Tuesday 27 October 2009

The Paris Court's Ruling

Here is a summary of the verdict and sentences in the Paris trial of Scientology. I have laid it out in the same style I used for What the Prosecution Wants to give you an idea of how far the court followed their recommendations.

Perhaps the most important feature of the judgment is what the court did not do: it made no direct ruling that would restrict the activities of either the Celebrity Centre or the SEL bookshop.

But the following individuals and organisations were convicted of organised fraud against some, but not all the alleged victims (of which more below):

The Association Spirituelle de l’Eglise de Scientologie CC (ASES), the Celebrity Centre, was convicted of organised fraud against the plaintiffs Aude-Claire Malton and Eric Aubry.

It was fined 400,000 euros and ordered to pay for the details of the conviction to be published in the major French and English-language news outlets including Le Monde, Le Figaro, Libération, the Herald Tribune and Time Magazine – and their websites.

Scientology’s network of bookshops Scientologie Espace Librairie (SEL) was also convicted of organised fraud against Malton and Aubry. It was fined 200,000 euros and ordered to pay for the publication of the conviction in the same newspapers and their websites.

Both organisations were also required to publish details of the conviction on their own websites for a period of two months.

These were the sentences for the individual defendants charged on this count, against either Malton, Aubry or both plaintiffs:
  • Alain Rosenberg, the managing director of the Celebrity Centre, was convicted of organised fraud against Malton and Aubry; and of complicity in the illegal exercise of pharmacy. He received a two-year suspended prison sentence and a 30,000-euro fine;
  • Didier Michaux, the bookshop’s star salesman, was convicted of organised fraud against Eric Aubry – but cleared on the same charge relating to Aude-Claire Malton. He received an 18-month suspended sentence and a 20,000-euro fine;
  • Jean-François Valli, the other bookshop salesman, who also did work for the Celebrity Centre, was convicted of organised fraud against Aude-Claire Malton – but cleared on the same charge relating to Aubry. He received an 18-month suspended sentence and a 10,000-euro fine;
  • Sabine Jacquart, who was president of the Celebrity Centre, was convicted of organised fraud against both Malton and Aubry; and of complicity in the illegal exercise of pharmacy. She received a 10-month suspended sentence and a 5,000-euro fine;
  • Aline Fabre, who supervised the Purification Rundown at the Celebrity Centre, was convicted of the illegal exercise of pharmacy. She was fined 2,000 euros;
  • Marie Anne Pasturel, who acted as an intermediary for G&G in France, taking orders for the vitamins required for the Rundown, was convicted of the illegal exercise of pharmacy and fined 1,000 euros.
All the defendants charged in relation to Pierre Auffret and his company Parangon – the Celebrity Centre, the bookshop SEL, Rosenberg, Jacquart, Valli, Michaux – were acquitted.

The court took into account the fact that Auffret himself had not filed a complaint: and he had insisted to investigators that any payments he had made were made willingly.

For the plaintiffs:

Aude-Claire Malton

On the fraud conviction:

Michaux, Rosenberg, Valli and Jacquart, as well as the Celebrity Centre and the SEL bookshop were ordered to pay Malton 6,000 euros between them in material and moral damages.

On the convictions relating to the illegal exercise of pharmacy:

Fabre, Jacquart, Pasturel and Rosenberg were ordered to pay Malton 450 euros between them in material and moral damages.

All the defendants, including the two organisations, were ordered to pay Malton 750 euros each towards her legal costs.

The National Council for the Order of Pharmacists (CNOP)

On the convictions relating to the illegal exercise of pharmacy:

Fabre, Jacquart, Pasturel and Rosenberg were ordered to pay 8,000 euros between them in damages to the CNOP.

They were also ordered to pay between them a sum not exceeding 2,000 euros for the publication of the judgment in Le Quotidien des Pharmaciens (presumably the profession’s daily journal).

The four defendants were also ordered to pay the CNOP 1,250 euros each towards legal costs.

UNADFI’s application for plaintiff status

The court rejected an application by UNADFI, France’s federation of counter-cult groups, to become plaintiffs in the case.

The court accepted defence arguments that while the organisation had changed its statutes to qualify as a plaintiff, at the time of the events in question it did not qualify. (That would however appear to leave the door open for a fresh application at a future trial.)

For the plaintiff Nelly Reziga

Although she was accepted as a plaintiff in the case, Max Barbault, the defendant charged with regard to her complaint, died before the case came to trial. That effectively ended her status as plaintiff.

Neither Alain Rosenberg nor Anne Marie Pasturel attended the hearing.

The court also rejected a request by lawyers for the defence to reopen the debate. Maître Patrick Maisonneuve had announced the move in the wake of the political row that blew up in September over the change of law that removed the option of shutting down an organisation convicted of fraud. (The prosecution had recommended that this law be used against Scientology, unaware that the law had been changed just weeks before the trial.)

The defence bid was opposed by Maître Olivier Morice for the plaintiffs, and the court rejected it on the grounds that it mentioned nothing that would add to what had already been debated during the trial.

Despite the guilty verdict and the fines, there were plenty of smiles on the defence side during the reading of the verdict.

Maître Maisonneuve for the Celebrity Centre and Maître Louis Pamponet for the bookshop SEL (I think it was him) both looked extremely relieved – presumably because there was no direct attempt by the court to restrict the activities of either organisation.*

Outside the court however, Maisonneuve said that they would be appealing the verdict.
* What the convictions do mean is that they will have to change their way of conducting business of course: being clear about the link between Scientology and the personality test, for example.

But it also raises the question of how they are going to be able to continue with the Purification Rundown, at least as set down in Hubbard's guidelines, without being liable for another prosecution.

This will require a closer reading of the judgment.

Monday 26 October 2009

37 ...defending the Celebrity Centre

June 17: The Celebrity Centre should not be convicted on the basis of prejudice and preconceptions against Scientology, lawyer Patrick Maisonneuve argued, as the trial drew to a close.

When Maître Patrick Maisonneuve rose to speak for the Paris Celebrity Centre (Association spirituelle de l'Eglise de Scientologie, ASES), there was a certain expectation in the court.

Maître Maisonneuve is what they call a tenor du barreau in France: a star performer in court – and he has never been afraid of defending controversial clients in high-profile cases.

His clients have included Omar Bongo, the late president of Gabon who was facing a corruption investigation at the time of his death in June 2009; and Yvan Collona, convicted of the 1998 murder of the prefect of Corsica, Claude Erignac.[1]

In the run-up to the trial, Maisonneuve had been Scientology’s most prominent legal spokesman, denouncing the threat to the movement’s existence that the trial represented.

His assessment of what was at stake had to some extent been vindicated by the closing arguments of the prosecution two days earlier: they had called for both the SEL network of Scientology bookshops and the Celebrity Centre to be shut down.

Maisonneuve’s rich bass delivery and his talent for extemporising in front the cameras made him a powerful media performer, and in court he was equally effective: his interventions during the trial were relatively few, but they were telling.

Often he spoke up when the defendants were being pressed by one of the prosecutors, or by Maître Olivier Morice, the lawyer for the plaintiffs. Maisonneuve had an uncanny knack for intervening with diffident objections, or simpy sarcastic asides, at just the right moment to break the opposing lawyer’s flow – which enfuriated Morice in particular.

Now, as lawyer for the Celebrity Centre, he was to have the last word in the trial.

He started by making it clear that he was not going to go over all the arguments already advanced by his colleagues on the defence side. But he did manage to cherry-pick the strongest arguments already advanced by the defence, as well as adding a few of his own.

And he followed a number of his colleagues by launching his first broadside at the prosecution.

He had been exercising this profession for 30 years now, he said, and it was the first case he had come across in which the prosecution had moved from saying there was no case to answer to calling for the death penalty for his client.

(The position taken by prosecutors Maud Morel-Coujard and Nicolas Baïetto certainly represented a radical about-turn – three years earlier, during the investigation, the prosecutors’ office had taken the view that there was no case to answer.)

Maisonneuve was struck by the harshness of the sentences the prosecution was now calling for, not just for the two organisations charged but for the six individual defendants.

“This is for people who did not enrich themselves by a single euro,” he said. “As complete as the debate had been, it has not revealed anything that would allow the prosecution to react with such violence.”

Like some of his colleagues on the defence, Maisonneuve referred to “a certain ambience” and the great tension during the trial, which he said had in part been fuelled by the media.

If the state was against cults, if it felt there was a public order raised by such organisations, then the state should take action, he said. “They should not leave the courts to do the work.”

Judge Sophie-Hélène Château had said several time during the trial that the question of religion was not before the court, that it was not part of the debate – that it was more a question of whether or not there had been fraud, he continued.

“But the prosecution has obviously made another choice and has decided to carry the case to the religious question,” he added.

“Methods that had come out of the brain of a science fiction writer,” he said, paraphrasing the words of the prosecutor Maud Morel-Coujard. “A religious front,” he added, picking up on a phrase from the prosecutor Nicolas Baïetto.

When it came to original sin, he said, one got the impression that the prosecutors viewed Hubbard as the woman, the snake and the apple all rolled into one.

“…fraudsters without getting rich”

The financial aspects of the case had been fully explored, he continued: but it was difficult to call the individual defendants fraudsters when they had not got rich from what they had done, he repeated.

“They’re really good these Scientologists: they are fraudsters without getting rich,” he quipped.

To find the fraud, the court had tried to go back to its basis, he said. “But you can’t do that because there, it is a question of religion.

“They [the Scientologists] say it is their religion and the prosecution says no, it is a business.”

But what does the court have to support their case?

French law did not contain a definition of law, he pointed out. “So what do we have? We have the constitution that speaks of religion, that the Republic respects all beliefs.”

Article 10 of the declaration of human rights set out the same principle, he added.[2]

And since 1905 the French republic had operated under a system in which the church and state were separate, but one was free to believe what one liked.[3]

He cited case law that suggested the French courts – and the European Court of Human Rights – had already ruled that Scientology’s activities corresponded with those of a religion.[4]

And did it matter that Scientology had its own justice system? If you were a Catholic and wanted to end your marriage, you had to seek approval from Rome, he said. “Religions often take a view that is their own.”

The prosecution had focussed on the bizarre aspects of Scientology, he said, “…and if the words are bizarre then the people are bizarre – and the prosecutor doesn’t like people who are bizarre.”

And yet the prosecution had also drawn a parallel between Scientology and psychoanalysis, he added. “Are you going to call for the death sentence for Freud?”

He rattled off a list of countries that had recognized Scientology as a religion: Portugal in 1988, Sweden in 2000 and most recently Spain in 2006.

“All these countries have recognised Scientology – and we are going to burn Hubbard’s books in the courtyard of Sainte Chapelle?” he asked.[5]

Scientology might be different, it might have modern methods: but that did not make it any less a religion, said Maisonneuve.

The prosecution had made much of Scientologists' talk of donations, of contributions, he said. “I don’t see what is so shocking.”

Synagogues charged fixed prices for marriages after all.

Eric Roux, who spoke for the Celebrity Centre in Court, had said that eight percent of their revenue went to the Mother Church abroad. If there really was some kind of fraud going on, the figure would have been a lot higher than that, said Maisonneuve.
And then there was the question of the refunds. “If someone is unhappy then you are refunded and if there is a refund then there is no fraud. But they want to say it isn’t a real refund.”

And Morice, in his closing argument, had said that the movement could somehow gain a psychological hold on its members.

But the former plaintiff Eric Aubry was someone of above-average intelligence, said Maisonneuve. And when he was not happy he wrote a long letter of complaint. “He wasn’t satisfied and he wrote a letter – and he continued to make payments,” he said.
Scientology’s critics

Maisonneuve turned his attention to some of the key witnesses who had testified against Scientology. He started with Catherine Picard, president of the French federation of counter-cult groups UNADFI.

“Mme Tavernier, formerly of UNADFI, apparently does not have the same vision as Mme Picard concerning the anti-cult offensive,” he remarked.

He was referring to Janine Tavernier, Picard’s predecessor at UNADFI. She had expressed concern that the group was failing to distinguish real religious movements from cults – a point Maisonneuve had already put to Picard earlier in the trial.

Jean-Pierre Brard, the French deputy and outspoken activists against cults had also testified against Scientology. Brard displayed a general hostility to religion, said Maisonneuve.

“He doesn’t like religion, which is his right – but he has at times gone too far,” he said. He referred to an incident during a council meeting when Brard had refused to let a councillor speak because she was wearing a cross and he considered it a breach of France’s secular principles.[6]

Brard, a former member of the Communist Party, had said during his testimony that when someone gave more than 10 percent of his income to a group then they could be considered to be in a state of dependence. In that case, said Maisonneuve, there were quite a few Party members who could be put in that category.

And then there was Roger Gonnet, the former Scientologist turned prominent critic. Gonnet was on a crusade, said the lawyer. “He is particularly insistent and always ready to give evidence. He is a professional witness.”

According to Gonnet and Morice, the Scientologists who had testified for the defence were either liars or somehow under Scientology’s control, said Maisonneuve.

But it had taken some courage for these people to speak out, as they risked being tainted with the same brush as the defendants. “They explained that they made donations, contributions – and that they regretted nothing.”

So what did all that add up to? Lined up on one side we had two plaintiffs and UNADFI and a case that had been the subject of massive publicity. But had people come running to Picard at UNADFI to file complaints as a result, he asked?

“They are not thousands,” he said of the plaintiffs. “They are only two.”

Defending the test

The indictment, he said, had focussed on the personality test as one of the “fraudulent manoeuvres” used by Scientology, saying it had no scientific value.

“Nothing in the dossier allows us to say that that it had no scientific value,” he objected. In fact there were some elements to suggest quite the opposite, he said (presumably a reference to the claims by his colleagues that the test was based on the Johnson Temperament Analysis).

And if it was part of a “fraudulent manoeuvre”, its use was far from systematic: only a fraction of the Scientologists interviewed had been introduced to the movement through the personality test.

“And some of the defendants, they themselves did the test. So these ‘fraudsters’ used the test to defraud people, but they also used it themselves, to defraud themselves!”
What did that say about the case against them, he asked?

Then there was the suggestion that the test’s results were always negative. He referred to the testimony of the plaintiff, Aude-Claire Malton, who had acknowledged that her results had contained positive as well as negative points.

“If you are a fraudster, you don’t have positive and negative points; you have negative and negative points,” said Maisonneuvre.

And he recalled what Nelly Reziga, the second plaintiff, had told investigators. Her boss, Max Barbault had had her do the test. “He concluded that I was intelligent and capable, but that I had a slight problem,” she had told the court.

That made no sense if the test was meant to be an instrument of the fraud, said Maisonneuve. “She wasn’t told, ‘You are on the edge of major peril!’”

If the staff at the centre really were out to swindle newcomers, how would they make the personality test work, he asked? “It would be in their interest to make sure that all the results were negative – and that was not the case.”

And Malton, he added, had known from her first visit to the Celebrity Centre that she was dealing with Scientology, he added. She had seen the books, she had mentioned the Lyon trial to the staff. “So how could she be deceived?” he asked.

“You have nothing”

To find the Celebrity Centre criminally responsible for the offence with which it was charged would mean in effect that the mother church had somehow contaminated the French operation, he said.

The court would also have to identify a representative through whom the fraud had worked, he added: Sabine Jacquart or Alain Rosenberg, he said. But there was no evidence to show that either had profited personally, he said.

The Centre’s accounts were in order – yet some observers had contrived to find that suspicious in itself. “What elements do you have?” asked Maisonneuvre. “You have nothing.”

What we had here was a movement that was recognised as a religion in several countries, including the United States, where it had its headquarters; and a case in which none of the defendants had got rich.

Certainly Scientologists tried to recruit new members, said Maisonneuve: but so far as he knew, proselytism was not forbidden in France.

If the investigating magistrate had wanted hard evidence of financial wrongdoing, he should have commissioned reports from financial and accountancy experts, he said: but the court had neither.

A string of countries had rejected the argument that Scientology was a purely commercial operation, he continued: Australia, Austria, England, Italy, South Africa, Sweden and the United States.

“So once more we find that France is in a rather isolated situation,” he added. But the case against Scientology had proceeded on the basis of affirmation rather than evidence, and in an atmosphere that had hardly favoured the defendants.

He mentioned that morning’s edition of the French daily Libération, which carried a profile of former Scientologist Alain Stoffen, who had just published a book denouncing the movement – and that week’s edition of the French satirical weekly, Le Canard Enchaîné.

“When I read in Le Canard EnchaînéLa justice sauve Sarko de la Sciento’ [The Courts save Sarkozy from Scientology], that gives you an idea of what is going on,” he said.

The prosecutors had called for the dissolution of the two Scientology organised charged, he said: “I ask for the dissolution of prejudice and of preconceived ideas.” And with that, he was done.

Judge Sophie-Hélène Château announced that the verdict would be delivered on October 27 at 10:00 am and adjourned the proceedings.

[1] Ironically, in the months following the Scientology, he defended a psychiatrist accused of having raped his patients – for Scientology of course, psychiatrists are virtually the root of all evil. And the ironies multiply. One of the court-appointed experts in this case was Dr. Daniel Zagury, who also testified in the Scientology trial. While he dismissed the psychiatrist’s use of hypnosis on his patients as having any controlling effect, he identified an abuse of the transference process – the emotional dependency that the client develops for the therapist – as having been a factor. This is the same phenomenon that he identified as one of Scientology's control mechanism during this trial. (The psychiatrist was convicted but has been freed pending his appeal, which is due February 2010.)
[2] He was referring to Article 10 of the Declaration of Human Rights and of the Citizen of 1789: Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l’ordre public établi par la Loi. No one may be troubled for his opinions, even religious, so long as their expression does not trouble the public order established by the law.
[3] Article 1 of the 1905 law reads: “The Republic assures freedom of conscience. It guarantees the free exercise of religions under certain restrictions set down hereafter in the interests of public order.” But at the same time, the State does not subsidise or favour any religion.
[4] I missed the reference, but the French case may have been the same 1980 appeal court ruling cited the day before by Yann Strieff, the lawyer for Sabine Jacquart. Maisonneuve also referred to the 1997 appeal court ruling in the Lyon case, which also suggested that Scientology could be described as a religion. That was quickly dismissed by Jean-Pierre Chévènement, interior minister at the time, who said it was no business of the court to make such a ruling. That part of the appeal court ruling was struck down by the Supreme Court, the Cour de Cassation. (Maisonneuve seemed to be suggesting that the Cassation ruling had not actually said that, but I did not follow his argument.
The European Court of Human Rights ruling against Russia’s refusal to let Scientology re-register its Moscow organisation was the same one cited earlier by his colleague on the defence, Maître François Jacquot, who represented Alain Rosenberg.
[5] Sainte Chapelle is the 13th-century church inside the courtyard of the halls of the justice Palais de Justice – a stone’s throw away from where Maisonneuve was speaking.
[6] Brard was actually fined by a French court in December 2008 over the incident, which took place during a November 2006 council meeting at Montreuil, just outside Paris, where he was mayor at the time.

Sunday 25 October 2009

36 ...defending the bookshop

June 17: SEL, France's network of Scientology bookshops, is the victim of a modern witch hunt in which the trappings of the movement's beliefs have been interpreted as evidence of its guilt, said SEL's lawyer.

“In this matter, I have the feeling that the object of this trial can be summed up in one word : faith,” said Maître Louis Pamponet, representing SEL, the network of Scientology bookshops charged with organised fraud.

“But what faith are we talking about? Is it religious faith? The court has made it clear that this is not the subject, and I am happy with that.”

But the prosecutor Maud Morel-Coujard had also likened the commitment that the plaintiff Aude-Claire Malton had made to Scientology as a Faustian pact.

“What is a Faustian pact? It is a contract in which one sells one soul to the Devil,” said Maître Pamponet. “So for the prosecution, is Scientology the Devil?”

Certainly that would explain the harshness of the prosecution’s stance towards SEL, he said: two days earlier, the prosecution had called for both SEL (Scientologie Espace Librairie) and the non-profit Association spirituelle de l'Eglise de Scientologie (ASES) to be shut down.[1] Both organisations had been charged with organised fraud.

But theft regarded propery and fraud only covered contractual matters, argued Pamponet. “One of the preconditions is a contract between two parties,” he said.

There had been no lack of willingness on the part of Aude-Claire Malton at the time, he added: “She was happy: she wanted to progress.” And in the cases of both the former plaintiff Eric Aubry and of Pierre Auffret, the payments were also made willingly.

The plaintiffs got what they paid for, said Pamponet: we were talking here about a free contractual exchange. “There is nothing to show that SEL committed fraud.”

But there was also the moral element, he added. The defendants had been charged because of a belief as former member turned critic Roger Gonnet had put it, that Scientologists were liars.

But Gonnet had had his own legal brushes with Scientology, he added, “and obviously the defence cannot accept his remarks.”

Besides, he added, Gonnet had been a Scientologist 30 years ago and had run a smaller mission in the provinces (Lyon): his experience could not be compared to that of the Paris centre, whatever he might think.

“When you consider the character, the personalities of the defendants, I do not think they had any intention of defrauding Mme Malton,” said Pamponet.

“I find them extremely attached to their philosophy, their religion, their belief – whatever it is. They have the right to believe in this philosophy, these religious practices…” and they too had paid money to advance in the system to which they were so committed, he pointed out.

“Scientologists are only trying to propagate their faith – something we find in all religions.”

A modern witch hunt

The problem was however, was the indictment by investigating magistrate Jean-Christophe Hullin – and now prosecution – regarded the instruments and rituals of Scientology as nothing more than the trappings of “fraudulent manoeuvres”.

There was the electrometer used in Scientology’s auditing, or counselling for example.

One could take what one wanted from the expert reports on the device: those cited by the investigating magistrate and those commissioned by the defence. But they all seemed to agree that the e-meter measured something.

And, Pamponet added: “It doesn’t matter what the meter measures.” For Scientologists, what mattered was to follow the needle’s movements, which appeared to react to memories of negative events.

And it was worth pointing out too that a device criticised in a report drawn up by a court-appointed expert M. Ionesco in the 1990s had since been replaced by other, more accurate devices, he added.

(Ionesco had testified at the 1996 Lyon of Scientologists, questioning the device’s accuracy. Due to give evidence at the Paris trial, he had sent his apologies and said he could not attend for health reasons.)

Pamponet explained that the new models had microprocessors, which made them more precise than the device that Ionesco had examined more than 10 years ago.

And he also criticised Ionesco’s claim that the device was used to measure electrical resistance in a human being. “It is not at all used by Scientologists for that,” he said.

He described the detailed tests that Philippe Ripoche, one of the experts commissioned by Scientology for this trial, had conducted on the device. “Ionesco did not trouble to do that.” His impression was that Ionesco’s report lacked seriousness.

Scientology’s second expert, Bernard Denis-Laroque had also described it as an extremely accurate measuring device.

The experts had agreed then that the device did what it was designed to do: detect changes in the emotional state of the subject.

And yet the prosecution had dismissed the evidence of the defence experts and persisted in regarding the e-meter as part of the bait for the alleged fraud, he said.

“If we were in a certain age, the defendants would already be on the bonfire for having used a device of this kind,” he added.

So the e-meter was not a lure being used as part of a fraudulent operation, Pamponet concluded. How could it be when all Scientologists used the device?

The prosecution had the same problem with the personality test, he argued.: “There was never any intention on the part of Scientology to deceive new recruits.”

The indictment had characterised Scientology’s personality test as a fraudulent manoeuvre, said Pamponet.

“But supposing that this ‘fraudulent manoeuvre’ is the mention that it was founded on scientific research, even here that would not make it fraud,” he added, and he cited case law to the effect that a simple lie did not of itself constitute fraud.[ii]

As his colleague, Maître Alexis Gublin, had done before him, he pointed out that the personality test was based on a recognised test, the Johnson Temperament Analysis (JTA).

So if payment had been freely made and no lies had been told then there was no fraud, said Pamponet.

And a look at the evidence compiled in the course of the investigation made one thing very clear regarding the test, he added. “It is a tiny minority of people who come to Scientology through this route.

“So when the investigating magistrate says it is the fundamental element used to defraud, I’m sorry, but that doesn’t correspond with the facts.”

And Pamponet put the same question he had posed regarding the e-meters: “If it was fraudulent, why would they use it on themselves?

“I sincerely believe that these people are acting in good faith.”

An “absurd” trial

Pamponet turned to the indictment as it affected his client, the SEL network of bookshops:

  1. Mme Malton had never bought anything from SEL through the defendant Didier Michaux, the bookshop’s star salesman, he said.
  2. Neither Michaux or the defendant Jean-François Valli, another SEL employee, had sent her a personality test.
  3. Neither of them had ever handled the tests – it was one of the staff at reception who did that.
  4. When Aude-Claire Malton met Valli, she had already been active in Scientology for two months (a point made the day before by Valli’s lawyer, Maître Virginie Benmayor).
  5. The personality tests were used by the Dianetics Centre. “They printed these tests and they interpreted them, so it was nothing to do with SEL – they never processed them.”
  6. The court had heard that Michaux had sometimes put copies on the tests in with the goods he mailed out on his own initiative: but this was hardly sufficient grounds to convict SEL of anything, Pamponet argued. In any case, he argued: “Michaux believed in these personality tests, so where is the willingness to deceive?” And if he was sending them out with books, it was because they had already been sold, he added: “How can he have defrauded people who have already bought the books?”
  7. The former plaintiff Eric Aubry never took the personality test with either Valli or Michaux, he continued: “The elements are absolutely, totally missing.”
  8. Nor had Pierre Auffret taken the tests at the time in question, though he had done so earlier. “It is absurd to say that SEL is implicated.”
The investigating magistrate had wanted to build a case for organised fraud, said Pamponet. “If there is a group, it is a disorganised group.”

For SEL had been set up in Paris in 1997 – barely three months before the first of the events set out in the indictment, he said.

And the reason it was set up was because the Church of Scientology, responding to a request from the tax authorities, had decided to create separate organisations for the commercial and the religious activities.

“It was only for this reason that SEL was created. So to say that SEL was set up to commit these acts using the personality test is absurd, it is ridiculous,” said Pamponet, referring to the wording of the charge against the company.

SEL had set up in July 1997 – just three months before the alleged events set out in the indictment, he said.

And referring to the fact that SEL was managed from abroad by Danish Scientologist Karen Hansen, he added: “It is not a crime to have a manager who manages from a distance… the staff did their business and sometimes mistake were made.”

I this should go to appeal, he warned, questions would be asked as to whether this trial was at all serious, from the legal point of view. What the prosecution had asked for two days earlier was completely detached from reality, he said.

For having looked at the case documents, he could see nothing that would allow the court to bring in a guilty verdict he said, which was “…nothing more than asking for the death sentence for my client.”

Nothing concrete against SEL

Pamponet turned again to the case of Pierre Auffret, the executive who had milked his own company’s coffers to pay for his auditing. “I don’t believe Valli manipulated Auffret,” he said. “I think it was rather Auffret who manipulated Valli.”

It was Auffret who had come to Valli to say he had forgotten to tell him that he had paid for the courses using his business bank card, not his personal one – and could he please rewrite the receipts?

And he reminded the court: “Auffret could have filed a complaint: but he didn’t.”

SEL’s employees, who at worst lacked training, had no intent to do any wrong, said Pamponet. And in any case, the real head of SEL was Hansen in Copenhagen.

For it was not because Michaux was a co-signatory on the bank accounts that he had any real powers: it certainly had not authorised him to send out the personality tests.

“For SEL to be responsible, we would need to a letter from the manager [Hansen] saying, ‘Please distribute these tests’,” he said.

As for Malton’s personality tests, he added, there was nothing in the case files to link them to SEL.

The paper trail showing direct participation in the alleged offences – the sine qua non in such a case – was totally lacking, said Pamponet. SEL’s moral responsibility could not be established and so the company should be cleared.

Nor had Aude-Claire Malton herself made it clear in what way SEL had defrauded her.

“Michaux never had anything to do with Malton, so it can only be Valli – but Valli never had any powers at SEL, and he was in no way competent to handle or analyse personality tests. So I can’t see how SEL can be implicated.”

And in any case, he added, Valli had always acted in good faith in his dealings with Mme Malton. He had never acted with the intention of hurting her.

As some of his colleagues on the defence side had already done, Pamponet pointed to the different language Malton had used in the later stages of the trial. “Now she talks of harassment whereas before she talked of pressure,” he noted.

So should we believe her most recent statements in court, or what she had told investigators years earlier, and closer to the events in question, he asked?

And Michaux, in his dealings with Eric Aubry, had never acted with malice. “They had a good rapport,” said Pamponet. “I feel he wanted to help M. Aubry with good communication. And [co-defendant] Mme Jacquart said M. Aubry only wanted to deal with Michaux.”

Neither Pierre Auffret, not his company, whose his accounts he plundered to pay for his Scientology training, had ever sued Scientology, Pamponet noted – and Auffret had assumed responsibility for his own acts.

He reminded the court that Mme Malton had been refunded, and that SEL had even had to go to court to get the goods that she had bought returned to them – so there was no longer any question of material prejudice.

In her final testimony to the court the previous week, Mme Malton had spoken of prejudice morale, saying she felt that she had been abused by Scientology.

But that was last week, said Pamponet: “At the time, this woman couldn’t stop saying what a marvellous time she was having.”

The court-appointed psychiatric expert Daniel Zagury had said that she had found the book Dianetics – to the point that she sent her ex-boyfriend a copy. And even during the trial she had spoken of the “positive atmosphere” at the centre.

“But she could not stand the pressure of her family,” said Pamponet. “She was enlisted by UNADFI, [the French federation of counter-cult groups] – yet when she was in Scientology she was happy. Certainly she spent a lot of money.

“Happiness has no price for Zagury: she had found happiness – and that is her right.”

And Eric Aubry too seemed happy, he added: he had after all written more than 50 success stories.

“I have seen no evidence that Michaux or Valli were motivated by personal interest,” he continued. “They believe that Scientology is the right path.

To call for a death sentence for the personne morale (SEL) was unacceptable he said – especially given that he had not heard a single word of evidence that would supply the necessary proofs.

And with that, Pamponet was done, leaving the field clear for Maître Patrick Maisonneuve, who not only represented the Celebrity Centre but had been Scientology’s most prominent spokesman throughout the trial.
[1] It subsequently emerged that this law had been eliminated from the law books just weeks earlier.
[2] Cour de Cassation, October 29, 1988.

Friday 23 October 2009

35 Defending the Executive Director

June 17: The former executive director of Scientology's Celebrity Centre should not be convicted because three people out of thousands of happy Scientologists had filed complaints, his lawyer argued.

Alain Rosenberg was the last of the six individual defendants to be defended in the final week of closing arguments.

Like Sabine Jacquart, he faced charges of complicity in the illegal exercise of pharmacy and organised fraud because of his executive position at the Celebrity Centre at the time of the events in question.

Rosenberg had occupied the post of executive director, though during the trial he had insisted that his role had been a purely pastoral one and he had had not responsibility for financial or management matters.

His lawyer, Maître François Jacquot, followed some of his colleagues in developing religious freedom defence. But he also argued that in any case there was little or nothing to connect Rosenberg with any of the alleged offences.

In his preliminary remarks, he tackled the first of the charges, which related to the use of vitamins and minerals required by the Purification Rundown. He referring to an opinion given by Dr. Serge Bornstein, an expert appointed to France’s Supreme Court, the Cour de Cassation.

Dr. Bornstein had analysed the procedure in its religious context, comparing it to the practice of circumcision, acknowledged as a ceremonial even in other religions: while this procedure might have had a medical origin, he argued, in this context it had a religious significance.

By the same token, the Purification Rundown, whatever physical benefits it might bring, was primarily a spiritual process, said Jacquot. What was important was the aim of the Rundown: and the aim was fundamentally religious.

Turning to the legal definition of the illegal exercise of pharmacy, he echoed a point made by Maître Christian Beucher, Anne-Marie Pasturel’s lawyer, arguing that the offence concerned the unauthorised sale or dispensing of pharmaceutical products, not their “distribution” – the word used in the indictment.

The investigating magistrate had not been able to turn up sufficient information on the seller of the vitamins, G&G, and so had decided to concentrate on the other end of the supply chain, said Jacquot.

But the fact that someone at the Celebrity Centre had given an address to the plaintiff Aude-Claire Malton was neither here nor there, he argued: the actual sale took place between Malton and G&G – and Malton was not being pursued for anything illegal.

He found it disturbing that Marie-Anne Pasturel, G&G’s intermediary in France, who had played no direct role in the transaction itself, had nevertheless found herself charged with the illegal practice of pharmacy.

As to the allegations that G&G had made unwarranted medical claims for the vitamins and minerals supplied, there was nothing in the packaging or the advertising material seized to support that claim, he argued.

It was worth noting too that the legal definition of a food supplement was a product that met a real or supposed deficiency in one’s diet, said Jacquot.

Referring to the testimony of Dr. David Root, the U.S.-based doctor who regularly uses the programme in his medical practice, he added: “The doctor talked about what people lost during the Purification Rundown in the sauna through sweating.”

Maître Olivier Saumon, for France’s National Council for the Order of Pharmacists (CNOP), as well as several court-appointed experts had argued that taking vitamins in the large doses prescribed for the Rundown meant that they were being used illegally as medicines.

But as Maître Beucher had already argued, French thinking was not in line with European law on this matter – Jacquot referred to the same February 2, 2004 ruling against France in the European Court of Human Rights that Beucher had cited.[1]

It was not the doses but the pharmacological properties that determined if something was being used for medical purposes, he added.

Thus the supposedly dangerously high doses of Vitamin A that Aude-Claire Malton had been taking were anything but, he argued: she would have to have been taking such doses for six months to a year before she approached toxic levels.

The doses that were sold by G&G were perfectly legal in other European countries, said Jacquot. “If they were sold in France they would come under French law, but they were imported from abroad – and European law takes precedence.”

“In any case, M. Rosenberg was never implicated in any act of complicity in the illegal exercise of pharmacy,” Jacquot added. It had been Aline Fabre who had put Mme Malton in touch with Marie-Anne Pasturel.

Court cannot rule on religious matters

Turning to the charge of fraud, Jacquot said: “The court has declared from the beginning that religion is not the subject here – and I’m in agreement.”

But the court had a duty, under French, European and international law, to protect freedom of religion.

He cited an April 5, 2007 ruling by the European Court of Human Rights against Russia, in which the court found against the Russian authorities over their repeated refusal to let the Church of Scientology, Moscow, re-register as a legal entity.[2]

“The state cannot make a judgment on legitimate matters of religious belief and the way they are expressed,” said Jacquot.

And just as his colleague Maître Yann Streiff had done before him, Jacquot quoted the distinguished French jurist Jean Carbonnier on the duties French law imposed on the court.

Respect imposes at least a duty of abstention. In undertaking to respect all beliefs, France forbears from exercising, through its laws and its judges, any criticism, even a scientific one, or a rationally based one, in a domain which, of its very nature, is not susceptible to judgment by science or reason.

“This is important because of what the indictment says about the personality test: that it has ‘no scientific value’,” said Jacquot.

“So this is a process that is attached to a religion, and if you launch into a scientific judgment of the personality test, you are trespassing on the religious.”

He recalled the court-appointed psychiatric expert, Dr Daniel Zagury, and his comments on religious beliefs.

Dr Zagury had referred to the former plaintiff Eric Aubry’s delirium when discussing one of his past life experiences and the defence had picked him up on it.

Was he suggesting that the Buddhist belief in past lives was a delirium? Not at all, said Zagury. Then what was the difference between the Buddhist belief in past lives and that of the Scientologists?

It seemed to Zagury that the cultural context had something to do with it. In the Hindu culture, for example, it might not be considered at all delirious to speak in such terms; in the western culture it was more problematic.

For Jacquot though, we were in dangerous territory when we started deciding that talk of past lives was culturally legitimate in one context but problematic in another.

His understanding was that Scientology thinking in this area was derived from the Buddhist tradition.

Similarly, when the indictment dismissed the personality test as being without scientific value, it had stepped over the line by making a judgment about Scientology’s religious beliefs, said Jacquot.

And that meant that 80 percent of what had been debated during the trial – the personality test, the Purification Rundown, the e-meters – was simply irrelevant.

Why go after Rosenberg?

This was not the first time that his client, Alain Rosenberg, had been targeted in a criminal investigation because of his previous role at the Celebrity Centre, said Jacquot.

In all the previous cases, the prosecutors’ office had either decided there was no case to answer or Rosenberg had been acquitted, he said.

What conclusions should one draw from that, asked Jacquot? “What should one think when you are harassed as the so-called chief,” he asked. “I don’t understand the investigating magistrates’ persistence.”

Rosenberg’s position had been at the Celebrity Centre, part of the non-profit Association spirituelle de l'Eglise de Scientologie (ASES); there was no evidence in the files to show that he ran the for-profit network of bookshops, Scientologie espace librairie (SEL) the other organisation charged.

As for the Celebrity Centre, certainly he was a member of staff, and the organisational chart had inspired all kinds of speculation (“a beaucoup fait fantasmer”).

And yet instead of charging the heads of the eight different divisions at the centre, they had focussed on Rosenberg.

“Rosenberg was not part of the posts in finance,” said Jacquot. “Have we forgotten the issue of responsibility?”

Roger Gonnet, the former Scientologist turned critic had argued that Rosenberg had to be privy to everything of significance that went on on at the Centre.

But Gonnet, when he had run Scientology’s Lyon operation, had only a dozen staff members under him; not 120. And Gonnet had occupied all the key posts himself.

“M. Rosenberg, as executive director, does not occupy all the key posts,” said Rosenberg.

The indictment had also criticised the fact that the personality tests were interpreted by people with no real training in this field. “But the fact is, interpreting a test without training is not of itself a criminal offence,” said Jacquot.

Besides, he added: “Scientology never described itself as psychotherapy but as a religion.” And just because Scientology claimed that the personality test had scientific origins did not mean it was claiming a scientific status for it.

Gonnet, in his testimony, had said that the test was fixed. But did he have any special qualifications in this area? Did he know the new, computerised version of the test? It could be filled in on the Internet, said Jacquot: and believe it or not, it gave positive results.

“What is the point of fixing the test if it is always going to be low?” he asked. The test was not used to bring in sales, he added, but to give people an idea of the progress they were making.

Of the plaintiffs, Malton was the only person who had come to Scientology via the tests.

And while on the one hand she had claimed she did not realise she was entering a Scientology centre, on the other hand she told the staff there that she had heard about the 1996 Lyon of several Scientologists.

She had also told the court: “I remember saying that Scientology did not interest me.”

“Was the personality test really such a determining factor?” asked Jacquot. “I don’t think so, having read the testimony of Mme Malton… how did the personality test lead her to spend four months in Scientology?”

And why had she left Scientology? She had sent a copy of Dianetics to her former boyfriend, who had sent her to UNADFI, the French federation of counter-cult groups. And it was only at that point that she decided to file a complaint, said Jacquot – not from any feeling of having been swindled: “She was very happy before,” he said.

The prosecution had tried to characterise the success stories that Scientologists wrote as a duty that was somehow imposed on them, he added. But that was not the impression one got from former plaintiff Eric Aubry.

He had asked for copies of the letters he had written so that he could reread them, said Jacquot. He had described it as a great honour that some of them had been posted on the walls of the Celebrity Centre.

“Four years for what?”

And Dr. Zagury had said of Aubry that he felt the need to evoke his story in writing rather than orally: what better medium than the success stories?

So far as Pierre Auffret’s deception in milking his own company to pay for his Scientology training, what did Rosenberg have to do with this, asked Jacquot?

“And Auffret was a Scientologist well before the matters in question took place,” he added.

The expert reports on the e-meter – both by the court-appointed expert and those commissioned by the defence – agreed on the point that it did measure electrical resistance.

And they also noted the way it appeared to register people’s troubling thoughts, even if they did not agree on what to make of the phenomenon.

Turning to the prosecution’s sentencing request for Rosenberg – a 150,000-euro fine and a four-year suspended sentence – Jacquart confessed his surprise.

“Four years for what?” he asked. “For someone who has spent 40 years in Scientology, whose father was one of the first Scientologists.”

This was someone of Jewish origin, Jacquot noted. “His father only just escaped the camps. Would he have taken his son into a totalitarian organisation?

“Can this man have had the intention to swindle people? Does that make any sense? Someone who uses the e-meter himself, who has done dozens of personality tests himself. Is it conceivable that there was any intention to swindle?”

Did it many any sense to give such a man a four-year prison sentence, he asked? For Rosenberg had not devoted 40 years of his life to Scientology to make money.

“And all because of three people, out of thousands you have not heard, who have not complained of anything.”

[1] “The French procedure for prior authorisation for the marketing of foodstuffs for human consumption enriched with nutrients, manufactured and marketed in the member states, hinders the free movement of goods.” From the official Court press release on the case here.
[2] The court’s press released on the judgment is here; for the judgment itself, see here.

Thursday 22 October 2009

34 Defending the Salesman

June 16: The Scientologist and salesman accused of fraud has been tried in an atmosphere tainted by media hysteria and soured by a prosecution summing up that smacks of the Inquisition, his lawyer argued.

Didier Michaux, the Scientology bookshop’s star salesman, faced a charge of organised fraud for his part in the alleged offences.

His lawyer, Maître Alexis Gublin, constructed a defence that was similar in many ways to Maître Virginie Benmayor’s defence of fellow salesman Jean-François Valli, arguing that his client, a sincere Scientologist, had at all times acted in good faith.

He referred too to the hysteria media coverage in the run-up to the trial, which had disrupted the atmosphere in which the trial had taken place; and to what he called the inquisitorial tone of the prosecution’s summing up.

For while the debate in the courtroom had done the tour of the relevant questions, he said, it had been disrupted to some extent by events outside.

His impression was that this case had been exceptional not so much because it involved Scientology, but because of the media coverage of the affair.

“A month before the hearings we all had the impression that everything was going to move forward, serenely, efficiently…” said Maître Gublin. The lawyers had contented themselves with working on the case files.

But the pressure had started to increase with media coverage in the run-up to the trial arriving at a peak on May 25, the opening day, he said.[1]

“Very, very quickly, one got the impression that the situation was going to be upset,” he added. And indeed, the debate had not been as serene as one might have hoped.

Like many of his colleagues on the defence side, he had not appreciated the 11th-hour bid by UNADFI, France’s federation of anti-cult groups, to acquire the status of plaintiff in the case.

According to UNADFI president Catherine Picard, they had decided more than a month ago on making the bid, said Gublin. But they had decided to wait until the last minute until making their application.

“I find that scandalous,” he said. It was not acceptable for a defence lawyer to receive documents crucial to the case, on the Friday morning before the Monday opening of the trial.

Then, once the trial had started, it quickly became clear that the prosecution had performed a volte-face from its position during the investigation, when it believed there was no case to answer.

In the pre-trial discussion there had been no hint of this change of policy and the defence lawyers had proceeded accordingly, he said.

Here again, they had the impression that someone had pulled the rug out from under their feet.

And given that this matter had been moving through the judicial system for 10 years, this was not an acceptable state of affairs.

“In those 10 years, certain questions were never put,” he added. But the indictment, when it was released in 2008, had introduced new ideas to the case concerning the commercial, financial aspects of Scientology’s activities.

None of the defendants had been questioned about these matters, he said: but they now found they would have to defend themselves against these new elements.

“We keep hearing that this is not a trial against a religion. Okay, but then why are we hearing about a Faustian pact,” said Gublin, a reference to the prosecution’s summing up.

“This is the Inquisition, this Torquemada, we are in a situation where the defendants are being identified with the Devil – and that isn’t a trial of religion?”

The prosecution, he continued, had said that we had to look at things in their ensemble.

“But your brief is very strict,” he told the judges: “You cannot go beyond the indictment.”

“This is not a trial of a religion”

The day before, he had waited during the prosecution’s summing up for a mention of his client, Didier Michaux.

“It was 74 minutes before his name was mentioned – and it was never mentioned in connection with [the plaintiff, Aude-Claire] Malton,” he said.

At the start, the prosecution had treated the court to their account of a series of peripheral elements, he said.

But their account of fraud, based on the non-profit status of the Association spirituelle de l'Eglise de Scientologie (ASES, which runs the Celebrity Centre) had been contrived, he said.

They had made much ado about the refunds, as if somehow this was an indication of Scientology’s guilt. But that was to get things backward he said. “Normally, when you refund someone that is something positive.”

“I repeat, this is not a trial of a religion,” he said.

So far as he was aware – and he was open to being corrected – the French courts had never considered the orthodox practice of Hubbard’s teachings to be fraudulent.

“Of course, you are free to judge otherwise,” he added. “You can turn jurisprudence on its head

“And why not? Let’s remember that all the judgements have been about specific acts and specific crimes,” he said.

“I want to say that this is a political debate,” said Gublin. How else could one interpret the prosecution’s call for such heavy sentences, when in 2006 their office had not wanted the case to even go to trial?

“You can practice Scientology for 30 years and it is not a problem – and then suddenly it is forbidden,” he said.

“If there is a political problem [with Scientology], then it should be handled by the state,” said Gublin, repeating a point made by his colleague Maître Virginie Benmayor earlier.

“The government has the power to ban, but you should not be required to make a decision that is political and in a context that is not serene and in which the situation has been manipulated (instrumentalisé),” he added.

And in considering their judgment, he reminded the judges that they were bound to stick to the wording of the indictment, which he argued had not properly established Michaux’s guilt.

The supposedly “systematic recourse” to the personality test to recruit people into Scientology mentioned in the charge against Michaux for example did not stand up to scrutiny, he argued.

For of some 46 Scientologists dealt with in the case files, only two were recruited via the personality test, he said. “Is that ‘systematic recourse’?” he asked.

The indictment had also dismissed the personality test as being without scientific value, he said. But was it?

“I don’t know, and when I don’t know I look at what those who do know are saying.” According to one expert report, the personality test was a variation on a recognised test, the Johnson Temperament Analysis (JTA).

I can’t say if this has a scientific value,” said Gublin. “But when you have an expert who says it is only a very weak variation of a scientifically recognised test, I say you can’t question its scientific status.”[2]

But over and above all these points the real problem was the moral element, he said: for how could one know if someone was acting in good or bad faith? There had been a lot of debate about the e-meters used in Scientology’s counselling, or auditing: about how expensive they were.

“But when Michaux buys an e-meter, then am I pleading for him as victim or as a defendant?” he asked.

And one could make the same point about the personality tests, said Gublin, for Michaux had taken them too.

“If the plaintiffs say the personality tests are to deceive people, then what do you say if he has taken the personality test himself? And when he buys a book, does he become a victim again?”

Michaux acted in good faith

When we are talking about good faith, it is an element that should exonerate Michaux completely, said Gublin.

Even Roger Gonnet, the former member turned critic of the movement, had said during his testimony: “You can’t do Scientology without having some good faith,” Gublin reminder the court.

“Scientologists are convinced that the personality test is valid… If Michaux believes it is valid, if he is acting in good faith, then how can you say this is fraud?” he asked.

And just as his colleague Maître Yann Streiff had done, Gublin he pointed to the caution with which the court-appointed psychiatrist Dr Daniel Zagury had dealt with the question of intentionality.

We will not broach the question of intentionality here, which is probably not to harm, but to recruit followers, people who share the same vision of the world, according to a protocol and procedures gradually implemented by the organisation, Zagury wrote in his report.

Cathy Steinberg, who had appeared as a defence witness for Michaux, had described him as “fundamentally honest”, he added.

“Steinberg had said he wants to give to other people what he had received [from Scientology],” said Gublin. “He has faith. I’m not saying that his faith is better of worse, I’m just noting that he has faith.”

And the prosecutor’s office had made that same point in 2006 when declaring that the case should not go to trial, he added.[3]

Gublin also repeated the point made by his colleagues that since the plaintiffs and former plaintiffs had been refunded it was difficult to see how one could talk in terms of fraud.

The prosecution had expressed great scepticism about the success stories written by the former plaintiff Eric Aubry. So Gublin had gone through them, excluding any written just after any religious ceremonies.

“I got eight spontaneous letters written by him outside the church, in complete freedom – when people were asking for nothing,” he said. He quoted a few extracts that referred to the infinite creator, to truth and to love.

“The only thing that I can take from these letters is that they are spontaneous,” said Gublin. “Aubry was on a mystic journey. You can rewrite history afterwards, but what he wrote himself, alone, we don’t have the right to push these aside.”

Aubry, he added, never sat a personality test with Michaux. Since the personality test was a key part of the indictment, if Michaux did not have Aubry sit the test he could not be convicted.

“The whole case rests on the mention of tests,” said Gublin.

Aubry’s letter in which he had complained of harassment from Michaux and other Scientologists was quite another thing: but harassment did not constitute fraud, said Gublin.

It was the same with Pierre Auffret’s actions, when he milked his own company of funds to pay for his Scientology training. When Auffret met Michaux he had already been a Scientologist for three years.

And in any case Auffret had done everything on his own initiative: for a while he had even managed to convince his company that the spending was justified.

As for the plaintiff Aude-Claire Malton, she did not mention Michaux, and since she had not had any dealings with him, then he could not be convicted for anything concerning her.

It was unprecedented, said Gublin, that Scientology associations had been charged, said Gublin. The French courts had never before targeted Scientology as an organisation in this way.

But that battle, he left to the lawyers who followed.
[1] For more on the media coverage see the introduction to this section of the site.
[2] It is worth repeating here that although the investigating magistrate commissioned reports on the personality test by two court-approved specialists, their work was ruled inadmissible because a procedural error: one of the experts had forgotten to date a document. It is not clear to which test Gublin is referring, but it is presumably one that was introduced by the defence.
[3] The September 4, 2006, prosecution document had argued that the Scientologists investigated “were convinced of that the services proposed worked and their actions were driven by genuine faith.”

Wednesday 21 October 2009

33 ...for the defendant Valli

June 16: A devoted Scientologist risks being convicted for his beliefs because the government has left the job of dealing with Scientology to the courts instead of assuming its responsibilities, his lawyer argued.

Jean-François Valli, who had worked for both the non-profit Celebrity Centre and the for-profit Scientology bookshop, faced a charge of organised fraud.

His lawyer, Maître Virginie Benmayor, took as her starting point the remarkable volte-face performed by the prosecution in this case.

How could the prosecution have delivered such as stinging summing up, called for such harsh sentences when during the actual investigation their office had taken the view that there was no case to answer?

They had artificially reconstituted the facts, she argued: and now M. Valli and his fellow defendants were in the firing line.

But for Benmayor, the issues at stake here were not the kind that should be settled in a court of law.

“It is not up to the courts to settle the problem of what measures should be taken against Scientology,” she argued.

“It is true that there is a serious question to settle here: but it is for the state to take responsibility.”

It was not the job of the court to victimise the defendants, she added. “The risk here is that innocent people will be convicted.”

For fraud, French law required there to be a degree of intention, she said, a degree of manoeuvring. “There was no manoeuvring here,” said Benmayor. “M. Valli had simply acted on his belief in Scientology.”

And while charge against him mentioned the money that Pierre Auffret had drained from his company accounts to pay for his training, Auffret himself had refused to file a complaint against Valli.

As for the hours devoted to discussing whether or not the personality test constituted part of Scientology’s alleged fraudulent manoeuvres, this had little to do with Valli.

“You can’t say M. Valli used this ‘fraudulent manoeuvre’ because Valli did not use the personality test in his work as counsellor/advisor (conseiller/orienteur),” said Benmayor.

For when Valli met new members, they had already decided that they wanted to go further in their study of Scientology. “He never had anyone sit the personality test.”

So far as Valli’s dealings with the plaintiff Aude-Claire Malton were concerned, “he simply listened and took account of what she wanted and directed her to the service that she was seeking.”

It was also worth remembering that Mme Malton had been involved with Scientology for nearly two months before Valli started advising her. “She had already decided to become a Scientologist before she even met him.”

Mme Malton had taken her personality test and, a few days later, on May 18, 1998, had come into the Paris Celebrity Centre to get the results.

Benmayor was dismissive of any suggestion that the plaintiff Mme Malton could have failed to have realised that she was dealing with Scientology, rather than just Dianetics.

“The moment she entered the centre she knew perfectly well where she was because as [Scientology’s representative for the Centre] M. Roux indicated, it is clearly marked inside.”

Apart from anything else, she added, the books of Scientology founder L. Ron Hubbard were everywhere.

“There is no doubt that Mme Malton, when she arrived, knew perfectly well the religious character of the movement.”

Malton acted on her own initiative

And Mme Malton herself had said that after having read Hubbard’s book Dianetics she wanted to study Dianetics. “Mme Malton was never forced to do anything: it was her own decision.”

And by this time she knew perfectly well what Scientology was: she had seen a copy of What is Scientology? an introductory book; she had been audited; she had watched the introductory films; and by her own admission she had even read some material critical of Scientology.

“So we come to July 4, and at that point she is perfectly happy – and that is the point at which she meets M. Valli,” said Benmayor.

“He asks her if she is satisfied and it is then, at her request, that he presents the services – and the next day she comes back of her own initiative,” to buy more.

Benmayor also had difficulty understanding why Mme Malton had said she had been very tired during the Purification Rundown; she had after all taken time off work to do the programme, she said.

Then there was the incident on the night of July 14, of which the prosecution, and Mme Malton’s lawyer had made so much, said Benmayor,

If Valli had accompanied Mme Malton to her home that night, when she had signed three cheques for further services, it had only been to help her out.

“He has explained why: because she was weighed down by the documents,” she said. For Mme Malton had just bought a substantial quantity of materials.

Valli had not pressed Mme Malton for the cheques that night, said Benmayor: quite the reverse.

“She wanted to pay for the services she had bought. What can you say against M. Valli?” she asked. “I don’t see it.

The prosecution and Mme Malton’s lawyer had presented the Thursday 2:00pm deadline as being of major significance, said Benmayor.

But Mme Malton had come back to the centre on the Wednesday 15th and Friday 17th – after the supposed Thursday deadline – to pay her bills. So Valli had not been obsessed with getting those cheques.

On August 4, Valli had proposed a fresh set of courses to Mme Malton and when the subject of another loan had come up (she had already borrowed to pay for previous courses), it was Mme Malton who had asked Valli for the telephone number of the bank.

“She wanted to sign up for this; it was her desire; he did not force her,” said Benmayor. Certainly, he had advised her, and for that he had been violently attacked by his accusers in the court: but Mme Malton had wanted the loan.

Valli had not put her in touch with a contact at the SOFINCO Bank as Mme Malton had suggested, she said: and nor had he accompanied her into the bank to negotiate the loan.

“He did not go in,” said Benmayor. “He knows no one there.”

Subsequent investigations had established that there had been absolutely no complicity, that the staff at the Celebrity Centre had absolutely no link with the bank, she added.

Benmayor also pointed to comments by Mme Malton during her early interviews with investigators that made it clear that she had wanted the loan, and why.

“If I agreed to take out this new loan, it is because I felt good and I wanted to continue, and I only believed in Scientology. In the space of two months, I had achieved a lot of results: I had a total sense of well-being; I had applied the communication course at my work place and it worked very well…” she had said during a meeting with investigators on February 5, 1999.

Mme Malton had later told investigators that she had lied to the bank about how long she had had had her current job. She said that it had been on the advice of the Scientologists, said Benmayor; but there was no evidence to support this.

Was Malton so fragile?

It had only been during her final testimony, in the third week of the trial, that Mme Malton had begun speaking of the “cascade of words” to which M. Valli had supposedly subjected her.

But the court had to consider the possibility that M. Valli had acted in good faith; that he had not put Mme Malton under pressure; and that in fact Mme Malton had acted of her own free will throughout.

For as the court-appointed psychiatric expert Dr. Daniel Zagury had pointed out, happiness has no price.

And as for the money that Mme Malton had spent on Scientology, said Benmayor, “it is not that much more expensive than psychotherapy.”

Dr. Zagury had pointed to what he said was Mme Malton’s psychological weakness. “He said she was very fragile.” But the psychiatrist had done his expertise two years after the events in question. “Perhaps she had had time to get over it,” she suggested.

And at the time of the events in question, Mme Malton held down a hotel job with a great deal of responsibility, leading a team of 12 chamber maids.

“This does not correspond to any supposed weakness or fragility,” said Benmayor.

Dr. Zagury’s report had also made it clear that Mme Malton suffered from no mental illness; that she had her own free will; that she was never held against her will; or deprived her ability to give or withhold her consent.

Valli was also charged in connection with the former plaintiff Eric Aubry, despite the fact that he had very little contact with him, said Benmayor.

Aubry had simply been taken to Vallie’s office to pay a bill one day. There was no regular contact between the two and in any case, when the two did meet for the first time, Aubry had already been a Scientologist for two years.

The indictment accused Valli of having deceived his victims with false promises, persuading them that Scientology could help them with their various problems: but that was a value judgment, said Benmayor, and it was not the court’s role to make value judgments.

“M. Valli has been a Scientologist for 20 years and he believes in it. He is convinced, rightly or wrongly, that Scientology can help people: that it works. Whether or not it does work is neither here nor there, but he believes it works.”

And so, for a while at least had Aubry, Benmayor noted.

But then, after all this time saying how much he had got from Scientology, suddenly he had changed his mind after having talked to his family and read a few articles.

“Everything was fine until he met people who were hostile to Scientology,” said Benmayor – people like Roger Gonnet, the former Scientologist who is now one of the movement’s fiercest critics and who testified for the plaintiffs during the trial.

And then there was Pierre Auffret, who had refused to lodge a complaint against Valli.

“I’m not going to file a complaint against people who never did anything but help me,” he said, Benmayor told the court. He had always been very happy in Scientology.

And whatever Auffret’s conduct in draining money from his own company to pay for his Scientology training, this was nothing to do with Valli. He only knew about it after the fact.

For at the time, so far as Valli was concerned, “there was never a question of professional training, but personal services,” she said.

The only problem with that affair was the question of the false billing: but the court was not being asked the rule on an embezzlement charge. “The aim of the investigating magistrate at that time was not to convict Auffret but to convict Scientology,” said Benmayor.

And so far as financial prejudice was concerned, none of the plaintiffs, past or present, had suffered financial prejudice from these matters: they had all been refunded, she added.

It was true that Aude-Claire Malton, during her final testimony to the court the previous week, had talked about moral prejudice and said that she had been abused.

“She had told the court that it had taken her nine years to get over it – and she was only there [inside Scientology] for four months,” said Benmayor. “And there was no violence, there were no threats, there was no indoctrination.”

Valli’s faith

The offence of fraud required an intentional element to be established, said Benmayor: and this had clearly not been demonstrated.

Valli was a long-term Scientologist who had spent a great deal of his own money on the movement’s training. “And today he is still a Scientologist.”

He had been kicked out of his job with the movement over the Auffret affair, she reminded the court and now found himself in the dock. “But he is still a Scientologist. That is a measure of how strong his faith is.”

Jean-Pierre Brard, the deputy and veteran campaigner on cult issues, had told the court during his testimony that if somebody was paying 10 percent of his salary to a cult then it was like an addictive relationship.

That was probably true of her client, said Benmayor. “If M. Valli pays so much money, then how can he be at the same time a fraudster and a victim of fraud?” she asked.

Valli had spent a lot of time at the Celebrity Centre, at times working as a volunteer: he had not made a great deal of money out of this, she added. “If he had been motivated by money he would have done something else.”

And yet this was someone who was facing a charge of organised fraud, she said.

The prosecution, which had made so much of the personality test, had not demonstrated that its use constituted organised fraud – and in any case Valli had played no role in interpreting the test results.

Brard, she said, had said he was that ordinary Scientologists had no idea what was going on further up in the movement: could Valli not be one of those ordinary Scientologists, she suggested?

“He has done nothing wrong: nothing to deserve being here,” she continued – yet the prosecution wanted a very heavy sentenced to be levied against someone who had no previous convictions.

“If you convict him, you will be convicting him on the basis of his beliefs,” she concluded.

Tuesday 20 October 2009

32 Defending the CC President

June 16: The former president of the Celebrity Centre is a scapegoat in a symbolic trial against Scientology, said her lawyer, citing a host of distinguished legal authorities on freedom of religion.

The lawyers for Marie-Anne Pasturel and Aline Fabre had presented very different arguments.

Pasturel was accused of the illegal practice of pharmacy for having acted as the intermediary for G&G, who sold the vitamins and minerals required for Scientology’s Purification Rundown.

Maître Christian Bleucher had broadened his argument out from issues strictly concerning Scientology into a highly technical presentation on the French and European law regarding supplements.

His case was that France was lagging behind European law in this area and that if one took European Union law into account, as France had to, no charge should even have been brought against Pasturel.

Aline Fabre faced the same charge for her role in having supervised the Rundown at Scientology’s Celebrity Centre in Paris.

Her lawyer, Maître Aurélie Cerceau, had argued that Fabre was a victim of the prejudice against Scientologists and warned against the danger of dismissing her account – and that of the other Scientologists who had testified – simply because of their beliefs.

In the absence of hard evidence against Fabre, there was no reason to accept the accounts given by her accusers over the testimony of Scientologists about the Rundown, she argued.

Now it was the turn of Maître Yann Streiff, who represented the defendant Sabine Jacquart. At the time of the alleged offences she had been president of the Celebrity Centre.

Jacquart faced two charges: of organised fraud and complicity in the illegal practice of pharmacy, because of her senior executive position at the Centre.

Maître Streiff, in his presentation, picked up the religious freedom argument that Maître Cerceau had advanced and ran it to its logical conclusion.

It was not enough for the court to insist that it was not interested in judging whether or not Scientology was a religion, said Streiff.

The prosecution’s summing up had completely undermined that position, given that it considered every rite in Scientology as fraudulent per se.

Nor could it be ignored that the court had spent most of its time subjecting Scientology’s religious rites to a detailed examination: the personality test; the electrometer used for Scientology’s counselling sessions; the auditing itself; and the Purification Rundown.

All this inevitably led the court back to examining fundamental questions of religious freedom.

Streiff named a string of distinguished French lawyers and academics who, at one time or another, had lent their expertise to defend Scientology – or at least individual Scientologists.

He mentioned Professor Bernard Bouloc, a law professor at the Sorbonne University, Paris; and Maître Olivier Metzner, a distinguished defence lawyer who had represented Scientologists in previous trials.[1]

And he quoted the first in a series of arguments developed by the distinguished French jurist Jean Carbonnier. Carbonnier had made a clear distinction between endorsing Scientology’s beliefs and defending its rights, said Streiff.

One does not have to subscribe to a system of beliefs oneself to be concerned about the attack on its liberties. If there is a legitimate issue here, it is certainly this: that religious liberty is indivisible.[2]

And just what was Mme Jacquart accused of, asked Streiff?

The charges had been laid against her by virtue of the position she held at the centre, nothing more. So far as illegal exercise of pharmacy was concerned, for example, she had not taken any direct role in the Purification Rundown at the heart of the charge.

The real problem lay elsewhere, he argued: in the hostility provoked by the strange, modern trappings of Scientology’s belief system. He quoted Carbonnier again:

The kingdom of God is preached less and less in eschatological terms: salvation is interpreted as finding a meaning to life. Right or wrong, that’s for the theologians to debate. But excluding the Church of Scientology alone from the list of religions, under the pretext that it is too much a part of the modern world, is effectively to make a scapegoat of it.

“Scientology is the scapegoat here,” said Streiff.

Court cannot judge religious beliefs

Religious freedom carried certain risks, Carbonnier had acknowledged: but there was no freedom without risk – and the dangers of curtailing such freedom were far greater.

There was a tendency in modern law, Carbonnier had argued, to protect – perhaps to over-protect – the consumer. It was one thing when we were talking about goods and services: but it was quite another to apply the same standards to a set of beliefs.

And again paraphrasing Carbonnier, Streiff argued that the paradox of Scientology’s faith and its scientific trappings was more apparent than real. “If someone shows that these are acts of faith, then where belief comes in, the science withdraws.

“Can the court judge an act of faith to be a fraudulent manoeuvre?” he asked. That would be a very slippery slope.

Previous court rulings in France and at the European level had acknowledged the religious nature of Scientology, Streiff argued. He quoted a French appeal court ruling from 1980.

The Church of Scientology appears to correspond to an activity that meets the definition ordinarily given to a religion, in which the court finds that in Scientology, despite the absence of metaphysical issues that have traditionally preoccupied the major Western religions, the subjective element of faith is completed by the existence of a humanity community, small though it is, whose members are united by a system of beliefs and practices related to sacred things.[3]

Streiff also quoted the respected French legal academic Professor Bernard Bouloc:

…trying to establish if Scientology, as a religion, was not trying to bring in money by using manoeuvres to try to persuade [people] of the existence of a power or imaginary benefits would be to ignore the principle set out in Article 1 of the Act of December 9, 1905, according to which the Republic ensures freedom of conscience and guarantees the free exercises of religion.

The same principle was also enshrined in international law, Professor Bouloc argued: in Article 10 of the Declaration of Human Rights and of the Citizen of 1789; Article 9 of the European Convention on Human Rights,[4] and Article 19 of the UN’s International Covenant on Civil and Political Rights [ICCPR].[5]

It follows from this that it is not for a court, even one judging a criminal offence, to judge the content the contents of a religion and to examine its internal organisation and practices in the exercise of its beliefs, [for] the principle of the neutrality of the state regarding religions and liberty of belief and conscience formally opposes this.[6]

The prosecution had made much of the bizarre language contained in Scientology’s organisation chart. “The organisational chart can shock, perhaps,” Streiff conceded. But as Professor Bouloc had pointed out:

…when it comes to religions, the rational is excluded: it is about beliefs and convictions. So the judge cannot judge what is irrational by rational standards… for every religion promises happiness in the hereafter rather than in the here and now, and another vision of the world. From a rational point of view, these promises are only delusions, but for the believer they are the truth or even reality.

No material evidence

Streiff returned to the plight of his client, Sabine Jacquart.

He had already argued that she was being targeted because of the position she had occupied at the time, rather than anything she had actually done.

Picking up this thread he asked, where was the material evidence against her apart from the fact that she had been president?

The plaintiff Aude-Claire Malton had not recognised Mme Jacquart in court when trying to identify the people responsible for having handled her during her time in Scientology, so apart from the position she once occupied, there was nothing solid against her.

The prosecution had done its best to pin the personality test on her, said Streiff. “But Mme Jacquart did not take care of the test. She never had anything to do with the test.”

And in any case, he added, the testimony of the Scientologist witnesses showed that the personality test was not the key recruitment tool the prosecution had tried to make it out to be.

But more importantly, the test formed part of Scientology’s religious rites and so was subject to the religious defence already set out.

Then there was the letter that Mme Jacquart had allegedly written to Mme Malton to recruit her to a staff job, said Streiff. In fact it had been a widely distributed circular designed to find someone to fill the position in question.

Streiff went through the other elements that the prosecution had set out as the instruments of the alleged fraud: none of them applied to his client, he argued.

The e-meter, which the prosecution had portrayed in such sinister terms, was not something Mme Jacquart had ever used to audit anyone, said Streiff. And although she owned one, she had never sold one.

It was a similar situation with the Purification Rundown: although she had taken part in it herself, she had never supervised other people in the rite.

The prosecution had tried to suggest that the accounts of the Association spirituelle de l'Eglise de Scientologie (ASES, which ran the Celebrity Centre) were not properly monitored: but the association had done everything that was legally required of it, said Streiff.

There was nothing then, to show that Mme Jacquart had played any direct role in any alleged offence, even assuming any had been committed. And when all the plaintiffs had got their money back, it was difficult to see how one could talk of a fraud.

Madame Jacquart had been cast in the role of the accused, but in fact that was not her true role at all. “You accuse, you judge: she believes,” he told the court.

For Mme Jacquart was simply a person of faith, a believer, said Streiff– something the court-appointed psychiatric expert Dr Daniel Zagury had acknowledged in his report.

We will not broach the question of intentionality here, which is probably not to harm, but to recruit followers, people who share the same vision of the world, according to a protocol and procedures gradually implemented by the organisation.

“I applaud his objectivity,” said Streiff.

“This is a symbolic trial”

There was no evidence to suggest that Mme Jacquart was not sincere in her beliefs, he said. This was a woman who had devoted herself to the movement she followed.

Yet at one point during the investigation she had been brought before the investigating magistrate in handcuffs. For Streiff, this said a lot about the hostility of the authorities towards Scientology.

And how had his client learned she would face trial, he asked rhetorically? In an article in the French daily Liberation, he said: the press had known about it before Mme Jacquart herself.[7] “All in the interest of having a good scapegoat.”

He recalled too, the media frenzy on the eve of the trial: Scientologie: une Secte qui fait peur (Scientology: a Cult that inspires fear) was the headline in the weekly news magazine L’Express.[8] “It makes good copy, but at what price?”

And there had been a documentary in a similar vein on the evening news that evening.

This kind of collaboration between the media and the courts only served to further stigmatise the defendants at the centre of the storm.

In fact, said Streiff, the real reason his client had been charged was as a means of getting at the personne morale: the association itself. “This is a symbolic trial, but not a practical trial,” he said.

And even during the trial she had been forced to write to the judge to complain of the harassment she was suffering from anti-Scientologists outside the court, he added.

As for the trial itself, where were the experts’ reports on the internal accounts of the association, he asked? Why had we not heard from the association’s former treasurer, doctors suspected of having colluded in running the Purification Rundown.

There had been a lot of innuendo about these and other matters, but this had only served to paper over the gaping holes in the indictment, said Streiff.

Nor was it acceptable for the court to cast aspersions on a witness’s honesty before he had even had a chance to testify, he added. This appeared to be a reference to Judge Sophie-Hélène Château’s remarks to Eric Roux, the Scientologist who spoke for the Celebrity Centre at the trial.

(Former Scientologist Roger Gonnet, in his testimony, had said that members of the movement were trained to lie to the court. “I imagine you have been well trained,” Judge Château remarked to Roux at the start of his testimony.)

Streiff was disturbed too by the role that UNADFI, the French alliance of counter-cult movements had played in the affair.

The organisation did have a legitimate role to play. But in applying for the status of plaintiffs themselves, they had stepped over the line, he said.

And why, he asked, had they waited until the beginning of the trial before submitting their application? “They pull a fast one and nobody says anything,” he said. (“On vous monte une baraque et tout ça provoque aucune reaction.”)[9]

UNADFI had received four million euros of public funding, said Streiff, but he could not find if they received any private funding. Every few years though, along came a good media-friendly trial to keep them afloat.

For Streiff, there was a conflict between UNADFI’s work supporting alleged victims of cults, training professionals in the issues raised by such groups, and its more militant campaigning role, as revealed during this trial.

“Much as I respect the work of UNADFI, this confusion of genres is not good for justice,” he said.

Nor was Sabine Jacquart the only person to have suffered discrimination, said Streiff. He reminded the court that they had heard from a Scientologist who had suffered discrimination in the workplace because of her devotion to Scientologist.

Maryvonne Legoux, a witness who testified for Jacquart, had won a case at France’s anti-discrimination body, le Halde, after having lost a post as a librarian due to her beliefs.[10]

“Madame Jacquart also has her beliefs,” said Streiff. “She believes that man is fundamentally good,” he adding, quoting one of the central tenets of Scientology.

But the prosecution was trying to open a Pandora’s Box that would release the thought police, he said.

“They are asking you to judge a religion,” he warned the judges. “And it is a real religion.”

It was true, he added, that to join the mainstream tradition of churches all it lacked was a few martyrs: “But I don’t think it is the job of this court to provide them.”

Streiff closed with a quotation from the New Testament: Matthew V, Verse 11.

Blessed are ye, when men shall revile you, and persecute you, and shall say all manner of evil against you falsely, for my sake.
[1] Maître Metzner played a key role in the Lyon trial in the 1990s.
[2] Jean Carbonnier, (1908-2003) taught the sociology of law at Paris II University, was an acknowledged authority on French civil law and helped draft major reforms in family law in the 1960s and 1970s including the divorce laws. See a French-language thumbnail bio from academic publishers PUF here.
[3] This case related to the conviction of three senior French Scientologists and the founder, L. Ron Hubbard (in absentia) on fraud charges. This ruling found in favour of the one defendant to have appealed his conviction (not Hubbard).
[4] Article Nine, on Freedom of thought, conscience and religion, reads:
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
[5] Article 19 of the ICCPR reads:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
[6] See here for a thumbnail bio of Professor Bouloc.
[7] Libération’s scoop, on September 9, 2008: “Scientologie: le document qui accuse” cited extracts from the indictment.
[8] L’Express, May 13, 2009, by François Koch. The cover story included an extended interview with former Alain Stoffen, who was just publishing a book on his experiences.
[9] A reminder: the court decided to reserve judgement on this application from UNADFI until October 27, when it delivers its verdict in the trial itself.
[10] Le Halde (Haute Autorité de Lutte contre les Discrimination et pour L’Egalité) is the High Authority against Discrimination and for Equality. English section of site here.