University of Milan, Italy
delivered at the
International Coalition for Religious Freedom Conference on
"Religious Freedom and the New Millenium"
Berlin, Germany, May 29-31, 1998
The constitutions of Portugal, Spain and Italy contain at least one provision safeguarding the religious liberty and equality of every individual in religious matters. Article 19 of the Italian Constitution declares that every man has the right to freely profess his religion in every possible form, alone or in association with others, and to promote it and exercise its worship in public or in private. Article 3 affirms that all citizens have the same social dignity, and are equal before the law, regardless of their religion. With a different wording, Article 13 and 41 of the Portuguese Constitution and Article 14 and 16 of the Spanish Constitution affirm the same principles. These principles are reinforced, and further specified by the Spanish law on religious liberty. Similar laws have been prepared in Portugal and in Italy, and are now under discussion in the parliaments of Lisbon and Rome.
The situation in Greece, as has already been said, is a little different. Article 3 of the Greek Constitution guarantees religious liberty and equality, but at the same time, puts some limits upon it. In particular, freedom of worship is restricted to known religions and proselytizing is forbidden. No law on religious liberty has been enacted, or is in preparation in Greece. On the contrary, there are a few laws that limit further religious liberty. The most important of them is the Law of 1938, according to which the opening of any place of worship in Greece has to be authorized by the Orthodox Church.
If we observe court decisions, it is easy to see the same distinction between Greece, on one hand, and the other South European countries on the other hand. Generally speaking, with a few exceptions, it is possible to say that religious liberty has been upheld in Portugal, Spain and Italy. In this last country, the higher court has twice rebutted attempts to define the Church of Scientology as a criminal association, and had rejected the reasons put forward by the lower courts in order to exclude the religious character of Scientology. In Spain, in 1992, a court in Barcelona handed down a decision in favor of the Family, when it rejected a request by the government to separate the children from their parents.
On the contrary, Greek courts fully enforce the provisions limiting religious freedom. For this reason, the European Court of Human Rights has been repeatedly compelled to condemn Greece for violating Article 9 of the European Convention. The Kokkinakis, Manoussakis, and Larissis decisions are well known, and it is likely that the some more decisions will follow. Concluding the remarks, in my opinion it is possible to say that individual religious freedom and equality are generally respected in Italy, Spain, and Portugal, while conversely, they suffer some limitations in Greece.
This difference could be explained also by the different approach toward religious liberty taken in the last 30 years by the Roman Catholic and the Greek Orthodox Church. Since the Second Vatican Council, the Catholic Church has accepted the principles of religious liberty, and the autonomy of church and state, while the Orthodox Church has maintained the idea of a special bond between church and state. Article 3 of the Greek Constitution, which declares the Orthodox religion as the prevailing religion in Greece, embodies this principle.
Religious freedom, however, cannot be reduced to its individual dimension. It also has a collective dimension, which concerns the position of religious groups in state law. The traditional system in Italy and Spain can be defined as a system of a selective cooperation of the state with religious groups. These religious groups are placed on different levels.
At the bottom, there are the religious groups that are not recognized, or registered as religious organizations. They may acquire legal standing, using the common rights of associations, which confer to their association the capacity to acquire, possess, and sell goods, negotiate contracts, etc. Certainly, the permissible activities of these associations are limited, and they do not enjoy any of the advantages reserved for recognized religious denominations. On the other hand, they are not subject to particular state control, or to limitations more serious than respect for the criminal code, and for public order and morals, which all individuals and legal entities are expected to maintain. Therefore, one can conclude that a first level exists, where a religious denomination can function without any recognition or registration by the State, and still be protected from any repressive intervention by public powers. New religious movements, such as the Church of Scientology, are a part of this first group of religious denominations.
Immediately above the first level, there are those that are recognized and registered as religious associations. About twenty denominations in Italy have been recognized, including the Jehovah’s Witnesses, the Mormons, the Buddhists, and the Muslims. To be recognized or registered, these religious groups need to present certain qualifications. The required qualifications differ in Italian and Spanish Law but, broadly speaking, they encompass three points. First, the group that requires recognition or registration must be a true religious denomination. The applying group must have a religious purpose, and some degree of organization. The legal meaning of religious purpose is by no means definite, but I shall not deal with this point now. Second, the rules governing the religious group must not conflict with the state’s law. Third, the group must have some roots in the history of the country. Once recognized or registered, a religious group enjoys a number of advantages, such as tax-exemptions, state legitimacy for marriages performed according to its own rules, etc. Not least, the recognition or registration of a religious group is a preliminary condition for signing an agreement with the state.
This brings us to the third level of religious organizations in the legal hierarchy. Three religious denominations in Spain—Protestant, Jewish, and Muslim—and six denominations in Italy have concluded an agreement with the state. It is likely that within the near future two more denominations, Buddhist and Jehovah’ Witnesses, will also get an agreement in Italy. An agreement opens the way for most of the advantages provided for religious denominations in the Spanish and Italian legal systems, including the right of the followers of a denomination to deduct from their taxable income the amount donated to their denomination, the right to provide religious teaching in state schools and, in Italy, the right to receive a portion of the taxes assigned by the state to religious denominations.
On the other hand, we should not forget that the conclusion of the agreement with a religious denomination is part of the discretionary powers of the state. That is, the drawing up of an agreement is a political determination, and this choice cannot be contested before a court.
Lastly, at the top of the list is the Catholic Church which, because of the number of its parishioners and its a special significance in Italian and Spanish history, enjoys a preferential position secured by a concordat and numerous regulations and laws. This four-tier system will also be adopted by Portugal, when the draft law on religious liberty is approved.
As already stated, Greece has a different system, based on a dichotomy between the Orthodox church, which is strongly supported by the State, and all other religious denominations.
The system that I have just described is open to criticism from many points of view. It is too complicated, it does not provide the fully equal treatment of religious groups, and it gives too much discretion to the state in deciding at what level a religious denomination has to be placed. These criticisms touch very important points, and raise many doubts about the merits of the system. Nevertheless, they define the amount of the cooperation granted by the state to religious denominations, and they do not question directly the ability of any denomination to exist and to practice freely without state support.
On the contrary, events that have transpired in some other European countries concerning “sects” threaten to do exactly this. Southern European countries are not in the forefront of the battle concerning new religious movements, but what has happened in Belgium, France and Germany is having repercussions—not yet in the laws and the courts’ decisions—but in political statements and in administrative provisions. At this point, it is possible to detect the building of a new distinction among religious groups, first dividing them between religions and sects, and secondly, identifying in this last section a group of dangerous sects.
In a report, prepared a few weeks ago by the Italian Ministry of Interior, dangerous sects are identified on the base of five criteria: first, making use of brainwashing techniques and damaging mental integrity; second, performing fraudulent and deceitful activities; third, performing illegal or immoral activities; fourth, spreading irrational doctrines harmful to public order; and finally, performing activities aimed at the overthrow of democratic institutions. The report does not propose any legal measure against these dangerous sects, but calls for a careful vigilance on their activities.
I am not aware of any similar report that has been published in Spain, Portugal or Greece, but it is likely that they will be prepared in the near future. Generally speaking, the Italian report is more accurate and objective than the French and the Belgian ones. Nevertheless, even in the title, “Religious Sects and New Magic Movements,” the report makes a distinction between religions and sects, and implicitly affirms that sects are nearer to magic movements than to true religions. From this point of view, the report is part of a larger trend, aimed at affirming that the right of religious liberty does not protect sects and their followers. Accordingly, religious freedom applies only to religions and, as sects are not religions, they are not protected. This same trend can be detected in the French Report of 1996, the Belgian Report of 1997, and the Russian and Austrian laws of 1997. All of them are aimed at establishing a distinction between sects, on the one hand, and religions on the other.
Personally, I do not think that the tide toward such a distinction will be reversed in the near future. This trend is due largely to fear, caused by the rapidly changing cultural and political landscape in Europe, such as increased Muslim immigration. The difficult reform of the welfare state, economic globalization, and even the fall of the Berlin Wall, are quickly transforming European society, and inevitably creating a climate of fear and uncertainty. Most Europeans want solid and stable ground upon which to stand, and this can easily be provided by traditional churches and religions, as opposed to new churches and religions. This climate will not disappear for some time and, therefore, the question is what to do in the meantime?
From my point of view, two things are important. First, it is necessary to stress the vagueness of the legal notion of “sect”, and its distinctive character from religion. Second, to stress that any person should be judged by what he is and what he does, not by the group of which he is a member. Building a category of dangerous sects and judging people by their membership in it would be, in my opinion, a big step backwards in the history of legal science.