistent violations of Human Rights, sometimes very grave (ie. murders, torture, abritrary deprivation of liberty, oppression of freedom of speech, destructions of homes/properties, etc), despite numerous, repeated condemnations by ECHR. So that CoE's Ministers, due to "supervise execution" of ECHR's judgements, are overloaded.
F.ex. most Media noted that Turkey still remains, even in 2008, the 1st among 47 CoE member States in the number of condemnations by ECHR : 257, compared to 233 for Russia, with a population more than the double..
The problem is that it's not the 1st time at all : During all the last Decade 1998-2008, Turkey was condemned by ECHR much more than any other State, and for particularly grave violations :
- 1.652 condemnations, compared to 605 for Russia, 548 for Poland, 494 for France, 476 for Ukraine, etc.
Italy's second place with 1.394 condemnations is a misleading false appearance : In fact, most of them (999) concern mere "procedural delays" in national courts. Same for France.
On the contrary, Turkey was condemned 180 times for Killings, 192 times for Torture or Inhuman/Degrading treatments, 340 times for arbitrary deprivation of Liberty, 528 times for "Unfair trial", and 169 times for oppression of Freedom of speech, (etc). And the latest, 2008 numbers, indicate no change in this trend, (See supra).
The current Spanish CoE Presidency (November 2008 - May 2009) has made of the implementation of ECHR's judgements its 1st Priority.
ECHR's President, Jean-Paul Costa, stressed in its 2009 Annual Press Conference, CoE Member States' obligation to implement the judgements, according to Article 46 of the European Convention on Human Rights.
Moreover, if CoE's Committee of Ministers delays to ensure implementation, then, the repetition of violations in similar cases provokes a multiplication of complaints tabled to the Court, which overload the mecanism for the protection of Human Rights, denounced Costa.
A series of Debates on "the situation of Human Rights in Europe", focusing on the "need to fight against Impunity" of perpetrators of grave crimes, is currently prepared by CoE's Parliamentary Assembly for the session of June 2009.
The final Timing comes shortly AFTER the EU Elections, but the main Reports should have been adopted before.
Meanwhile, French President Sarkozy and German Chancelor Merkel's recent call "for a Political Europe" in 2009 EU Elections (See earlier "correspondence from Paris, Elysee Palace), seems more and more endorsed also by other EU Countries' Top MEPs :
Thus, f.ex., EU Parliament's 1st vice-President, Greek MEP Mrs Rodi KRATSA, speaking to "EuroFora", agreed that 2009 EU Election would be a "naturally good" opportunity to debate what really interests EU Citizens : "The Future of a Political Europe, able to face the Economic Crisis, with a Culture and identity which attracts the People"

(Photo taken earlier during Sarkozy's 1st visit at EU Parliament, in 2007 : Sarkozy and Merkel's Ideas for a Political Europe inspire also other EU politicians accross the continent)...
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