CESNUR - Centro Studi sulle Nuove Religioni diretto da Massimo Introvigne

CESNUR 2005 International Conference
June 2-5, 2005 – Palermo, Sicily
Religious Movements, Globalization and Conflict: Transnational Perspectives

Alternative Religions Through the Mirror of Personal Law

Aleksandra Kanalec Ivancic LL.M. (Koper, Slovenia)

A paper presented at the 2005 CESNUR Conference in Palermo, Sicily. Preliminary version – do not reproduce or quote without the consent of the author.

In my article I will talk about problems in Slovenia related to the legislation on the freedom of conscience. I will be occupied with matters regarding personality rights and the rights of reparation for violations of those rights – freedom of conscience connected with new religions, including personality rights of children in new religions and their families. I will search problems arising in the area of new - alternative religions. I will try to answer some questions, which concern the relatives' connections regarding violations of freedom of conscience in Slovenia. In that case I will be interested in situations of violation of the freedom of conscience, the legal status of religious organizations and religious movements in accordance with the collective and individual freedom of conscience.

The basic legal framework of the relations between state and religious organizations is contained in Article 41 of Constitution of the Republic of Slovenia (hereinafter: CRS),[1] Article 9 of the European Convention of Human Rights (hereinafter: ECHR)[2], Article 14 of the United Nations Convention of Children’s Rights,[3] which regulates the freedom of conscience, and the Law on the legal status of religious organizations from year 1976, which was taken over from the legal order of ex-Yugoslavia in a changed and amended version.

In December 1993 the government of Slovenia established its own office for religious communities. The constitution does not explicitly require a new law, but because the 1976 Law is obsolete and has some deficiencies, a proposal for a new law about religious organizations was made. The proposal still uses the term "faith organization", eventhough it is ment to define the narrow definition of affiliating, which is contained in the term "religious organization", which I will use in this article. The proposal for the new law is based on the basic principles of separation between state and religious organizations, equality of religious organizations, freedom of action, voluntarism, non-profit orientation and publicity. The basic principle for organizing the right of freedom of conscience and religious freedom is that the religious community should be established only for the purposes of attending such religious activities which are compatible with Slovenian law (see first paragraph of Article 2 of the proposal of the new law about religious organizations (hereinafter: PLRO).[4] The 1976 Law did not regulate the conception of religious communities. The proposal of the new law understands it like “voluntary,” non-profit association of physical persons, who meet for some religious persuasion, with the aim of confession of someone’s faith because of attending religious actions (Article 1 of  PLRO).

I beleive that the situation for new religions in Slovenia is rather good. Irrespective of this I would like to present some deficiencies. The first one is the registration for new religions. On the basis of the current law, new religions can only register their operating at the Office for religious communities of the government of Slovenia or register like any other association. The proposal of the new law provides obligatory registration where the applicant has to present the basic information about the content of its belief. Problems appear because the current law and the proposal of the new law does not determine the basic information needed to register and there are no criteria for the determination of the fact that a new movement is a religion or not. If we do not have enough information, we cannot judge if the religious organization represents a serious threat for the society because of possible unreligious elements or destructive cults, which represent a great threat to the social stability and are against the public order. These criteria should be written in law. According to the proposed law, when the new religions registrate they automatically become legal persons of civil law whereas on the basis of the current law we have to find out, if some religion is a person of civil law or not in every individual case. So far, the office for religious communities rejected the application of some new religious organizations. They appealed to the Constitutional court and the appeal is not resolved yet.

It is my opinion that the registration of religions organizations in our legal order should be allowed, if they are not acting contrary the public order or morality. Many of the thirty-one religious and spiritual movements,[5] which applied for operation in our country are treated by many european governments as destructive cults, like for example Church of Scientology.[6] To understand the theory, I will also present some concrete examples on the possibilities religious organizations an individuals have in our legal system if their freedom of conscience is violated.

Problems could appear if the Office for religious communities rejects theirs registration. In that case the religious organizations cannot represent themselves in legal proceedings like legal persons of civil law. The current law does not provide procedures if the office rejects their registration. Religious organizations can appeal against such decision. In case of a negative decision, they have also a possibility of legal protection at a specialized court, the administrative court. In proceedings they can plead, that the rejection of their registration, which is based on a lack of criteria for the rejection of application and without legal basis, its against to the freedom of conscience, which is contained in Article 41 of our Constitution.

The court should resolve the problem in different ways. If it stays on the viewpoint that legal possibility of application at the office for religious communities does not include the procedure and criterias for the justification of application, it is necessary to ensure the constitutional freedom of conscience. In that case the registration should be allowed. This could be forbidden only in case if new religions acting contrary the public order or morality or if their operation contains elements of penal action. Until now our jurisprudence did not try such cases. In case the court will try them it will have to bear in mind that the viewpoint, which bring limits to the religious organizations, for example that they can perform their religious activities only in specific buildings for religious operation, which should remain in present number, is unconstitutional. The analogical solution could be taken from the decisions, which have been accepted in matters about political parties.[7] That kind of decisions are against the freedom of conscience.[8]

The court can stand also on the viewpoint that on one hand the current law does not provide the conditions for the admission of the legal personality, whereas on the other the new law is not regulating this subject. In that case the legal persons of civil law can become only the international religious organizations, which acted in Slovenia like religious organizations before the admission. This would mean that this religious organizations have certain acquired rights, so that at registration it is not necessary to find out if the religious organization is religious or not. It is also possible to state, that the religious communities are not admitted like the legal persons of civil law. In that case they cannot be subject of rights and obligations and consequently they cannot represent themselves in legal proceedings.

I beleive that the first decision is the best, because any religious organization has the right to represent itself in legal proceedings like legal person of civil law, also untraditional ones. If this right is not ensured to religious organizations, their freedom of conscience is violated. However the decision of the court should be well argued according to the law. Freedom of conscience should be insured not only for the individuals, but also for the religious organizations, like the legal persons of civil law.

Many difficulties in our country occured also with the Islamic community, because the state still did not find an appropriate place to build its sacred object. The procedures for acquire the permission to built are not resolved yet. There were anticipated more locations at the periphery of the city of Ljubljana. Finally a location at the south of the city was chosen. There are also difficulties because of the ground, which is very wet and specific. For that reason they still did not acquire all permissions for starting to build the sacred object. Also the public opinion is against it. Many people do not approve the Islamic community, because they think that the sacred object will be just a cover for terrorist activities in our country. The ombudsman also made complaints at the office for religious communities and prompted it to do something to resolve this problem.

My opinion is that until we do not have any evidence of terrorist activities in sacred object, we should allow its constriction. In meantime we have to ensure a provisional substitute location for religious ceremonies. Any actions that are contrary to this represent a violation of the freedom of conscience.[9]

Also the Catholic Church, the dominant religion in Slovenia, has problems with religious freedom when some individuals caused material and nonmaterial damage. On the occasion of the celebration of the Ascension day, a group headed by Marko Brecelj wrapped the bells of a church with carpets, so that they could not bell in the time of the bishops' mass. When the police arrived, the leader said that in this way he made quite the clericals. The event was also filmed by our national television.[10]

The both examples are contrary to the positive and negative freedom of conscience, which includes the right of non-religious individuals and also the rights of different religious individuals to express theirs religious definition, and they indicate religious impatience. The law practice stands on the viewpoint that the non-religious and otherwise religious individuals cannot avoid the confrontation with the religious symbols and buildings in the sense of their negative religious freedom, which give the right to non-express theirs religious definition, with the religious individuals that have the right to express theirs religious definition.  

With regards individual and collective freedom of conscience I will hereby present under what conditions can the religious organisations recruit their members, when someone can became the member of religious organization, in which circumstances members justifie the right of reparation for the violation of personality rights (the reparation for physical and psychical pains). Problems appear when the religious organizations violate someones' religious believe or persuasion with the aim of interfering and changing the religious believes or persuasion. What possibilities have in that case individuals, especially children? They can start criminal proceedings in case a crime has been committed. What about cases when religious organizations try to breach the religious believe of some individuals in order to change his religious believe? We will not find the answer in the law about legal position of religious organizations, [11] but in the paragraphs of civil law.

Anyone can become the member of religious organization under the same conditions. There are differences between members that are performing their religious persuasion collectively and individuals that are performing their religious persuasion individually, especially in relation to the form of  the individuals' consent. When individuals enter in religious organization they have to submit their orders, whereas non-members only accept fundamental rules of some religion. The agreement should be free in both cases. Any interference in the direction of changing the religious believes like mental manipulation and brainwashing are forbidden. Also the physical integrity of individual members and non-members should be respected. This is against the Article 3 of ECHR and Article 34 of CRS.[12] But an individual can accept the physical violence. The religious organization is obligated to forbid the physical violence of its members and third persons. In case of physical violence the individual has the possibility of penal action. In that case is also the religious organization obliged to start such actions? The religious organizations have also duties to prevent the members to be hurt by the organization itself.

Extent of legal protection is different also according to the fact that the member is an adult or just a child. Also the ECHR in the 1. paragraph of Article 37 prohibits cruel, inhuman and other degradation treatment or punishment. The religious organizations are obliged to protect the child in front of physical and psychical treatment and also protect the child from abuses, negligence, exploitation, torture and careless treatment, also sexual. Like individual adults, also children have the possibility of penal action and also the religious organizations are committed to start them.

The question is how can an adolescent become a member of a religious organization if he does not have capacity to act? The adolescents cannot become a member of a religious organization until a certain age. Our law[13] allows the inscription into a religious organization of adolescents which are 7 years old, but under the condition that the parents sign for them. Between age 7 and 15 the parents are obliged to declare the written agreement. In all this examples is necessary to take into account the benefits of the child and its own will, which should be free and should be evaluated in accordance with the childs' age and maturity.[14] What if the child does not agree with the decision of his parents? Is in such case necessary to inform the social protection? Also in these cases we have to weight the benefit of the child. Judging the childs benefit is a very heavy decision, if the child is in an age when he is able to sense the consequences of his own decisions. Judicious children have the right of protection of their personal rights in the institutional form of legal protection against decisions of his parents and third persons. Also the injudicious child, who is not able to sense the consequences of his own decisions, should have the possibility of a legal protection equal to the protection afforded to the judicious child. In both cases our law practice stands on the viewpoint that parents do not represent the child, but they are acting in his own name, because the representation and freedom of deciding are in direct opposition.

I will present an example of what legal possibilities an individual has in case of violation of his personality rights. He can file a complaint at a civil court and ask for the reparation because of violation of personality rights (the reparation for physical and psychical pains), which is the result from illegal intervention of religious organization. The individual will normally assert that the religious organization invited him to be the member of a religious organization under fraud. The religious organization invited the individual to be its member under the pretension: the oganizations said that if he will became its member, he will receive some benefits. The individual was an average citizen with a doctorate in area of legal science. His employment was under the average, if compared to other persons of his status. Members of that particular religious organization were from high society. If the individual will accept to be its member, the religious organization will insure him the employment appropriate to his knowledge and abilities. In same time he will become the important member of high society and his payment will be very high.

The religious organization managed to invite the individual to become her member. As soon as the religious organization managed to invite the individual to became her member, it obliged him to do some activities against his will, like for example, that he had to cooperate with individual members of religious organization, which have important positions in high society. These sociable meetings were passing at specific places in exotic areas, the voyage and installation expenses, which were very expensive, have to be covered by the members. Expensive were also the subscriptions. At that kind of meetings they were acting also the religious activities which were compulsory. If someone did not participate on this activities, he was hit with sanctions.

When the pressures directed to convince the individual to do the desired activities become very frequent, they were already on the limit of a breach of the freedom of conscience. The individual complained at civil court and asked for the reparation because of violation of personality rights. The responsibility of religious organization is in that case culpable. Our Law on obligations (hereinafter: OL)[15] in that case defines that the one who causes the damage is obliged to repair it, except if he proves, that the damage arose without his guilt. At culpable responsibility that causes the damage, has to prove that the damage originated from forbidden action, that the damage exists, the cause connection and the responsibility on the side of person who causes the damage.

The religious organization defended its interests with the legal position that the individual decided to join the religious organization on his free will. Religious organization explained him her priorities, which he will acquire with joining the religious organization, but it did not affect his decision. The religious organization said that it did not practice any pressures for joining its activities in the form the member described and pronounced any sanctions for the respect of its rules. The religious organization stated that it just recommended how could the member improve his spiritual development. Only if he will improve his spiritual development, he will be able to understand its functioning.  

The court should find out if there are any grounds for the  responsibility for damages, because the guilt exists if the person causes the damage on purpose or carelessly.[16] If the court will find out, that the individual joined the religious organization of his free will, this would mean that there are no grounds for civil responsibility. The court will also have to find out if there exist any paper evidences concerning the rules that should be complied in order to join the religious organization. Above all the court should find out whether that rules limit individuals decisions and if the individual accepted those rules when he joined the religious organization. It would be also necessary to interrogate other members of the organisation on their experiences with the membership and to find out if there exists any practices of influencing and changing the religious believes which are illegal and appear in the form of pressure. In court procedures it will be also necessary to appoint an expert psychologist or psychiatrist, who will evaluate if such possibility exists and if that happened in the concrete case. A lot depends on individuals' personality, since there exist differences between individuals susceptible for opinions, suggestions and recommendations of other people.

If, on basis of the expert opinion, the court will find out that the religious organisation influenced the religious beleive of the individual with affection on his decisions when he joined the religious organization and if, in addition, the court will also have paper evidence and declarations of witnesses that the damage is done, the court will have to decide on the amount of damage caused.[17]

Also in this case the expert has to find out the altitude of psychical pains, which have been caused to the individual. The basis for judging will be the experts' opinion. The court could also find out divided responsibility between the parties according to the contribution of the individual and of who caused the damage. In that example it will judge the reparation in percentage of contribution according to one and another party.

In such cases it will be very hard to prove the illegal intervention on the individuals' freedom of conscience. If it will be possible to prove it, the individuals will not have very much written evidence to prove their assertions. The witnesses could approve or deny such intruding. Their declarations may be unauthentic, because any individual experienced the contact with religious organization and her members in a different manner. The instructions were in many examples given in absence of other members, individually. The individuals in most cases decided to join the religious organization freely or with the purpose of their presence at different religious ceremonies. In many cases individuals did not sign any papers when they joined the religious organization, their inscription is in most cases based on oral agreement. The conclusion is that it will be very difficult to prove the reparation because of violation of personality rights (the reparation for physical and psychical pains), because the potential damage is immaterial, it is not visible on individuals, it exists only in theirs psychical spheres.

My conclusion is that the tradition causes falseness in resolving problems and the freedom of conscience is out of this decisions. The question of different types of religions is still unsolved. The traditional rules dominate in all parts of the world. In future should be done something more to change this situation.

[1] Constitution of Republic of Slovenia (CRS), Off. Journal. of RS, No. 33/1991 – I;

[2] European Convetion of Human Rights and Protection of Human Rights and Fundamental Freedoms, Off. Journal of RS, No. 33/1994, International Contracts 7/1994;

[3] Convetion of United Nations of Childrens Rights, Off. Journal SFRJ - International Contracts, No. 15/1990, Act on  nostrification of the sucession of conventions of the United Nation Organization and convetions, adopted by the Internetional agency for atomic energy, International Agreements, Off. Journal of RS, No. 35/1992, 9/1992;

[4] The Proposal of the law on religious organizations (PLRO). Available at: http://www.sigov.si/dz/si/aktualno/ spremljanje_zakonodaje/predlogi_zakonov/predlogi_zakonov.html, 25.4.2005;

[5] The following religious organisations have applied for registration at the office for religious communities: Roman Catholic Church, Evangelistic Church, Serbian Orthodox Church, Islamic Comunity, Pentecost (Whitesunday) Church, Jesus Christ Church of Brothers, New Advent Catholic Church, The Union of Babptistic Churches, Jehovahs Witnesses, Jewess Comunity, Free Church, The Comunity for Hare Chrisna Consciousness, Free Catholic Church, United Church, Universal Life, New Apostles Church, International School of the Golden Rosycross (Lectorium Rosicrusianum),Church of Jesus Christ of Latter Day Saints, National Bahamas, Ordo Temples Orientis – O.T.O., Christian Reformed Church, Šri Radhakunda – Comunity for Conscensness of Šri Gourange, Universal Gnostic Church, Macedonisch Orthodox Community, Buddha Dharma, Church of Scientology, Church of Jezus Christ “Live Woter,” Church of Eternal Connection, Evangelistic Baptistic Comunity and Macedonisch Christian Comunity;

[6] G. Lesjak: Nova religijska in duhovna gibanja v Sloveniji (New religious and spiritual movements in Slovenia), Teorija in praksa (Theory and practice), Letnik (Annual 38), (2001), 6, page 111 – 117;

[7] See judgment VS RS, U 1200/95-8; Available at: http://krn/baze/sovs/b/vs12129.htm, 25.4.2005, page 2;

[8] See judgment VS RS, U 1200/95-8; Available at: http://krn/baze/sovs/b/vs12129.htm, 25.4.2005;

[9] Ombudsman office : Anual report 2001: Milena Ule: Varuh opozoril na delo in kršitve vlade, policije in problem džamije (The ombudsman notice on the work of the government and police in relation to the problem of dzamija): http://www.varuh-rs.si/cgi/teksti-slo.cgi?novkonfmar02, 25.4.2005;

[10] Božo Rustja: Zaželjena nestrpnost? (Whished impatience?), Družina (Family), No. 34, 24. August 2003;

[11] Law about the legal position of religious organizations in Slovenia (LLPRO), Off. Jurnal. of SRS, No. 15/76, 42/86 and RS 22/91;

[12] As in case Campbell and Cosans, judgment on date 25.2.1982, Series A, Vol.48, § 36;

[13] See the 2. pargraph of aricle 5 of the Law obout associations (Off. Journal of RS, No. 60/95 and 89/99);

[14] The right of parents is contained in Article 4 of the Law on marriage family relationship (hereinafter: LMFR), Off. Journal of SRS No. 15/76 to 14/89 and RS No.13/94 to 64/01 and 1. pargraph of article 54. of CSR;

[15] See article 131 of OL;

[16] See article 135 of OL;

[17] That will be possible on basis of article 179 of OL;