The French Judge Facing 'Cult' Cases

The French judge facing “cult” cases

by Éric Bouzou — (November 2007)

The attention given in France to the risk that cults allegedly represent suggests two important questions: what is the actual delinquency of the incriminated groups and persons? What is the attitude of the French judge toward this phenomenon, in the particular context of the fight against cults?

The first question follows from the workings of a state governed by the rule of law, since “disturbances of public order are those which may be the subject of judicial proceedings or administrative police action.” (interview with Didier Leschi — Témoignage Chrétien — 1 February 2007). It is therefore through the study of case law that one could assess whether or not a significant danger exists. That question has no quantitative answer today, but the first available elements nevertheless show that the delinquency of the groups concerned is very low (indeed non-existent for many of them). Perhaps the one explains the other: an in-depth study such as the one proposed within the framework of our citizens’ commission of inquiry would no doubt have the bad taste of invalidating the repressive policy put in place against spiritual minorities.

The second question, which we develop in this article, makes it possible to test the resistance of the judicial system (criminal, administrative, civil, labour courts — since most jurisdictions are called upon to handle cases where the notion of cult comes into play) to the various forms of pressure it may be subjected to. It is a salutary exercise, equivalent for the Justice system to the sociologist’s “reflexive return” when confronted with a social phenomenon, dear to Pierre Bourdieu.

Vincente Fortier, research director at the University of Montpellier, in a document entitled “Le juge, gardien du pluralisme confessionnel” (“The judge, guardian of denominational pluralism”) http://www.rrj.u-3mrs.fr/data-img/files/1171901412_Fortier.pdf, recalls the great principles of religious non-discrimination:

(…) Unanimity and clarity reign when it comes to the judge affirming that religion belongs to the individual’s inner self. Recalling that “in France, the principle of freedom of conscience and worship must prevail”15, “that freedoms of religion, belief, opinion and expression are constitutionally guaranteed”16, the judge states repeatedly that “belief is part of the individual sphere”17, that “this is a private domain falling under freedom of conscience”18. As such, the judge may not “express any opinion whatsoever as to a parent’s membership of a religious group, even one habitually described as a cult”19. [1]

(…) Judges refrain from allowing religion to produce any legal consequences whatsoever: thus, “the mother’s membership of a spiritual association” (which the judge elsewhere notes is listed as a cult movement by the parliamentary commission of inquiry on cults) “cannot by itself justify transferring the children’s habitual residence to the father”20; the judge must not “take any decision whatsoever that would amount to punishing that parent for that membership” (of a cult)21. Or again, it must “be accepted as a principle that a religious belief, whatever it may be, cannot in itself constitute wrongful conduct”22. [1]

(…) Case law has always been attentive to preserving the employee’s private life, and whether it concerns religious, philosophical or political opinions, these remain, in principle, extraneous to the employment contract. [1]

One example to illustrate respect for these principles:

(…) ruling handed down by the Paris Court on 8 December 1999 34, a case in which an employee of the Air Liquide company had been dismissed after the publication of an article in Le Monde in which she disclosed her position as scientific director of Clonaid. This personal involvement of the employee in human cloning, which thus demonstrated on her part at the very least a community of thought with the Raelian cult, was the main ground for the dismissal. The Paris Court held that such a ground, “beyond the moral appraisal of such a declaration and stance, falls within freedom of thought (…) French labour law recognises every person’s right not to be troubled in their work on account of their political opinions or religious convictions, and in the absence of proselytising within the company, the employer may not invoke the employee’s convictions in order to proceed with her dismissal”. [1]

Other cases demonstrate, on the contrary, the judge’s lack of neutrality:

(…) Yet some decisions hint at a moral judgement, even if the judge considers that “it is not for the court to pass judgement on the Nîmes theological institute, which is officially listed as a cult — and the court confines itself to that”41. Sometimes the axiological assessment is more explicit, favourable or unfavourable to the belief at issue and depending on it. Thus Buddhism enjoys a positive prejudice in the majority of cases, and we find from the pen of certain magistrates that “religious freedom implies a tolerance that Buddhism is all the better placed to claim since it has made it the foundation of its teaching; only ignorance or blindness can therefore lead one to liken it to a cult”42. The Seventh-day Adventist Church also enjoys the favour of the courts, some of which do not hesitate to indulge in apologetic considerations. Thus the Reims Court on 27 June 2002 43, which notes, first of all, that this Church “is not classed among the cults or religions with reprehensible practices, aiming to turn the human person into a robot or zombie obeying their savage criminal designs, of which there is a plethora nowadays”; then the judges deliver a number of testimonies about this Church from unimpeachable figures. Finally, they conclude in these terms: “without proselytising, and without attaching absolute or exaggerated importance to this distinction between the label cult, with its pejorative connotation, and that of religion, which is more respectable — given that ‘certain religions’ of our time prove to be more cult-like, with diabolical deviations and inhuman aberrations shamelessly preaching terrorism and bloodbaths to immolate infidels — it must nevertheless be affirmed that the follower of a belief which aims to inspire respect for the human person considered as a ‘Temple of the spirit’, to encourage moral virtues, to practise charity, to avoid vice and evil, and to do good, cannot be a bad mother”. What is one to make of such a dithyramb? We are, first of all, not certain that it was necessary in order to keep the children with their mother, in view of the facts of the case. But above all, the judges take up the cause of a belief and, in their impassioned defence of it, in our view overstep the mark and, above all, mistake their role. [1]

(…) One must note a rather singular case handled by the Paris Court on 15 June 1999 45, the appeal against which was rejected by the Social Chamber on 18 July 2001 46. It concerned an employee who had been dismissed for gross misconduct for having denounced a sales director’s membership of a cult. (…) In the grounds developed in support of its appeal, the employer argued that the employee had committed a fault by drawing up a report and then divulging a fact which, belonging to his colleague’s personal life, had caused no characterised objective disturbance to the company; moreover, the employer further maintained, this disclosure had been made with the aim of preventing the colleague’s promotion and thus, “under the guise of defending the company’s interests, the employee was guided by an exclusively malevolent intention”. The labour tribunal, followed by the Paris Court, held the dismissal to be unfounded (…) On the one hand, the Paris magistrates considered that “membership of a cult gives rise to a presumption of adherence to interests liable to run counter to those of the national community (the director of the cult being American), which is incompatible with professional activity within a company working for national defence”. On the other hand, the judges added, the (denouncing) employee “accomplished with meritorious courage what was his duty, despite the awareness he may have had of the risks he was running”. (…) It should be added that the denounced employee was also dismissed. The Paris Court moreover made this an additional argument, seeing in it proof of the gravity of the facts denounced. Which the employer denied in its appeal: that employee’s dismissal letter stated that no credence had been given to the denouncer’s allegations, but also that only the latter’s lack of discretion was the cause of the dismissal, through the wide publicity given to the report and the facts invoked, so that, the company operating in an extremely sensitive sector, it was not possible to lay itself open to the slightest criticism even if based on rumours. [1]

What role do parliamentary reports play in cult court cases? Vincente Fortier recalls that “the imputation of belonging to a religion or a cult, and the imputation that a movement is a cult, are not in themselves defamatory” [1]. The Criminal Code indeed does not recognise the term secte (“cult”) as defamatory, even though its common meaning has now become synonymous with criminal group, which facilitates the spread of a rumour of dangerousness about the many groups so designated. Vincente Fortier adds another principle: “judges systematically reject the exceptio veritatis [2] based on the parliamentary reports on cults” [1]. This assertion demonstrates great confidence in judges’ capacity to withstand the media barrage and pressure from the Chancellery. Let us give two examples:

The Steiner schools sued deputy Jacques Guyard for defamation (following his statements on France 2’s 1 p.m. television news on 17 June 1999); he was convicted at first instance (21 March 2000), then the Court of Appeal (6 September 2001) recognised the defamatory character of the statements made on the basis of the 1999 parliamentary report “Sectes et argent” (“Cults and money”), while considering Mr Guyard to be in good faith and therefore not guilty of the offence of public defamation [6]. Let us recall that this second commission of inquiry on cults was chaired by… Jacques Guyard. It is thus an exceptio veritatis in reverse: the content of the parliamentary report is held to be defamatory, but the speaker who chaired its publication is held to be in good faith.

Raphaël Liogier gives us a second example of the impact of parliamentary reports on Justice decisions: It concerns a young woman who set up her own consulting firm, which was doing quite well (…) One of her clients breaks the contract — unlawfully under the contract’s own terms — saying: “We can no longer work with you, or receive your advice, so we are no longer paying you, even for the advice you have already given us, because you are a member of a cult, the Soka Gakkai” (…) At first instance, the Tribunal de Grande Instance found for the client on the ground that the claimant was a member of a cult of which one could be wary, and that there was therefore no religious discrimination (…) That young woman lost on appeal (…) [the judges] went further by citing the parliamentary report itself — it has to be seen to be believed — whereas in theory a parliamentary report is never binding. Indeed, it should be merely indicative, but they nevertheless used it in this case as irrefutable proof of the cult character of the said movement. [3].

The repeated use of non-binding parliamentary reports in the French context of the fight against cults, against a backdrop of laïcité, constitutes what Raphaël Liogier calls “the theoretical denial of a practical behaviour” [4]. This interpretation, applied to judicial practice, should be set alongside the “principle” stated by Vincente Fortier.

Many “cult” cases must go all the way to the European Court of Human Rights to hope to receive fair treatment. This is notably the case of the Paturel case (http://www.cicns.net/Paturel_4.htm).

Vincente Fortier gives us another example: (…) In the Palau-Martinez v France judgment of 16 December 2003 92, the European Court reaffirmed this principle, ten years after its judgment of 23 June 1993. In divorce proceedings, the Tribunal de Grande Instance of Nîmes had fixed the children’s residence with the mother, parental authority being exercised jointly. The Nîmes Court of Appeal, overturning the judgment, had fixed the children’s residence with the father, on the ground that “the educational rules imposed by the Jehovah’s Witnesses on the children of their followers are essentially open to criticism by reason of their harshness, their intolerance and the obligations imposed on children to engage in proselytising; the children’s interest is to escape the constraints and prohibitions imposed by a religion structured like a cult; there is no need to order a social inquiry which, as matters stand, could only disturb the children”. On the mother’s appeal, the Cour de cassation93 held that the matter fell within the sovereign discretion of the trial judges and dismissed the appeal. The European Court found a violation of Article 8 combined with Article 14 of the European Convention: “It appears that the judgment attached decisive importance to the applicant’s religion (…). There is no doubt, in the Court’s view, that the Court of Appeal treated the parents differently on the basis of the applicant’s religion, in the name of a severe criticism of the principles of upbringing allegedly imposed by that religion. Such a difference in treatment is discriminatory in the absence of an ‘objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ and if there is no ‘reasonable relationship of proportionality between the means employed and the aim pursued’”. The Court notes (…) that, in its judgment, the Court of Appeal stated (…) only generalities concerning the Jehovah’s Witnesses. It notes the absence of any concrete, direct evidence demonstrating the influence of the applicant’s religion on the upbringing and daily life of her two children. [1]

From her analysis, Vincente Fortier draws the following conclusion: (…) — unquestionably, the judge makes belief a private matter, affirming unambiguously that it belongs to the inner self and that, accordingly, it escapes in principle any judgement. — however, even while forbidding himself to judge belief in its essence, the judge engages in certain cases in an evaluation of the religious option (…) Denominational pluralism emerges weakened from this, for at least two reasons: on the one hand because, in a portion of the decisions, the privatisation of religion is a mere stylistic clause, a sort of legal screen when the belief at issue is socially “disturbing”. And on the other hand because beliefs do not enjoy, across the courts, the equal indifference that ought to be the rule as regards the essence of belief. The object of belief, or its content, should, in absolute terms, from a fundamental perspective, be ignored by the judge. [1]

The natural question that then comes to mind is: what does “in certain cases” mean, and can statistics be established to assess this disparity in court decisions? Raphaël Liogier helps us answer this question: I have a student working on the sociology of normative production through court decisions. At the moment he is on an internship in a court, and he tells me: “It’s terrible, because many lawyers find themselves in a difficult situation not only on religious matters but for simple little party-wall disputes; whatever the rule of law transgressed or not transgressed, one cannot know in advance, statistically, what the judge’s decision will be.” That is nonetheless very serious. It means that, statistically, no sociological regularity can be found in the decisions, even though rules have been voted on in this regard. [3]

This statistical scattering of decisions certainly has multiple causes, one of them — notably in cult cases — possibly being a deficiency in judges’ training, as Maître Laurent Hincker testifies: currently in France, the human sciences and legal sociology have on the whole completely deserted the law faculties. In my day we had philosophy of law, sociology of law, history of law; today we train legal technicians, and that is all. That is to say, the judges who come out of the École de la Magistrature — and judge Burgaud is not exemplary, it is what happens commonly — are perfect legal technicians but have no capacity for discernment within an intelligence where they would have other grids of analysis, notably with regard to sociology, polemology (that is, conflict management), psychology — in short, everything that is taught elsewhere, in faculties other than law. [5]

Éric de Mongolfier (see http://www.cicns.net/Montgolfier.htm), for his part, makes the following observation: (…) It is not certain that the judiciary and the university are sufficient to determine whether candidates already offer, at this stage of their young existence, the guarantees of heart and mind that will serve them in judging. Brilliance, whether legal or of expression, may be indicative, certainly not decisive. If the essential can sometimes be guessed, the conditions of the entrance examination provide only a random answer to the only question that matters: does the candidate have sufficient maturity to free himself from his own constraints for the sole benefit of collective necessities? From this point of view, psychologists would no doubt have their place on the jury, the better to distinguish in the candidate the love of others from the love he bears himself. Narcissus was judge only of his own reflection. We know where that led him. He died of it, leaving posterity only a formidable adjective.

See also our May 2009 press release: Magistrates, one-track thinking and wisdom

[1] Vincente Fortier, “Le juge, gardien du pluralisme confessionnel” (“The judge, guardian of denominational pluralism”).

15 Pau, 1 March 1999, jurisdata no. 040384.

16 Toulouse, 26 November 2001, jurisdata no. 184911.

17 Pau, 28 January 2002, jurisdata no. 173806.

18 Bordeaux, 2 May 2001, jurisdata no. 145077

19 Bordeaux, 2 May 2001, cited above.

20 Besançon, 12 June 2000, jurisdata no. 143345; Pau, 19 January 1999, jurisdata no. 040024.

21 Bordeaux, 2 May 2001, cited above.

22 Bordeaux, 26 November 2002, jurisdata no. 198916.

34 Jurisdata no. 104261.

41 Nîmes, 7 May 2003, jurisdata no. 224296.

42 Lyon, 2 February 1999, jurisdata no. 045264.

43 Jurisdata no. 199657

45 Jurisdata no. 024159.

46 Juridisque Lamy

92 JCP G, 28 January 2004, p. 185

[2] Exceptio veritatis (legal term): Latin expression designating the defence of truth provided for by the 1881 law on press offences. This defence makes it possible, under very strict conditions, to prove that what one said, and which is considered defamatory, is in fact the truth. Within 10 days of the summons, the defamer must notify the opposing party of the facts for which he will offer proof. Arts. 29 and 55 of the law of 29/07/1881

[3] Raphaël Liogier, CICNS colloquium: “Cults: social scourge or scapegoat?”, September 2007

[4] Raphaël Liogier, “Une laïcité légitime — La France et ses religions d’État”, EntreLacs

[5] Maître Laurent Hincker, CICNS colloquium: “Cults: social scourge or scapegoat?”, September 2007

[6] Maître Laurent Hincker, “Sectes, rumeurs et tribunaux” (“Cults, rumours and courts”), La Nuée bleue

Éric Bouzou was born in 1958. He is an engineer. His technical career has been punctuated by encounters with people animating the spiritual dimension of the human being. His interest in defending spiritual freedom led him to become actively involved in CICNS’s work.