Georges Fenech's 2008 Report "Justice Faced with Dérives Sectaires"

Georges Fenech’s 2008 Report “Justice Faced with Dérives Sectaires”

A commentary by Éric Bouzou

The words in bold within the quotations from Georges Fenech’s report come from the original text

Georges Fenech, the new president of the MIVILUDES, has made public his report intended for Prime Minister François Fillon on the theme: “Justice faced with dérives sectaires”. It is the third official document published in 2008 on the theme of cults by the public authorities, the first being the MIVILUDES’s 2007 report and the second the guide of the same mission intended for local authorities. In all, nearly 400 pages which, added to those of previous years, convey the idea of a veritable social scourge. Yet the gravity of the cult problem in France has not been established by means of surveys or statistics but by creating out of whole cloth the sense of a danger of national scale. It is therefore not surprising that Georges Fenech’s report, like the preceding ones, arrives on the Prime Minister’s desk starting from this postulate: the danger is real and generalised. François Fillon’s letter of appointment implicitly accepts this a priori. Emmanuelle Mignon, former Chief of Staff to Nicolas Sarkozy, having tested the reflexes of the intelligentsia on the subject, learned to her cost that one must not step outside the framework of the single line of thought on the cult question.

Some elements of explanation are offered in a previous article on the mainsprings of the anti-cult struggle in France.

Introduction (page 11)

G. Fenech’s report begins thus: “Past masters in a form of teratology of the adherent, the leaders of movements of a cult character exploit without scruple the slightest weakness of an individual, isolated following a family or professional rupture or else struck by a serious illness”. It therefore starts with a sentence partially incomprehensible to the ordinary reader who probably does not know the meaning of the word “teratology”. Might obliging this reader, from the very first sentence, to consult a dictionary be a way of artificially conferring a “learned” character on the document? The Littré gives the following definition of “teratology”: “T hat part of pathology in which monstrosities are described and classified”. The scene is therefore set for nearly one citizen in 120, since G. Fenech specifies further on, page 10: “S ociety could not remain insensitive to this endemic evil which affects some 500,000 of our fellow citizens”.

The report’s second sentence asserts: “Present in every social stratum, every sector of activity including institutional, economic, academic, legal, medical, educational and sporting circles, these organisations have never ceased to proliferate. Certain cult followers occupy key posts and put their power and their influence at the service of a doctrine degrading to the individual, cloaking themselves behind the “new spiritualities"". This description is worthy of the bad scripts of Hollywood disaster films. No proof or quantification of these allegations is provided, even by reference.

Georges Fenech mentions on page 10: “A very broad consensus of the French political class” on the cult question . He omits to specify that the Ministry of the Interior has long and sometimes publicly offered an analysis very different from that of the MIVILUDES, and that the deputies who really concern themselves with these questions in the Assembly are very few in number. Many politicians are quick today to defend a “victim” even without knowing the precise context which projects her to the front of the stage; it is too tempting an electoral “investment”. The consensus of the political class on the cult question is in no way the proof of an enlightened awareness on the subject.

The recommendations proposed in the Report are, on the whole, far from transparent in budgetary terms and it is legitimate to question the reliability of the administrative circuits which evaluate the relevance of public expenditure.

The status of the MIVILUDES (page 13)

G. Fenech (page 13) wishes to base the mission’s status on a legislative text (rather than on a decree): “A permanent law would have the further advantage of dispelling the recurrent fears of a dissolution of the Mission or of its attachment to the Ministry of the Interior alone”. If the existence of a State body is contested, it is necessary to study the reasons for this contestation instead of attempting to erase them artificially by means of a legislative text. The passing of such a law would not be an automatic guarantee of legitimacy; it is well known that deputies often offload onto a few parliamentarians the subjects they do not consider priorities, which moreover raises the question of democratic representation in Parliament. The texts voted on the cult problem bring together a very restricted number of deputies.

According to G. Fenech, the legal status “most appropriate remains incontestably that of a mission attached to the Prime Minister”. Transformation into an independent administrative authority, advocated by “certain parliamentarians (…) would be such as to give the impression that the State could disengage from this responsibility” and “only the authority and legitimacy of the Prime Minister make it possible to ensure the effectiveness of the public authorities’ action, if need be through binding directives”. Yet the HALDE (High Authority for the Fight against Discrimination and for Equality) and the CNDS (National Commission for Security Ethics) are independent administrative authorities having an effective operational power, recognised and rather appreciated in their respective fields. If a reproach is made to them, it is indeed that of not having sufficient means to extend their capacity for action (this insufficiency of resources appears even critical for the CNDS, which seems to have been a victim of its success and “penalised” by the State). But this limitation in resources is not linked to their status, since G. Fenech also asks for an increase in resources for the MIVILUDES.

Independence is therefore not a guarantee of ineffectiveness, nor a sign of the State’s disengagement. A mature democratic State is precisely capable of relying on independent bodies which ensure a pluralism of viewpoints. Conversely, not being mature on the cult question, the French State timidly centralises its action in order to obscure any contradictory voice. To get out of this rut, the CICNS advocates creating an Independent Observatory of spiritual minorities.

G. Fenech wishes to constitute a Board of Directors of the MIVILUDES to replace the current Steering Council (page 15). This Board is supposed to retain only “personalities expert in their field”, from which sociologists of religion are excluded; the contribution of these sociologists would however be useful since, according to the magistrate, cult movements cloak themselves “behind the new spiritualities” (page 11). Certainly, academics would not be content with assertions; they would ask for proofs.

According to G. Fenech: “The fight against dérives sectaires is a real political stake, which necessitates the personal commitment of the head of government”. Is it a political stake or rather a “politicised” stake for reasons other than those displayed?

For a more effective intervention by the repressive judge (page 17)

G. Fenech sets out in this section the ins and outs of the About-Picard Act. This law ( Legifrance source ) makes it possible to pronounce the dissolution of “any legal person, whatever its legal form or object, which pursues activities having as their aim or effect the creation, maintenance or exploitation of the psychological or physical subjection of the persons taking part in these activities”. It tends to “reinforce the prevention and repression of cult movements undermining human rights and fundamental freedoms”. The reader may refer to Patrice Rolland’s article (CNRS-EPHE) for an analysis of the genesis of the About-Picard Act and to Maître Pérollier’s article for an analysis of the text of this law.

That the word “teratology” used from the very beginning of the Report is a medical term is not innocent. One of the principal theses of anti-cult activists develops the notion of the guru’s mental hold over the adherent. The first abuses his victim, the second does not realise that he is being abused. This mechanism would affect, according to G. Fenech, almost 1% of the population. These citizens are therefore considered as unbalanced and as potential patients of the official care system.

The notion of mental hold is not mastered and is the object of no consensus in the scientific community. This difficulty has not stopped the French legislator, who conceived the About-Picard Act on the basis of the notion of “psychological subjection”, of which one does not know whether it is the equivalent of mental hold. Let us note that the expression “mental hold” succeeded “mental manipulation”, which had itself replaced the concept of “brainwashing” (brainwashing in English). France is the only country to have so fully developed a law on this type of offence.

In seven years, this law has given rise to only a single body of case law in the Néo-phare affair (whereas dérives sectaires are supposedly one of the scourges of our society). G. Fenech laments this under-use of the law: “The reason lies no doubt in the difficulty encountered by insufficiently trained investigating magistrates in grasping the very concept of psychological subjection”. French magistrates are not the only ones to experience difficulties, since the Council of Europe had concluded that these terms were not defined. Maître Laurent Hincker, during a colloquium organised by the CICNS, reminds us that: “The Council of Europe has always maintained that there should be no specific law in European countries concerning cults and that, in every case, if there was something to be done, it was to have places of information and training where the information given not only by victims’ associations but also by the associations described as cults themselves would be taken into account in an adversarial manner”.

G. Fenech himself asks a few questions: “How indeed is one to demonstrate with certainty that the adherent’s consent was free only in appearance?” but without calling into question the pseudo-scientific concepts he uses. Maître Jean-Marc Florand, interviewed by the CICNS on the About-Picard Act, specifies: “Everyone, at that point, is engaging in mental manipulation. So I do not see how one could specifically charge — except in a textbook case; one will certainly always find a case — an offence of mental manipulation in a cult movement. That seems to me a scarcely democratic offence, and one which we know was very much in use in countries which formerly did not shine for their democratic qualities. So I think it is a bad law”.

G. Fenech continues (page 20) his analysis, conceding: “On these questions, the Mission has been led to observe that if there exists no legal definition of a “cult”, there is hardly any more definition of the dérive sectaire to which magistrates could refer.”. This is the admission that the action of the public authorities has been carried out for all these years without anyone knowing what is at issue.

Then he adds: “that it is today accepted that the principle of the State’s neutrality with regard to all religions and all beliefs excludes defining a “cult” in law, which remains a simple notion of fact”. The separation law of 1905 is 108 years old and G. Fenech admits, only today, that the State does not have to define what a cult is. It is a very slow and hardly credible appropriation of the spirit of French laïcité.

As regards dérives sectaires, G. Fenech proposes to distribute “to the magistrates of the prosecution for action and to the magistrates of the bench for information a legal guide to the “fight against dérives sectaires” setting out the fifteen criteria today perfectly identified”, and this without any independent and multidisciplinary validation of these criteria having been carried out. Let us note that the list he provides is different from that of the MIVILUDES, as well as from that of the ADFI. Let us also observe that within a few pages, the notion of “mental hold” has been transformed into “mental destabilisation” in this perfectly identified list.

On page 22, the Report recommends “creating within the economic and financial investigation units a specialisation in the field of contentious flows of cult origin”. In this period of last-minute rescue of the world banking system, one would like a particular zeal to be applied as a priority to the “non-cult” channels of finance, whose abuses and total absence of morality no longer need demonstrating.

Organisation of the police and the gendarmerie (page 23)

G. Fenech describes in this section the new organisation of the gendarmerie and the police to fight dérives sectaires.

“The national gendarmerie has adapted its internal organisation both at the devolved level and at the central level for a better knowledge of a protean phenomenon diffused across the whole of the metropolitan and overseas territory”. A lieutenant-colonel assisted by three specialised servicemen “has become the privileged interlocutor of the correspondents of the other State services and in particular of the MIVILUDES and of the judicial institution. Further on, the magistrate mentions that “the national gendarmerie would like to be able to exercise a more systematic surveillance of the Internet network, which would necessitate freeing up new resources in personnel and equipment”.

Concerning the national police , “on 6 May 2006, in a concern for coordination and centralisation of information, the Central Office for the repression of violence against persons (OCRVP) was entrusted by decree with “the fight against dérives sectaires constituting criminal offences”. A referent “cults” investigation group composed of seven officials and gendarmerie servicemen was assigned to this service”.

At no moment does G. Fenech mention the abuses of these security forces and the brutality of certain police assaults launched against spiritual communities. See, by way of example, the video testimonies of the members of the château de la Balme and the Essentiel affair.

The question of the training of security units is raised by G. Fenech; he wishes it to be equivalent to that offered at the National School for the Judiciary. One of the protagonists of the Essentiel affair, cited above, confided to us the words of a gendarme who took part in the investigation into their community: “After a while, he said to me: “In any case, don’t worry, the aim is to destroy the cult and to raze Terranova”. He showed me a film they had made on a computer in which one saw me, myself and Peter Deunov, a Bulgarian spiritual Master in the lineage of Aïvanhov who was precisely listed by a parliamentary commission as being a dangerous cult. They were assimilating me to them and one saw me flying in the sky (a document therefore made by gendarmes) on a flying carpet with the music of Era. He told me that it had been made to brief all the others, to explain to them where they were going and that the real aim was to destroy a cult”. This example shows that the training of the security forces does indeed require a serious overhaul. It must above all call for common sense, for respect of the adversarial principle and for respect of persons. It is not certain that the current version of this training fosters these qualities. In this respect, those responsible within the gendarmerie and the police could usefully draw inspiration from a document published by the FBI describing how to interact with a spiritual community.

Raising the awareness of the civil judge (page 27)

As regards the family affairs judge, the testimonies of figures from the legal world reproduced by G. Fenech all go in the direction of a demand for the specialisation of certain magistrates on the cult problem. Astonishingly, no testimony relates the abusive use of cult fear to win one’s case in a family matter. It is nevertheless a reality to which three mothers, for example, testify, and which cannot be evaded.

As regards the children’s judge, G. Fenech finds himself before the problem he had already encountered during the parliamentary commission of inquiry “Stolen childhood” which he chaired (2006): “One is bound to observe that out of a population of about 60,000 children concerned to varying degrees by the cult problem, only a hundred or so of them are currently the object of follow-up by children’s judges. One even observes a decrease in the number of reports concerning children who are victims of a dérive sectaire”. He continues by asserting peremptorily: “This figure is obviously insignificant in relation to the reality” and recommends “updating the 2003 survey in order to know the precise number of reports of minors affected by the cult phenomenon”. It is without any doubt the most sensible proposal in the whole Report. It remains to make public the conditions of the survey’s conduct and analysis so that the methodology used may be verified, this all the more so as G. Fenech announces the result before having the survey returns.

On France 5, on 3 October 2008, therefore after the submission of his Report to the Prime Minister, G. Fenech asserted that 80,000 children were directly threatened by dérives sectaires. In a few months, the figure has therefore increased by 20,000 and the children are no longer threatened “to varying degrees” but “directly”. It is probable that the magistrate adapts his discourse according to his interlocutors but, in any event, these figures are unfounded, grotesque and demonstrate a great irresponsibility. They contribute to the disinformation which surrounds the cult question in France and to the feeling of rejection which some wish to nourish, within the population, towards spiritual minorities or other so-called cult movements.

Training of magistrates (page 33)

In addition to the annual training received on dérives sectaires at the National School for the Judiciary, G. Fenech proposes to institute a training course at the beginning of the curriculum. Also, “awareness-raising placements for judicial auditors could be offered within the two principal associations that are the UNADFI and the CCMM, as well as at the MIVILUDES”.

We recommend that all judicial auditors acquaint themselves with the information contained on our site and view our documentary: “120 minutes for spiritual freedom”. The CICNS is also ready to give conference-debates on the subject at the National School for the Judiciary. These recommendations also apply to the “dérives sectaires” correspondents within the general prosecution offices, whose role is, as G. Fenech specifies, “to ensure a coordination at regional level of public action with that of the other State services in this matter”.

The cult question is not reduced to the vision given of it by the MIVILUDES and the anti-cult associations. It is through multiple sources of information that future magistrates — independent, it must be recalled — will be able correctly to grasp the situation.

Safeguarding the prison administration from cult proselytism (page 37)

G. Fenech attacks principally in this section the Jehovah’s Witnesses and Scientology. The magistrate specifies: “The Jehovah’s Witnesses have on several occasions submitted applications for approval as prison chaplains, without obtaining satisfaction, on account of the risk of proselytism. However, faced with this refusal, the prison administration has been condemned on several occasions by the administrative courts”. He also cites Monsieur Claude d’Harcourt, director of the prison administration, who “indicated to the Mission that in order to comply with this administrative case law, while protecting itself from the risks of proselytism, it is envisaged to create an intermediate status of “religious visitor” without all the rights of access reserved to approved chaplains”. This remark illustrates the variable-geometry laïcité as it is practised in France in contempt of court decisions and of the text of the 1905 Act (see the diametrically opposite situation in Canada ).

Promoting the role of victims’ associations (page 39)

G. Fenech recalls that these associations for “defence against cults” obtained in June 2000 the right to “join proceedings as a civil party in the case of the commission of certain offences undermining human rights”. “At the present time only UNADFI has obtained public-utility approval. The CCMM’s administrative file is in the course of being assembled”.

The anti-cult associations have instrumentalised the public authorities since their appearance in the 1970s (ADFI). They are moreover at the origin of the politicisation of the cult question in France (see the historical analysis by M. Lionel Mariani).

These associations, financed by the State, occupy a preponderant place in the apparatus for fighting dérives sectaires in France (G. Fenech provides for them to be members of the MIVILUDES’s Board of Directors), which contrasts with the total absence of representation of the groups described as cults and of associations such as the CICNS. This lack of balance and of stepping back in the analysis of a social phenomenon, within a public body such as the MIVILUDES, is the cause of numerous discriminations (see our testimonies).

The partial approach of these associations has no doubt not escaped certain observers within the public authorities, since G. Fenech relates that: “the associations met by the Mission deplored having been ousted from the new arrangements arising from the creation of the departmental councils for the prevention of delinquency, for victim support, and for the fight against drugs, dérives sectaires and violence against women”. The magistrate does not stop there, since he adds: “Faced with this new and scarcely satisfactory situation, the Mission will make its own the opinion of Monsieur Paul Michel, prosecutor general at the court of appeal of Bastia, that a working group specifically devoted to dérives sectaires be created within each departmental council ”.

To increase the role of victims’ associations when no contradictory contribution is admitted is unacceptable.

G. Fenech specifies: “There are three types of victims of dérives sectaires: 1 – the adherents who are not yet aware of being victims; 2 – the ex-adherents who need a great deal of time to rebuild themselves and to find the strength and the means to bring the matter before the courts before the limitation period for public prosecution is reached; 3 – the families of victims who often do not lodge a complaint because they are dissuaded from doing so by the investigation services or are turned away by the courts for lack of a direct interest in bringing proceedings”. This categorisation implicitly transforms 500,000 people into citizens who are either guilty or victims of dérives sectaires. It is a contemptuous and intolerant vision of a part of society, concealed behind an action in defence of victims.

The CICNS has moreover set out its position on the question of abuses within spiritual minorities.

For the construction of a European judicial cooperation (page 45)

The idea of an extension of the French model of the fight against cults to the whole of Europe is cause for concern. G. Fenech is active in this field, since he recently defended this model (October 2008) to M. Lenarcic, director of the ODIHR (Office for Democratic Institutions and Human Rights) at the OSCE (Organisation for Security and Cooperation in Europe).

In his Report, the magistrate specifies that he wishes to see the creation “of a European legal area endowed with a legislative framework targeting the illegal activities of organisations of a cult character” and of a “European Observatory on cults” (page 47 ). Within two lines, the “organisations of a cult character” are transformed into “cults”. Yet, on every airwave, G. Fenech hammers home that he is not interested in cults but in dérives sectaires. Let us observe that in France, there is hardly anyone but the President of the MIVILUDES and the Ministers who perform the hypocritical exercise of speaking officially only of dérives sectaires when the alleged cults are the real targets.

Very fortunately, Europe is no doubt the framework in which France will be called to order, as it already so often is for failure to respect human rights. It is quite ironic to imagine that several European States, which do not claim to be secular, will show France the way towards a better respect for spiritual choices.

Conclusion (page 49)

According to G. Fenech: “the slightest slackening would allow all the detractors of the rule of law and of respect for the individual to regain ground. In this action of the public authorities, the judge, “guardian of freedoms”, must ensure, as in every other field, the preservation of those essential rights that are the freedoms of association, of conscience and of religion. But under cover of respect for these freedoms, the reality of the cult sphere often conceals serious attacks on public order, on persons and on property”.

Further on: “For my part I shall take up, by way of conclusion to my work, the very wish of the President of the MIVILUDES Jean-Michel ROULET: “May we never mistake our victims and may we continue to answer those who legitimately call the State to their aid”. J.M Roulet and G. Fenech after him refuse to take into account the collateral damage of their policy on numerous honest and sincere people who aspire only to live their spiritual choices in peace. Separating good victims from bad is typical of a propaganda system, as Noam Chomsky shows in his book “Manufacturing Consent” (Vintage Editions). In these conditions, to claim to protect the “real” victims and the “real” individual freedoms is a betrayal of office.

G. Fenech’s Report is not different, in substance and in form, from the documents published by the MIVILUDES (the magistrate was a member of the Mission’s Steering Council before being its President). Failing to have in France a genuine Independent Observatory of spiritual minorities, it is legitimate to expect of a public body such as the MIVILUDES:

• that it guarantee respect for the adversarial principle, instead of privileging solely the theses of the anti-cult associations;

that it adopt a pluralist approach to knowledge relying on substantiated facts and not on conflations, rumours and disinformation;

that it respect the spirit of French laïcité without travestying it into an authoritarian and intolerant version;

that it apply itself to promoting the rules of ordinary law instead of advocating a specific and discriminatory legislation.

These qualities are not present in G. Fenech’s Report, though he is a senior magistrate, which augurs badly for the functioning of the Interministerial Mission in the coming years.