Comments on the bill passed by the French Senate on the 3rd of May 2001 „to strengthen prevention and repression of sectarian groups liable to undermine human rights and fundamental freedoms"
1. Discriminatory nature of the proposed legislation
The bill currently entitled "Bill to Reinforce Prevention and Repression of Sectarian Groups Liable to Undermine Human Rights and Fundamental Freedoms" is, as indicated by the title, specifically aimed at "sects1". Moreover, Chapter IV is, without further ado, entitled "means for restricting the establishing of sectarian movements". Furthermore, the entirety of the debates demonstrates that that is the real objective.
Sects and their members are subject to criminal law in the same way as any other natural or legal person and, supposing that existing laws are not sufficient, the legislator is naturally authorized to add to them, but may do so only through the enactment of general provisions that would apply to everyone and that do not reserve a coercive and repressive treatment for a specific category of citizens.
To the extent that the drafters of the bill limit the application of the offenses they have created to a number of specific groups to the exclusion of all other legal entities2, they intend to enact discriminatory legislation within the meaning of the European Convention on Human Rights.
Supposing that such a bill does not violate Articles 9 (freedom of religion), 10 (freedom of expression) or 11 (freedom of assembly) of the aforesaid Convention read independently, the infringement of those Articles becomes patent when read in conjunction with Article 14 (prohibition of discrimination) of the Convention3.
The discriminatory nature of the bill is confirmed by the Act of June 15, 2000 which, in a different sphere (i.e. the reinforcement of the presumption of innocence), provides in paragraph I, indent 3, of the new preliminary section of the French Criminal Procedure Code that "persons in similar conditions and prosecuted for the same offenses must be judged according to the same rules".
The legislator, after decades of reflection, finally allowed for the criminal liability of legal entities and the penalty of dissolution, but under very specific conditions: "When a legal entity was created or, if it involves a felony or misdemeanor for which a natural person is punished by more than five years of imprisonment, was used for a purpose other than its corporate object in order to commit the offenses charged" (Section 131-39 of the French Criminal Code). The possibility of penal dissolution of a legal entity is highly regulated under existing law. When a legal entity was used for a purpose other than its corporate object, it is required that the offense be punished – for a natural person, by a prison sentence of more than five years. This condition, although essential, is not sufficient.
1 According to the dictionary Le Robert a sect is an "organized group of persons embracing the same doctrine within a religion".
2 Section 1 of the bill clearly aims at the "civil dissolution of certain legal entities".
3 The European Court indeed decided that "Article 14, although it has no independent existence, completes the other normative provisions of the Convention and the Protocols … A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question, may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature" (ECHR October 27, 1975, National Union of Belgian Police).
It is also required that the statute creating the offense provides for the possibility of dissolution, which is very rarely the case. Furthermore, where a legal entity is to be punished for acts committed by a natural person, it is necessary that such acts were committed on behalf of the legal entity.
This bill is therefore highly discriminatory in that it provides for
the possibility of dissolution which although it would be adjudicated by
a civil court would be based on criminal offenses (with conditions much
less restrictive than those under the existing criminal law which applies
to all legal entities) and in particular on the basis of convictions for
criminal offenses punished for the most part by less than five years of
imprisonment for a natural person.
2. Disproportion of the dissolution sanction in a great number of cases
Section 1 of the bill provides for the dissolution of the legal entities targeted by the bill when any such legal entity has had a final conviction entered against it or its legal or de facto officers and/or directors for any of a wide range of offenses of varied degrees of seriousness. The Senate has recently specified that the court adjudicating on an application for dissolution may, in the course of the same proceedings, also order the dissolution of any other legal entity or entities pursuing the same purpose and united by a common interest (lacking clarification in the bill, common interest could simply mean shared ideas or convictions), on the sole condition that a final conviction has been entered against that other legal entity or its officers and/or directors for any of the numerous offenses listed.
A penalty of such importance - dissolution, which for a legal entity is equivalent to the death sentence for an individual, violates the proportionality rule.
For "only punishments which are strictly and clearly necessary may be provided for by law" (Article 8 of the Declaration of the Rights of Man and of the Citizen). In other words, the creation of an offense is constitutional only if it is necessary.
This principle appears in the European Convention on Human Rights, in particular in Article 11 which enshrines the freedom of assembly that should be available within the contracting States of the Convention. The only restriction to the exercise of that freedom is set forth in the second paragraph of this Article which states: "No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.4"
a) This bill authorizes the "civil dissolution of certain legal entities"
in the event that a final conviction is entered for relatively minor offenses
including, but not limited to:
- causing another to be incapacitated for work for a period of less than three months through failure to fulfill a duty of care (Section 222-20 of the French Criminal Code5);
4 In a ruling of July 10, 1998 (Appl. 57-1997-841-1047, Sidiropoulos a.o. v. Greece), the European Court of Human Rights held: "Only compelling and imperative reasons may justify restrictions on the freedom of assembly".
5 Offense punished by one year of imprisonment and a 100,000 franc fine.
- through one's negligence causing another to suffer a total incapacity
for work for a period of more than three months (Section 222-19 of the
French Criminal Code6); this refers, in particular, to traffic accidents;
- invading the privacy of another by procuring, recording or disclosing, without the author's consent, remarks that are confidential or that were made in private, or by procuring, recording or disclosing, without his consent, the image of a person in a private place (Section 226-1 of the French Criminal Code7);
- publishing an edited recording made with the spoken words or image of a person without his consent (Section 226-8 of the French Criminal Code8);
- breaching a professional secret (Section 226-13 of the French Criminal Code9).
In all those cases which are merely a few examples among many others, the penalty of dissolution is clearly disproportionate, even if the offense was repeated.
b) The disproportion is all the more patent since such dissolution may be ordered even when, according to the Senate debates, a single final conviction entered against any given legal entity would be sufficient if a final conviction was entered against another legal entity pursuing the same purpose and united by a common interest.
c) The disproportion is even greater as the bill makes no distinction based on the seriousness of the final criminal convictions which could be reduced to mere fines.
d) The disproportion is at its utmost where it is provided that dissolution
of a legal entity may be ordered on the basis of convictions entered against
its officers or directors in their private life as the bill does not even
specify that such convictions must involve offenses committed on behalf
of the legal entity. A legal entity therefore could be dissolved simply
because of two final convictions of two of its officers or directors for
traffic accidents, even if the offenses were committed by those individuals
in their private life. In addition to the proportionality rule, the bill
disregards the rule that "A person is liable for his own acts only" (Section
121-1 of the French Criminal Code).
3. The penalty of dissolution coupled with the prohibition of revival of a dissolved legal entity violates the constitutional and conventional principle of religious freedom.
The dissolution penalty and the prohibition of revival provided for
in Sections 1 and 4 of the bill not only result in punishing the legal
entity of the "sect" but also all its members who thereafter would be
deprived of an institutional structure for practicing their religion in
community with one another. Indeed, it prohibits them from setting up a
new legal entity for that purpose (even those members who have never held
any office within the dissolved legal entity), under penalty of sanctions
for the offense of revival of a dissolved legal entity.
6 Offense punished by two years of imprisonment and a 200,000 franc fine.
7 Offense punished by one year of imprisonment and a 300,000 franc fine.
8 Offense punished by one year of imprisonment and a 100,000 franc fine.
9 Offense punished by one year of imprisonment and a 100,000 franc fine.
For that reason, the bill again disregards the rule according to which "A person is liable for his own acts only" (Section 121-1 of the French Criminal Code).
But above all, the bill tramples under foot the principles of freedom of religion, expression and assembly specifically guaranteed by Articles 9, 10 and 11 of the European Convention on Human Rights.
What the senators who passed this bill have apparently failed to grasp - and this is certainly the bill's most fundamental flaw, is that the penalty of dissolution of a legal entity and the prohibition of its revival or re-incorporation, not only means the disappearance a legal entity, but also the prohibition of an entire group of citizens professing the same beliefs from practicing their religion in community with one another in the future.
The veritable target of the bill is the members of the "sect" which as mentioned above, is nothing but an "organized group of persons embracing the same doctrine within a religion" (according to the dictionary Le Robert).
A court of law should not have the power of life and death over any new religion.10
Particularly in a secular State governed by the principle of separation of the Churches and State, it should not be up to any government agency to determine whether a community practicing a form of worship is entitled to be called a religion, or to forbid a category of citizens from practicing their religion in community with one another.
It is impossible to maintain both the possibility of judicial dissolution of a legal entity that was set up for the practice of a religion and the prohibition for the members of that denomination – who were not implicated in the criminal convictions authorizing the dissolution of the legal entity – to form a new legal entity that would allow them to have a new structure for the practice of their religion.
Should the National Assembly pass such a bill, it is unlikely that these
legislative provisions could receive the endorsement of the Constitutional
Council. Furthermore, the European Court of Human Rights could but condemn
the enforcement of such provisions.
4. Maintaining the offense of mind manipulation
The Senate announced that the "offense of mind manipulation" as proposed by the National Assembly had been struck because, as the rapporteur for the bill, Mr ABOUT pointed out, this provision had given rise to numerous reservations, in particular on the part of the representatives of the major religious denominations in a hearing before the Senate Law Committee11.
The offense of mind manipulation proposed by the National Assembly was defined as "The act, within a group engaged in activities for the purpose of or resulting in creating or exploiting the psychological or physical dependence of the persons taking part in such
10 For, as it is widely known, "a religion is just a successful sect".
activities, of exerting heavy and repeated pressure on any such person or using techniques liable to alter his judgment in order to induce him, against his will or not, to do or forbear an act that is seriously harmful to him".
The Senate claimed that they had deleted this offense from the bill but, in reality, it was reintroduced in almost identical terms by completing an existing offense provided in Section 313-4 of the French Criminal Code which concerns "the fraudulent abuse of the state of ignorance or the position of weakness of a minor or any person whose particular vulnerability due to age, illness, infirmity, pregnancy or a physical or psychological disability, is apparent or known to the perpetrator thereof, in order to induce such minor or such person to do or forbear an act that is seriously prejudicial to him".
Up to now, this provision was intended to protect minors or adults in a state of ignorance or weakness.
The Senate proposes to amend the existing statute (which would then become Section 223-15-2 of the French Criminal Code) to include a third category of persons by adding "either a person in a state of psychological or physical dependence caused by the exertion of heavy or repeated pressure or techniques liable to alter his judgment, to induce… such person to do or forbear an act that is seriously prejudicial to him".
Other than specifying that it punishes fraudulent abuse of the state of ignorance or weakness of a person - a condition that would be necessarily considered as met by any court conceding to be in the presence "of a person in a state of psychological or physical dependence caused by the exertion of heavy or repeated pressure or techniques liable to alter his judgment" who did or forbore "an act that is seriously prejudicial to him" - the offense of mind manipulation is practically maintained as originally worded.
The criticism that was made by the representatives of the major religious
denominations before the Senate Law Committee and which, according to a
statement by the Senate, were be taken into consideration, would thus also
apply to the amended definition which is practically the same as the initial
11 Mr BOUBAKEUR, Rector of the Mosque of Paris, observed that "the creation of the offense of mind manipulation is liable to undermine the right to the presumption of innocence". Mr SITRUK, Chief Rabbi of France, stressed that "the bill touches on a domain which cannot be easily delimited, that of beliefs and the very definition of man", and noted that "any public speaker with a natural ascendancy over his audience could be accused of mind manipulation" and further observed that "any religious sermon is intended to convince those to whom it is addressed". Mr DE CLERMONT, President of the Protestant Union of France, "declared his opposition to the creation of an offense of mind manipulation" pointing out that "the criteria used for the characterization of such offense were far too vague". Monsignor VERNETTE, Representative of the French Episcopal Conference, "considered it questionable to want to protect the victims from themselves, observing that such a development could lead to the creation of 'thought police'" and "expressed the fear that the offense of mind manipulation would lead the courts to define what's 'religiously correct'". (Senate Law Committee Report 192 (2000-2001)).
5. Violation of the fair trial rules
The mandatory use of an expedited procedure for urgent cases would appear to violate the fair trial rules provided in Article 6 of the European Convention in view of the fact that (i) it is required before both the trial court and the appeal court, (ii) an appeal to the Cassation Court does not have a suspensive effect, and (iii) the procedure can target several legal entities simultaneously.
The need for systematic recourse to an expedited procedure is highly debatable. The fact that dissolution proceedings can be instituted by "any association duly classified as being of public interest…that contemplates in its bylaws and articles of incorporation the defense and assistance of individuals or the protection of both individual and collective rights and freedoms"12 (namely the anti-sect organizations UNADFI and CCMM), tends to contradict the urgent nature of such proceedings.
As it involves an action that could pronounce the death sentence against one or more legal entities, with the most serious consequence of prohibiting all the members of a group from practicing their religion in community with one another, it is, a priori, imperative that the fair trial rules are satisfied, which is unlikely to be the case in the event of an expedited procedure.
12 Cf. the newly created Section 11 of the Bill.