Cassation I: How We Got Here

France's top court will next week rule whether the appeal court's fraud convictions against Scientology should stand. Here is how we got here.

France's top court will hand down its ruling on Scientology's appeals against convictions for organised fraud later this month, having heard their lawyers accuse the appeal court of having refused them a fair hearing.

The movement's lawyers said that the defendants and their legal team had walked out of their 2011 trial on appeal because, once the court had dismissed every legal objection they had lodged, their position had become untenable.

They described the convictions and their treatment in court as an attack on religious freedom, and accused the state of having put pressure on the court just before the trial opened.

France's top court, the Cour de Cassation, heard arguments on September 4 in a hearing that lasted two and three quarter hours. It will deliver its ruling on October 16.

This court is concerned not so much with the facts of the case as the question of whether the relevant law has been correctly applied. But their decision, at least so far as France is concerned, is definitive.

If the court confirms the Court of Appeal convictions, then the only recourse left to Scientology will be to try to get the case heard at the European Court of Human Rights.

If the court quashes some or all of the convictions, the case will most likely go back to the lower courts for trial.¹

During last month's court hearing, Scientology's three-strong legal team went over some of the arguments rejected last year by the appeal court: but they also came up with fresh lines of attack.

One in particular related to their dramatic exit half-way through the appeal court trial.

On November 17, 2011, the defendants and their lawyers walked out of the proceedings after six days of procedural arguments, arguing that they were not getting a fair hearing.²

Last month in the Cour de Cassation, the defence argued that the appeal court, instead of going on with the trial without them, should have halted proceedings until court-appointed lawyers could be found for the defendants.

This idea was dismissed by Claire Waquet, the lawyer for the counter-cult group UNADFI. The defence line was a bit ingenuous, given that it was the defendants themselves who had chosen to quit the courtroom, she argued.

But before looking at the arguments in detail, it is worth reviewing how the case ended up at the Court of Cassation.

The original convictions

Rewind to October 2009.

After a trial spread over four weeks in May and June, a Paris court convicted two Scientology organisations of organised fraud. Six Scientology staffers were also convicted on charges ranging from fraud to the illegal practice of pharmacy.

Senior Scientologists had been convicted in the past of fraud-related charges in France: notably at the 1996 trial in Lyon; and in 1999 after the Marseille trial.³ But Scientology could at least try to characterise these convictions as the excesses of individuals rather than something innate to Scientology.

This time however, the organisation itself had been put in the dock and found guilty.

The Association Spirituelle de l’Eglise de Scientologie CC (ASES), or the Celebrity Centre, was convicted of organised fraud and fined 400,000 euros.

Scientology’s network of bookshops Scientologie Espace Librairie (SEL) was also convicted of organised fraud. It was fined 200,000 euros.

The fraud-related charges focused on Scientology's Personality Test, which the original court ruling said was “devoid of any scientific value and analysed with the sole aim of selling various products and services.”

The court also focussed on the hard-sell techniques used on members to get ever greater sums of money. And to drive the point home, they quoted from the writings of Scientology's founder, L. Ron Hubbard.

Noting that the Celebrity Centre’s turnover for 1999 was 17 million francs (nearly 2.6 million euros), the judgment quoted a passage from a now-notorious 1972 policy letter by Hubbard.

A. MAKE MONEY…
J. MAKE MONEY.
K. MAKE MORE MONEY.
L. MAKE OTHER PEOPLE PRODUCE SO AS TO MAKE MONEY.⁴

It also quoted a 1961 policy letter, “Registration”, listing 43 points advising staff members on how to handle newcomers:

2. Be willing at all times to control the new body that’s come into the shop…⁵

In court and in the judgment itself, President of the Tribunal Sophie-Hélène Château dismissed as “beyond fanciful” (plus que fantaisiste) attempts by the defendants to translate the English phrase “hard sell” as “taking care of people”.

The ruling took care to acknowledge the freedom of people to believe what they wanted in the religious domain. But there were limits, it added.

Thus individuals who use a philosophical or religious doctrine, which is itself lawful, to deliberately deceive other people for financial or commercial ends, are liable to be prosecuted for the crime of fraud.⁶

The convictions over the illegal practice of pharmacy were over the administration of the controversial Purification Rundown progamme, a core element of the Narconon programme.

The Rundown is a process devised by Hubbard combining high doses of vitamins and minerals, aerobic exercise and extended sessions in a sauna, supposedly to sweat toxins out of the body and thus aid the person’s spiritual progress.

As we have reported here previously, its critics say it has no scientific basis and is potentially lethal.⁷

When it came to the Purification Rundown, the original court ruling noted a blurring of the lines between the scientific and the spiritual.

Scientology had tried to have its cake and eat it, giving the Purification Rundown a scientific veneer while at the same time insisting it was a religious practice.

Expert witnesses convinced the court that the use of the vitamins required for the Rundown – in the large quantities required – should have had prior clearance by the French authorities.

These experts argued – and the court agreed – that the use of vitamins in such large quantities made them not food supplements, as the defendants had claimed, but medicines.⁸

It was precisely because the manufacture, distribution and sale of the vitamins used for the Rundown were normally reserved for pharmacists, that France’s National Council of the Order of Pharmacists (CNOP) had become a plaintiff in the case.

Four Scientologists were convicted on charges relating to the illegal practice of pharmacy.

Going to appeal

The convictions against the two Scientology groups was a stain on its standing that the movement could not leave unchallenged.

The two organisations convicted and most of the individual defendants took their case to the Court of Appeal. The court considered the case in November 2011.

Scientology's lawyer's had filed a series of legal challenges in a bid to get their convictions overturned, but in each case the appeal court rejected their arguments.

As soon as the appeal court dismissed the last of these nine challenges, on the sixth day of the trial, Scientology's lawyers – accompanied by the the defendants – quit the courtroom.

“The lawyers of the Scientologists solemnly deplore that the most elementary rights have not been respected,” they said in a statement issued shortly afterwards.⁹

In a separate statement, the Celebrity Centre said it was not prepared to take part in a trial that was “absolutely unfair, and in which the most elemental rights have been refused.”¹⁰

As soon as the appeal court confirmed the convictions in February 2012, Scientology's lawyers lodged appeals with the Cour de Cassation, France's final court of appeal.¹¹

Now, 18 months later in the Cour de Cassation – nearly two years after their dramatic walk-out – a new set of lawyers for Scientology was denouncing the Court of Appeal for having denied the defendants their full right to legal representation.¹²

But this was just one of a battery of arguments filed to the court.

The clerk of the court took the first 50 minutes of the hearing to set out the history of the case and the defence arguments placed before the Cour de Cassation.

These are some of the objections advanced by Scientology's legal team (many of which have been dealt with in previous posts):

• a psychiatric report on one of the key witnesses had not been added to the court file, thus placing the defence team at a disadvantage;

• there had been irregularities in the way the original investigation had been carried out, and the defence accused the investigating magisrate of bias;
  
  
• the case had dragged on so long that it was too late to prosecute some of the alleged offences;
  
  
• the trial had been conducted as if Scientology was a business and not a religion. By attacking the legitimacy of core Scientology practices – such as the “fraudulent” use of personality tests to recruit new members – the court had infringed on the defendants' right to freedom of religion;
  
  
• raising the issue of undue influence, or mind control “manipulation mentale” during the trial was also effectively an attack on the legitimate beliefs of Scientology, so this too constituted a violation of the right to freedom of religion;
  
  
• a justice ministry circular on legal measures to combat criminal activities by cults published in September 2011 – just before the appeal trial opened – amounted to a bid by the executive to interfere in the work of the judiciary. This was further evidence that the scales had been weighted against the defendants;¹³
  
  
• lectures at the National Magistrates School (l'Ecole Nationale de la Magistrature) by an academic hostile to Scientology might also have tipped the scales of justice against the defendants. The appeal court should have tried to find out if any of the judges involved in the case had attended the lectures;¹⁴
  
  
• the investigating magistrate had received a copy of an academic thesis hostile to Scientology, but this had not been added to the case files as it should have been, further undermining the defendants' ability to fight their case;¹⁵
  
  
• the appeal court had read out statements by former plaintiffs in the case who did not attend the appeal trial (having either settled with Scientology or simply withdrawn their complaint). But this meant that the defence had been deprived of the opportunity to cross-examine them, another example of how the scales had been tipped against them;
  
  
• court-appointed experts had argued – and the court had agreed – that the vitamins and minerals used in the Purification Rundown were medicines in their presentation and function. But there was nothing in the packaging of the items sold by G&G, the company that provided them, that suggested they could cure anything: they were being sold as food supplements, not pharmaceutical products;
  
  
• the fact that the Personality Test had been advertised as being founded on scientific research did not of itself establish fraud;
  
  
• and at the trial on appeal, the court had deferred a decision on the status of counter-cult group UNADFI until the end of the trial, before refusing them the status of plaintiff in the case. (The same thing had happened at the original trial.) By dealing with the issue in this way however, UNADFI's lawyer, Olivier Morice, had been able to participate in the proceedings. This gave them a presence in court that they should never have had, given that their request for plaintiff status was subsequently refused.

Many of these arguments had been advanced during the appeal stage of the trial – except of course the one relating to the walk-out from that trial by Scientology's lawyers and the defendants themselves.

Since in Cassation, the arguments are more about the correct application of the law rather than the facts of the case, Scientology's lawyers were moving away from the details of the case.

They wanted to focus on the broader legal and political context which, they argued, would show how the dice had been loaded against them.

Next: "'An Impossible Defence'"

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1   The Cour de Cassation can quash a conviction without the right of appeal, removing the possibility of a retrial, but that is fairly unusual. For a detailed explanation of how the court works, see this English-language summary at the court's website.

2   For more on this, see “The Big Walk-Out” elsewhere at this site.

3   In the Lyon trial, one of the defendants was also convicted of homicide involontaire, or manslaughter, for having helped drive Patrice Vic, a member of his group, to suicide with his incessant pressure to take out a loan to buy more Scientology courses and materials.

4   “Governing Policy”: HCO Policy Letter, 9 March 1972. The same passage appeared in investigating magistrate Jean-Christophe Hullin’s indictment. Maître Olivier Morice, Aude-Claire Malton’s lawyer, also quoted the passage during his summing up. It appears on p39 of the judgment.

5   “Registration”, Hubbard Communications Policy Letter, May 3, 1961. This policy letter, although written by South African Scientologist Sue Van Niekerk, carries a glowing endorsement from Hubbard. These same quotes also appeared in the indictment in this case. Both Morice and the prosecution quoted from the document during the trial. It appears on page 36 of the judgment.

6   Page 73 of the judgment. For a brief round-up of the judgment, see “The Paris Court's Ruling” elsewhere at this site. For a detailed analysis of the judgment, see “Reviewing the Paris Judgment”.

7   See for example “Narconon: an Introduction” at this site.

8   For the testimony of the expert witnesses, see “The Purification Rundown” elsewhere at this site.

9   “Unheard of in Legal History” (Du jamais vu dans les annales judiciaires!): French-language Scientology statement issued November 15, 2011.

10   “The Church of Scientology can no longer endorse a biased and unfair trial” L’Eglise de Scientologie ne cautionne plus une justice faussée et inéquitable: Scientology statement issued November 17, 2011, the day they walked out of the Paris trial on appeal.

11   I'll try to provide a detailed summary of the Court of Appeal convictions next week, before the Cour de Cassation ruling.

12   If the legal team was different, this is simply because certain lawyers specialise in pleading to the Cour de Cassation: it is not any reflection on the legal team deployed in the previous courts.

13   For more on this issue see, “The Appeal Trial: preparing the ground” at this site, but briefly:

The five-page circular did not actually mention Scientology. It was addressed to prosecutors and judges and was a review of the legal territory regarding cults – and a reminder of the legal remedies available to the courts. In a November 3 statement denouncing, Scientology said the document “pre-condemned the Church, without naming it” and asked for the trial to put back to limit the damage. That request was refused and the trial opened at the appeal court on November 3, 2011. Scientology blamed MIVILUDES – the government's watchdog on the cult-related activities, led by their old enemy Georges Fenech – for the circular. (For more on Fenech see note 11 below.)

14   For a detailed treatment of this allegation, see “Scientology Cries Foul” elsewhere at this site, but briefly: the academic concerned, Arnaud Palisson, has told Infinite Complacency that the investigating magistrate concerned did not attend his lectures.

15   This is a reference to Palisson's thesis (see previous footnote). For a detailed treatment of this allegation, see “Scientology Cries Foul” elsewhere at this site.