38 The Great Escape?

Sept. 15: A hitherto unnoticed change in French law will prevent a court from dissolving the two Scientology organisations charged in the Paris trial, as prosecutors had recommended.

Judges will not be able to follow the prosecutors’ recommendations to shut down two organisations charged in the Paris trial of Scientology thanks to a law passed just before the case was tried.

The law, voted May 12, was part of a package designed to simplify existing legislation. But buried in a long list of measures was one removing the power of judges to order the dissolution of an organisation found guilty of fraud.

The change to article 131-39 of the penal code went through so quietly that even the prosecutors did not notice: for it was this measure that they recommended applying in their June summing up at the Paris trial of six Scientologists and two of the movement’s organisations.

They called for both the Paris’ Celebrity Centre – L'Association spirituelle de l'Eglise de Scientologie (ASES) – and Scientologie espace librairie (SEL), which runs the movement’s bookshops in France, to be shut down.[1]

Georges Fenech, president of the government’s cult watchdog MIVILUDES, sounded the alarm on Monday.

“The law has been modified without debate, without consultation,” he said in a statement. “Even the Paris prosecutors’ office got it wrong. I’m amazed.”

In a statement, Jean-Luc Warsmann, the French deputy whose legal package included the change, said nobody had raised any objections during the 10 months parliament had worked on the proposals.

He also pointed out that the relevant law still provided for harsh sanctions, including a ban on certain activities.

Justice ministry spokesman Guillaume Didier made a similar point in comments to AFP.

“Under the current law there still exists the possibility for the court, in the face of an offence of simple fraud, to hand down a definitive ban on the exercise of one or several professional or social activities, as well as the definitive closure of the establishments where the infraction was committed,” he said.

It is not as if the judges’ hands are tied then – assuming of course they find any of the defendants guilty and that they feel such harsh sanctions are warranted.

Justice Minister Michèle Alliot-Marie has already made it clear, in comments to Reuters, that the law in question will be reinstated. [A September 23 amendment by the Senate, France's upper parliamentary chamber, cancelled the offending article: ed.] But that changes nothing in the present case.

It is the current law that will apply when the judgement is handed down on October 27: any change to the law could not be applied retroactively.

Some observers however see this as a blessing in disguise, for even among Scientology’s critics, there are those who think that a ban would have been a step too far.

They feared an outright ban would strengthen Scientology's argument that they are victims of religious persecution.

For Fenech at MIVILUDES however, dissolution is a vital weapon in the arsenal against cult activities.

“In the face of cult-like organisations presenting a real danger to public order and public health, the courts must always be able to have such a measure,” he said, calling for the sanction to be reinstated as soon as possible.

Cock-up or conspiracy?

A Scientology statement expressed incredulity that Fenech, with his experience as a magistrate and then a deputy, could have missed such a crucial change to the law.

“M. Fenech is trying to make us think he is incompetent – so one is entitled to ask if it is not in fact more serious…” it said.

Could Fenech have deliberately kept quiet about the change to the law so he could fuel the fires of a debate over shutting down Scientology in France, the statement asked?

“Whether it’s incompetence or manipulation this is a scandalous affair. It has already done the Church a lot of damage…” the statement added – and Fenech was one of the main culprits.[2]

Other observers also sense a conspiracy: but of quite another kind.

Maître Olivier Morice, lawyer for the plaintiffs in the trial, made it clear in comments to Le Point magazine that for him, this was more than just an unfortunate accident.

Catherine Picard, President of UNADFI, an alliance of counter-cult groups in France, expressed similar doubts in comments to France Info radio.

And left-wing Jean-Pierre Brard, who testified at the trial in his capacity as a specialist on cults, has called for an inquiry to find out who had been behind the crucial amendment.[3]

Given the timing of the legal change, just weeks before the Scientology trial started, one can understand their frustration. It is not after all the first time that Scientology has lucked out in a French legal case.

In 1998, key documents went missing from the Paris court-house in a long-running case against Scientology. After years of legal wrangling, the case eventually hit a wall: it never got to trial.

“Eolas”, a Paris lawyer who runs a blog on legal affairs, does not say whether he thinks this latest incident amounts to a cock-up or a conspiracy.

But his witty analysis of the affair demonstrates that if people in high places did want to sneak through a change to the law, this is how they would do it.

Eolas shows how the crucial measure was buried under an unreadable pile of legalese. This, he says, is how you get lawmakers to vote through just about anything without their having the least idea of what they are approving.

Warsmann, a deputy for President Nicolas Sarkozy’s UMP party, may have put his name to the vote, but he would not have drafted the changes himself, says Eolas.

That would have been done by the government’s lawyers.

His concern is that when deputies are blindly rubber-stamping blocks of incomprehensible prose, there is a real potential for abuse. “All it needs is a well-placed hand to pass expedient texts without anybody reacting,” he argues.

Lawyers' concerns

The two main unions representing France’s lawyers released separate statements on the affair Tuesday. Both had trouble accepting the government’s explanation that it had been a simple error.

Developing Fenech’s argument, L’Union syndicale de magistrats (USM) pointed out that the sanction of dissolution had only been removed in the case of fraud.

“It has however been retained for all other offences, including embezzlement, forgery and money laundering, offences not included in the trial,” of Scientology, said the statement.

Without actually calling for a parliamentary inquiry, the USM statement urged the government to “shed light on what could well be a state scandal.”

Left-leaning lawyers’ union le Syndicat de la magistrature (SM) found the timing of the change to the law suspicious.

It rejected the justice ministry’s plea that this was a simple mistake, given the months spent working on the text, Warsmann’s comments defending it and what it saw as the obscure manner in which the change had been introduced.

Without actually making the accusation, the SM statement also asked if the government had simply been too susceptible to Scientology lobbying.

But it also allowed for the possibility that his might have been just be another example of what it called the right-wing government’s “rampant decriminalisation” of business affairs.

Either way, the SM called for a parliamentary inquiry. “The questions raised by this affair cannot remain unanswered,” it said.

So was this a cock-up, as the government claims, or a conspiracy? Picking up on the second theory advanced by the Syndicat de la magistrature (SM), there is always the possibility it was a bit of both.

If this was a surreptitious bid by the government to ease the sanctions in place against corporate France, the benefit to Scientology may simply have been an unintended consequence. But that still does not explain why it covered fraud – and fraud only.

If the current government is sympathetic to Scientology, then a planned overhaul of the judiciary could benefit the movement still further.

The government is currently pushing through reforms that will phase out the role of investigating magistrate, transferring much of their powers to the prosecutors’ office.

President Nicolas Sarkozy has led the charge against these magistrates, criticising them for the excessive power they yield inside the French legal system, a power which he and others have argued has sometimes been abused.

Their defenders however stress the independent role they play. Several cases, particularly some politically sensitive ones, would never have reached court had it not been for the investigating magistrate concerned, they argue.

In this context, it is worth remembering that while the two prosecutors assigned to the Paris trial took a tough line against Scientology from the start, this was a 180-degree switch from the position their office had initially taken.

Three years earlier, when the investigation was still ongoing, the prosecution had argued that there was no case to answer.

The case only reached court because the investigating magistrate reached entirely different conclusions – and had the power to ignore the prosecutor’s office position.

This is an issue that goes way beyond the current row over Scientology, of course. But if the reforms do go through, the government’s critics will doubtless be keeping a close watch on the prosecutor's office.

They will need convincing that it is as robust in its approach to politically sensitive cases as the investigative magistrates have been.

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[1] They also called for both organisations to be fined two million euros and for any goods related to the fraud to be confiscated.
[2] Fenech and Scientology have history of course: as an investigating magistrate in the 1990s, he was behind a major legal defeat for Scientology in which a senior Scientologist was convicted of manslaughter over the suicide of one of the movement’s followers. The court in Lyon said Patrice Vic had in part been driven to his death because of the tremendous pressure to buy more courses.
[3] Brard has served on three parliamentary inquiries into cults. He also sits on the advisory board of MIVILUDES.

21 Picard for UNADFI

Should UNADFI, the French anti-cult federation, be allowed the status of plaintiff in the case against Scientology? UNADFI president Catherine Picard debated the issue with the movement's lawyers.

Catherine Picard had already appeared in court during the trial.

On the first day of the trial, as president of UNADFI, a national union of anti-cult groups, she had sought to have the group accepted as a plaintiff in the case.[1] Scientology's lawyers had angrily objected and the judges had deferred their ruling on the matter.

Picard was back on the second day to accompany the main plaintiff, Aude-Claire Malton, when she gave evidence.

Now, three weeks into the trial, Picard stood before the judges as a witness, to explain her work at the head of UNADFI. So far as the Scientologists were concerned however, Picard had form.

Well before she took up her post at the head of UNADFI, she had gained a reputation as one of the most prominent critics of cults in France through her work as a deputy in the National Assembly.

She served as the president of the parliamentary group on cults between 1997 and 2002. And she was also one of the driving forces behind the 2001 “About-Picard” law, which made it easier to go after groups found guilty of cult-like practices (see the introduction to this section).

If anyone could be considered suppressive in Scientology’s eyes, it was Picard.

Picard told the court that the first wave of anti-cult groups had sprung up in France in 1974 in response to the growing popularity of a wave of alternative movements. UNADFI, their national federation, had emerged in 1982.

They worked not just with people who had come out of high-demand groups, but also with the families and loved ones of those still inside.

Staffers at UNADFI in Paris and the satellite groups around France were trained to listen carefully to the people who came to see them.

And once they had told their stories, depending on the kind of help these people needed, UNADFI had a network of specialists – lawyers, doctors, social workers and others – on whom they could call.

Drawing on an archive of more than 30 years’ worth of documents also allowed UNADFI to educate the people who came to them about the movements they had encountered, said Picard.

That did not mean they would characterise one group or another as a cult – but the 1995 parliamentary report into cults had given a rough road map of the territory, she said.[2]

UNADFI’s priority was not to guide people towards the nearest lawyer, as some of its critics had suggested – even if it was true that the group had accompanied Aude-Claire Malton in her action against Scientology.

Sometimes former members did not want to take any legal action against the group to which they had belonged, said Picard; sometimes it was simply too late; and sometimes there were other priorities.

For people emerging from life in a cult often had problems that were unique to their situation, said Picard. Some had to be helped to get used to making their own choices again, for example.

“Often their life has been largely guided,” she explained. “They need to reacquire their autonomy… If they need psychological help we find it for them,” she said.

In 1996, said Picard, UNADFI had been granted official recognition of its public service role by being classified as an association reconnue d’utilité publique (RUP), which gave it extra standing in the eyes of the state.

Judge Sophie-Hélène Château asked her to run through the present case as she saw it.

It was, said Picard, a fairly classic illustration of an individual pursuing a perfectly legitimate goal encountering a group with less straightforward goals.

People often came to cults looking for one thing, said Picard. But cults were good “at pulling them into something they were not looking for.” Thus Mme Malton had come looking for a way to improve her communication skills – and not anything else.

Harassment

Maître Olivier Morice, who as well representing the plaintiffs in this case also acted as UNADFI’s lawyer, asked Picard to elaborate on the other aspects of their work.

UNADFI had also developed contacts with the government’s ministries and agencies as well as with local authorities to develop the preventive, educative side of their work.

They gave conferences and accepted invitations to give talks to the various schools for lawyers and the different wings of law enforcement, to educate them on the issues.

Morice asked about the problems that Picard’s predecessor at the head of UNADFI, Janine Tavernier, had experienced with Scientology.

Picard confirmed that Tavernier, who she praised for her remarkable work at UNADFI, had been attacked in the courts by several groups including Scientology. So far as she was aware, she had won all her cases.

And had UNADFI itself not been sued by Scientology in a bid to get it declared illegal and shut down, asked Morice? It had, Picard confirmed: but the association was used to being under the microscope.

In order to win its status as a “publicly useful” association (RUP) it had been obliged to submit itself to strict scrutiny; and its finances were strictly regulated because it received state subsidies.

So Scientology’s bid to get UNADFI shut down had failed.[3]

And what about those former members of Scientology who, having filed complaints against the way the movement had treated them, had subsequently reached out-of-court settlements rather than going to trial, asked Morice?

Picard confirmed that some former plaintiffs had agreed to such arrangements, under strong pressure from Scientology: “But others keep on going.”

The prospect of testifying in a case such as this one was understandably intimidating, said Picard – and to some degree humiliating. “It is always very difficult for a person to realise that at a given moment they made a mistake.”

And had she herself come under pressure in her job at ADFI, asked Morice?

Given her position as president of UNADFI, pressure was to be expected, she said. But having previously served as a deputy, this was nothing new for her.

She had experienced it in 2001, when she and fellow deputy Nicolas About helped get what is now known as the About-Picard law through the National Assembly, tightening the sanctions against groups guilty of cult-like behaviour.

Her email box had been saturated with messages, she recalled; she had come under pressure from two senators to withdraw the bill; the then prime minister had even received letters from the United States on the subject.

More recently, in her new role at UNADFI, she had seen their offices picketed by hostile demonstrators. And she added: “When I do conferences outside Paris I am accompanied by Scientologists who try to disturb the meeting. You live with it without thinking about it.”

And why did she want UNADFI to be added to this case as a plaintiff, asked Morice?

“Our association has received a large number of victims who have not been able to express themselves,” said Picard. Their job was to receive people such as Aude-Claire Malton to defend their interests and if necessary accompany them through this kind of situation, she added.

At one point in his questioning, Morice also asked Picard about a clash she had had with one of Scientology’s lawyers, Maître Louis Pamponet.

When Maître Patrick Maisonneuve, the main defence lawyer, took over the questioning, he made a remark to the effect that one of the people involved in the matter was not in a position to put his side of the story.

Morice objected, and the exchange quickly deteriorated into a shouting match – not for the first time during the proceedings.[4]

Maisonneuve was only able to continue his questionining once Judge Château had, with some difficulty, restored order.

Confusion de genres

The clash with Pamponet to which Morice referred was not fully spelled out in court: but what did emerge was that he had sent her a summons objecting to comments she had made to the media.

His position appeared to be that her public position on cults was outspokenly critical, when the statues of UNADFI required her, as its president, to to maintain a certain detachment from the fray. Clearly Picard did not share that view.

Certainly both Maisonneuve and Pamponet pursued this point in the questioning that followed.

Picard had spoken about how UNADFI received victims and accompanied them in their actions. How did that work, asked Maisonneuve?

Picard went over how the organisation worked: drawing on a council of advisers when matters required specialist help, and providing access to a lawyer if a person requested it.

“If you are contacted by a family, do you try to contact the member of the family who is the object of concern?” asked Maisonneuve.

“No,” said Picard. “The family who is received is received confidentially.” They could never make such an approach without the agreement of the person – or family – involved because they had an obligation to keep what they were told confidential.

“So you are only going to contact the press, then,” asked Maisonneuve, a touch rhetorically.

Only if the family wanted it, Picard replied. If the press came to UNADFI looking for someone for the purposes of a story, they could approach people to see if they would be willing to talk to them.

If – and only if – the family or individual agreed to be interviewed, then UNADFI would give them the journalist’s contact details for them to follow up.

Maisonneuve asked about the association’s role in both observing the cult phenomenon and acting to prevent cultic abuses. Was there not a confusion de genres here, he asked? Was there not a danger here that the two roles conflicted?

UNADFI was involved in training France’s police force and its lawyers, for example: “If a question is put regarding Scientology, I suppose you are not going to give a very positive message,” he said.

Picard pointed out that it was the colleges who trained these lawyers who invited her to lecture – along with a range of other professionals.

So far as Scientology was concerned, she said, it had been listed as a cult-like movement (in the 1995 parliamentary report) and had been involved in a considerable number of legal cases over the years.

So yes, if asked about Scientology, she would reply that it was considered to be a movement of a cult-like character – like a great number of others.

But that was what bothered Maisonneuve: that UNADFI was involved in training professionals in law enforcement and the judiciary while also seeking to obtain the status of plaintiff in this case.

For Picard, there was no conflict of interest.

“The state gives us the means to investigate these matters,” she said. It had also passed laws to protect vulnerable people from being exploited; to protect children in cults; and to protect patients against unscrupulous doctors. And all across France there were lawyers who had direct responsibility for handling cult-related matters.

“I don’t see the problem,” she said.

“This is not about religion”

Maisonneuve returned to what Picard had said about having been pressured by two senators during her time as a deputy.

“Do you think that when an actor visits Sarkozy and speaks of Scientology, is that pressure?” he asked. Maisonneuve seemed to be referring to an incident in August 2004, when Tom Cruise met Nicolas Sarkozy, now France’s president, but at the time minister of finance.

“The President of the Republic was asked about this and he said that in no way was Scientology the order of day,” during their meeting, said Picard.[5]

Maisonneuve turned to comments made by Picard’s predecessor, Janine Tavernier, who had served as president of UNADFI between 1993 and 2001.

In the preface to a book and in a subsequent interview with Le Monde newspaper in November 2006, Tavernier had expressed concerns that UNADFI was in danger of drifting into a mindset in which they saw cults everywhere and engaged in witch-hunts, he said.[6]

What did she think of those remarks, asked Maisonneuve?

Picard said she had read the interview in Le Monde. “Mme Tavernier represented UNADFI when she was its president,” she said. But she was no longer its president and her words were those of a private citizen.

Maisonneuve’s colleague, Maître Louis Pamponet, returned to Tavernier when he took over the questioning.[7]

First however, he got Picard to confirm that she agreed with the principle of the presumption of innocence: why then, he asked, had she described the Church of Scientology as an intellectual, spiritual and financial fraud?

Surely the statutes of UNADFI required her to exercise a little more restraint and say nothing in public that could not be proven in court?

“I don’t feel that I have gone outside the terms of my job,” said Picard. “I don’t have the impression that I went too far.”

Why then had Tavernier spoken out so harshly about the organisation she had once led, he asked?

Again, Picard repeated that Tavernier’s remarks were those of a private individual. She also made it clear that any decisions taken by UNADFI were taken collectively.

And when Pamponet tried to frame his next question around the issue of freedom of religion, Picard interrupted him.

“– This is not about religion. If they want to believe in Hubbard that is their business: there has never been a conviction over their beliefs – the problem is not there…

“If you want to worship Brussels sprouts by the full moon, that’s your problem, it is not my problem,” she said. UNADFI was not interested in attacking freedom of religion, she insisted.

But it was okay to call Scientology an intellectual fraud, Pamponet noted.

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[1] UNADFI: The National Union of Associations for the Defence of the Family and the Individual, Victims of Cults. The individual satellite groups around France are simply known as ADFI. The status of plaintiff would give the organisation access to all the papers in the case and perhaps more importantly would have set a precedent allowing UNADFI to apply for such status in all cult-related cases – the last thing the defence lawyers wanted.
[2] The 1995 French parliamentary report on cults was in fact hugely controversial precisely because it drew up a list of groups it considered to be cults. Not unnaturally, many of the groups listed took great exception to the fact, arguing that they had been unfairly stigmatised. Earlier this year, what appeared to be an attempt by Georges Fenech at MIVILUDES (the Inter-ministerial Mission for Vigilance and the Struggle against Cult-like tendencies, attached to the prime minister’s office) to introduce something similar met with firm resistance from other parts of the government.
[3] The court had heard earlier from another witness, Jean-Pierre Brard, how Scientology shut down the Cult Awareness Network (CAN) in the United States.
[4] Morice, as a specialist in cult-related cases, had clearly clashed with Scientology’s lawyers several times before. Over the course of the trial, one got the impression that relations between the two sides had long ago deteriorated from the usual professional rivalry to something rather more personal.
[5] Cruise’s meeting with Sarkozy provoked a good deal of controversy at the time, as Sarkozy was already being seen as a leading contender to succeed Jacques Chirac as president. And while Sarkozy insisted that Scientology had not been discussed, he was nevertheless criticised – by, among others, Jean-Pierre Brard – for having handed a public relations coup to the movement. Cruise, in subsequent comments, contradicted Sarkozy, saying that they had discussed Scientology (“Les sermons d'amitié de Tom Cruise à Sarkozy”, by Gilles Wallon in Libération, June 18, 2005.)
Worth noting too is that Tommy Davis, now Scientology's most prominent spokesman was present at the meeting, as confirmed by video footage in a recent French documentary on Tom Cruise in the One Day, One Destiny slot (France 2).
[6] Tavernier initially made her comments in the preface to a book published by the Rosicrucians, Sectes sur ordonnance, (Cults on Prescription) éditions Amorc. Her interview with Le Monde was published November 17, 2006 (“Il faut distinguer les mouvements religieux des vraies sects”; “We have to distinguish religious movements from real cults”).
[7] Neither Maisonneuve nor Pamponet were defending the individuals Scientologists directly. Maisonneuve’s client was the Paris Celebrity Centre, where the alleged offences had taken place; Pamponet was defending the other organisation charged, SEL, the movement’s network of bookshops in France, which had its Paris offices in the same building as the Celebrity Centre.