The Court of Appeals of Milan
First Criminal Section
Filed with the clerk's office on 1 March 2001
composed by the gentlemen:
1. Doctor Orio Simonazzi, Presiding Judge
2. Doctor Paola Capobianco, Judge
3. Doctor Fabrizio Poppi, Judge
has issued the following
D E C I S I O N
in the case of the Public Prosecutor
BANDERA FULVIO, born in Brescia (BS) on 29.07.1959 -
against the decision of the Court of First Instance of Milano # 4159/1988 of 02.07.1991
?in regards to the outcome of the current trial .......................................
?Having heard the report of Counsellor Dcotor Simonazzi ......................
the civil party, attorney .....................................................................
................................................., the Public Prosecutor Doct. Visconti ........
The defending, attorney................................................................................
.................................................................................................................who ends off as per the trial minutes.
REASONING OF THE DECISION
Impunged Decision: - In 1950 the American citizen Ron Hubbard published a book titled Dianetics which was meant to be a guide to help men achieve a modern concept of mental health. In this book it is stated that human difficulties may be caused by negative pictures stored in the mind as a consequence of painful experiences either in this lifetime or in past lives, for which there was a number of useful techniques which could remove such negative pictures and help reach a state of clear.
People fascinated by Dianetics started to apply it and founded Dianetics centres in the USA and then in Europe. In 1977, the first Dianetics Centre was established in Milan, the so-called Hubbard Dianetics Institute, followed by similar initiatives in other Italian cities. The ones pertaining to this trial are the centers in Brescia, Bergamo, Modena and Pordenone. In 1982, in Milan, the National League for a Drug-Free Civilization was founded which had the purpose of rehabilitating the drug-addicts by use of Hubbard's methods.
From this league originated the Narconon Centers, entities active in the field of drug rehabilitation, and the company Futura Ltd., which function was to train Narconon staff and perform ethics cycles for those who reverted to drugs.
In October 1995, the Church of Scientology of Italy was established, which absorbed the previous Dianetics entity.
As a consequence of investigations which lasted many years and which were executed in the entire national territory into the activities of members of the various centers of the Church of Scientology and to the related Narconon centres, on October 3, 1988 the Investigating Judge of Milan sent to trial several members of this institution, amongst whom were the current defendants, charging them for financial crimes, circumvention of incapable persons, extortion, fraud and criminal association to the end of committing the above crimes which, by reason of the uniformity of operating behavior appeared to be instigated by the general policies of the organization.
According to the Investigating Judge, the main objective of the association was to make profit, which was carried out by offering increasingly expensive services to neophytes until they were eventually made poor by being subjected to pressure or tricks due to their inferiority. Staff captured people's attention with personality tests which lacked any scientific validity, and then proposed they join the association as a means to solve the problems claimed to be evidenced by the test; they were exerting very strong pressure by means of continuing personal contacts, day and night, to convince customers to buy various types and different levels of courses which were asserted to be suitable to improve the quality of their life; subjected some of these people to extenuating auditing sessions by unqualified staffs; overcame any resistance either with auditing sessions or by means of a tool called E-meter (which was sold for a value much higher than its actual value, and to which were attributed non existent diagnostics capabilities), even subjecting customers to hour-long sauna baths despite their obvious prostration; during sessions they were taking notes of statements made about private facts, keeping these along with written confessions in a folder which could be sent to the associations organizitional office called the Guardian Office; forced those who continued their courses to write success stories which could be hung on a bulletin board for promotional reasons; promised to refund the money in case of dissatisfaction but later stressed those who were requesting refunds by presenting continuously new people to them, each of whom claimed to be the wrong terminal to ask for refund; subjected the refund cases to stressful interrogations about the reasons for refund and even provided the prospect of a severe illness if they would interrupt the course.
With a decision issued on July 2, 1991 the Court of First Instance of Milan dismissed the charges with the following considerations:
a) The Prosecutor Office must have deemed the application of Hubbards directives perfectly legal because they did not ask for the indictment of all those who applied such directives but rather asked the indictment of a deviating minority which was autonomously operating within an otherwise legal (according to its statute) organization;
b) The existence of a criminal plan amongst those who operated in such a deviating way was not proven. Rather there was evidence of deviation from Hubbards directives by some of individual subjects which were not only contrary to the law, but also to the directives of the very association.
c) There could not be potential criminal responsibility for the presidents, vice presidents and other executives at the top of the organization for accepting the risk that single members could pursue Hubbards directive up to the point of violating the law: the crime of criminal association requires a stable nexus, an agreement to commit crimes, not just acceptance of the risk that other members, executing legal directives, could commit crimes which, as such, could have broken the nexus of these deviating members with the association.
In substance the Court of First Instance denied that the moral entity of Scientology had the peculiarities and characteristics of a criminal organization, both because the statutory purpose was perfectly lawful and because members had generally acted in accordance with statutory principles as evidenced by the relevant number of people who declared being satisfied with the services. The illegal conducts found in single cases had therefore to be considered as the result of personal deviating initiatives by some individual members, each of whom had been already condemned for some of the alleged crimes.
Appeals - The Prosecutor Office complained about the fact that the Court of First Instance had neglected the fact that Scientology had carried on an indiscriminate activity of proselytism in the weak areas of population, exploiting mechanisms which are well known by modern psychology, and applying an unvarying uniform technology which itself becomes illegal due to the nature of the passive subjects and to the objective invariability of the approach. The thesis of the Prosecutor Office on criminal association was supported by the sequential character of the activities, in substantial agreement with Hubbards directives, which demonstrated that directives were being given to various members, aimed at committing crimes every time the prospect's resistance required the limits of legality be exceeded. Therefore, logically, the criminal responsibility of organizers, presidents, vice presidents of the various churches and executives of Narconon Centers for the crime of criminal association: in fact, single staff members could not have committed the crimes they were charged with without making use of the means offered by the organization's structure.
The decision was appealed as well by the civil party, the Ministry of Finances, exclusively for the financial crimes which some interested parties were charged with, based on the assumed non-religious nature of Scientology.
First appeal decision - On November 5, 1993 the Court of Appeals of Milan reversed the first instance judgment and stated that the entire Scientology association was a criminal association. The Court of Appeals declared that such a conclusion would not arise from trying the doctrines of Ron Hubbard, nor from the ideas practised by the Church of Scientology which, just like any other manifestation of free thought, are protected by our law. The conclusion rather stemmed from having ascertained that Scientology activities had been organized since the beginning in the same way as those of any other for-profit organization operating on a free market, aiming at maximizing profits by selling the Founder's books, services and the so-called E-meter to an ever growing public for ever increasing prices, so that Scientology could not be a Church or a religious confession.
In order to affirm the criminalization of the entire association (contrary to the Prosecutor Office which believed that an illegal association was developed as a separate entity within the frame of an otherwise legal organization) the Court of Appeals started to consider the crimes related to the real purpose of the criminal association, which were deemed to be significant even when it had not been possible to establish the author, and pointed out that 25 out of the 37 crimes attributed to the association concerned facts which occurred in the time period between 1981 and 1986. Until 1981 there was evidence of an association concerned with procuring its financial means through the application of the directives of Hubbard who advised hard sell, developed in the United States for door-to-door salesmen, based on insistence. When Italy started to be affected by the influence of the Center in Copenhagen, an exasperating drive for profit started to the point that Dianetics got transformed into a criminal association, first in Milan and then in the Italian centers that depended on Milan. So it was wrong to talk about an illegal association formed within a legal organization, but rather that an originally legal organization at a certain point turned criminal. Such a statement was in fact based on a generalization, but it was a correct generalization. In fact, if 26,980 members out of 27,000 did not turn in any complaint, this was only due to the fact that the Finance Police had only examined 6,000 folders, following the Prosecutor Office's minimal investigation which was limited to pinpoint specific, outstanding crimes. The deviation (from legal to criminal) resulted from a deliberate violation of Hubbards directive forbidding acceptance of subjects with a psychiatric history or subject to psychiatric drugs or psycho-analysis: in fact such subjects had been rejected by Segalla up to 1978-1980 as evidenced by exhibits 1 - 16 but were later accepted as evidenced by exhibits 17 - 24, thus proving the deviation.
According to the Court of Appeals, the year 1981 had marked the beginning of the major change for Dianetics and Scientology into a criminal association as evidenced by violation of Hubbards directives about hard sell which, starting from that date, had been pursued with illegal means. Since the deviance was evidenced everywhere, it must have been the consequence of directives emanating from the Italian organization. Such deviance was evidenced by the acceptance of psychiatric cases, the difficulties which raised every time unsatisfied customers asked for refund, the pressure put on customers to buy products. The executives's involvement was not purely a matter of negligence but a direct crime, even if the association deemed criminal activities necessary only in case of resistance of a prospect.
In conclusion, Scientology did not even stop in the face of some neophytes's mental deficiency, and the staffs had acted with such uniform and constant methods (except variations which were deemed from time to time to be necessary) to reveal the directive's uniqueness and the uniqueness of predicting and planning single crimes, thus the proof of the association crime. Thus the existence of the crime of criminal association for all executives, not just for merely participating in the association but as a consequence of their direct responsibility in the purpose-crime (the criminal association's purpose) and as members of the Executive or Advisory Council.
Even the League for a Drug-Free Civilization lead by Zanella and the company Futura Ltd. lead by two married couples (Cantu and Filoscia and Cassali andMeneghini) were strongly tied to the Church of Scientology and had promoted the creation of Narconon Centers devoted to the cure and rehabilitation of drug addicts. The League took care of finances (obtaining donations and distributing them amongst the various centers), while Futura was taking care of training Narconon Center staff, organizing ethics cycles and supplying materials: vitamins for the withdrawal phase, saunas for the detoxification phase and lastly the study of Dianetics theories.
Narconons were established in 1982 with a lot of improvisation and rather insufficient means, both from the viewpoint of environmental and hygiene conditions and as well from the viewpoint of insufficient training level of the staffs whom, in some cases, continued to take heroin. The services which were delivered were paid twice their real value. It was as well a consequence of these facts if the Court of Appeals found arguments to support the existence of general policies and established that if anyone was cured it was uniquely due to his own self determinism rather than to the cures of the Centers, which were only money-motivated.
Finally the Court of Appeals had recognized the fact that the simple fact of being president or vice president was not enough to imply participation in the criminal association: instead, one had to verify whether or not the office did substantially imply on-purpose contributions to the fact of turning criminal in 1981-82. Taking for granted the existence of the criminal association, the Court determined that the Executive Council and the Advisory Council were essential in coordinating all the activities and therefore deemed that all the members of above councils must have been parties to the criminal association.
The Court of Appeals considered responsible all interested parties who played a role in sales, the head of the League, the head of the company Futura and of the Narconon Centers (which the Court of Appeals considered to be one of the activities of the Church, contrary to the Prosecutor Office, which considered these to be a criminal association separated from the Church), the Chaplain (meant to be in charge of refunds) and the FBO (in charge of finances).
Following the above criteria, the Court of Appeals stated the responsibilities of today defendants, in their specific functions participating in the criminal association, and granted them all generic extenuating circumstances, with the exception of Banti, Manfrini, Polara and Molinelli whom already profited from prevailing generic extenuating circumstances.
Appeals to the Supreme Court by the defendants - The decision was appealed to the Supreme Court by the defending counsels arguing that the Court of merits (the Court of Appeals) had intended to prosecute a religion, different from the established religions, limiting in fact the right to freely profess one's own religious belief in any form, individually or in an associated fashion, protected at the highest level by Art. 19 of the Constitution; it had omitted to adequately give reasoning on the religious nature of the Church of Scientology and on the circumstance that Dianetics and Scientology propagated by said church did not result in a conflicting activity with the constitutional precept, particularly remarkable circumstance not only because it would have kept the association from the control of the criminal judge, but also because it would have affected the reconstruction of the fact and of the subjective element of the offense, allowing to attribute to the faith and not to the eagerness to make profit (incorrectly deduced by a partial and distorted reading of the directives of the founder) the excess characterizing the propaganda of the courses and their sale; it had inferred from the generalization of a few cases the belief that the criminal actions separately attributed to different groups of defendants had been foreseen and programmed in general since the beginning according to directives coming from the top management of the association.
First judgement of the Supreme Court - With decision issued on 9.2.1995 the Supreme Court quashed the decision of the Court of Appeals remanding to another section of this same territorial Court of Appeals, for a new judgement.
According to the Supreme Court, the profession of agnosticism exposed by the Court of Appeals in the premises of the judgment of reform was censurable, because the safeguard of the religious confession mentioned in the articles 8, 19 and 20 of the Constitution is wider than the safeguard granted to the right to manifest one's own thought. If a group qualifies itself as a religious confession, the judge has to verify that actuality making reference, lacking a legislative definition, to the criteria laid out by the Constitutional Court in the judgment # 195/93 according to which, when there is not an agreement with the State, the nature of a confession can be drawn from former public acknowledgements, from the statutes or from the common consideration, apart from the possibility for an interpreter to elaborate further indexes. The Court of merits had not excluded the religious nature of the association on the basis of the indexes pointed out by the Constitutional Court, but in relation to the commercial activity developed by the association consisting in the sale of its own services, forgetting that the commercial activity is not incompatible with the religious nature of an association, considering that all religions tend to finance themselves. The commercial orientation of a religion that wants to finance itself to expand, was not therefore an argument to exclude the reigious nature of Scientology, attested, until one has proven the contrary, by its statutes.
According to the Supreme Court the investigation on the religious nature of the association could not be eluded since, once deemed such nature, the assumption of its transformation into a criminal conspiracy became unsustainable, if it was not proven that all the followers had changed the rules of commune agreement to engage in a new and different subject. Instead abstractly the thesis of the General Prosecutor could be assumed according to which some staffs had diverted constituting an illegal association within the legal one. The religious confession meets only the limit of morals intended as conformity to the ethical principles of our legal system from which the social moral is born, but is not susceptible of other jurisdictional controls.
While the Court of First Instance had affirmed that the presidents, the vice-presidents and the responsible persons of an association cannot be considered responsible of the degeneration of the behavior of single persons that operate for the association, the Court of Appeals, accepting the indexes pointed out by the General Prosecutor, limited itself to point out the reasons for which it could be supposed that the executives of an association have to know the initiatives of the submitted ones. But it is a non-practicable assumption in the case of organizations of vast proportions. The Court of Appeals incurred then in the violation of the article 192 paragraphs 2 of the code penal procedure because it had founded upon a supposed fact a further assumption, incurring in the vice known as praesumptio de praesumpto. From the simple assumption inferred by the position of top in relation to a single crime the Court of Appeals had deduced the further assumption of the knowledge of the methods used by the employees without furnishing elements to directly prove the actuality of such knowledge, by the single executives, regarding the methods used by the subordinates.
The judgment of the Court of Appeals was also illogical in the part in which it had deemed proven the crime of criminal association founding itself on the manifold reiteration of analogous behavior, deemed, as such, referable necessarily to an organization. Actually the limited number of cases for which it was proceeded, was not sufficiently indicative of the existence of a criminal association if compared with the 27,000 subjects with which the association had established relationships. Very few people filed suits or complained about something, and this didn't allow criminalization of an entire association. The number of complaints could be used, maximumly, to start further investigations. The fact that out of 27,000 followers only a limited number had filed a complaint, didn't justify the generalization done by the Court of Appeals. The argumentation followed by the Court of merits was not practicable, since it was not remarkable that many subjects heard at records pronounced themselves dissatisfied; it was not remarkable that the Finance Police had examined alone six thousands positions, not being allowed to infer, from the missed examination of facts at the investigators' disposal, elements to affirm based on a mere statistic probability, that some people already investigated have committed further crimes.
Second judgment of the Court of Appeals - The Court of merits, ruling for the second time in seat of adjournment has excluded the confessional nature of Scientology, sustaining that such nature was not supported by any of the indexes pointed out by the Constitutional Court: in fact, it had not any agreement with the State, it had not had public acknowledgements, it had not a statute that could back up the pursuit of religious purposes, it was not a religion in the common consideration, intending for such the public opinion of the national community.
Due to the shortage of the followers, the judgments of some trial judges and some tax courts or the opinions of authoritative Italian or foreign scholars were not remarkable because they did not contribute in forming the public opinion.
Scientology missed what in the commune consideration is the concept of salvation of the soul and the relationship with the divinity, typical of the great Jewish-Christians and Islamic monotheistic religions . The same statute of Scientology suffered from these restraints because in it is affirmed in contradictory way that technology can make the man aware of the knowledge of the supreme being; because the statutory changes that had brought to replace theInstitutes of Dianetics with the National Church of Scientology of Italy had been only a stratagem to get the Institutes of Dianetics out of the legal problems already emerged elsewhere. The instrumental nature of the self-qualification of Scientology as religious confession was proven:
a) ?from the statements of two American witnesses according to whom Hubbard decided to define Scientology a religion due to the result of a legal action brought versus Scientology by the medical association of the New Jersey for abuse of the medical profession;
b)?from the content of a document seized in the Rome seat of Scientology in 1991, in which it was considered the opportunity to turn Dianetics into a Church to fill the deficiency of connections with some stable groups in Italy, in regards to the entourage of economic, financial and political affairs in which Scientology was operating;
c) from what was reported by a witness who had been told that the word Church had been used for convenience;
d) from what was reported by other witnesses that had reported to never have heard to talk of ministers;
e) from the lack of an exclusive creed, from the history of the association, from the scientific and objective nature of the rites and of the practices.
Excluded the confessional nature of Scientology, the Court of merits has deemed to overcome the censorship of the Supreme Court related to the inadmissible generalization of some cases of deviance to infer the existence of a criminal planning in conformity with the directives of the Italian leaders, compulsing the org board and the testimonies related to the structure of the organization and to the directives of general order.
According to the Court of merits the circumstantial evidence had been acquired that the association has given itself a criminal program: this was inferable from convergent considerations: the organizations of Scientology had as only objective the purpose to make profit, as resulted from two Hubbard's directives, from the seized documents and from the testimonies; from the indifference for the condition of health of the followers or of the operators, in scorn to the proclamation of a mission finalized to the peoples physical and psychic comfort; from the approach techniques used getting to compile misleading questionnaires concerning the physical and mental conditions of the compilers, so to inspire them to get the services and to purchase expensive books; from the false promises of rendering what paid in case of missed achievement of the promised benefits and from the covert presentation of physical or psychic damages in case of missed adhesion to the Church or of missed acquisition of the offered products; from boasted scientific validity of the proposed methods, from the simulation in some phases of a progress of the treatment claimed scientifically checked with a tool denominated E-meter.
From such elements, altogether considered, the Court of merits has deduced that the whole activity of the association was predestined to commit crimes and it has disregarded once more the presentation of the prosecutor office on the opinion of which the criminal conspiracy was constituted within the Church of Scientology without identifying itself with the Church itself: it was the same organization of Scientology with all of its emanations to integrate an association with criminal purposes and those people who had furnished a causal contribution to the realization of the program were responsible of it. The psychological element was inferable from the context, characterised by the fallacy of the promises, by the harmfulness or uselessness of the services, by the lack of training of the operators.
The Court has declared the prescription of the crimes contested to Polara, Banti, Manfrini and Molinelli who got the benefit of prevailing generic extenuating circumstances. Nevertheless the judgment has however been object of appeal before the Supreme Court also by these defendants without making mention to the decision of extinction of the crime pronounced by the former Court of merits.
Second judgment of the Supreme Court - Because of a second appeal of all today's defendants, the Supreme Court with judgement issued on 8-10-1997 has again quashed with adjournment the appealed decision.
The Supreme Court has lifted the tone observing that the judge of the adjournment had violated the decision internal judgment by omitting to justify her own belief on the basis of the scheme implicitly or expressly enunciated in the judgment of overruling that bound her to a determined evaluation of the trial results or to the carrying out of a determined investigation deemed by the Supreme Court of conclusive importance and previously omitted.
The violations of the decision internal judgment committed by the judge of the adjournment have been defined manifold: the Court of Appeals had excluded the religious nature of Scientology applying the criteria pointed out by the Constitutional Court with serious misinterpretations and working out a subjective notion of confession, cut out on the historical monotheistic Jewish Christian and Islamic experience in a entirely arbitrary way. By doing this it had violated the constitutional chart that guarantees to everybody to profess their own religious faith with the only limit of the respect of the morals intended as the respect of the criminal laws and of the norms necessary to guarantee a free and pacific cohabitation. The missed legal definition of religion implies the widest protection of the subjective beliefs in the matter and the lay separation from the doctrines characterizing the existing or new religions. The Court of merits ventured to illegitimately decide the essence of a faith, unduly using the indexes elaborated by the Constitutional Court and violating the limits of the decision internal judgment.
The Supreme Court has defined elusive, the reasoning of the quashed decision, not having the Court of Appeals motivated why Scientology would not have had public acknowledgements as a religion, omitting to verify what formal deeds different from the agreement constitute public acknowledgement of a religious confession and also omitting to explain why deeds of public origin, judgements of ordinary and tributary judges are not fit to constitute indirect public acknowledgement.
If then the Court of Appeals had intended public acknowledgement as popular acknowledgement, it would have had to explain why the disclosures of thousands of followers who are part of the population, the opinions of experts and those mentioned in the judgments, that to judge use by and large the common experience and what is well known, would not be public acknowledgements.
The Court of Appeals had actually applied badly the criterion of common consideration to be intended not as public opinion of the whole national community, but as evaluation shared by others in the entourage of the scholars and of the people interested in the problem. The conclusions of the Court of Appeals were corrupted by the misinterpretation of the beginning, having intended the common consideration as Italian public opinion and having deemed tobe able to deny with one-sided and personal criteria the religious nature of Scientology, only because such doctrine would misswhat that in the common feeling would be an essential element for the religion to be, that is the concept of salvation of the soul achieved through the bond of man with God.
The Supreme Court has also examined the national statute that makes reference to a road of liberation in the line of thought of the exact sciences for the solution of the problem of existence and the attainment of the freedom of human spirit and it has concluded that the use of physical techniques and of material means to achieve a kind of vision of the world of the spirit is not extraneous to several religions. The Supreme Court has defined lacking in discernment the adhesion of the Court of Appeals to the disclosures made by the American citizens Atack and Armstrong, not having investigated the context (American) in which such disclosures were made and in what proceeding. In front of the missed critical close examinations, it was equally reliable that the Church has risen as development of the Dianetics doctrines and because of the concourse of more and more numerous followers, nothing counting that the Church has inherited or absorbed the structure of Dianetics.
The Supreme Court has denied then any circumstantial content to the document seized in Rome in which it was generically complained about the difficulty met by Dianetics without the coverage of which the religious confession enjoys . Furthermore it has re-examined the deposition of witness Visconti to conclude that the woman was explained only that there was no incompatibility between the Catholic religion and Scientology. The lack of a creed was not remarkable and the Court of Appeals had omitted to consider the acquired evidences in their whole, and particularly the testimonies and documents produced by the defence.
The Supreme Court has set a further limit to the judge of the adjournment by censoring the judgment where it eludes the decision internal judgment re-proposing the thesis that wants Scientology to be a criminal conspiracy founding itself not again on an inadmissible generalization of few episodes but emphasizing the orientation to the money, already deemed by the same Supreme Court not impedimental to the existence and the acknowledgement of a confession that is inclined to self-finance itself by selling its own services.
The Supreme Court has concluded by sticking to the defensive remarks according to which the verified crimes had not emerged in the day-to-day activity but appearing to be occasional deviations from the general rules of behaviour, circumstance, this, that together with the lawfulness of the statutory aims, was not able not to be reflected on the malice of each defendant who, if convinced to participate in the realization of lawful purposes, he/she could not be aware to participate to a criminal association. To the censorship concerning the criminalization of the whole association founded on an inadmissible generalization of few cases, the Supreme Court has added that, in lack of more solid objective anchorages, they could, on the rational plan, to attribute the convergence of the behavior attributed to the operators and the uniform commissions of the purpose crimes attributed to them both to the condivision of directives and to the identity of the conditions of the human action in which the defendants found themselves to operate and/or to the rigidity of the typical scheme of the crimes attributed to them.
No inference of general character could be drawn from the verification that the dissatisfied followers had gotten the refund for their strong determination or with a threat of suits, kept into account the limits assigned by the decision internal judgment according to which the large majority had not asked any refund.
In conclusion the Court of Appeals had violated the limits of the decision internal judgment by ignoring the route pointed out by the Supreme Court in order to the assessment of the religious or non religious nature of Scientology, by ignoring the importance of the small number of subjects who had committed crimes, the evidences filed by the defence, mentioned in the first judgment of overruling and not considered in seat of adjournment. The judge of the adjournment would finally have had to consider that the responsibility for the associative crime of the executives could not be proven resorting to the praesumptio de praesumpto.
Examination of the appeal reasoning - This judgment has been already widely written by the two decisions of the Supreme Court that, with the second overruling, has furtherly pointed out the bonds of the decision internal judgment, pointing out the committed violations and the argumentation routes inadmissibly followed by the judge of the adjournment.
The General Prosecutor has proposed again the terms of the closing argument pronounced at the end of the first judgement of adjournment and she has stated again once more that, in the specific, it was not in discussion whether Scientology was a confessional association, but whether the current 33 defendants had formed up, inside Scientology, a separated criminal conspiracy, with the consequence that the prejudicial decision on the confessional nature of Scientology enforced by the Supreme Court to the judge of the adjournment was not relevant.The dictum of the Supreme Court could have a reason of existence if put in relation with the choice of field done by the Court of Appeals that had deemed Scientology, since the first of the 80ies, a criminal association tout court; but if the accusatory hypothesis supported by the General Prosecutor in the two judgements of adjournment became true, the request to verify in the prejudicial way whether the group of reference (Dianetics, Church of Scientology or League for a Drug Free Civilization) to which today's defendants belonged had or not a confessional nature revealed it outdated. Particularly, Hubbard's directives could be examined to the limited purpose to clarify as an autonomous criminal association inside the activity of Scientology could have developed and, in such viewpoint, also the modest quantitative datum of the deviance, deemed by the Supreme Court the strong matter of the defence, lost the pregnancy attributed to it by the Supreme Court. At last the consideration that the hypothesized criminal association had as object the conclusion of an indefinite series of crimes against property to destine its profitto the lawful organization, didn't collide with the proposed thesis by the General Prosecutor, considering that the legal case in point of the associative crime doesn't foresee, as purpose, the profit of the association but a generic program to commit crimes, even against the patrimony.
On the basis of these premises the General Prosecutor has deemed to confirm (even if the second judgment of overruling had furtherly reduced the remaining argument routes):
a) that the Supreme Court is wrong when it pretends from the trial judges a prejudicial judgment on the religiousness of the group, being in fact entirely evident that is not Scientology as such to be brought to trial, but only a group of persons to it belonging;
b) that the judge of adjournment has only to verify the behavior kept in concrete by the defendants, examining not the rules of the group but the concrete application that of such rules today's defendants had done.
The defence has instead upheld, with different tones, that the judge of the adjournment could not refuse to take a stand on the confessional nature of Scientology.
In that respect, they also mentioned the fact that it was not at allapparent that it was not Scientology as such to be under trial, but only a group of individual members. Such an assumption was invalidated:
a) by the general tone of the count of indictment, by the initial choice of the Investigating Judge who, after a lengthy, far-reaching investigation, had started the trial holding that Scientology, although tracing back to some religions, was nonetheless a criminal group, since the alleged crimes were not the result of an occasional deviation but were part of a program, in that they were committed in compliance with specific directions coming from the organization; and that however, the ideals, programs, by-laws, writings and internal policies all showed that Scientology was not religious;
b) by the general tone of the Public ProsecutorÕs appeal, who in his deed of 4 October 1991 had appealed the acquittal decision of the Court of Fist Instance, once again setting forth the thesis of ScientologyÕs criminal character, charging it with being a group committing crimes aimed at making profits in order to fund its own activities, as shown in the fact that all profits resulting from specific crimes (i.e.: frauds, circumvention, tax frauds, extortion) was not for the benefit of those who had committed them but went collectively to the criminal group;
c) from the two decisions rejected by the Supreme Court, which had agreed with the maximalist thesis of the Prosecutor, and holding (with different arguments but with converging results) that the Church of Scientology of Italy had become involved in the hard sell of services offeredto parishioners in ways that were not the founders directives, thus bringing about deviations which, far from postulating the existence of a criminal sub-group, became part of the whole association; which association, although consisting of a complicated structure, of branch offices, of by-laws, of different jobs, had expressed appreciation for the work of those deviating salesmen, so that the principle of cui prodest? would apply. In particular, the second decision issued by the Court of Appeals had insisted that Scientology was a non-denominational criminal group and had found the organization to own the structure and organization of a criminal group, and that in the affiliation with, and activity in, Scientology lay the psychological element and the causative factor of participating in that criminal group.
The defence counsels has then concluded that the Court of Appealss task was to refer back to the decision of the Court of First Instance and to the quantum devolutum of the appeal as it referred to the findings already reached.
This court considers that among the various questions unanswered there is also what the General Prosecutor has continued to consider an unimportant one. The Court of Appeals Judges cannot possibly be unaware that the double rejection by the Supreme Court has concerned two decisions which, although following different routes, have both validated the original thesis of the Public Prosecutor who was appealing, and in both cases agreeing on the fact that Scientologys character was non-denominational, so as to find its criminal character. The Supreme Court went as far as to demand a non-elusive, adequate adjudication on the denominational character of Scientology, not only because such matter belongs (inescapably by now) in the subject that was assigned to the Court of Appeals for decision as well as to the guidelines commanded by the Supreme Court, but above all because - at the point reached in the trial - the answer to that question is bound to orient in a determining way the interpretation of the boundaries set by the Supreme Court for the evaluation of the evidence received.
The Supreme Court, while rectifying the argumentation route followed by the Court of Appeals Judges (who had been assigned the Public Prosecutors appeal) has found that any positive assessment of the denominational character of Scientology is important, because - if it were found to be such - the assumption of the whole group having changed into a criminal conspiracy would postulate a proof of the fact that all members had agreed on changing the original rules so as to create a new, different subject, with clear reflections on the meaningful and unmistakable nature of the evidence acquired; both if one wanted to relate the alleged criminal change to the whole association (as suggested by the prosecution) or if one wanted to relate it to a group of members (a so-called splinter group).
A definite position on the denominational nature of Scientology is not the result of an archaeological survey of trial records, but of the quantum devolutum taken from the decisions that were later rejected by the Supreme Court, to be evaluated in view of the findings already reached. Through its second rejection decision, the Supreme Court has raised the level of its criticism and could not have been more explicit: it reprimanded the Court of Appeals Judges for having violated the findings already reached when, "rather than explaining its conclusions on the basis of the pattern implicitly or explicitly laid out in the rejection decision that demanded the Appeals Court to run a series of evaluations on the findings and to perform a precise investigation (one that the Supreme Court considered to be of decisive importance) that was previously omitted," they had followed a different route, involving a number of violations of the findings already reached. Therefore, there can be no serious objection to the fact that - be it write or wrong, but however in a binding way as far as the trial is concerned - the remitted Judge has been put in a position where he has to explain his own conclusions on the basis of the pattern explicitly given by the senior Judge requiring, among other things, a clear statement as to the denominational character of Scientology. It seems that the Supreme Court left no further way out on the issue, clearly laying out a set of limitations of which we can only acknowledge the existence at this time, leaving aside all personal convictions; nor does the Supreme Court seem to have gone into an internal conflict when it applied amnesty on the tax violations. In fact, these are a type of violations that are typical of a commercial activity, and are non taxable if Scientology was denominational. And due to the fact that, when the amnesty was granted, there was still no evidence of the denominational character of the association, the Supreme Court preferred to simplify the trial and decided to acquit.
With its first cancellation decision, the Supreme Court was especially peremptory on the point: if a group qualifies itself as a religious denomination, the Judge has to ascertain the actuality of such self-qualification by referring -- for want of a definition in Law -- to the criteria laid out by the Constitutional Court in its decision no. 195/93 whereby, when there is no treaty with the State (which would then be prevailing), the denominational character could be derived from former public recognition, from the by-laws, and from common consideration, with the judge still entitled to work out further criteria; the Supreme Court also criticised the Appeals Judges for denying the denominational character of Scientology based on the commercial activity carried out, thus neglecting the fact that the commercial structure of a denomination wishing to fund its activities in order to expand is no reason to rule out its denominational character as allegedly stated in its by-laws.
With its second decision, the Supreme Court has provided a sort of authentic interpretation of itself, by stating the binding obligations assigned to this Court, to be regarded as findings already reached:
a) the denominational character of an association could not be ruled out by expressing personal, one-sided opinions on the tenets of their beliefs (namely, the lack of a concept of salvation for the soul through the bondage of Man with God), since this violates a number of precise constitutional precepts forbidding one to identify how much a denomination is recognizable as such only by comparing it to existing or intervening religions;
b) public deeds such as Court decisions issued by general or tax judges are theoretically adequate to represent an indirect public recognition of the denominational character of an association and, where such deeds do exist, such an indirect recognition could not be ruled out with no reason given or without any mention of the formal deeds, other than an entente or decisions issued by general or tax judges, which are said to be providing such public recognition. Even if one wanted Òpublic recognitionÓ to mean recognition from the people, the remitted Judge would have to explain why the statements made by thousands of followers (who belong to the people), the opinions of experts and the conclusions of court decisions (who in deciding avail themselves of the maxims of common experience and of known facts) are not considered as public recognition. Finally, the Court of Appeals has mistreated the criterion of common consideration, wrongly interpreted as the public opinion of the whole national community and not as an evaluation shared by others in the circle of scholars and of those who are concerned with the problem;
c) the national by-laws of Scientology, by mentioning a liberation route which included bodily techniques and material means in order to achieve a particular view of the spiritual world, placed the association in an area that is shared by other denominations that have been recognised without any problem;
d) on the contrary, the statements made by US citizens Atak and Armstrong could not be considered to be final without investigating the location and the trial wherein such statements were made, so that it remained equally plausible _ given the lack of in-depth scrutiny _ that the confession was born as a development of dianetic doctrine and with the co-operation of more and more numerous followers, while it is of no consequence to determine whether Scientology had inherited or absorbed the Dianetics organization;
e) the document seized at Rome (generally complaining about difficulties encountered by Dianetics for want of protections such as those enjoyed by a religious denomination) did not contain anything likely to be an accusation;
f) there was no importance connected with either the absence of a creed or the alleged compatibility with the Catholic religion;
g) the remitted Judge had found Scientology to be criminal by emphasizing its orientation towards money, which had already been considered as not being an obstacle to the recognition of a religion wishing to fund its activities by selling its own services; the Judge had thus violated the findings already reached.
h) proven crimes were not found to have happened in the standard operational basis, but they were found to be occasional deviations from general rules of conduct, a circumstance which _ along with the lawfulness of institutional purposes _ cannot but reflect on the alleged wilfulness of each defendant who, in his conviction of being involved in the realization of lawful goals, could not be aware of participating in a criminal conspiracy;
i) in view of the fact that a few instances of deviation could not be made to look as a generality, and lacking more solid objective connections, the convergence of behaviours attributed to staff members and the uniform methods of committing the crimes ascribed to some defendants could be also attributed to being given the same directions as well as to the fact that the conditions in which they were operating were quite the same, and/or to the fixed pattern of the typical crimes ascribed to them.
In short, the Supreme Court, by insisting on the absolute importance of the investigation concerning the possibly denominational character of Scientology and on the cogent force of the argumentative route implicitly or explicitly worded in its rejection decisions; and by defining the omissions and violations brought about by the remitted Judges as violations of the findings already reached, has commanded the remitted Judge to clearly state his position on the denominational character of the association, and noted that, for the time being, such a character was attested by public recognition and in the by-laws; and that the elements to which the rejected decisions had attributed a contrary meaning had been interpreted by a wrong application of a law provision, as well as in violation of the Constitution as it refers to denominational freedom, and in violation of the findings already reached; that the appealed items can only be presented newly on the basis of further evidence, to be evaluated within the boundaries of the findings already reached.
In actual fact the Supreme Court, after two rejections, has provided a set of binding routes, leading to a pre-ordained result. After pointing out to the remitted Judge the proper interpretation of the indexes laid out by the Constitutional Court, it clearly explained that the accusation could not be continued further without more investigation that could overcome _ while still complying with the findings already reached and with the laymanÕs detachment adopted by the Constitutional Court on this matter _ the conclusions drawn from the evidence collected. Since there has not been any new evidence to the contrary at this stage with respect to the evidence that the Supreme Court used to formulate its radical criticism, there remains nothing but to acknowledge the fact that ScientologyÕs by-laws are compatible with the self-qualification that the association adopted for itself, and that the numerous decisions by general and tax court judges comprise that public recognition which the Constitutional Court includes in the list of not-in-the-merits criteria that can be used _ in compliance with a laymanÕs equidistance from denominations _ in order to determine if an association is actually a denomination.
In other words, lacking any further evidence that may overcome the Supreme CourtÕs objections, this Judge _ along with the Supreme Court - acknowledges the fact that the evidence collected do not lead to the exclusion of the denominational character of Scientology that is supported by its by-laws and public recognition.
At this point, it still needs do be verified - based what was submitted by the General Prosecutor, when she rectified during the Appeals trial what had been relayed from the Public Prosecutors appeal - whether the defendants had represented an independent criminal conspiracy within, and in conflict with, the denominational purposes of Scientology.
The defence counsels have appropriately noted that in order to follow the route proposed by the General Prosecutor at this Appeals trial, one has to ask whether the evidence utilised by the Judges in the first Appeals trial (absolutely unchanged) allows for a different evaluation within the discretional powers granted by art. 627, Penal Procedure Code; they also pointed out on the point that count of indictment no. 42 describes the formation of a criminal group by individuals who have acted on behalf of Scientology; that all the previous investigation conducted went in the direction of proving such accusation, which is the same one that the Investigative Judge utilised to indict the defendant; that the introduction of the third thesis (the one concerning "deviation by a group of believers who then became non-believers") ends up colliding - at least on the plane of logic - with Scientologys denominational character as already ascertained, since the thesis that there was an agreement between individuals who, after years of working together, decide to form a criminal association (that is against the principles they had followed so far) without any personal profit, demands that one determine whether the alleged criminal agreement is supposed to have come from the converging willingness to bring about an undetermined number of crimes conflicting with the purposes of Scientology for an excessive zeal or for other reasons that the General Prosecutor has not explained, while noting that the wilfulness required by the law provision of art. 416 does not require a profitable purpose.
In fact, having abandoned the thesis of the whole organization turned criminal, an organization of which the defendant are still members today (the first trial Judges had exposed the contradiction of such an assumption, since the Public Prosecutor had not indicted all members but just a fez of them), the issue of submitting evidence that there had been a criminal agreement between some staff members and a number of directors to procure the funds needed through illegal means, becomes crucial. Scientologys denominational character as found in the trial (therefore the lawful nature of its activities) radically changes the plane of the discussion since, in that case, the alleged criminal agreement between the defendants can no longer be supported by the lawful associations organization and directives, but only by a specific agreement between a given number of staff members and directors of given branch offices, aimed at eluding the institutional ends of the denomination. But, if it is true that human behaviour with a purpose tends to be related with rational choices, and if it is true that Scientology is a denomination pursuing lawful ends, then it becomes inevitable to try and explain - on the plane of logic and of evidence - the not-so-common situation of a few members who, according to the prosecution, decide to build a criminal group within a (lawful) denomination in order to commit crimes against property thus violating the principles of the confession they still belong to, not to profit personally but to bring about an advantage for the denomination itself.
The prosecutions argument was begun by reference to the positions of defendants Nova, Parrino and Rinaldi, who committed crimes against property by practising the hard sell of goods and services provided by Scientology to mental patients (a class of individuals that is excluded as possible users based on one of Mr. Hubbard's policies) or to drug addicts, taking advantage of the frailty of such subjects, who became convinced without much effort of the sure possibility of achieving positive results. It was noted that these defendants, although aware of Mr. Hubbards directives on hard sell, had violated them by following the same operational methods; they had committed the same type of crimes by operating - sometimes together - within an organized activity in their specific function of salespeople that was assigned them by Scientology, without any personal profit; all three of them had used the same premises and the same means of the organization in order to commit the crimes; all three, together or individually, had started hard selling with absolutely the same behaviours and the same objectives. And since the three defendants had different personal characteristics and backgrounds, they could not have acted randomly in applying Mr. Hubbards directives on how to sell services in the same distorted way, hence the circumstantial proof of an agreement between the three of them, a number which suffices for the formation of a criminal conspiracy. Not only there was the similarity of behaviours, there was also the same way of violating the same directives by Mr. Hubbard.
The prosecution later extended the foregoing conclusions also to the positions of other defendants who had played the roles of material executors, once again noting that such defendants had realised criminal behaviours by applying in the same distorted way the same directives by Mr. Hubbard on hard sell within an organized activity and while performing their assigned duties, availing themselves of the associations ways and means and taking no personal profit. Staff members in branch offices, too, had not varied much from the behaviours that were found with their counterparts at Milan, and they, too, had operated as Scientology staff members, by utilising the facilities and means that they had available as such, while following the guiding principles on hard sell that were given in Mr. Hubbards directives, with a convergence of methods and intentions which postulated a previous agreement.
Finally, the proof of the moral participation in the criminal agreement on the part of the directors (who have had no direct crime found that they had committed) was also provided on the fact that the staff members behaviours were so uniform and repeated that, having met with their senior officers appreciation, could only be looked upon as the result of precise directives ratified by the above mentioned senior officers.
The Supreme Court drew a line to separate the two planes. As to the field operators, it rejected as illogical (thus no longer valid) the idea of having necessarily to trace back to a criminal conspiracy the mere repetition of criminal behaviours by a few staff members. Having established that the crimes ascertained were not found to belong to the standard operational basis but as occasional deviations from general rules of conduct, the Court noted that the mere repetition of some crimes characterised by similar behaviours, along with the lawfulness of the associations purposes that benefited of the revenue, cannot reflect of the wilfulness of each single defendant who, being convinced he was participating in the realisation of lawful purposes, could not be aware of his participating in a criminal conspiracy. With an ironic tone that nearly resembled sarcasm, the Supreme Court has noted that, lacking more solid, objective connections, one could - on a rational plane - attribute the cause of uniform commissions of crimes by some of the defendants, as well as the convergence of behaviours, to the combined facts that the were the same directives, that their individual operational bases were quite similar, and that the typical crimes ascribed to them are quite fixed in pattern; all three factors with equal legitimacy.
What the Supreme Court means by this, is that the supporting elements given as proof of the prosecutions assumption were especially frail, and that they will lose all their absoluteness once they are again led into a frame where it was not the individual defendants who profited, but the lawful association. In other words, a greater attention to the context and a greater willingness to listen neutrally would have easily assisted in overcoming the seeming nonsense of followers who violate the Law without personally profiting, in order to cause an advantage for their lawful association (of which they are still the members); it would have sufficed to realize that the violations were only accidents along the way, in the framework of an activity carried out for the legal purposes of the confession, due to too much zeal. With this we do not mean to say that the behaviours of some present defendants have not been blameful. We simply mean that it is not possible to infer the existence of a criminal association from these behaviours, on the basis of abstract and completely arbitrary considerations, basing on the fact that the defendants, though they knew Mr Hubbard's directions on hard sale, they violated them with similar operational ways. If we examine the thing, it is enough to consider the similarity of the conditions of the action in which the defendants operate, to explain some exaggerations related to a hard sell characterised by competition between sellers. And the typical, repetitive scheme of the violations is enough to explain some external analogies with the typical strains learnt by the sellers who studied on the handbooks of hard sell.
The Court of Appeals that has judged after the first remittal of the Supreme Court, has grasped the difficulty to base the evidence of the existence of a criminal association (which assumes the programmed repetition of criminal behaviours from which to infer the existence of directions) on totally incidental and casual violations, and has held to overcome difficulties with the hypothesis of a criminal agreement originated by a directive that told to pursue the success of the hard sell without withdrawing, in front of rebel customers, not even from a crime. It is evident that it is a subsequent work out, aiming to show a direct crime, which seems to be the recognition of the non-programmed character of the violations and that has induced the Supreme Court to suggest the judge of the remittal to find more solid safe points on which to found the charge.
The Supreme Court has also treated the theme of the incrimination of the managers hold responsible, following the incrimination hypothesis, to have taken part to the thing, because they would be the authors of the supposed directions that led to the criminal behaviour, or because they had appreciated the diverting behaviour of the operators and the had actually approved it, allowing the association to take advantage of the income from the crimes.
Now it is enough to remember that in this phase the matter is no longer a possible moral participation of the managers in the specific charges, but of their possible participation in the matter. The conclusions this Court drew about the authors of the specific crimes, who were considered not suitable to prove with evidences the existence of a criminal association among the charged operators, allow to exclude any question about the moral participation of the managers.
To give complete reasons it is remembered that Supreme Court has sentenced that the inference practised by the previous judges of remittal is a violation of the law, observing that, assuming that the managers knew the violations committed by the juniors and then founding on this assumed conclusion , on the basis of further assumptions, the evidence of their participation to the criminal association, is a violation of the law as the praesumptio de praesumptio is not admitted. If under certain conditions it is correct to assume that a criminal association underlies the specific crimes, it is not allow to assume that directors know the actions of their juniors and then infer, from that assumed knowledge, the participation to a criminal association.
To conclude, the judge of the first degree had excluded that in the trial documents there was the evidence of such a criminal agreement. The judges of the appeal, instead, meant to bypass this lack of real evidence by criminalizing the whole association, so that the evidence of the criminal association became the existence of Scientology itself and the membership of the single members to the association, which gave the directions and the organizational support.
When ascertained that Scientology had legal aims; that wrong behavior did not come out ordinarily; and that the diverting staffs have never taken advantage of the violations they committed, a correct evaluation of the context requires recognizing that the repetition of the violations has had a casual course, originated by a spirit of emulation, which at a certain point has featured the behavior of the salesmen engaged in hard sell based on a kind of push that makes the customer say yes as he is tired of it. To explain the episodic criminal behavior the decisive considerations of the Supreme Court are enough: the annoyance and the boredom of the approach practised with hard sell can become annoyance, circumvention (if the person is in a condition of inferiority) or fraud if the limit that parts the dolus bonus from swindle or cheat. Excess of zeal and individual wish to emerge were at the basis of the push that in some cases made hard sell look like a crime, every time that the push has become psychological violence or cheat. It is useful to note with the Supreme Court that repetition (episodic) and analogy of the behaviours were not necessarily originated by directions, as it is enough to explain them with the identity of the conditions of the actions in which the defendants operated (excesses in the competition between sellers) and the stiffness of the violations that originated from the excessive zeal of sellers engaged with exasperated spirit of emulation in the hard sell. They are exaggerations that spring out of a quickie acculturation that the sellers learnt on the handbooks of the door-door sell. It confirms the evaluation that comes before the assessment that the income from the violations were given to a legal association without advantages for the diverting operators, a circumstance with conclusive negative reflections on the awareness to be part and feed a criminal association. The previous considerations are referred to all the services sold both by Scientology and all its articulations.
The first degree decision must be confirmed for the point that a criminal association amongst the present defendant does not exist.
FOR THIS REASON
SEEN ART. 523 AND 524 penal procedure code 1930, deciding in the remittal judgment concerning the count of the decision Court of Milan 2-7/26-7 1991 concerning the criminal association charged at count 42, it confirms the above decision for the above listed defendants.
The writing president
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