In Brief 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
*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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Hu Jia's prize brings SAKHAROV's wife to "EuroFora" on murders of Journalists Politkofskaya, Gongadze and Adali :
- Elena Bonner : "All Journalists' murders must be fully investigated", without Double Standards.
During a special Mega-Event to celebrate 20 Years of SAKHAROV Prize for "Freedom of Thought", attributed in 2008 by EU Parliament to jailed Chinese Cyber-Dissident Hu JIA, the move was reinforced by strongly criticizing the persisting impunity in three cases of Journalists' Murders, such as POLITKOVSKAYA in Russia, GONGADZE in Ukraine, and ADALI in Turkish-occupied part of Cyprus.
Any bureaucratic doubt about whether Cyber-dissidents like Hu JIA might have, or not, a right to be protected as all Journalists must be, particularly when they take risks to search, find and publish original and critical News on issues of general interest to the society, could not resist to the emotion provoked by the message of his Wife, Zeng JINYAN spectacularly transmitted at a big screen in EU Parliament's hemicycle :
- "The most important and most interesting thing he did was to ... say the Truth :.. to write about the phenomena he observed... He never stopped Publishing.. on websites, so that the Public could learn about the reality .. and understand it. In my view, this has been his greatest contribution", stressed the young wife of the jailed man, eager to cite also the cases of other critical journalists who faced various kinds of "harassment".
- "Welcoming all those who have suffered for defending Human Rights", EU Parliament's President, German MEP Hans Gert POETTERING, who had invited to Strasbourg all former Sakharov prize-winners from various Countries throughout the World, said that "China needs Europe, and Europe needs China : A great nation" with which "we want to have a good relationship", "association and ..friendship". "But we are never going to stop our fight for Human Rights, and No Government can expect this from us".
- "It's impossible to achieve goals of Peace, if Human Rights are left out. In fact, Peace and Human Rights are intrinsequaly linked", added POETTERING.
It's in this spirit that MEPs adopted, on Thursday, a Resolution denouncing that "the criminal
investigation and trial following the murder of (a) Journalist ...raises serious concerns with regard to transparency and respect for the rule of law", when a "brutal killing has not yet been fully investigated and solved in a satisfactory way".
The text refered to dissident Journalist "Anna POLITOVSKAYA", a critic of Tchechen conflict, killed some years ago in Moscow, where Russian Authorities have found, arrested and are currently judging two executants, while also searching to arrest also a 3rd one, allegedly escaped in Belgium. But they have not yet found the instigators.
Similar texts were adopted recently also on dissident Ukranian Journalist Georgiy GONGADZE's murder, for which Ukranian Authorities have at least found, arrested and condemned 2 executants to 12 and 13 Years of jail, but not yet the instigators. For that purpose, they recently accepted an International Experts team to participate to the investigations.
But, it's only for the Murder of dissident Turkish Cypriot Journalist ADALI, in the occupied territories of Cyprus, that Turkey has NOT yet found ANYONE responsible, and even claimed recently inside CoE that it would be "impossible" to do so !
These astonishing differences exist despite the fact that ECHR condemned alike Ukraine and Turkey with 2 Judgements on the same year : 2005, for the murders of Journalists GONGADZE and ADALI, strong critics of Corruption in Ukraine, and of Ankara's policies on mass-influx of Turkish Settlers in the Occupied Territories of Cyprus, respectively.
Regarless of that, CoE's Committee of Ministers, who is entrusted with the duty to supervise execution of ECHR's judgements, has just asked Ukraine's Government to reply to further questions on Gongadze's murder before March 2009, while Turkey, curiously, got a longer postponement for answering questions on Adali's murder, until June...
A comparison of these cases, raises serious questions about Double Standards :
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On TRANSPARENCY :
--------------------------
On Gongadze's murder, CoE's body speaks even about the participation of
"an INTERNATIONAL group of Experts" in the Investigation, (f.ex. of "Tape Recordings"), accepted by Ukraine.
On the contrary, on Adali's murder, CoE is obliged to repeatedly ask (for a 2nd
time) Turkey whether, at least, it informed the victims' Family, or not...
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- On EFFICIENCY :
-----------------------
On Gongadze's murder, CoE formally "recalls that the Committee (of Ministers) ..URGED the Ukranian authorities.. to TAKE ALL NECESSARY INVESTIGATIVE STEPS TO ACHIEVE CONCRETE and VISIBLE RESULTS in the INVESTIGATION, aimed at the Identification of the INSTIGATORS and Organisers of the Murder", and "STRONGLY INVITED the Ukranian Authorities to provide information on the PROGRESS IN THE INVESTIGATION", before MARCH 2009.
But, on Adali's murder, on the contrary, CoE's body merely .. "took note" of the "arguments presented by" Cyprus, which denounce the absence of any proof of new "investigation" by Turkey. Following Turkey's own suggestion (!), it simply "noted" that there is "no limitation period" for "any new element" to "lead potentialy (sic !) to a Re-Opening of the Investigation". Without saying who might find any such "new" fact, since Turkey stoped searching... It also POSTPONED the issue until .. JUNE !
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- On the PUNISHMENT OF THOSE RESPONSIBLE :
----------------------
- On Gongadze's murder case, Ukranian Authorities already arrested and condemned, at least 2 suspects, to 12 and 13 Years of jail. And on Politkovskaya's murder at least 2 suspects are judged, and a 3rd one "wanted".
On the contrary, on Adali's murder case, the Turkish authorities simply claim that "it had not been possible to obtain new .. information .. on the basis of which criminal charges could be brought against ANY person" !...
Moreover, a LETTER sent by Turkey ...2 Years after CoE's 2006 call to re-investigate anew Adali's murder case, is totally EMPTY of Facts ! As Cypus' Delegation denounced earlier, Turkey's Letter ONLY CLAIMS that a "New Investigation" was made without any result, but does NOT even cite ANY FACT to prove it :
F.ex.,on the crucial issue of the "MOTIVATIONS" behind Adali's murder, noted by ECHR, Turkey MERELY CLAIMS that "all allegations were investigated; without result", but OMITS ANY FACT TO PROVE IT !..(It doesn't even remind which were these "allegations").. .
+ On ECHR's astonishment that the Turkish Occupation regime didn't produce any "BALLISTIC REPORT" on the Shots which murdered Adali, Turkey again repeats, 12 years later, that, still, even until now, "it was not possible to obtain the BalisticReport"...
- As for the astonishing absence of key-WITNESSES' Testimonies, denounced by ECHR, Turkey agains repeats various pretexts avoiding to reveal anything, (Fex. that a person "left" the Occupied Territories "on 2002", or that another witness was heard, but without revealing nothing of what he said, etc).
Turkey obviously "FAILS TO MEET THE CRITICISM made BY THE COURT" for lack of any efficient Investigation in Adali's case, concluded Cyprus' Government.
---------------------------------------------
Replying to our Question which COMPARED these 3 outstanding cases of "JOURNALISTS MURDERS", Adali, Gongadze and Politkovskaya, in order to avoid "Double Standards" by asking from Ukraine and Russia more than what is asked EU candidate Turkey, many European personalities were critical /
They criticised Ankara's recent claim at the CoE to stop investigating, because it would be "impossible to find anyone" responsible for the 5 bullet shots which killed Kutlu ADALI in front of his Family Home, contrary to the other two Journalists' murders, where Ukraine and Russia at least arrested the executants, searching now for the instigators :
----------------------------------
- "Where was that ? In Turkish Occupied Cyprus ? WITHOUT ANY DOUBT : Any murder of Journalist should be investigated in full ! All these Murders must be investigated !", replied the famous SAKHAROV's wife, Elena BONNER to our question on Adali's case, compared to Gongadze and Politofskaya.
Elena Bonner spoke us EXCLUSIVELY shortly after being honored by the President
of EU Parliament on the occasion of 20 Years of her husband's SAKHAROV Prize.
A strong personality, Sakharov's wife even had to struggle against an anonymous EU staffer who, astonishingly, tried to stop her speaking when h heard our question on "Turkey" (!) : - "Please, let me translate, she continues
speaking, don't stop us !", had to cry Sakharov's daughter, (a Journalist
herself), who was translating her mothers' reply, (obliged to speak louder to
make her voice heard despite the harassment).. (= + Audio Proof !)
Earlier, Elena Bonner also fustigated "Double Standards" at another case, on
Western countries' attitude vis a vis Kosovo and the Kurds : -F.ex. "You have
recognized a few 400.000 Kosovars as an "independent" country, but you still
deny that to 30 millions of Kurds in Turkey !", she denounced.
-----------------------------
- "This (ADALI's murder) is an issue which should be pursued by the Committee
for Human Rights. That's why we have one, and it's its duty to examine cases of
Journalists' murders as the one you referred to. You should bring the case in
front of that Committee", suggested in reply to our question on Adali, EU
Parliament's President, German MEP Hans Gert POETTERING.
- "It's impossible to achieve goals of PEACE, if HUMAN RIGHTS are left out :
in fact, Peace and Human Rights are intrinsequaly linked", added POETTERING.
--------------------------------------
+ "For us (European/International Federation of Journalists) it's clear :
Whenever a Journalist is Murdered, the Investigation should continue until
those Responsible are found !", replied earlier to another question on ADALI
EFJ/IFJ's Secretary General, Aidan WHITE.
Speaking as a matter of General Principle, White asked us for "concrete data"
on the execution of ECHR's judgement on Adali case, in order to "look at it in
depth" and "make a formal statement", in comparison with the other Murdered
Journalist case, also pending at CoE's Ministers for completing its execution,
on Ukranian Gongadze.
----------------------------------------------------
From EU Rapporteur on Human Rights, vice-President of EU Parliament Liberties' Committee, MEP Giusto CATANIA, we were told that, since there is an ECHR judgement in both Adali and Gongadge's cases, "Turkey must naturally execute the judgement and make a full and efficient investigation, until those responsible for the Journalist's murder are found and punished".
Even if "we (Catania's "EuroLeft" Group) support Turkey's EU perspectives, this does not mean that Ankara should not behave properly. On the contrary, it means that they have to meet tough conditions, particularly on Human Rights", was added on the occasion of Adali's murder case.
Moreover, "since you raise the issue of Mr. Adali's muder as a part of a Series of Journalist's murders, including fex. Gongadze, Politkovskaya, ao., tthen we (EU) could also act together with CoE's Commissioner on Human Rights, Thomas HAMMARBERG, it was suggested.
- "We (EU) must step up efforts against the problem of IMPUNITY : Real Peace cannot exist without Justice", stressed also this week at EU Parliament in Strasbourg, French Minister on Human Rights, Mrs Rama YADE.
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