Tuesday 15 September 2009

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.

[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.

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