Cassation II: 'An Impossible Defence'

It was not the role of the Paris Court of Appeal to act as a chamber of inquisition, a Scientology lawyer told France's top court.

"Nobody expects..."

Scientology had three lawyers at the Cour de Cassation in Paris, representing the individuals and the two organisations appealing their convictions.

The first two lawyers focussed not just on the legal issues surrounding the trial on appeal but on what they insisted was the broader political context. For even before the trial started, Scientologists were protesting at what they said was a political witch-hunt against their movement.

But they also had to deal with their dramatic decision in November 2011 to walk-out of the appeal trial half-way through the proceedings.

At the time the lawyer for the counter-cult group UNADFI, Olivier Morice, had denounced the tactic, accusing them of fleeing the battlefield and showing a profound contempt for the courts.

The appeal court prosecutor Hugues Woirhaye also attacked what he said was Scientology's avoidance strategy, their refusal to confront the facts of the case.

So Maître Jérôme Rousseau devoted most of his address to the court to explaining why the defendants had decided they had to walk out.

He started by making a distinction between what Scientology's lawyers had done during the appeal trial and the tactic of rupture adopted by a famous French lawyer, Jacques Vergès, who had died just weeks earlier.

Vergès, whose clients included a Nazi torturer and a notorious revolutionary, often refused to engage the court on its own terms, instead trying to accuse the accuser (much good it did his clients).

So at the 1987 trial in Lyon of SS interrogator Klaus Barbie, part of his defence was a denunciation of the Vichy government's collaboration with the Nazis. And he turned the 1994 Paris trial of Ilich Ramirez Sánchez – alias Carlos the Jackal – into an extended attack on Israel's treatment of the Palestinians.¹

Rousseau was responding to criticism from some observers that Scientology had used much the same tactic, refusing to engage with the court.² He insisted however, that they had done nothing of the sort.

If the defence lawyers and their clients had walked out, it was because they had been left with no choice, he said.

“All their requests were rejected,” he said. “All their arguments were swept aside. They were 'by definition' guilty. Scientology has become the number one target of the public authorities,” he argued.

Contrary to the comments made by Georges Fenech, the head of the government cult watchdog MIVILUDES, Scientology's lawyers had not sought to influence the public during the trial on appeal, he said.³

“They just wanted a fair hearing in court,” he said.

But as soon as Scientology's lawyers had walked out of the appeal court, the trial continued, he said: and even when they had been present, their role had not been respected.

“It was an impossible defence because they could not carry out their duties.”

Rousseau reminded the court that the opening days of the appeal trial had been eaten up by the procedural motions brought by the defence lawyers – known as Priority Questions of Constitutionality, or QPCs. After five and a half days of hearings, they had all been swept aside, he said.

During that time of course, the lawyer for UNADFI had been allowed his say in court – so even if the group's bid for plaintiff status was subsequently rejected, they had been granted a voice during the trial itself.

UNADFI had provided the court with witnesses and experts, he reminded the court – citing the example of Roger Gonnet, “who was excluded from Scientology”.⁴

In this way, he said, UNADFI managed to smuggle itself into the trial as a stowaway and had ended up travelling first class. “That is why the lawyers had no choice but to walk out.”

But he added: “The defendants did not renounce their rights to be represented.”

Indeed, far from having refused court-appointed lawyers some of them had written to the court following the walk-out asking for legal representation.

There had been no unequivocal refusal of further legal aid, he insisted. And the defendants' lawyers, when they quit the chamber, had not resigned: they were simply registering a protest.

Another problem with the trial as it stood when they walked out of the courtroom was that, with procedural issues having taken up so much of the time allotted for the case, the calendar for the remaining hearings was unrealistic.

There should have been some discussion of this problem, said Rousseau: instead, the trial simply went ahead on the previously organised timetable.

“To keep your place you sometimes have to withdraw,” he concluded. “And to be heard you sometimes have to be silent.”

Scientology 'like any other church'

Next up for Scientology was Maître Louis Boré, who focussed on the issue of religious freedom.

This case was important, he said, because it was rare for a church to be convicted and because the message that such a judgment sent was fundamental.

The principle of the separation of powers had been accepted since the French Revolution, said Boré: the executive made the laws, the judiciary interpreted and applied it – and the constitution guaranteed that the courts would be free of any political interference.

But not in this case.

As soon as the authorities started to distinguish between “good” and “bad” religions, he argued, those principles came under attack.

Faith was not something that needed to be justified, he argued. And if a church advocated criminal activity, then anyone who acted on those precepts should be convicted for their crimes.

“But what the Church of Scientology has done is what all churches in the world do,” said Boré. “They have asked for money from their followers.”

The prosecution had made much of the fact that Scientology sought donations from its followers, that it sold products to them: but all churches did this, he continued.

Consider the sale of kosher or halal products, for example. And in the Catholic religion, you can ask for a special mass to be held in memory of a loved one: but you would have to pay for it.

Scientology's critics might argue that the difference was that with this movement there had been an element of deceit. But every religion had elements that had to be taken on faith, that could not be proven by normal means, he said.

Thus the Jews at the synagogue, prayed for the arrival of the Messiah; Christians drink the blood and eat the flesh of Christ at mass every Sunday; and Muslims observe 30 days of fasting during Ramadam in often punishing conditions.

“All these things, which appear absurd, have a very precise meaning,” Boré argued. “When you deal with religion you are entering the world of the irrational – things that you cannot demonstrate.”

The State was not meant to get involved in such issues, he insisted. “There is no legal answer to the question of the existence of the human soul.”

All religions were authorised then – so why did Scientology not enjoy the same status?

The fraud convictions had centred around the movement's use of the Personality Test, he reminded the court; the convictions relating to the illegal practice of pharmacy had been centred around the use of the Purification Rundown.

On the matter of the Personality Test, Boré argued that every religion had the right to proselytise. Jehovah's Witnesses, even if they were announcing the end of the world, had the right to go door to door, he pointed out.

Yet Scientology had been attacked because its followers handed out leaflets offering personality tests, he said. The Court of Appeal had been shocked because this test was not scientifically proven.

“The Christian Church says that you will discover the love of God,” he countered. “But is it scientifically proven that God exists?”

It might be argued that the difference with Scientology is that it has tried to present its truth, the Personality Test, as objective reality.

To this, Boré responded: “All the main religions present their beliefs as the objective truth: Scientology promises salvation before death; others after.

“But Christianity says the love of God will save you now; Buddhism promises enlightenment today, in this life – so you cannot convict Scientology for proselytising and trying to present its message as the absolute truth.”

As for the Purification Rundown, he argued, all churches called for purification: so the convictions were a judgment of the defendants' religious beliefs.

Courts have no business here

The Church of Scientology had been attacked for being too expensive, he noted. Many churches were more modest in their demands.

He could understand this objection if there was a church tax fixed by the state, but that did not exist in France. These issues were matters of individual conscience he said.⁵ “In France, the State does not get into the financing of churches.”

And to the objection from Scientology's critics that it was not a church but a cult, Boré cited the dictum that a cult is just a church that has succeeded.

“Christianity started with a group of 12 – or 13 – people. But I prefer to leave out the 13^th, because that ended badly,” he quipped.

Scientology's sale of its electropsychometers, an essential tool in Scientology auditing, its version of therapy, might seem exotic to the uninitiated, he said: but no more than the sale of the kippah, the skull cap used by religious Jews.

“Critics say that [Scientology] is only interested in generating money and power,” he continued. “You have the right to believe this – and the reverse – but it is not for the state to rule on this.”

It was not the role of the Paris Court of Appeal to act as a chamber of inquisition, judging who were the true believers and who false.

Imagine if one applied the same standards to psychiatric practices, he said. If you had to take every psychiatrist to prison for having failed to cure their patients, there would be a lot of psychiatrists in prison.

The least one could do was to examine the beliefs underpinning Scientology, said Boré: that there was an immortal soul, reincarnation, memories and trauma from past lives, “ruins”.

“When we speak of immortality of the soul and reincarnation, who can doubt we are dealing with a religion?”

That is what Scientologists, who had never complained of anything, believed. Yet the church had been condemned on the basis of complaints brought by a handful of “victims”, he said.

At least one of the plaintiffs, Aude-Claire Malton, had said she had not realised Scientology was a religion, he noted. But could she not read the documents she had signed, had she not read the sign on the door at the entrance to the centre she visited?

“When you are dealing with a church, you cannot oblige them to deliver results,” said Boré.

Of the plaintiffs he said: “If they turned against Scientology it is because they lost their faith.”

It was as if a disaffected Christian or Muslim had asked for their money back, he continued. “But there is no criminal offence here.”

These arguments were answered later in the hearing by the lawyer for UNADFI, and by the state prosecutor.

First however, another Scientology lawyer took aim at the convictions for the illegal practice of pharmacy based on the administration of the movement's Purification Rundown.

Next: "Defending the Rundown"

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1   The Economist did an excellent obituary of Vergès.

Klaus Barbie was an SS officer convicted of the torture and murder of dozens of prisoners in Nazi-occupied France. (For an idea of just how depraved he was, see here.) In 1987 a French court convicted him of crimes against humanity in 1987 (he had for years been sheltered by the United States who used him for post-war anti-communist intelligence work).

Carlos the Jackal or Ilich Ramírez Sánchez, was behind a series of bombings and assassinations in the 1970s and '80s. A French court finally convicted him in 1997 of three murders. He was convicted in 2011 of a series of deadly attacks in France carried out in 1982 and 1983, confirmed on appeal earlier this year. Here's RFI's report on that second conviction.

2   More than one commentator accused Scientology of pursuing a policy of rupture – breaking with the court.

This is how Angélique Negroni, of the right-of-centre French daily Le Figaro put it in her report “Comment la Scientologie a sapé son Procès” (“How Scientology undermined its Trial”), filed on November 18, 2011, the day after the walk-out.

She outlined the various procedural motions Scientology's lawyers had filed, before adding: “But after having met with systematic refusals from the court to postpone the hearing, the defence thus decided to switch to another technique: rupture, pure and simple. Thus they deserted the benches for the accused.”

Emmanuel Fansten, the author of Scientologie: autopsie d’une secte d’Etat, a fascinating book on Scientology's lobbying operations in Europe, took a similar view, in an interview with the French news website Atlantico. “La France aura-t-elle la peau de la Scientologie?” (“Will France nail Scientology?”) was posted on February 3, the day after the appeal court confirmed the original convictions.

Fansten, like Negroni at Le Figaro, pointed to the flood of procedural motions that Scientology's lawyers had launched at the court before their walk-out. As a result, he said, there had been no substantive debate.

“The Scientologists preferred to avoid their trial... Scientology can't have been surprised insofar as it took the risk of a defence of rupture. It wanted to explain that France is an oppressive (liberticide) and that, Scientology, being a religion, France was convicting a religion.”

Fansten also predicted that if the convictions were confirmed in Cassation, the movement would take its case to the European Court of Human Rights. (For more on Fansten, see “A French Take on Scientology” elsewhere at this site.)

3   Fenech stepped down as head of the MIVILUDES in 2012, having served since 2008, during the presidency of Nicolas Sarkozy. He is now a deputy with the right-wing UMP, now in opposition. Earlier in his career of course, Fenech was the investigating magistrate in the Lyon case against Scientology that ended in a conviction for homicide involontaire over the death of one of their followers, and several fraud-related convictions against senior members of the movement.

It is not clear exactly which of Fenech's interventions provoked this remark from Rousseau, but it was Fenech who sounded the alert in September 2009 – after the original trial and a month before the original sentences were handed down – pointing out that a change in the law two weeks before the original trial opened had robbed the prosecution of the sanction of dissolution of the two Scientology groups something it had recommended at the trial.

Desite expressions of outrage and suspicion into the circumstances of this incident, no one has been able to prove that this was more than a simple error. That part of the relevant law has since been reinstated, but it cannot of course be retroactively applied in this case. For more on this controversy see “The Great Escape?” elsewhere at this site, written as the story was breaking.

4   For more on Gonnet, see the coverage of his testimony at the 2009 Paris trial elsewhere this site: “The Apostate, Gonnet”Parts One and Two; for another perspective, see “The Illustrated Man” my review of Belgian illustrator Renaud De Heyn's take on Gonnet's journey from true believer to campaigner against Scientology.

5   Maître Boré made a passing reference here to Germany's church tax, where people who adhere to a church are levied by the state to pay taxes to maintain that church. Some of the mainstream churches there have complained of followers quitting the church to avoid paying the tax.