Pietro Nocita is a professor of penal procedure and a penal attorney of Roma. He taught penal procedure at the University La Sapienza in Roma University which granted him a Diploma for Merit. He has been the attorney defending the only person in Italy convicted for the crime of Plagio, Mr. Braibanti. He is the scientific director of the historical legal magazine “The Penal Justice” established in 1893. He is the President of the Section “La Terza Roma” of the Italian Association of Giuseppe Mazzini (Associazione Mazziniana Italiana).
Professor Pietro NOCITA considerations on Rudy Salles’ draft report at PACE
Considerations on Rudy Salles’ proposal
By Professor Pietro Nocita
In the ideological and political view of the European States, there is principle which cannot be negotiated: the guarantee for each individual to consider his State of belonging as a home that is common to both believers of all faiths and to non-believers alike.
Discrimination of any citizen, based on his/her faith or his non-faith, is not allowed.
Every State must prevent anyone from persecuting or discriminating against any person based on their religious faith.
There is a necessary corollary that goes along with this non-negotiable right, and this is the fact that the State must protect, not only freedom of conscience but also the freedom of worship and expression; the State must allow everyone to:
a) choose a religious option:
b) not to choose a spiritual or religious option;
c) change his/her religious belief
d) renounce his/her religious belief.
Only by operating with this general framework in mind, can States’ domestic legislations or European Directives work without bringing about violations of human rights, which demand the existence of categories of rights that are non-negotiable.
The term “religious cult” has assumed a negative meaning and the members of that group are regarded with suspect.
In the Christian religion, the first followers were qualified as a “cult” and persecuted severely for a very long time.
In our day to day world, a so-called cult has always represented a minority that differs from mainstream thought in relation to a certain view, and in our case, of a religious one.
One have to consider that the concept of State itself is based on an underlying social contract, and that – due to its nature – is subject to continuous evolutions and changes.
Moving from the principle of an ever changing social contract, there is no doubt that the individual States and the European Union tend to put the single faiths in an acceptable compromise of coexistence.
The defense of the truths of the faith professed by a single religion is an integral and inescapable part of a democratic and equal coexistence.
The outward expression of one’s faith is an intangible right which derives from the freedom of thought.
The duty of a State is not to determine on which side the truth stands: that professed by group A or that professed by group B.
The duty of reconciling different positions – by choosing agreed upon regulations that do not violate the principles guaranteed by the Declaration of Human Rights – stands with the political power.
Often, due to a manufactured alarmism that lacks any scientific consistency, concerns arise such as that of “brainwashing”, or certain religious groups end up being labeled as psycho-cults.
Such formulations are lacking any scientific support and they manifest themselves through attempts of suppression against certain individuals, suppressions assuming violent tendencies or a legal semblance.
Sin is not a synonym of crime and laws cannot assume the nature of absolute truth, having the purpose of laying down rules of coexistence.
No one can impose a faith, everyone must respect the religious beliefs of others.
The Council of Europe, as even recalled by Rudy Salles, had to issue recommendations in 1992 and 1999.
From such recommendations one can deduct that the Council of Europe considered that a specific legislation on the sectarian phenomenon was not necessary, since it was contrary with Article 9 of the European Convention on Human Rights and fundamental freedoms.
When in 1999 the Council again took up this topic, they reiterated what was already stated in their recommendation n. 1/78 of 1002.
The arguments and proposal of Mr. Rudy Salles, through reference to the protection of minors, contrasts with the position that the Council of Europe has taken on this issue, and tends to damage the non-negotiable rights of the individual.
a) There’s no need for a collection of information on cases of abuses connected to cults.
The nature of the abuses, which supposedly consists of a negative influence exerted on minors, is undetermined and generic.
Abuses having the characteristics of a crime are already punished by laws already existing in the individual States.
b) The gathering of information on movements of a religious nature contrasts with the elementary principles of freedom granted to each individual, a freedom guaranteed both at national and European level.
c) We can agree on the scholastic education related to the history of religions.
d) Equal positive consideration can be expressed for the need to respect compulsory school.
e) The creation of a State of Police concerning the phenomenon of the so-called cults is not in compliance with European principles; the means to ascertain abuses already exist and abuses are punished by the laws of the individual States.
f) The reference to psychological-physical weakness of the individual opens the door to abuses, making allusion to conduct that is very difficult to ascertain; such an approach gives cause to judicial abuses and is excluded by all States due to its inherent vagueness.
The admission as civil party of an association strikes against the principle of coexistence of different ideas.
The request for damages on the part of associations, civil parties, is inadmissible, because from any legal case acted upon – related to crimes committed by the so called cults – the associations do not suffer an immediate and direct damage.
g) The financial cost of establishing such entities is totally useless, because in each State there is already an organization entrusted with the research and condemnation of any abuse.
h) Each religion has an impact on the individual practicing it.
The creation of groups of study on movements considered sectarian ones, is useless and in contrast with the principle of the democratic and secular State.