AUSTRIA

A controversial CD-Rom with information in 350 religious and philosophical groups

Opinion of Dr. Christian BRÜNNER, Professor at Graz University

Dr. Christian Brünner (03.04.2003)/ HRWF Int. (10.04.2003) - Website: http://www.hrwf.net - Email: info@hrwf.net  - The subject of the analysis is a CD-Rom containing information on over 350 religious and philosophical groups and movements. The preface is created by Mr. Franz Hiesl, Deputy Head of Upper Austria Province Government, Mr. Willi Vieböck, Bishop Curate of the Linz Diocese, and Mr. Andreas Girzikovsky, Psychologist and Theologian and Head of the Counselling Authority on Sects of the Linz Diocese, who is responsible also for the editorial arrangement of the CD produced in March 2002 in Linz. This identifies the CD as co-produced by government and non-government institutions.

The contents of the CD, as per its preface, embraces the following items:

1.     Is there any sense in

2. Sects, Knowledge Protects Against Abuse
3. Sects, Ignorance/Knowledge and Nuisance/Nature
4. Infos on Religious Groups and Movements
5. Linz Correspondence Course Groups
6. Linz Correspondence Course Sects
7. Pictures and Cartoons and Cliparts.

Speeches and articles published in previous years are reproduced, leading to the most extensive part of the CD, a list of information on religious groups in alphabetical order, registered or not.

The contents of the CD is made accessible to schools via Intranet.

The question, whether the facts given in the CD are true or not is not subject of this analysis.

A. Constitutional Law Aspects

1. Legal Qualification of Governmental Information

Although the information activity of the governmental Counselling Authority on Sects Issues in Austria is considered no infringement of the constitutional fundamental right of freedom of conscience and denomination, it has to be qualified as an act of indirect administrative power of order and constraint.

"In brief, it can be said: Since acts of governmental information activity on religious and ideological groups definitely touch the fundamental right of religious and ideological freedom, such acts, being an exertion of direct administrative power of order and constraint, can be fought by complaint with the UVS (Independent Administration Senate) as per Art 129 a B-VG. Furthermore, it is open to anybody to file a complaint with the Courts of Public Right."

The relevance on fundamental rights of governmental information activity on "sects" is also emphasized by the German Federal Constitutional Court in its legal protection argument.

Meditation Associations of the so called Shree Rajneesh- Bhagwan- or Osho Movement lodged a constitutional complaint about the information by the German government naming the Rajneesh community "sect", "youth religion", "youth-sect" or "psycho sect" and labelling it "destructive" or "pseudo-religious" as well as publicly claiming that community members are being manipulated secretly (closed to the public), and thus claimed the violation of Art. 4 Para 1 and 2 of the Fundamental Law covering the fundamental right of Freedom of faith, conscience and denomination. The Federal Constitutional Court concluded that the use of the attributes "destructive" and "pseudo-religious" and the charge of member manipulation do affect the guaranteed right of the complainant for a decent treatment in view of his religion or ideology by Art. 4 Para 1 and 2 Fundamental Law, although the characteristics of an infringement of the Fundamental Law in a conventional sense would not be given. An infringement of the Fundamental Law would normally mean a legal form procedure. The description of the Rajneesh Movement, however, did not happen in a legal form but by governmental information and unfavourable effects on the individual community were accepted. The statements mentioned did have a direct factual effect on the complainant. This does not prevent matching such statements with Art 4, Para 1 and 2, of the Fundamental Law, since the Fundamental Law does not tie protection against impairment of the fundamental right to the idea of infringement nor does it define it as regards the contents. Indirect factual impairment of the Fundamental Law Art. 4, Para 1 and 2, would not to be blamed only in case they constitutionally could be sufficiently justified. The German Federal Constitutional Court, does not either stress a particular legal form of infringement, however, it emphasizes the fact of direct impairment of the fundamental right.

2. Infringement of the Fundamental Right on Freedom of Religion and Ideology

In any case does governmental information on religious and ideological communities touch the fundamental right of freedom of religion and ideology.

The constitutional basics of "freedom of thought, conscience and religion" date back to various epochs of relationship between government and religious communities. Worth mentioning are Articles 14 to 16 StGG of 1867, Art. 63 of the Treaty of Saint Germain 1919 and Art. 9 of the European Convention on Human Rights . Their "consistency" can only be attained by interpretation. It has to be proceeded from the assumption that the two latter have cancelled the first one to the degree that nowadays followers of legally recognized as well as of non-recognized religious communities are entitled to publicly practice their religion, as far as this is not conflicting with public order or morals. So far as per Art. 62 of Saint Germain Treaty. The constitutional standard of Art 9 Para 2 of the European Convention on Human Rights … contains more detailed rules, determining form and contents of allowed restrictions.

Art. 9 of ECHR not only guarantees individual freedom of religion but also corporative freedom of religion. A religious community, too, may claim its right of religious freedom. Just like individual religious freedom includes the right of self-determination for the individual, the corporative religious freedom which is derived from the individual freedom of religion, must, too, include the right of self-determination with regard to religious internal affairs. A contrary view on the subject would lead to a heavy restriction of corporative freedom of religion, for which there is no foundation in Art 9 ECHR.

Purpose of an examination would be to find out if the goal of public interest is in sound proportion to the reduced fundamental right.( Theo Öhlinger, Constitutional Law)

As to the threat or dangerousness, the law omits definitions for these terms. The matter derails completely, when the law mentions threat "that did not or did not yet reach the point of criminal acts".

Since it is the purpose of the law covering governmental Counselling Authorities on Sects Issues to document threats emanating from sects and sect-like activities, and to inform the public about that, the law obviously authorizes inferring from the behaviour of an individual to the behaviour of an entire group.

Such conclusions attack the legal position granted to a community. They are - because oriented towards an individual - unsuitable for judging an entire group and they contradict the general objectivity rule derived from the Equality Law.

Personally, I think that protection of the individual’s position in the fundamental right of religious freedom would be better secured on a broader basis, if in families, schools and universities, churches and religious communities, in associations and parties, the individual person would be encouraged to be critical towards his own family, his own teachers, his own church and religious community, his own association, his own party, his own seniors, the authorities, the powers, gurus, etc., who ever wants to rise above him, and to be sure to live what serves the development of his own personality and not to live what others want him to.

Because the critical, self-confident individuals are in a better position in the contact with sects, if those really wanted to restrict and exploit the individual.

Special interest deserves, however, a decision of the European Commission for Human Rights about governmental information activity in connection with a 1996 complaint by Universal Life against Germany. In fulfilment of his function to inform the public on matters of general interest, the state is entitled to pass on information in an objective but critical way, if such information does not aim at agitation and indoctrination, thus jeopardizing freedom of religion.

In its verdict Manoussakis versus Greece, the European Court for Human Rights explains : "In limiting the scope of discretion in view of this case, the Court has to consider what is at stake, i.e. the need of ensuring true religious pluralism which is an inherent feature of the idea of a democratic society. … Furthermore, there must be attached legal importance to this need, if decision has to be made as per Art 9, Para 2 (ECHR), whether the restriction imposed to the pursued entitled party was proportional. The restrictions … of religious freedom … require stringent examination by the Court."

As mentioned earlier, the Federal Law on Counselling Authorities on Sects Issues is not applied to legally recognized churches and religious communities and their affiliates (§ 1, Para 2, leg cit). It is questionable whether or not religions denomination communities are subject to this Law.

§ 5 of the Federal Law on legal status of religious denomination communities, BGBI I 1998/19, cites the reasons which may lead to a denial of an acquisition of the legal status. Someone may be deprived of his legal status, if conditions as per § 5 for a denial of legal status exist, provided that he continues in spite of an incitement to bring the reason for denial to an end. Since the denial and deprivation reasons stated in the Denomination Communities Law are generally identical with the threats and dangers of § 4, Para 1, in the Federal Law on Counselling Authorities on Sects Issues, it has to be proceeded from the fact that a denomination community which has attained legal status is to be considered as not dangerous until its deprivation of the legal status. Consequently, so Jürgen Noll, when "Sects" are communities emanating threats, and when such threats must not emanate from denomination communities registered with the state, those just are not "Sects" in the sense of the Federal Law on Counselling Authorities for Sects Issues.

Another way leading to the same result - Jürgen Noll, points it out, too - would be a constitutional interpretation of § 1 Para 2 of the Federal Law on Counselling Authorities for Sects Issues. The objectivity rule in the Equality Law prohibits differentiation that is not objectively justifiable. In case the differentiation as per § 1 Para 2 of the Fed. Law on Counselling Authorities on Sects Issues between legally recognized churches and religious communities on the one hand, and denomination communities on the other hand, is not justifiable, the rule would be unconstitutional, unless one would, by a constitutional interpretation, wind up with a § 1 Para 2 of the Federal Law on Counselling Authorities on Sects Issues also applicable to registered denomination communities.

The reason for the legally recognized churches and religious communities’ exception from this Law is regarded as due to Art 15 StGG, which rules that legally recognized churches and religious societies are constitutionally protected with regard to their independently settling their internal affairs, including their affiliates. One would have to proceed, then, from the fact that it would be the problem of the recognized churches and religious societies to bring to an end any abuses within their affiliates. Since per Art 9 ECHR- as explained above - neither recognized churches and religious societies are granted the right of handling their internal affairs autonomously, this cannot be a reason for differentiation. Since there is no differentiation between the two types of religious communities with regard to prerequisites for acquiring legal status (both types attain their legal status only if they are not dangerous), there are only two hypothesis of interpretation: Either § 1 Para 2 of the Federal Law on Counselling Authorities for Sects Issues is unconstitutional due to its violating the objectivity rule under the Equality Law or it includes registered religious denominations by means of a constitutional interpretation.

The above specifications would apply to any legal acts of governmental information on religious and ideological groups. Thus would a regional government use the above described regime, which means, that such information activity would have to observe the above mentioned limits to fundamental rights.

The denial of a correlation between the validation of a community and its members contradicts all experiences. If a community is of ill repute, so, in general, its members will be so. The existence of such correlation of validation must be considered, therefore, in various legal proceedings.

The term "Sect" has never been part of the Austrian legislation. Only its use in the Federal Law on Counselling Authorities on Sects Issues made it a legal term again.

From § 2 of the Federal Law on the Authority for Sects Issues, a definition for "Sect" may be derived: Sects (or sect-like activities in the sense of this law) are religiously or ideologically oriented communities (or activities) which may involve threats in the sense of § 4 Para 1 leg cit - this rule specifies goods to be protected. Legally recognized churches and religious societies and their affiliates, as per § 1 Para 2 leg cit do not come under this rule. The same applies to registered religious communities which are granted legal status only when they do not involve any threats in the sense of the Religious Denominations Law, and the goods to be protected are generally identical in the Religious Denominations Law and in the Federal Law on Counselling Authorities on Sects Issues.

According to the understanding of RV by EB, that the mentioned Federal Law lacks precise factual elements with regard to the phenomenon of "Sect", this Federal Law would be constitutionally problematic already on this ground, because an infringement of a fundamental right needs, amongst others, a legal basis with its contents sufficiently determined.

Consequently, there are "Sects" emanating threats - they are sects in the sense of the Federal Law. And there are "Sects" not emanating threats - they are not sects in the sense of the Federal Law. How to communicate this hair-splitting in a way that not any religious and ideological group which is called "Sect" by the public is deemed dangerous and therefore ill-reputed, remains undisclosed.

The Austrian Constitutional Law is characterized by the rule of the states’ religious neutrality. Religious and ideological freedom is protected by constitutional rights. Thereof derives the legal duty of the state to refrain from validation or from encouraging public validation.

The Federal Law on Counselling Authorities on Sects Issues does not comply with this legal duty.

A denomination labelled "Sect" by this Authority would never get rid of this negative image, even if it would be proven not dangerous in appeal proceedings.

The Institute INFORM in London has the same problem, although they are using the term of „new religious movement". Eileen Barker, founder, writes with regard to this: "There is ... one point that ought to be made right from the outset: the use of the term 'new religious movement' does not imply that a movement is good or bad, that it is true or false, or genuine or fraudulent. Many scholars working in the field prefer the term 'new religious movement' to 'cult' because, although 'cult' (like 'sect') is sometimes used in a purely technical sense, it has acquired negative connotations in every parlance. While it is certainly recognized that a number of the NRMs have given rise to legitimate concern, it is neither necessary nor helpful to start from the implicit premise that movements are always 'a bad thing' ".

The Enquete Commission "So-called Sects and Psycho Groups" of the German Government refuses the use of the term "Sect" because its negative connotation. This refusal is supported by the outcome of the Commission’s work, that only a minor part of the groups until then bundled up as "Sects" were problematic. "Therefore, a continued use of the term "sect" for all new and religious ideological communities would be negligent". It would be desirable especially for information booklets from the part of state authorities, so the Commission, that the term of "sects" be avoided.

In a constitutional appeal, the meditation associations of the so-called Shree Rajneesh-, Bhagwan- or Osho-Movement have reprimanded the state for attributing them „sect, „youth religion", „youth sect", "psycho sect" in governmental information, thus disqualifying them and violating Art 4 Para 1 and 2 of the Fundamental Law in connection with freedom of religion. The Federal Constitutional Court decided that the use of these terms in the full variety of their meaning were not to be considered as violating the neutrality of the state dealing with religious groups.

3. Relevance of Private Business Activities by the State for Fundamental Rights

Although there is no special indication made, it may be anticipated that Upper Austria Province Government did financially support the CD-Rom in question initiated by legally recognized churches and religious communities.

It is nowadays undisputed that the state is bound to the Fundamental Rights when engaging in private business for handling tasks which are public tasks.

Conclusions: The Province of Upper Austria would have to secure the conformity to Fundamental Rights of the information on religious groups published by the subsidy receiver. This conformity to Fundamental Rights would include the obligation to objective and truthful information.

I would like to note that it could be a problem with regard to the state’s neutrality to assign a task of "Information on religious and philosophical groups" to a certain religious community. The neutrality imperative to a state would actually inhibit assigning this task to a certain religious community.

If information on religious and philosophical groups is considered a public task, then Linz Diocese would be bound to the Fundamental Rights Law in this information activity.

The German Federal Court has confirmed the official liability of recognized religious communities for culpable violation of duty by their employees working within the sphere of society. (§ 839 BGB (Federal Law) iVm Art 34 GG)

4. Law on Procedure

§ 4 Para 2 last sentence of the Federal Law concerning the Federal Authority on Sects Issues obliges the Authority to objective and truthful information. Unfortunately, the law does not offer any procedure rules for protecting the law, nor does it grant any rights for cooperation to the concerned groups with regard to documentation and information. Especially, the right to be heard. Legal protection rules would be needed. This lacking, it would be opportune to apply the fundamentals for legal state admin procedures stipulated in the AVG (General Admin Law) which includes the duty of investigating the facts and thus the duty to grant a hearing to the party concerned.

Relating legal state considerations and fundamental law relevant information activity by the state, the following "rights" may be derived: Concerned groups must be informed on their inclusion into pertaining documentation and information, they must be granted insight into "their file", they must be allowed to comment the documentation or information and there has to be opened a kind of legal protection procedure for the case that the documentation or information be viewed adverse to fact by the concerned.

Such general legal principles have also been developed by the European Court. Especially the Charta of Fundamental Rights of the European Union, in Art 41 grants the right of good administration. This right includes in Para 2 the right of every person to be heard before any unfavourable measures be taken. The right of every person to look into his file.

From these explanations, it is derived that community laws, constitutional laws and single legal rules are violated when governmental documentation and information on religious and philosophical groups is published, especially as warnings, without granting to the concerned an opportunity to comment such planned documentation or information, and when these comments are disregarded without any grounds given.

I would like to note tat the CD Rom in question does, indeed, contain information on Baha’i and Jehovas Witnesses which include their own self-descriptions.

Personally, I chose the information of three different ‘Movements’ which, in the past, have been of certain interest to me (Bach-Blossoms, Astrological Psychology, Ayurvedic Medicine). I found that each one of them was described in a superficial, slightly malicious way, winding up in an overall negative verdict. This lacks seriousness. Thus is the context in which religious communities are positioned, and this is the problem.

B. Civil Law Aspects

1.    Official Liability

Damages are compensated by money only. Execution of the law is within the responsibility of the state. Therefore, information by the government on dangers by sects come under the term of "execution of the law". The warning published with the booklet ‘Sects - Knowledge Protects You’ is part of the protection-from-danger concept of the state and the impact of the warning is attainted by its sovereign character. If all other elements of § 1 AHG are given - harmful acts by an officer, given damage of assets or person, illegal conduit and culpable conduct, official liability may be claimed.

The activity of the Federal Authority on Sects Issues would come under the rules of official liability.

Compensation for damages only in money is a deficit in the legal protection in case of the state informing in a disqualifying and untrue way on religious and philosophic groups.

For the CD-Rom in question, § 1 Para 1 AHG would apply to the part of information given by Upper Austria Province Government. It would apply to the part by Linz Diocese, too, because its executing an order from the part of the Government. Culpability would be given in case of poor investigation or disregarding any serious descriptions available.

An example for harming assets would be a religious community planning an event and booking a location for it to take place and the leasing contract be refused on the grounds of the negative rating from the part of the government. The expenditures would have to be considered a loss and the damage to be claimed.

2. Protection from Personal Insult and Dissemination of Untrue Facts (§ 1330 ABGB – Work Law)

§ 1330 ABGB rules compensation for damage for Insult and Damage of Reputation. In such case, too, only monetary compensation is possible. Beyond that, the harmed party has the right for revocation of the untrue assertion and its publication.

Jehovas Witnesses did claim revocation, omission and verdict publishing for certain untrue facts asserted.

3. Compensation for immaterial damage resulting from violating private sphere

§ 1328 a of ABGB rules that such damage may be compensated by at least 1000 Euro. A Novel is to be effective in 2003.

C. Criminal Law Aspects

In connection with information on religious and philosophical groups are the limits to be considered which are set by the criminal law, i.e. § 111 (Defamation of character), § 188 (Degradation of religious teachings) and § 297 (Slander).

D. Administrative Aspects with regard to the Organisation of so-called Counselling Authorities on Sects Issues

Aiming to inform on religious and philosophical groups, the state has to keep religious neutrality which means not to validate religous and philosophical communities.

If such information contains a warning which is not founded on a criminal verdict, it is problematic. If there are no precise and proof criteria for a danger, this leads inevitably to degradation, which is not in accord with the religious neutrality imperative to the state.

Independency is essential for the organisation of an information authority on religious and philosophic groups. Independency must even be given twofold: towards the state and towards the religious and philosophic groups.

This is not given, because the law on Counselling Authorities on Sects Issues does not grant freedom of directions, which would require a constitutional rule. Also, legal control of the Authority includes maintenance of correct task fulfilment. Decisions of the manager of the Authority can, for instance, be cancelled by the Federal Minister, if they are not in conformity to a correct task fulfilment.

The study of religious and philosophical groups from the part of the state, has to be objective and scientifically well-founded. Scientifically well-founded would require, amongst others, to include pertaining sciences focussing on religious and philosophical movements. The law on Counselling Authorities on Sects Issues, however, does not refer to consulting scientific expert competence. A scientific advisory council to the Authority on Sects would handle the problem.

Also the Parliamentary Assembly of the European Council, in its Recommendation 1412 of 22. of June 1999, states that information and documentation is necessary, but information authorities be independent from governments.

A good example is the Institute INFORM (Information Network Focus on Religious Movements) in London. It has been founded in 1988 by Eileen Barker, sociologist. It documents and informs on new religious movements. Since its information is objective, differentiated and up to date, it enjoys great reputation.

E. Final Note

The state and its authorities are not allowed to decide whether or not a religious movement be a bona fide religion.

In the name of public order, health and moral, the society must not be hindered in its development by constricting freedom of thought, conscience and religion. Additionally, it is the duty of the state and its authorities to protect and promote an undisturbed practice of Fundamental Rights.

The existing legal order in general is sufficient to pursue illegal and dubious acts under a religious cover. This opinion is shared by the Ministerial Committee of the Council of Europe.

A recent report by the Committee for Fundamental Rights and Internal Affairs on "Sects within the European Union" rejects a specific legislation against sects, since national laws offer sufficient legal grounds to handle illegal deeds by sects, while a lack of user protecting laws was noticed for the "psycho-market".