

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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People in Europe and the World expect from CoE to make a succes of its "Monitoring" for Human Rights and Democracy, despite difficulties, said Finland's President Tarja Halonen to "EuroFora" at a crucial moment for the mecanism built 15 years ago by the paneuropean organization which celebrates its 60th Anniversary in 2009.
Halonen, known as "Mother" of CoE's "Monitoring" mecanism, a long-time MEP and former Foreign Minister before becoming Finland's President, holds a long experience in the mattter, after also serving twice as CoE and EU Chairwoman in the past. That's why she is well placed to judge how CoE's "monitoring" should deal today with some crucial issues of importance both to CoE and to the EU.
The move came just a Month before a crucial, last visit to Turkey, scheduled for June, by the President of CoE''s "Monitoring" Committee, Ukranian MEP Serge Holovaty, to finalize his Report on Ankara, the CoE Member State with the longest Monitoring procedure. From its results depends its overall credibility.
This is a Test-case, because, in fact, it's in order to avoid Sanctions threatened against Turkey by a CoE's Assembly's April 1995 Resolution for grave Human Rights violations, Democracy gaps, the continuing Military Occupation in Cyprus, the unresolved Kurdish problem, Aegean differend with Greece, etc., that MEPs decided to create, for the 1st time on April 1996, a "Monitoring" proces, allegedly destinated to check, without excluding Countries who did not fulfill all CoE's standards.
In the Past, the obliged withdrawal of Greece's Military regime and of its "Civil" cover-up out of the CoE had helped bring back Democracy in 1974. But, on the contrary, since April 1996, the idea was to "monitor" Human Rights' respect while keeping most concerned Countries inside the CoE. After Turkey's oldest example, this was extended also to several former "Eastern" European Countries, even if CoE's Assembly has imposed to some of them (fex. Ukraine, Russia, etc., after Belarus, Serbia, etc) various "Sanctions", that Ankara always avoided. Curiously more succesful even than .. USA itself, (a CoE "Observer" since 1995), which has been at least threatened with sanctions some years ago..
EU-effects of CoE's Monitoring process became obvious between 2001-2008, since the "closure" of this procedure, when CoE felt that a Country had met most of its Human Rights, Democracy and Rule of Law obligations, (i.e. the "Copenhagen Criteria" for the EU), helped trigger Negotiations with the EU for "Accession" or other closer relations : This occured already before the 2004 and 2007 EU Enlargements to former "Eastern" European Countries, as well as for the commencement of "accession" negotiations with Croatia, and of "open-ended" negotiations with Turkey in 2005.
But a stricking new development are Holovaty's recent findings that on core Human Rights issues as Torture and Freedom of Expression, Turkey, even "5 Years after" CoE closed its "Monitoring", back in 2004, inciting EU to start accession Negotiations in 2005, still presents grave problems.
His findings are of crucial importance after a 2008 CoE Resolution called, "if need be", to "seriously consider the possibility of Re-Opening the Monitoring procedure for Turkey" : A move which might affect Ankara's controversial EU bid, since EU Accession Negotiations are based on the Hypothesis that the Candidate fullfils the "Copenhagen Criteria" (See above)..
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Holovaty expressed his will to check "Matters still Outstanding" and those that he "didn't have an opportunity to discuss" at an earlier visit this year, "in order to discuss the more complex issues in greater depth", at his forthcoming New Visit to Ankara, before the December 2009 EU Summit. This is all based on the 2004 CoE Resolution which stresses that, CoE "will continue.. post-monitoring Dialogue with the Turkish authorities,...in addition to a 12-points list,..and on any Other Matter that might arise in connection with Turkey’s Obligations as a CoE member state".
CoE's Resolution also asks from Turkey "to secure the proper Implementation of Judgements, particularly in the Cyprus v. Turkey InterState case", of 2001, which concerns also the plight of many Hundreds of MISSING People. It adds Turkey's obligations to "execute" ECHR's Judgements in the Loizidou case,..and in particular adopt General Measures to avoid repetition or continuation of Violations found by the Court" to the detriment of Refugees.
Nevertheless, Holovaty said to "EuroFora" that "MISSING" persons,"might be included" and cannot be excluded, but he has yet to examine the situation "to find out which issues will be raised" to the Turkish Government.
Therefore, "EuroFora" asked Halonen, as the Historic "Mother" of CoE's Monitoring mecanism, if she thought that, "whenever there are grave Human Rights Violations, as fex. "MISSING" persons, attested even by ECHR's judgements, they should be always checked by a Monitoring process. Or could they be forgotten ?"
- "We (CoE) must be, at the same time, Fair, Realistic, but not in the mind that "now we have Forgotten", etc., replied to "EuroFora"'s question Halonen, speaking as a matter of general principle.
- "When we think of those People that are suffering from the lack of Democracy, of Human Rights, and of the Rule of Law", "we should find a base on how to deal with the (Monitoring) system more rapidly"', she stressed.
- "Sometimes it's very difficult to combine Transparency and Effectivenes together, particularly in this specific case", she went on to say. But, "I have not found a (CoE Member) Country who could be insensitive in this sens", Halonen answered concerning grave Human Rights violations attested by the ECHR.
- "I have no ready-made answer. I have the expectations that you, in the CoE, will, step by step, find the different types of the monitoring systems."
Also "because this is a part of the UN's Post-Conflict system, (fex. when it comes to Cyprus' MISSING persons), and it's a more Global system". So that, "If we make a succes in Europe, the others will follow", throughout the World. "But they expect that we (Europe) are this opportunity, this Opportunity to make a Succes", Halonen concluded.
In addition, she advised to extend CoE's Monitoring to all its 47 Member States, "because, as long as we hear that, all these monitoring systems are "OK for the neighbor, but not for me", "it's very difficult" to understand. Something which could make easier to Compare...
Finnish MEP Jaako Laakso, former CoE Rapporteur on the Occupied Territories of Cyprus and one of the 5 Signatories of the Historic CoE's call to create the "MONITORING" mecanism since 1996, was more specific : - "We (CoE Assembly) have to find a way for the issue of Cyprus' MISSING People to be better followed", he stressed, anouncing his intention to "speak to Mr. Holovaty" about that. "There might be also other ways", added Laakso.
- The 2008 "Year had been a very Bad one for Turkey with regard to Human Rights in general, and Freedom of Expression in particular", denounced, meanwhile, Holovaty's preliminary Post-Monitoringh Draft Report by Holovaty, published by the CoE on April 2009.
"Amnesty International believes that freedom of expression is not guaranteed given the various articles of the Criminal Code that restrict it. .. "For example, 1,300 Websites are said to have been closed down by the (Turkish) authorities in 2008" ! While "the new Turkish Criminal Code was used to bring a total of 1,072 proceedings between June 2005 and April 2008, and led to the conviction of 192 people", for expressing views. "Representatives of the Özgür Gündem newspaper, which specialises in Kurdish affairs, ..complained about Numerous Attacks on their Freedom of Expression ...as was everyone who advocated a settlement to the question by means other than the intervention of the army" "According to their figures, 19 Newspapers had been suspended 43 times between 4 August 2006 and 4 November 2008" !...
Moreover, on 2008, CoE's "Ministers adopted its 4rth Resolution on the execution of the judgments of the ECHR, ...and outstanding issues regarding 175 Judgements and decisions relating to Turkey delivered between 1996 and 2008... concerning Deaths resulting from the excessive use of force by members of the Security forces, the failure to protect the right to life, the DIisappearance and/or death of individuals, Ill-Treatment and the Destruction of property". CoE's " Ministers urged the Turkish authorities ...to ensure that members of Security forces of all ranks can be prosecuted without administrative
authorisation" for "serious crimes". Holovaty reminded.
"Nonetheless", Holovaty heard anew of "Several cases of Violence committed last year (2008) by the (Turkish) security forces". Amnesty International speaks of Many Cases of ill-treatment and Torture in the prisons and by the police". "Including, fex."'the death of Engin Ceber, a young man of 29 who died on October 2008 as a result of the TORTURE allegedly inflicted on him by police officers, prison staff and members of the gendarmerie. He was part of a group of people arrested on September 2008 during a demonstration and Press Conference in Istanbul'. Proceedings against suspects are "on-going" in this case.
- " I therefore noted an Obvious Contradiction between the Government’s stated “zero tolerance” policy.... of Torture and other forms of ill-treatment, and the different testimonies given", denounced CoE's Rapporteur. Turkish "authorities must make considerable efforts to guarantee that proper investigations are carried out into allegations of abuses by members of the security forces and that perpetrators are effectively punished" "In this respect, I have requested detailed Statistics on the number of Investigations, acquittals and convictions in cases involving allegations of abuse in order to show the positive impact of the measures taken to date", Holovaty said, repeating a permanently unsatisfied CoE's demand to Turkey since a Decade...
- "The Political Crisis that shook the country in the spring of 2008 highlighted the Weaknesses of the (Turkish) Constitution", which comes from the Military regime of 1982, "and the Urgent Need of Reforms", stressed from the outset CoE's Rapporteur in 2009. In particular, "the ...Democratic functioning of state institutions, including the independence of the judicial system, are crucial", he observes.
But, "the Electoral system and the ways in which it is circumvented do not appear to give those elected complete Legitimacy, and tend to pervert the course of direct universal suffrage", denounces Holovaty, observing that, even 5 Years later, Turkey did not yet change the 10% nationwide Threshold for a party to take any seat, which is "far higher" than the "3%" maximum in Europe and already condemned as contrary to European Standards by the CoE.
+ Moreover, EU Parliament's 2009 Report on Turkey, drafted by Dutch MEP Ria Oomen-Ruijten and adopted in Strasbourg on March, expresses "Concern over the Failure of the (Turkish) Judiciary to prosecute cases of Torture and Ill-treatment, the Number of which is Growing". EU also "is concerned about continuing Hostility and Violence against Minorities" in Turkey. It also "calls on the Turkish Government to launch, as a matter of Priority, a Political Initiatve favouring a lasting Settlement of the Kurdish issue, (while "condemning violence.. and terrorist groups"). EU "regrets that No progress has been made on establishing full, systematic Civilian suprevisory functions over the (Turkish) Military".
The final results of Holovaty's 2nd and last visit to Turkley will be known later this year, and, at any case, before EU's December 2009 Summit.