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FINAL REPORT OF THE ENQUETE COMMISSION ON "SO-CALLED SECTS AND PSYCHOGROUPS" |
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5.5 Legal aspects 5.5.1 Overview of relevant case law Legal aspects in connection with new religious and ideological communities and psychogroups were already addressed in various sections of the Enquete Commission's Interim Report. 282 ) The mandate of the Commission was to "identify the limits to recourse to the constitutionally guaranteed freedom of religion for more recently established religious and ideological movements, so-called sects and psychogroups". Hence the need to consider the body of case law that has been developed in this area. In this chapter, we shall begin with a brief overview of court rulings that are concerned with new religious and ideological communities and psychogroups, and from there move on to consider core legal issues to which the Commission attaches special importance. The Commission has obtained its information about court proceedings from two sources: decisions which were known to the German Federal Government or experts from the Commission, and publications of quoted decisions, as well as decisions which were transmitted by third parties, including action groups of personally affected individuals and parents. It is not possible here to provide a complete presentation of all courts rulings. Our purpose is to mention those landmark judgements which have a bearing on new religious and ideological communities and psychogroups, as well as decisions which have been the subject of public debate. Wherever possible, we have also tried to take account of developments in case law as it has evolved in the light of discussions concerning the new religious and ideological communities and psychogroups. 283 ) As late as the 1980s, the legal discussion revolving around the new religious and ideological communities and psychogroups continued to focus on the question of whether they could actually be considered religious communities at all. For example, in his general survey of the issue, Franz considered decisions in which the courts' primary concern was to elucidate whether or not individual groups were actually religious communities. He also took up what was then a hotly debated subject, namely should the way a community sees itself be considered the sole yardstick by which to determine if it is a religious community. 284 ) Much progress has been made in this sphere thanks to rulings by the Federal Constitutional Court. The Federal Constitutional Court ruled that the official definition of religion as interpreted by government, i.e. the term "religion" in Article 4 of the German Constitution, in application of a regulation under the country's legal system, lies with government, and in cases of dispute, with the courts (Federal Constitutional Court, Decision of 5 February 1991, 2 BvR 263/86 in Entscheidungen des Bundesverfassungsgerichtes (BVerfGE -- Decisions of the Federal Constitutional Court, Vol. 83, p. 341ff, Part 1). According to the court decision, the community's own perception of itself as a religious organisation has to be taken into account; furthermore, objective criteria, such as those derived from the science of religion, must also be considered. The important point here is that the government has a duty to remain neutral from both a religious and an ideological perspective. Any attempt to interpret the guarantee of religious freedom from a specifically Christian position would not be considered as being in conformity with the Constitution (see the description of the hearing of constitutional experts in the Commission's Interim Report, Bundestag Doc. 13/8170, p. 13 f.). From a constitutional point of view, it is equally important to determine when a religious community may claim the status of a public corporation. Article 140 of the German Constitution, in conjunction with Art. 137 (5), of the Constitution of the Weimar Republic, establishes the principles on the basis of which the status of a public law institution may be granted. It was not until the 1990s, however, that this was actually tested in the courts. The Federal Administrative Court ruled that the community of Jehovah's Witnesses was not entitled to such status (Federal Administrative Court ruling of 26 June 1997, BVerwG 7 C 11.96, in NJW 1997, 2396). The judgement hinged on the fact that Jehovah's Witnesses reject any form of participation in democratic public elections and consider participation in elections as being irreconcilable with membership of their community. As the community refuses to recognise the legitimate demands of the government on its citizens which flow from the principle of democracy, that same community cannot expect government to recognise it as a public corporation and therefore as a co-operation partner (Federal Administrative Court, loc. cit.). Jehovah's Witnesses have filed a constitutional complaint against the decision, but no ruling has yet been made. Clarification of this legal dispute could be relevant for some other communities, too. A more detailed discussion of this question can be found in a later chapter (see Chapter 5.5.3.2 and the relevant minority opinion of the working party of the SPD parliamentary group in the Enquete Commission). However, it is not just a question of determining when a community may be considered a religious community, and whether it may claim the status of a public corporation. There are other issues which have important legal ramifications, such as which activities are covered by religious freedom and to what extent do civil service regulations, labour legislation, industrial and trade law, the Act on Associations and other laws impose certain limitations on that freedom. In the 1980s, for example, it was a matter of some dispute as to whether teachers could be banned from giving classes in school wearing clothing that identified them as Bhagwan followers or donning a mala during class (a mala is a wooden necklace that is worn with the outfit). Once case law had established that wearing the typical Bhagwan clothing and the mala was prohibited in the classroom, the question was laid to rest and the problem was never submitted to the courts again. Moreover, Scholz points out that in the autumn of 1985 the group changed its own rules, and as a result the requirement that followers wear clothes with reddish hues and the so-called mala was dropped. 285 ) In the 1990s, another problem relating specifically to the public service cropped up, and the question was asked whether it was permissible to ask applicants during recruitment interviews if they were members of the Scientology Organisation. As far as the Commission is aware, this approach -- which was adopted by some of Germany's federal states -- has not been the subject of a court decision. Although there were only very few court proceedings brought under labour legislation in conjunction with new religious and ideological communities and psychogroups in the 1980s, things changed in the 1990s with a number of cases going before the courts. A description of the situation in the 1980s and the beginning of the 1990s can be found in an article published by Scholz. 286 ) The decision of the Federal Labour Court (BAG) of 22 March 1995 (ref.: AZB 21/94) 287 ) constitutes a landmark decision. This is what it had to say about the Scientology Organisation:
We refer the reader interested in a comprehensive review of current trends to a later chapter (see Chapter 5.5.4.5). During the 1980s, a number of legal actions were brought under the legislation governing hotels and restaurants. At issue here was the question as to whether members of the then "youth sect" of the Bhagwan/Osho movement were authorised to operate discotheques. In the final analysis, the authorities were forced to grant a licence. It proved impossible to establish either the unreliability of the managing director or the fact that guests were subject to unacceptable influence in conjunction with their membership of the Bhagwan movement. 288 ) The courts have not had to deal with similar cases in the recent past. There is still one outstanding issue in connection with Scientology, however. The question to be answered is: Can a self-proclaimed religious community escape the requirement to register as a business or trade. In the case law of the Federal Administrative Court, the consistent position has been that the definition of commercial activity under trade and industry law is any independent activity geared to the longer term that has an economic value and aims to produce a profit, with the exception of primary production, the professions (self-employed activities in the fields of science, the arts, literature as well as personal services that require a higher level of education) and the simple management and use of one's own assets (Federal Administrative Court, decision of 16 February 1995, BVerwG 1 B 205.93, no. 3.a. and subsequent amendments). In the view of the Federal Administrative Court, any activity that fits this description shall be considered a commercial activity even if the person or organisation involved in that activity considers its purpose as fulfilling a religious or ideological aim. Whether or not the scope of the economic activity is to collect funds for a religious or ideological community and therefore falls within the scope of Art. 4 of the Constitution, the protection afforded by that Article cannot be considered in isolation. Article 4 of the German Constitution cannot be invoked to justify limiting the application of other, equivalent legal acts. On the contrary, the Court ruled that relevant general laws must be applied in a way that curtails basic rights as little as possible (Federal Administrative Court, loc. cit.). Accordingly, dangers arising from a wholly or partially economic activity by a community that can claim protection under the provisions of Art. 4 of the Constitution should not be countered by a restrictive interpretation of constitutional rights, but rather through the application of the relevant laws in the manner described above (Federal Administrative Court, decision of 16 February 1995, BVerwG 1 B 205.93, no. 3e). In a recent ruling, the Higher Administrative Court of Bremen thus came to the conclusion that to the extent that a religious community engages publicly in an economic activity in order to proselytise, an appropriate balance needs to be struck between religious freedom on the one hand, and the equivalent constitutional rights of third parties. The economic activities of a religious community must therefore be registered as a business or trade (OVG Bremen, decision of 25 Feb. 1997, OVG 1 BA 46/95). By analogy with the decision of the Federal Administrative Court mentioned above, the Higher Administrative Court of Bremen held that the fact of registering a business or trade did not imply a value judgement and in any case had no significant detrimental effect on the religious activities (OVG Bremen, loc. cit., p. 17). From the perspective of the legal provisions governing associations, a distinction needs to be made between the ban on religious and ideological communities and the revocation of the legal capacity of registered associations. The question regarding bans on associations will be considered in a separate section (see Chapter 5.5.4.1). During proceedings instituted to revoke the legal capacity of a Scientology association, a decision was handed down by the Federal Administrative Court in November 1997. The ruling stated that on the basis of Section 43 (2) of the German Civil Code (BGB), an association whose aim according to its own statutes is not directed to the exercise of a business activity may have its legal capacity rescinded if it engages in such an activity. At these proceedings, which preceded the decision of the Federal Administrative Court, the legal capacity of an association claiming the status of a religious community was revoked because it pursued economic goals. The administrative court had rejected the complaint, whereupon the Higher Administrative Court set aside the judgement in the opposition procedure and allowed the complaint. The Federal Administrative Court concluded that federal law had been misapplied by the decision of the Higher Administrative Court and hence referred the case back for renewed discussion and decision (Federal Administrative Court, ruling of 6 November 1997, BVerwG 1 C 18.95). It argued that the activities of an association may be considered as constituting an economic business if they are scheduled, geared to the longer term, external (i.e. not for internal consumption) and carried out under the management control of the association with a view to procuring an economic advantage for the association or its members. If, moreover, the association benefits from what should constitute its secondary activity, that it to say that if the corporate activity is part of, and subordinate to, the main purpose which is to promote an ideology, and if it is considered as a means to this end, then the association may be considered a non-profit organisation (Federal Administrative Court, loc. cit., p. 9). The matter would be considered quite differently if an association were to present itself to its members as a provider of ser- vices which, notwithstanding the ties with its membership, are usually also offered by others. Associations of this type, e.g. consumer associations or book clubs, are run as business enterprises (Federal Administrative Court, loc. cit., p. 10). There have been individual cases where it was not possible to determine on the basis of the facts how to classify the activities of an association. In any case, the court came to the conclusion that the fact that an association considered itself to be a religious community was irrelevant for the decision (Federal Administrative Court, loc. cit., p. 15). The subsequent steps of these proceedings are of relevance for a legal appraisal particularly of the Scientology Organisation. The question of whether or not there is commercial activity is also closely related to the issue of whether groups which recruit members in the street (e.g. by addressing themselves directly to passers-by) require a special permit. This has been the subject of a number of court proceedings. As long ago as the mid 1980s, the Federal Constitutional Court was called upon to consider a case involving a group that claimed protection for its activities by invoking the law on religious freedom. The conclusion it reached was that stopping passers-by in the street to offer them a personality test, following which they offered to sell them books and services, was not covered by the constitutional concept of practising a religion (Federal Administrative Court, decision of 29 July 1986, 1 BvR 476/86). The recruitment of members in this particular case was considered not to have any of the features of missionary work. Thus, the appellants were not justified in claiming the right to remain silent about their religious convictions. Although their right to do so was not in dispute, anyone wishing to avail themselves of the constitutional right to practise a religion must necessarily be prepared to reveal their religious beliefs (BVerfG, loc. cit.). The Federal Administrative Court pointed out that to the extent that certain federal states recognise a special use of streets as a place where people can exercise their inalienable fundamental right to religious freedom, the same principles that have been consistently upheld by the Court regarding the unrestricted right of street artists to practise their art in the streets must also apply throughout the Federal Republic of Germany (Federal Administrative Court, decision of 4 July 1996, 11 B 23/96, in: Neue Juristische Wochenzeitschrift, 1997, p. 406ff., 407). The control procedure established by the authorities under which permission may be obtained for such special usage was considered to be compatible with these constitutional rights. If -- after consideration of the specific circumstances prevailing in a specific case -- it were clear that the intended use of the streets would not seriously impinge upon the rights of vehicle users as covered by Art. 3 (1) and Art. 3 (1) of the German Constitution, or the rights of residents or other fundamental rights, authorisation would as a rule be granted. Judging whether a particular activity constitutes a disturbance of the peace on the public highway could well depend on whether the activity involved not just "proselytising" but also the sale of goods and services. Commercial motives alone, which were not apparent in the actual circumstances of the street use, would not affect the decision (Federal Administrative Court, loc. cit.). In a dispute involving an association 289 ) with close ideological ties to Scientology which had as its goal the disclosure of malpractice in the field of psychiatry and which did not claim protection under Art. 4 of the Constitution, the Federal Constitutional Court (BVerfG) ruled that the distribution of information leaflets on medical drugs and the like to passers-by was covered by Art. 5 (1) of the Constitution. If such an activity were subject to prior authorisation, there might be a case of an infringement of the Constitution if the applicable state-level legislation regulating the use of public highways did not provide for the possibility of granting such authorisation. To consider that the executive branch was at liberty to interpret and apply right-of-way legislation in so far as the authorisation of activities involving the expression of free speech is concerned, was, the Court ruled, incompatible with Art. 5 (1) of the Constitution (BVerfG, decision of 18 October 1991, 1 BvR 1377/91). There are few known cases of criminal proceedings being brought, most likely due to the publication policy of the courts handling such cases. In the mid-1990s, members of the "Sant Thakar Singh" were condemned for the maltreatment of charges or wards of court (Starnberg District Court, decision of 29 Nov. 1994; date of the most recent oral proceedings; ref. 3 Ds 21 Js 3205/93). Some Scientologists have been condemned by the courts for slander and libel. There was one case where a court sentenced the defendant for distributing a Scientology brochure entitled "Hatred and Propaganda" (Hamburg Regional Court, decision of 20 March 1995, 709 Ns 677/94). In a further case, a high- ranking Scientologist -- he was the vice-president of a Scientology association and a press spokesman of many years standing -- was sentenced for gross slander of a Protestant pastor (Hamburg Regional Court, decision of 16.12.1994, ref.: 701 Ns 151/94). A further case involved the activities of a Scientology sub-organisation called "Narconon" which was sentenced under the provisions of the law governing non-medical practitioners, since it exercised the profession without having first obtained authorisation to do so (district court of Miesbach, ruling of 12 January 1995, Cs 65 Js 21802/90). Mention should also be made of two Scientologists who were sentenced by the courts for tax evasion. They not only defrauded the inland revenue of millions of marks in taxes but they also transferred substantial sums of money to the Scientology Organisation (Rostock Regional Court, ruling of 29 August 1994, II KLs 13/94 (Hi)). A further case involved a Scientologist who was sentenced for issuing threats after telling a detractor that he intended to kill him (district court of Heidelberg, ruling of 28 November 1995, 7 Cs 15 Js 4193/95). A case that achieved some notoriety was the dispute involving the closure of the accounts of the Scientology Organisation held by Postbank AG. The Scientology Organisation filed for a temporary injunction, demanding that the bank continue to maintain its accounts until such time as a ruling had been made on the merits of the case. The request was dismissed. The Stuttgart Regional Court came to the conclusion that the bank was entitled to close the accounts as it had not been proven that the Scientology Organisation would not be able to find an equivalent alternative institution prepared to carry out its money transfers (Stuttgart Regional Court, judgement of 6 September 1996, 27 O 343/96). Civil proceedings have also been instituted in order to recoup sums that had been paid to groupings. Scholz refers to court decisions dating back to the 1980s and makes the point that case law tended to be quite reticent about ordering course fees and the like to be refunded. 290 ) Quite recently there was a case of a women who decided to leave the Scientology Organisation but was refused legal assistance to cover court costs by the Hamburg Regional Court. The claimant was seeking to recover DM 111,000 which she had paid to the organisation between 1987 and 1992 (Hamburg Regional Court, decision of 5 January 1998, 330 O 169/97). In setting out the grounds for its position, the Court stated that the chances of success in bringing an action were not sufficiently high. Ignoring the case law built up by the Supreme Court, it surprisingly justified its conclusions by saying that its decision was based -- wrongly as it turns out -- on the observation that the Scientology Organisation was "recognised as a religious community". It went on to say that taking advantage of somebody's psychological state alone was not sufficient to invoke a violation of bonos mores and declare null and void a legal transaction. Judging from press reports, 291 ) an appeal against the decision is likely to be filed. However, not all cases involving the reimbursement of sums paid have met with the same lack of success. Thus, Munich Regional Court I ordered the Scientology Organisation back in 1993 to refund DM28,934.38 to a former member (judgement of 9 November 1993, 28 O 23490/92). The Court came to the conclusion that the Scientology Organisation, in taking the money, had gone against public policy and was thus liable to return the money in accordance with Sections 817, 138 (1) of the German Civil Code (BGB). Although the Court accepted that the organisation was a "Church", it nevertheless considered that the plaintiff had gone along with the organisation's offer to invest in the firm belief that he was dealing with a scientifically proven method. The plaintiff had, from the very outset, referred to the writings of Hubbard. As a result, the Scientology Organisation could not argue that the effectiveness of the method depended to a large extent on the investor's faith. If the "Church" were really of that opinion, then it would be duty bound to inform each applicant who referred to the book on "Dianetics" and who expected the method to be rooted in science that the success of the method did not lie in the realm of medicine but in some non-empirically proven field which could be termed religion or philosophy of life (Munich Regional Court I, loc. cit., p. 10). A violation of accepted moral standards can be deemed to have taken place if the organisation consistently harasses "believers", convincing them that to achieve a higher degree of perfection they have to part with large sums of money and to entrust those amounts to the organisation after having subjected them to a kind of lie detector (E meter) during which they are required to reveal their entire financial situation as well as their spiritual and mental state, on the basis of which personal files are then built up (Munich Regional Court I, loc. cit. p. 15). Although the Scientology Organisation initially sought redress from the Higher Regional Court, it did subsequently more or less accept the verdict. 292 ) Overall, it can be said that no uniform line has been taken by case law insofar as the reimbursement of money is concerned. 293 ) Under custody law, a trend has emerged which is described in the Interim Report following the hearings organised on the subject of "the situation of children and youths in so-called sects and psychogroups. 294 ) The European Court of Human Rights has upheld the principle that the mere fact of belonging to a new religious or ideological community or psychogroup does not allow any inferences to be made about a parent's ability to raise a child. The dispute concerned the award of post-nuptial custody rights to a woman who was a Jehovah's Witness. The Austrian Supreme Court set aside the decisions of the lower courts and awarded custody of the child to the father on the grounds that the mother was a Jehovah's Witness. The European Court of Human Rights came to the conclusion that the decision of the Supreme Court violated the European Convention on the Protection of Human Rights and Fundamental Freedoms. Without prejudice to other possible reasons which could justify such a decision, it was argued that basing a judgement exclusively on a person's membership in a particular religious group was not acceptable. The European Court of Justice concluded in particular that in this case Articles 8 and 14 of the Convention had been violated (decision of 23 June 1993, case 15/1992/360/434). There has been considerable divergence in court rulings on the subject of who gets custody of the child, which in accordance with the principle set out above must be based not on a person's membership in a particular religious community but on the effects a particular type of education will have on the child's well-being. The outcome will be determined by the merits of each individual case. We refer the reader in this connection to the discussion in the Commission's Interim Report (Annex regarding working group 4, "Child welfare/Child abuse", part A). Finally, there are court proceedings -- so many in fact that it is difficult to keep track of them all -- that deal with the admissibility of critical comments about groupings. A number of groupings have instituted proceedings in reaction to comments made about them in brochures containing warnings issued by the government, in answers of the German Federal Government or state-level governments to written or oral questions in Parliament, in newspapers or magazines, on radio and television, in positions of Churches and their commissioners for ideological issues, in books and comments from other quarters. The outcome of such proceedings has varied, but generally speaking applications for an injunction to refrain have tended to be rejected more frequently than upheld. In cases brought under civil law, the courts consider the comments in dispute from the perspective of the general principles of freedom of speech and the press. The majority of proceedings connected with freedom of speech tend to be dismissed either because the impugned statements can be proven, or because the impugned comments are considered to fall under the statutory freedom of expression. However, the courts may rule in favour of plaintiffs in the event that the statements made cannot be proven or are untrue. However, the same principles also apply to the legal redress that may be sought against irrelevant, insulting and slanderous comments made by individual groups about their critics. The Scientology Organisation occupies centre stage in this connection in that defamatory pieces of writing -- often produced abroad and sent from abroad -- are used to make personal attacks on its critics and to demean them. Such activities comply with the instructions of the organisation's founder, L. Ron Hubbard. Here, too, it is not easy for the attacked party to establish a clear
link between deliberately juxtaposed implications and the negative
effect of associations (e.g. the persecution of Jews in the Third Reich)
and thus to obtain an order to Insofar as government statements about the new religious and ideological communities and psychogroups are concerned, we refer the reader to the description of the government's information and advisory work (see Chapter 4.1). 5.5.2 General problems involved in legal disputes Here a distinction needs to be made between situations where -- citizens and legal entities seek to have their claims against a group upheld, and -- groups seek to defend or to take the offensive in representing their positions by legal means. Even though no statistics are available, it would seem that cases of the second type predominate. Groups frequently argue that the behaviour for which they are criticised should be measured against a different set of standards as a result of the principle of religious freedom which is laid down in Art. 4 of the German Constitution. For example, they say that expensive services are part of their religious activities and therefore not subject to tax. Such arguments are often difficult to counter because the other party to the legal proceedings or the judges sitting in the courts of first instance often do not have the full information at their disposal. The importance of the constitutional principle of religious freedom has therefore created a lot of interpretation difficulties for the courts and also the administrative authorities, and as a result they have tended to rule in favour of the constitutional right, whether it has been invoked justly or unjustly. In pursuing their goals, which may also include the suppression of criticism and the intimidation of critics, some groups consistently avail themselves of the possibilities open to them in a constitutional state. The type and scope of the legal proceedings they initiate conform in some cases to practices in US law, and in particular US commercial law. The strategic use of a broad range of legal instruments as an element of a more comprehensive, proactive or indeed aggressive and expansionist method is not usual in German society, at least not in connection with "religion" or "philosophy of life" groups. Those on the receiving end often feel intimidated by such a zealous attitude towards bringing cases to court. However, it should be noted that very few groups operate in this manner. The group that heads the list here are the Scientologists or Scientology, the Association for the Promotion of the Understanding of Human Psychology, Universal Life, Transcendental Meditation and Osho/Bhagwan. The intentions and priorities of these groups do of course differ. As a rule, Transcendental Meditation and Osho/Bhagwan institute proceedings in particular to ward off negative comments made about them by government, whereas Universal Life and in particular the Association for the Promotion of the Understanding of Human Psychology and Scientology have adopted a very aggressive stance towards their critics. They try to stop such critics from distributing any information which they consider to be undesirable. These groups are clearly able to marshal quite large sums of money to achieve their ends. For example, the claim has been made -- and no-one has ever disputed this -- that the International Association of Scientologists (IAS) has access to what used to be expressly referred to as a war-chest which it uses to finance its battles against its critics. According to the instructions of the founder of Scientology, L. Ron Hubbard, court cases are not fought primarily to be won, but in order to wear down one's opponent. These are the tactics that Scientology seems to be following in the United States, where the organisation has systematically attempted to financially bleed critics such as L. Wollersheim or the information network CAN by repeatedly bringing actions against them. Recently, a California court invoked new California legislation which was enacted to prevent the misuse of the legal system ("Anti-SLAPP") in order to reject a complaint filed by the Scientologists, arguing that the organisation was abusing its right of legal recourse. Germany is no exception, and attempts have been made and continue to be made here to use the courts as a means of preventing anyone from producing critical reports. Warning letters, letters threatening legal action, requests for an injunction are part of the standard treatment meted out to all anti-group authors and media. The groups enjoy an advantage, namely that the financial and human resources that they allocate to pursue the court case do not have to be justified from a business management point of view, whereas those who have to defend themselves must always weigh up the economic pros and cons of becoming involved in out of court settlements or legal proceedings, and thus having to find the necessary resources. This applies all the more so to private individuals. It is quite reasonable to ask, therefore, whether the economic clout of certain groups provides them with such a perceptible advantage in their legal disputes with critics, and whether these groups know this and try to get the most mileage out of it. Tactics also include attempts to get courts to grant an injunction in advance of an event, be it public or private, if critical comments may be expected. Those who are the recipients of such orders consider this to be a limitation imposed on their rights to freedom of speech and opinion. Legal disputes of this type have also been reported in conjunction with radio and television broadcasts which have shown the groups in a critical light. Nevertheless, it remains to be proved whether such methods are typical only for some of the groups in question. 5.5.2.2 Typical difficulties for individuals in legal disputes As has already been said, individuals may be worried that they will not have the necessary financial means to cover the risk of having to go to court, especially if the case becomes protracted and appeals are filed. The following figures illustrate the point: the cost of litigation 295 ) for temporary injunction proceedings, if the case were to go to a court of first and second instance, would for an average amount in dispute 296 ) come to approximately DM 25,000. 297 ) This is a considerable sum of money for a private individual, but also for companies such as publishing houses. In addition, the parties do not start out on an equal footing given that, as a general rule, the groups are quite familiar with the contentious issues, their "house" lawyers are well versed in legal specificities, and they are able to produce a large number of pertinent standard arguments, legal documents, printed material etc. It is has thus frequently come to notice that groups are able to react very quickly, submitting large volumes of legal documents which are accompanied by an equally large number of annexes. Even if the courts consider the material to be nothing but "ballast", they still have to read through it and give it their considered opinion. The individual citizen, on the other hand, who gets caught up in a legal dispute with such a group, whether willingly or otherwise, runs into an immediate difficulty, which is to find a suitable lawyer who specialises in such cases. Problems may also arise in cases when members of groups decide that they want to leave the organisation and then try to retrieve part of the money that they have handed over -- and it is not uncommon for the amounts to run into five or even six digit figures. In many cases such persons may be totally impoverished, often in debt or even totally insolvent and, at least initially, without any fixed income. Informing them of their right to legal assistance is only of marginal utility. Even assuming that the few lawyers specialising in such cases were prepared to work for the fees paid under the legal assistance programme (which are well below the usual scale of fees), legal assistance only deals with the person's own costs and fees. Were the impoverished party to lose the case, he/she would be required to pay the full costs of the opponent. Liability for the refund of costs could constitute an unacceptably high and unpredictable risk for a indebted or insolvent person. Thus, groups that are economically strong clearly have a legal advantage in such situations, so much so that opponents often have the impression that their legal rights are useless by comparison. The concerns expressed in other parts of this report regarding "sects" and "psychogroups" can be traced back to the impression that these groups have such economic power that they can force acceptance of their legal positions, and that their opponents are not only financially weaker but tend to be powerless against them. Individuals who seek to affirm their rights in opposition to a group more often than not find themselves in a situation where they, as plaintiffs, are forced to provide evidence in support of their arguments. This sounds easy, provided that documentary proof is available. However, it is not infrequent for individuals, whose claims are disputed by the group or its members, to find themselves short of hard evidence, the reason being that within the group processes are often not documented and there are no neutral witnesses to call upon. The members who remain in the group are unlikely to lend their support to those who have decided to leave, particularly if it is a group with a totalitarian structure such as Scientology. For such groups, leaving the organisation and taking it to court are deemed "loathsome behaviour" and even a "crime", so that its supporters feel no compunction in committing perjury in court if in so doing they can undermine the position of the drop-out. For all these reasons it is particularly difficult for former members to obtain the nullity of the agreement by satisfying the requirements of Sections 138 and 123 of the German Civil Code in a manner which stands up in court (violation of bonos mores, deception and threat in the conclusion of a contract). The few documents that do exist tend to come from the groups themselves and are worded in such a way that they do not lend themselves to legal attack. Informal behaviour, e.g. the use of pressure or taking advantage of an individual's weakness, and its effects on the freedom for the individual to take an informed decision are not basically things that can be proved. For the uninitiated newcomer who attends a management seminar, for example, cleverly "packaged" indoctrination methods are not immediately recognisable. It becomes very difficult later on to recall which individual elements were actually part of the indoctrination and, what is more important, to be able to provide that evidence to the court. Here are three examples which illustrate how difficult it is to get courts to rule against the groups:
5.5.3 Constitutional appraisal 5.5.3.1 Article 4 of the German Constitution Whenever the issue of the religious and ideological communities and psychogroups is discussed, it is inseparably linked with Article 4 of the German Constitution. Article 4 of the German Constitution guarantees freedom of creed, freedom of conscience, as well as freedom of religious and ideological belief (Art. 4 (2) of the Constitution) on the one hand, and the three core freedoms on the other. Freedom of creed and conscience is intended to cover the internal
freedom of the individual, the forum internum. The principle of freedom
of belief goes beyond the forum internum in that it also covers the
right to inform others of Religious customs and cultic activities are considered to be fundamental rights. Such protection may, however, extend to other areas too, as was shown in the decision of the Federal Constitutional Court regarding the "Aktion Rumpelkammer" (junk room clear-out action). In this decision, the Federal Constitutional Court (BVerfG) extended the right to practise a religion to the right to engage in charitable works without interference if such was the image a particular confession had of itself (BVerfG, decision of 16 October 1968, 1 BvR 241/66, in: Decisions of the Federal Constitutional Court -- BVerfGE -- Vol. 24, p. 236ff.). In a subsequent decision the Court ruled on the implications of the freedom of belief when criminal courts have to consider a case of failure to lend assistance (BVerfG, decision of 19 October 1971, 1 BvR 387/65, in: BVerfGE, Vol. 32, p. 98ff.). In this particular case, an appellant, who like his wife believed that prayer worked better than going to hospital, did not do anything to convince his wife that she should be taken to hospital for treatment. As a result, the wife died. The Federal Constitutional Court concluded that sentencing the man because of his failure to lend assistance was to disregard the collateral effect of Art. 4 (1) of the Constitution. The appellant, it said, could not be accused of having failed to convince his wife given that to do so would have gone against his own religious convictions and that she shared those same convictions (BVerfG, loc. cit., p. 109). These decisions therefore do not allow us to conclude that every purportedly religiously motivated behaviour must necessarily be considered in the light of Art. 4 of the Constitution. On the contrary, the Federal Constitutional Court said quite explicitly that an abuse of the freedom of religion should be avoided. In consideration of the system of values established by the Constitution, and in particular the dignity of the individual, it can be assumed that there is a case of abuse to be answered if the dignity of the person were to undermine the dignity of others (BVerfG, decision of 8 November 1960, 1 BvR 59/56, in: BVerfGE, Vol. 12, p. 1ff., p. 4). The problem of delimiting freedom of religion from other forms of self-expression which also enjoy protection is no easy task, a point already made in the Interim Report. At this juncture, it is more important to realise that the definition of the term religion as an application of a regulation that forms part of the legal system must lie with government, and government -- in giving meaning to the term -- is required to ensure neutrality and to rely on objective criteria (see Chapter 5.5.1 above). An essential characteristic of the constitutional rules is that there are no written limitations. The prevailing opinion is that in the Constitution there is no valid legal reservation which would apply to Article 4. In the hearings of the Enquete Commission, it became clear that a school of thought was emerging according to which Art. 140 of the Constitution, in conjunction with Art. 136 (1) of the Constitution of the Weimar Republic, should be considered a valid legal reservation. Even if we leave aside this discussion, there is no dispute that fundamental rights are subject to certain limitations which are inherent in the Constitution. Thus, the outer limits of religious freedom are reached once the constitutional rights of others are affected to a degree that is considered unacceptable. This means that each case needs to be considered on its own merits and that it may be necessary to weigh up the contradictory interests in the light of the system of values established by the Constitution. It is quite possible, for instance, that the fundamental right enshrined in Article 4 of the Constitution may have to defer to the superior rights of others (e.g. the right to life or physical integrity). The court cases described above, as well as the legal discussion about contentious legal issues involving the new religious and ideological communities and psychogroups, demonstrate that under certain circumstances prevailing constitutional law allows for a dividing line to be drawn vis-à-vis the rights of third parties. During the hearing with constitutional experts at the beginning of the work of the Enquete Commission, it soon became apparent that the experts believed that the introduction of a legal reservation for Art. 4 of the Constitution was inappropriate. The experts argued that introducing a legal reservation would mean that, pursuant to the principle of reasonableness, the public interest could always be invoked to justify an interference with the freedom of religion, which would impose an unnecessary and inappropriate limitation on the freedom of religion. Only if other objects enjoying higher legal protection were to be under threat or infringed might it be acceptable for government to intervene. Furthermore, such activities which are improperly carried out under the "guise of religion" do not, of course, enjoy the protection of Art. 4 of the Constitution. The Enquete Commission rejects the idea of modifying Art. 4 of the Constitution, whether this is done by including the loyalty to the Constitution clause from Art. 5 (3) 2nd sentence of the Constitution or through a legal reservation. Such an amendment would send out the wrong political signal and would be interpreted to mean that the legislator intended to restrict the freedom of religion guaranteed by the Constitution. Furthermore, such an amendment is also superfluous. The discussion showed that even without modifying Art. 4 of the Constitution, existing provisions provided the legislator with the necessary tools to effectively ward off possible risks to the citizens or the State itself. There appears to be a general consensus that Art. 4 of the Constitution is subject to certain limitations which are inherent to the Constitution. Differences of opinion that arose during the discussions -- involving in particular references which could be interpreted as providing a basis for the creation of "firewalls" -- do not have any bearing on the Commission's basic attitude. The adoption of Art. 140 of the Constitution, in conjunction with Art. 137 para. 1 of the Constitution of the Weimar Republic, banning the established Church, lead to a fundamental separation of Church and State. What happened in practice was that channels of co-operation were developed between the two. The terms of reference given to the Enquete Commission did not include the question of whether the relationship between Church and State needed to be redefined. Against this background, the Enquete Commission sees no need to modify or supplement Art. 4 of the Constitution. The Enquete Commission supports without reservation religious and ideological freedom, tolerance and plurality on the basis of Art. 4 of the Constitution. Government must maintain a neutral position with regard to the religious and philosophical convictions of its citizens. 5.5.3.2 Rights of corporations 299 ) Current legal position Art. 137 of the Constitution of the Weimar Republic as incorporated into Art. 140 of the German Constitution includes paragraph 4, which stipulates which religious communities are accorded legal capacity under the provisions of German civil law. Furthermore, paragraph 5 states that religious communities which were already recognised as corporations under public law at the time the Constitution of the Weimar Republic was adopted are entitled to retain their status. It then goes on to say that: "Other religious communities shall, if they so request, be entitled to the same rights provided that their statutes and the number of their members provide a guarantee of continuity. In the event that several of such religious groups under public law should come together in an association, then such an association shall also be considered a corporation under public law." According to paragraph 7, religious groups shall be deemed the equal of associations "if they see it as their duty to cultivate as a community a particular philosophy of life". It is on the basis of this clause that, in addition to the so-called
"old corporate bodies", such as the Christian Churches and the Jewish
communities, there have been a host of smaller religious and ideological
groups that have been granted corporate status. Since the end of the
second world war, different groups have fallen into this category, such
as the non-denominationals and the Mormons. 300 ) Jehovah's Witnesses do
not have the status of a corporation under public law, and a request to
this effect was turned down by the Senate of Berlin. The Administrative
Court and the Higher Administrative Court of Berlin both granted the
petition for recognition as a corporation, however the Federal Insofar as the requirement in terms of the "number of members" is concerned, the administrations of Germany's federal states have agreed that throughout Germany the minimum should be established at about two thousandths of the population. Importance of corporation rights Art. 137 (6) of the Weimar Constitution and Art. 140 of the German Constitution grant religious and ideological communities which enjoy corporate status the right to raise Church taxes, a right which most (although not all) such corporations exercise. Moreover, corporate status confers the right to make use of a core set of powers which are the traditional preserve of public institutions. 302 ) Opinions differ as to the extent to which such powers are still of relevance today (for example, the right to establish a civil service). However, the very fact of gaining recognition as a corporation under public law puts organisations into an entirely different legal sphere and over time the differences between them and private organisations grows, allowing them to gain in influence and prestige. Thus, religious communities which enjoy corporate status may be considered for positions on supervisory and advisory boards, for example on the boards of broadcasting stations. It can also be assumed that with the growing market of religious, ideological and other offers of salvation, corporate status may well come to be seen as a quality label which "consumers" can trust. The financial and spiritual advantages of corporate status seem to have been recognised. Even the Jehovah's Witnesses, who did not want to have anything to do with a status that smacked of collusion with government back in the 1960s, are now very attached to the idea, as the long drawn-out case before the courts proves. The issue This raises the question of whether every religious or ideological community that has stood the test of time and has a certain number of members should be granted the special status of a corporation under public law irrespective of the belief or doctrine involved. Those who drafted the Weimar Constitution originally had this broader concept in mind, but then of course at the time some 98 percent of the population was organised within the Christian Churches, and smaller or newer religious communities -- which tended to be marginal Christian groups -- did not have much importance either in terms of the number of their followers or their social impact (with the exception of the Jewish communities, and they too did not represent that large a group, numerically speaking). These sociological conditions have of course changed for good. This in turn begs the question whether government, which is required by the Constitution to remain neutral in matters of religion, is obliged to confer corporate status on all associations or communities and to recognise them, at least unofficially, as partners with whom it is prepared to co-operate provided that their membership represents at least two thousandths of the population and that there is some guarantee as to their continued existence (the general opinion is that it must have made the transition to the second generation). There seems to be a general consensus that the answer to this question is no. In the literature the line most often taken is that conferring corporate status should not be based on a formal assessment of the test of time principle, but rather that this feature should be supplemented by additional unwritten criteria to determine suitability for corporate status. Determining what those additional features should be is of course a matter of some dispute. For example, "implicit" requirements include respect for the law, the ability to exercise jurisdiction, "general recognition", and some even call for "a generally positive attitude towards the State". In the judgement concerning the Jehovah's Witnesses referred to above, the Federal Administrative Court adopted the position that the government was entitled to expect respect for the law from an organisation seeking to gain corporate status. Thus, a community seeking such status must ensure that its actions and dealings respect the limitations implicit in the Constitution. In exceptional circumstances, the government may have to force a community to respect the constitutional order. According to the Court, the government cannot be expected to support an association by granting it corporate status if the association's actions run counter to the public interest, which is a tacit requirement of the Constitution and justifies the support provided by government. In the particular case in point, the Federal Administrative Court denied the Jehovah's Witnesses corporate status because the latter systematically refuse to allow their members to participate in elections, and hence in the fundamental legitimacy of the democratic state. This view is not shared unanimously. For example, H. Weber, who is an expert in legislation governing the established Churches, submitted an extensive opinion for Jehovah's Witnesses during the above-mentioned proceedings in which he sets out the detailed reasons why he arrives at the opposite conclusion. For the moment, it is not easy to forecast how the Federal Constitutional Court will decide the issues which have been put before it. If the Federal Constitutional Court confirms the judgement of the Federal Administrative Court it will provide legal certainty for the future, because an organisation would not be able to demand corporate status without reference being made to its life and teachings. In view of the decisions handed down by the supreme court in connection with the new religious and ideological communities and psychogroups, a change or addition to the Constitution does not appear to be necessary. The same applies to the idea of initiating a review of these issues. 5.5.4 Application and/or extension of the scope of existing law 5.5.4.1 Association and tax law Law governing associations Under Article 9 (2) of the German Constitution, associations whose actions are directed against Germany's constitutional system are prohibited. The procedural rules applied in such cases (e.g. investigations, the judicial order and enforcement of the ban, consequences for the assets etc.) are laid out in the 1964 Act on Associations. In Section 2 (2) clause 3 of the Act on Associations, religious and ideological communities are explicitly excluded from the scope of the Act. It is therefore perfectly possible for a religious or ideological community whose aims are unconstitutional to be registered as an association, and yet the instruments provided for in the Act on Associations to prohibit such a community cannot be applied. The solution to this dilemma is the subject of theoretical controversy and so far there have been no precedents. The experts who participated in the hearing organised by the Commission argued that banning religious communities was simply not feasible. The Federal Administrative Court, on the other hand, 303 ) takes it for granted that in the light of Art. 9 (2) of the Constitution, a minimum respect for the law is something that can be expected of all religious communities. This position was based on a decision (the so-called Ludendorff decision which concerned inter alia the banning of an association called "Bund für Gotterkenntnis e.V.", Federal Administrative Court judgement of 23 March 1971, BVerwG I C 54.66 in: BVerwGE, vol. 37, p. 344 ff.) that itself was determined by the legal situation prevailing in 1961, i.e. before the current version of the Act on Associations was adopted. In view of the lack of clarity regarding the legal situation, the Commission believes it right to examine whether a change in the law is possible so as to allow the legal instruments put in place by the Act on Associations to apply also to religious communities registered as associations (see the Commission's recommendations for action, Chapter 6.2.3.3). Tax law Whenever religious communities operate in the public eye, the question that frequently comes to mind is whether they should be treated as charitable organisations from a tax point of view. The status of charitable organisation is granted by the tax authorities on the basis of the rules contained in Art. 52 of the German Tax Code, provided the activities of the communities are aimed at providing material, spiritual or moral comfort to the general public without seeking personal gain in the process. The Enquete Commission is of the opinion that before charitable organisation status is conferred, all measures should be taken to determine whether an association which is favoured by such a status satisfies the requirements of loyalty to the Constitution, internal democracy, and an internal legal structure. The aims and statutes of an association that benefits from recognition by government as a charitable organisation must comply with constitutional and democratic principles. This position is in line with the opinion that prevails in tax law, namely that an association cannot be considered a charitable organisation if its activities do not comply with the constitutional order. 304 ) 5.5.4.2 Act on Non-medical Practitioners Historical review Non-medical practitioners are officially recognised in Germany, which means that the population has access to a professional class which, in addition to the medical profession and within certain limitations, is authorised to treat patients. Although the profession exists in some form or other in Northern Europe and some of the Swiss cantons, it does not exist as such in any other European country. It must be said, however, that the existence of the profession in Germany is probably due to historical circumstances, given that plans were drawn up in 1939 to abolish it. On the other hand, the original clauses limiting access to the profession of non-medical practitioner contained in the law were lifted with the entry into force of the German Constitution. The Act on Non-medical Practitioners of 1939 repealed the freedom of treatment principle that had been in existence since 1869, according to which -- according to the decision of the then Supreme Court of the German Reich -- any person was authorised to practise medicine without consideration of their knowledge, level of training, experience, skills or grant of title. The Act on Non-medical Practitioners, which was originally adopted by the German Reich and is now part of federal law, was guided by the following arguments:
In the former German Democratic Republic, this was the legal situation right up until the time of German unification. Indeed, in 1949, the conditions were even tightened up to the extent that the possibility of being granted a licence in exceptional circumstances was abolished, whereas the exact opposite happened in the Federal Republic of Germany. The exemption clause which offered an opening to the profession was deemed by the Federal Administrative Court to be unconstitutional, as a consequence of which everybody has the right to obtain a licence as a non-medical practitioner provided that he/she fulfils the conditions set out in the Constitution. Diversity of methods available to non-medical practitioners Freedom of treatment and free choice of methods are two quite distinct concepts, and the Act on Non-medical Practitioners has never tried to address the issue. This aspect is thus of particular relevance to the profession of non-medical practitioner because it relies on a great variety of methods in the paramedical or alternative medicine field, most of which are totally or partially unrelated,and range from nature healing and experience-based treatments to homeopathy and esoteric methods. That is precisely why the Act on Non-medical Practitioners is a so-called "catch- all" law in that it seeks to encompass all types of healing activity, whether they are based in, and recognised by, science or not, and handles them under the conditional licence regime. Against this background, the profession of non-medical practitioner is treated in case law as "non-homogeneous". Free choice of methods means that government does not interfere in the way treatment is provided. It is thus not empowered to use a legal provision to qualify a method of treatment as either effective or ineffective, useful or less useful. This is a task that is left to science. Consequently, the attitude of government towards the profession of non-medical practitioner is bound to be one of indifference, provided that it is not shown to be harmful. Freedom of method does not give an authorised "healer", whether he/she is medically qualified or not, carte blanche because the due diligence rules that exist in both civil and criminal law stipulate that the licence only covers the right of that individual to operate within the limits of his/her own personal knowledge and skills. This also explains why the Federal Court of Justice requires the same measure of diligence from non-medical practitioners as it does from legally qualified doctors. Given this situation, it is obvious that there can be no uniform training for the profession of non-medical practitioner, and hence, there can be no government sanctioned training programme. After all, the profession of non-medical practitioner is inseparable from the plethora of different forms of treatment that lie outside the scope of conventional medicine. Whenever there is a discussion about the profession of non-medical practitioner, the point that always comes up is that it must be preserved, especially nature healing and various empirical therapies, and these cannot be reduced to one common denominator. Such methods of treatment include, for example, homeopathy, classical natural heal- ing methods and non-European traditional medicine (hydrotherapy, heat therapy, movement therapy, nutritional therapy, plant therapy, Kneipp psychic therapy, extended anthroposophic therapy and Chinese medicine with acupuncture, acupressure, Tai Chi, Chi Qong), as well as Bach's flower therapy, faith healing, relaxation methods, as well as biological and technical methods which are on the margins of science. In order to avoid value judgements, all these treatments are referred to as "unconventional medical methods". All forms of therapy practised by non-medical practitioners, with the exception of most types of traditional natural healing methods, are considered to be either non-effective from a scientific point of view, or their effectiveness is subject to dispute. The problem arises when the government feels that it has a duty to adopt rules in an area as essential as consumer protection. The fact is that government does not have access to expertise that is independent of the world of science, and hence has no choice but to be guided by current scientific thinking. In a pluralistic society, however, the scientific nature of health care is a contentious issue. Unconventional medical methods are in widespread use, and even medical practitioners may resort to one or other form from time to time. As a result of the recent adoption of the revised version of Article 135 (1) no. 1 of the SGB V (Code of Social Law, Part V) which opens up the possibility for such methods to be refunded by social security and which itself was part of the second law introducing greater self-management and personal responsibility in the statutory health insurance scheme 305 ), one can expect unconventional methods of treatment to gain greater prominence. In view of these circumstances, the government has very little leeway to secure an efficient form of consumer protection in this area, and in particular to protect customers from quacks and charlatans. Consumer protection in the market of unconventional and simulated methods of treatment Different methods of treatment and the relief of suffering is a topic that crops up regularly in public discussions. Individuals and groups offer methods ranging from the "laying on of hands" to the promise of curing cancer or AIDS through a more spiritual approach. Often what purports to be a religious message of redemption is mixed with offers of psychological or pseudo-psychological services. In the commercial "life-counselling" market, one can find lots of offers from people who claim to be able to help others to find their way in life, to develop their personality, and the same applies to the market for cures. Groups of all kinds of conflicting persuasions offer a variety of services ranging from the solution of money problems to promises of cures. Just saying that alongside conventional medicine alternative medical methods have developed does not do justice to the phenomenon. The provisions of the Act on Non-medical Practitioners have led in the past to a number of legal disputes involving healers. The Enquete Commission has discussed various aspects of the medical and psychotherapeutic issues and their connection with the ideological and philosophical movements, and these have been described in the Interim Report. In order to provide a clearer picture of those legal disputes, we need to begin with a more detailed analysis of the legal issues contained in the Act on Non-medical Practitioners. The establishment of an efficient form of customer protection is rendered complicated at the present time by the fact that in case law there is no uniform view of what the term "practising the art of healing" actually means within the context of the Act on Non-medical Practitioners. Basically, one can find two interpretations of the term in case law. The Federal Administrative Court looks at the objective aspects of this question, the so-called objective theory. Based on this approach, the assumption is that the activity which is subject to authorisation presupposes medical or healing skills on the part of the practitioner. Considered from such a legal perspective, this applies to the aim, type and method of the activity, as well as to the decision whether a particular form of treatment may be started (cf. Federal Administrative Court of 10 Feb. 1983, NJW 1984, 1414 with the relevant references). The reason why non-medical treatment is subject to authorisation is that the treatment being considered may be harmful to human health. Consequently the Federal Administrative Court considers that medical therapies which do not represent a serious danger to human health should not be subject to licensing as required by the Act on Non-medical Practitioners (cf. Federal Administrative Court, NJW 1970, 1987 ff.). According to this view, there exists a form of unconventional medicine which does not fall under the Act on Non-medical Practitioners. The Federal Court of Justice, on the other hand, takes as its starting point a different definition of the term "practising the art of healing". In criminal proceedings for infringement of the Act on Non-medical Practitioners, the Federal Court of Justice was able to uphold its so-called "impression theory". Essentially, the Court considers the subjective impression of the patient who goes to a non-medical practitioner (BGHSt 8, 237). In accordance with this view, "practising the art of healing" according to Section 1 of the Act on Non-medical Practitioners is any act which in the mind of the patient is designed to provide a cure to an illness or attenuate its effects. It does not matter therefore which method of treatment or cure is used by the "healer", but rather that the intention is to cure an illness or provide relief from pain and suffering. The application of this definition means that a medical act is being performed whenever the aim is to cure pain and suffering through the use of putative or simulated forces (BGHSt 8, 237, 239). The risks to customers resulting form unconventional or simulated methods of treatment can be illustrated with the following examples: a) Auditing and Scientology In his book "Dianetics", L. Ron Hubbard speaks of his method as a therapy. He starts with a description of "Dianetics" from which he derives the Scientology therapy (called "auditing"), a therapy which he claims attenuates physical ailments. This creates the impression in the mind of the uninitiated reader and potential customer that through Dianetics the Scientology Organisation is able to cure such ailments and health disorders, whether real or subjective. "Auditing" can therefore be considered as the core method of treatment for the Scientology Organisation. To understand this better, we need to consider the outlines of the theory developed by its founder, L. Ron Hubbard. According to L. Ron Hubbard, the human mind -- our intellect -- is like a large computer. This intellect or so-called "analytical mind" stores all our perceptions in what is termed a memory bank from which all information can be retrieved through the "time track". The theory then goes on to explain that there are times of so-called unconsciousness, by which is meant experiences in which emotional or physical pain arise. L. Ron Hubbard refers to these as so-called "engrams". These are supposedly stored, and he would have us believe that the storage medium is the so-called "reactive mind". This reactive mind is linked to the body, is therefore transitory and is considered something negative. The "analytical mind", the so-called "thetan", on the other hand, is basically good and is considered to be immortal. The purpose of Hubbard's teaching is to get rid of the bad "reactive mind" in order to release the good "analytical mind". According to the theory, disruptive "engrams" need to be wiped out. This is done through dianetic therapy (auditing) by reviving the so-called engrams, that is to say the emotional or physical sufferings experienced in the past. According to this approach, all neuroses, psychoses, psychosomatic disorders and even anti-social behaviour are to be considered as problems of the "reactive mind" (in the language of Scientology, this is referred to as "aberrations"). As auditing is designed to erase the "engrams", this method promises to provide a cure for the suffering or complaint (L. Ron Hubbard: "In all its simplicity, Dianetics achieves the following: (¼) It involves a therapeutic technique with which all non-organic mental disorders and all organic psychosomatic disorders can be treated in the certainty of a complete cure in all cases", Dianetics, 8 th edition, p. 19). The person to be audited is counselled by an "auditor" who is trained in the Scientology method. The organisation aims at training every person who participates in a Scientology course in the technique of "auditing". According to the organisation, initial training usually lasts three weeks. In other words, even after a very short time- albeit at the lowest level -- a person can be trained as a "therapist". This example shows that the use of "auditing" -- a type of conditioning process 306 ) when its purpose is to provide a cure -- does involve an act of medical healing within the meaning of the Act on Non-medical Practitioners if one accepts the "impression theory" of the Federal Court of Justice. As auditors do not as a general rule have a licence under the terms of the Act on Non-medical Practitioners, the organisation could be deemed to be in permanent breach of the law (cf. Chapter 5.5.5.4). In addition, it should be borne in mind that the use of auditing in the case of individuals unable to cope with psychological pressure may lead to health disorders, serious illnesses, 307 ) and there may even be a risk of suicide. 308 ) b) The Bruno Gröning-Freundeskreis Bruno Gröning, who died in 1959, was a man who in the traditional sense of the term was a "faith healer". As Gröning used to claim that he was sent by God, the "Bruno-Gröning-Freundeskreis" can be considered a healing community which springs from a Christian spiritualist tradition. Gröning groups teach that there is a healing current that can penetrate people provided that they have the right "attitude". This healing current exists, they say, thanks to Bruno Gröning. Bruno Gröning hit newspaper headlines and was involved in legal disputes as early as 1954. At the time, proceedings had been initiated against him for practising medical treatments without authorisation. In order to be able to continue his work he became an assistant to a non-medical practitioner. It is said that even today the silver foil balls that were energised by him are actually revered by the Bruno Gröning groups. This may explain why there are such difficulties with the beliefs of this group in terms of healing. In 1958 the courts sentenced Gröning for breaking the Act on Non-medical Practitioners to a suspended prison sentence and he was ordered to pay a fine. Large numbers of documents have been produced on Bruno Gröning, which goes to show that even after his death in 1959 the Bruno Gröning groups have remained active and true to his teachings. One of the more contentious issues is the founder's statement that there is "nobody who is not curable", a statement that is taken by his followers at face value. As a result, people are given to understand that there are miracle cures and that they can be treated though faith, which in extreme cases could lead to a situation where they refuse medical advice when they fall ill. The fact that apparently even medically qualified physicians have joined the Bruno-Gröning-Freundeskreis lends this group even greater importance. An announcement has been made to the effect that a medical verification of the claimed cures on the basis of scientific standards will be carried out, but only time will tell whether this is actually going to happen. c) Digression Dachverband geistiges Heilen e.V. (National Association of Spiritual
Healers) Spiritual healers in their various manifestations have
established an umbrella organisation to which until recently the
Bruno-Gröning-Freundeskreis also In the process individuals and groups obviously came to the realisation
that "spiritual healing" could be in conflict with the health
legislation of the Federal Republic of Germany. Thus, for example, the
national association publishes its In the introduction of the handbook, there is a heading -- "Practical Application of the Act on Non-Medical Practitioners" -- which considers the shortcomings in the law and points out how to reduce the legal risk involved in certain activities. Another section entitled "Legal Guide" provides advice on how to provide treatment without running foul of the law. For example, one can read the following: "Keep a logbook and get the patient to confirm the words you have spoken to him/her. You will find a model in this book to help you. This provides proof of your visit. Obviously the log book must not be tampered with. The model also contains a standard statement. It is a good idea not to write the addresses of your patients on the form or in your card index. That would be an invitation to the Director of Public Prosecution to summon the patients for questioning". 309 ) How to improve consumer protection in the market of unconventional healing practices Given the growing variety of unconventional methods of treatment, there is a considerable risk that patients will be given the wrong treatment, either by mistake or because they are dealing with quacks, and as a result will come to harm. Under such circumstances, government has a compelling duty to introduce greater transparency and so put an end to the confusion that reigns in the health treatment market. In fact, plans are underway to introduce a law on commercial life-counselling services to cover a part of this problem (cf. Chapters 5.5.5.3 and 6.2.3.3) so that standards of quality assurance can be adopted to cover individual kinds of alternative treatment. It would be also beneficial from the point of view of customer protection if there was a supreme court ruling on what practising the art of healing means within the context of the Act on Non-medical Practitioners. The Enquete Commission believes that it is necessary to define the term "medicine" (Heilkunde) in the Act on Non-medical Practitioners in line with the case law of the Federal Court of Justice (BGHSt 8, p. 237). 5.5.4.3 Provisions of the law on parents and children a) Act on the Religious Education of Children (RKEG) The hearing organised by the Enquete Commission on the subject of "The Situation of Children and Adolescents in So-called Sects and Psychogroups -- Part III: Legal Aspects" on 20 March 1997 confirmed that the law on the religious education of children which has been in effect since 1 January 1922 has more or less fallen into disuse in the day-to-day practice of the courts. In spite of the fact that the values which underpin the law have lost none of their topicality and are in many ways excellent, the law is usually no longer directly accessible for the practitioner, as the annotations to the German Civil Code (BGB) which are contained in the so-called "Palandt" no longer include the law itself nor any commentaries on the issue. Apart from the annulment and transitional provisions contained in Section 8 ff. of the RKEG Act which have now become outdated, the actual contents do not need amending. Listed below is a summary of the most important provisions of the RKEG Act:
The requirement that the two parents agree on the religious education, or that the consent of the other parent be obtained, continued to apply until 30 June 1998 under the law applicable to parents with sole custody following a divorce. This was superseded by the law on parent and child which stipulates that the principle of joint custody after a divorce stands unless one of the parents requests sole custody. The religious education of a child born out of wedlock is the responsibility -- according to the prevailing opinion -- of the unmarried mother, with the exception of those cases where both parents make use of the possibility which has been given them since 1 July 1998 to register joint custody.
b) European harmonisation of the law governing the relationship between parents and children Against the background of an increasing number of cases where children are abducted and taken abroad by one of their parents -- sometimes as a result of religious or ideological beliefs -- serious problems may arise because of the fact that the law governing the relationship between parents and children differs from country to country. The issue of custody rights certainly needs to be harmonised and amended, at least at the European level. This is an area where differences in the way in which courts deal with claims for the surrender and custody of children, as well as visiting rights, can be avoided as they do, in the final analysis, operate to the detriment of the child's well-being. Legal situation When dealing with new religious and ideological communities and
psychogroups, the question invariably arises as to whether the provision
of services or goods by such groups constitutes usury or exploitation,
an offence under The relevant section of the provision states that the offence of usury or exploitation is deemed to have been committed by any person who exploits the predicament, inexperience, incapacity to judge or significant weakness of will of another, thereby obtaining for himself or a third party in return for certain goods or services (Section 291 (1) clause 3 of the German Penal Code) material or financial advantages which are manifestly out of proportion to the goods or service provided. Paragraph 2 of the provision holds that the seriousness of the offence is compounded if, as a result of the perpetrator's acts, another person is placed in a situation of economic need or if the acts have been carried out on a commercial basis. Reports from former members of a number of groups show that it is entirely possible to find oneself in a situation in which one is totally under the influence of the group and in a psychologically weakened state, such as may be exploited for financial gain. The test to be applied is whether the notion of protection enshrined in Section 291 of the German Penal Code, which makes the material exploitation of a victim's weakness an offence, is relevant in the individual case in point. Examples of the above-mentioned situations include:
The wording of Section 291 shows that the provision is very much case law orientated in its construction. As well as mentioning the various situations of weakness which might be exploited in an unfair manner, the law specifically designates a series of typical exploitative activities (charging unfair rents and usury, as well as acting as agent in an exploitative or usurious transaction). Furthermore, the interpretation of the particular elements of the offence frequently tends to focus on the specific circumstances of the individual case, which makes it difficult to discern a clear line. By way of action to be taken, the Enquete Commission recommends that clauses be added to the law, as indicated in Chapter 6.2.3.5, in order to make it clear that the above-mentioned problem of psychological influence can itself constitute an element of the offence contributing to the victim's finding him or herself in a situation of weakness. The proposed clarification of the law makes it evident that the concept of "predicamentº embraces not only economic difficulties, but also personal distress which may, inter alia, be brought about by psychological influence. Psychological dependence may still be subsumed under the concept of "significant weakness of will," provided the prerequisites are present in the required intensity. Legal assessment It is beyond dispute, both in legal theory and in case law, that goods, shares, courses, seminars and sundry services fall within the scope of "other services" as understood by Section 291 of the German Penal Code. As for that which is provided being "manifestly out of proportion" to the price paid, the test considers the customary market price for such goods or services. 311 ) If no market value can be ascertained (there being no market), the assessment is merely based on a "fair price" or "reasonable profit", as determined in the light of the circumstances. 312 ) The assessment criteria used to judge whether goods and services in the context of new religious and ideological communities and psychogroups are overpriced are identical to those applicable to any other case of exploitation. The sole problem arising out of the cases under consideration here has to do with judging the state of the victim who, by dint of belonging to a group, has been induced to pay an excessively high price for certain goods or services. The issue is one of ascertaining the presence or otherwise of the "predicament" and/or "significant weakness of will" elements of the offence, which form the basis for the material exploitation of the victim. a) Presence of a predicament It would be conceivable to construe the particular situation of members of certain new religious and ideological communities and psychogroups as a predicament, since the victim may feel "compelled" to acquire the overpriced goods or services being offered under the influence of the teaching being dispensed. *For the purposes of Section 291 of the German Penal Code, a "predicament" is understood to mean a situation in which the victim finds him/herself in particular difficulty. Since the revised wording of the provisions on usury and exploitation appeared in the Erstes Gesetz zur Bekämpfung der Wirtschaftskriminalität (1. WiKG, 1976 -- First Act on Combating White-Collar Crime), it has been unanimously accepted that the exploitation of a situation of economic difficulty falls within the scope of the notion of a predicament. 313 ) Moreover, a predicament is said to exist also when other circumstances, i.e. those of a non-economic nature, give rise to a compelling need on the part of the victim to acquire the exploitative goods or services. 314 ) Examples of such predicaments include:
Consequently, the definition of a predicament for the purposes of the present legislation goes beyond the "state of distress", the element of the offence previously laid down in law which proved too narrow in practice and which was largely interpreted as meaning "dire economic need". 315 ) This is apparent also from the manner in which the causing of economic distress has been singled out as a further aggravating circumstance in Section 291 (2) clause 1 of the German Penal Code in its current version. The existing case law and literature on Section 291 scarcely address the question of predicaments of a non-economic nature. However, in the view of the Enqu ete Commission, it is entirely possible in the area of new religious and ideological communities and psychogroups for a problem group, through its activities, to place the exploited person in a comparable predicament, albeit of a different kind, in which he or she is incapable of refusing the exploitative goods or services. However, no references are to be found to date, either in case law or in legal theory to such "psychological predicaments". b) Significant weakness of will Moreover, it would be possible to see the dependencies created within a group as "significantly weakening the will" of those who find themselves incapable of refusing an exploitative offer. According to the generally accepted interpretation of Section 291 of the German Penal Code, a significant weakening of the will is said to occur when the power to resist a usurious or exploitative offer is diminished to such an extent that the state of weakness thus created is comparable to the other situations referred to in Section 291 of the German Penal Code (i.e. predicament, inexperience or incapacity to judge). 316 ) In other words, the provision is aimed at any psychological weaknesses exhibited by the exploited person, having their origin in the person himself or herself and which go beyond normal susceptibility, taken here to mean, for instance, that which may be tapped by tempting advertising. 317 ) These weaknesses must not necessarily have attained the level of an illness; however, the expert commentaries contain numerous references to cases of significant weakening of the will in which the person's resistance was diminished as a result of the effects of addiction (drug, alcohol or gambling addiction). 318 ) In the light of the foregoing, psychological influence could be accepted as a cause of significant weakening of an individual's will. If the decision-making ability of an individual is impaired by the influence of one of the dubious new religious or ideological communities or psychogroups to such an extent that a free decision in favour of or against accepting overly expensive goods or services is out of the question, then there has clearly been a significant weakening of the individual's will, as understood by Section 291 of the German Penal Code. The question of whether the influence over the individual has reached this level -- which is entirely comparable to an addiction -- will have to be judged on a case-by-case basis. It may therefore generally be said that the offer of blatantly overpriced goods or services on the part of new religious and ideological communities and psychogroups, especially within the ambit of commercial cults (see Chapter 5.3.4) and systems based on expected profits (see Chapter 5.3.5) already constitute usury or exploitation under the existing legislation and are punishable as such. The pressure put upon the individual can be so strong that he or she is placed in a predicament which is then exploited for material gain. Similarly, the mental state of the person can be influenced to such an extent that a significant weakening of the will has to be assumed. Practice to date The law on usury and exploitation has tended not to have a very high profile in the field of criminal law practice. Police crime statistics for all of Germany for 1993 mention only 454 cases of offences against the old Section 302a of the German Penal Code (new Section 291 StGB). This is in part due to the fact that bringing a charge of usury or exploitation always involves the victim's own failings becoming public knowledge. At the same time, it may be that the victim's dependence on the perpetrator is so great that the former is afraid he will suffer more if he informs. 319 ) However, it should be noted that a criminal prosecution for usury or exploitation does not necessarily begin with the lodging of a complaint. It is far more often a so-called ex-officio offence, whereby initial suspicion of such activities is notified through official channels. This is an aspect which has not so far been given sufficient prominence. As observed earlier, no judgements or theoretical opinions have yet been published on the specific question of usury or exploitation within the ambit of new religious and ideological communities and psychogroups. The above description shows, however, that cases with criminal law ramifications could certainly arise. It is a prerequisite of the investigative function of criminal law in these cases that the investigating officials should have access to sufficient sources of information to enable them to form an objective view, especially with regard to the above-mentioned "predicament" and "significant weakening of will" elements. More work will therefore need to be done to provide further education and information. The knowledge that a certain group always employs the same or similar methods in order to gain influence over a person could, moreover, be used to facilitate the investigative work. Thus, investigations launched by official bodies could make use of witnesses who had not taken the first step of lodging a complaint against the group. This could be of considerable importance as regards the willingness of the individuals concerned to provide information. 5.5.4.5 The Act on Psychotherapists In its Interim Report, the Enquete Commission has already drawn attention to the urgent need for an Act on Psychotherapists. Chapter 6.2.3.6 contains a recommendation for action to ensure that appropriate care is available for those who have been harmed by new religious and ideological communities and psychogroups or the booming market for "life-counselling products" and esoterics. 5.5.4.6 Aspects of labour and social security law Matters relating to social security legislation were already addressed prior to the establishment of the Enquete Commission in petitions submitted to the German Bundestag with regard to various groups. According to the current legislation regarding the social security of the individual, a distinction is to be made between those who are members of a spiritual fellowship or belong to community of a similar kind, and those whose relationship is that of employee to employer. In principle, all persons who are gainfully employed or undergoing vocational training are obliged by law to be insured under the statutory pension scheme. Employment is defined as labour provided for the benefit of a person other than oneself and in particular, in a relationship where the person providing the labour is dependent as an individual on his employer. According to the current case law of the Federal Social Court, a relationship of employment is deemed to exist where, having considered all of the circumstances in the case in point and according to the commonly-held opinion, the provider of labour is personally dependent, with that dependence primarily expressing itself in his position within the undertaking and/or the right of the employer to manage him. The same applies to members of spiritual fellowships, deaconesses (members of Protestant sisterhoods) and those belonging to similar communities while they are serving the community and during the period of their non-school education (Section 1 Social Code VI). Membership in the statutory pension scheme is not mandatory for the aforementioned persons if, according to the rules of their community, they would expect to receive the care afforded customarily by the community to those whose ability to work is diminished or to the elderly and to the extent that provision of such care is guaranteed. On leaving an order or similar community, the former member must retroactively be provided insurance cover under the statutory scheme for the period spent working within the community. The wage in respect of which this cover is to be obtained must be equivalent to at least 40 percent of the reference amount. The reference amount is based on the average earned wage of all persons insured under the scheme in the last-but-one calendar year. In the area of unemployment insurance, regular members of spiritual fellowships, deaconesses and similar persons who, for predominantly religious or moral reasons, are involved in nursing or in education or who perform other duties of value to society and who leave what is -- by virtue of the law (Section 27 (1) clause 4 SGB III) -- non-insured employment, are not retroactively insured. The same applies to the statutory health insurance scheme. With regard to health insurance, the persons in question are not required to pay insurance if, for predominantly religious or moral reasons they care for the sick, teach or perform other duties of value to society in return solely for their bed and board or a nominal wage sufficient only to enable them to meet their immediate needs in terms of accommodation, food, clothing and so on. Furthermore, the statutory health insurance obligation does not apply to clerics belonging to religious societies recognised as public law corporations if according to administrative law or principles, they are entitled in the event of illness to the continued payment of salary and benefits. The Federal Ministry of Labour and Social Affairs has stated that it follows from the above principles that members of new religious and ideological communities and psychogroups are as a matter of principle obliged to subscribe to insurance if they are engaged in work having an economic value. By means of a number of test-cases, the pension insurance providers have attempted to obtain clarification within the ambit of company audits as to what wage should be taken as the basis for the insurance in cases where the employee in question receives a conspicuously low wage. The Bundesversicherungsanstalt für Angestellte (Federal Social Insurance Institute for Salaried Employees) is involved in proceedings against a community over a disputed demand for social security contributions. These proceedings have not yet been completed. Furthermore, with regard to claims by members of new religious and ideological communities and psychogroups against their respective communities, it must be clarified whether responsibility for the pursuit of such claims lies primarily with the members themselves. When considering labour law questions, it is noteworthy that in both case law and in legal texts and commentaries, much of the space is taken up by the dispute with the Scientology Organisation. Since the decision of the Federal Labour Court not to recognise Scientology as a religious community (Federal Labour Court, decision of 22 March 1995, 5 AZB 21/94, NJW 1996, 143), there have been proceedings relating to dismissals in connection with Scientology membership, as well as proceedings relating to the licence to act as a private placement service. In the case of the dismissal of persons belonging to the Scientology Organisation, the courts concluded that dismissal is justified if warranted by the behaviour of the person in the case in point (cf. Labour Court of Berlin ruling of 11 June 1997, ref.: 13 Case 19/97 and Labour Court of Rhine-land-Palatinate ruling of 12 July 1995, ref.: 9 Case 890/93; in both cases, the behaviour of the individuals in question was such that the dismissals were upheld; in the latter case, a works council member was dismissed for disrupting company activities by recruiting for Scientology during working hours). There is some doubt as to whether membership of the Scientology Organisation is in itself justification for the revocation of a private placement service licence. 320 ) More generally, the Federal Ministry of Labour and Social Affairs has observed that there is no provision in German labour law for the official monitoring of compliance with contractual or collectively-negotiated obligations or for penalising or documenting any breaches. However, labour protection officials at the level of Germany's federal states would certainly act against infringements of labour protection law provisions, such as those on working time. During the course of discussion, a representative of the Federal Ministry of Labour and Social Affairs pointed out that there was no legal definition in the Federal Republic of Germany of the concepts of "employment relationship" or "employee". According to the case law of the Federal Labour Court, an employment relationship exists if, under the terms of a private law contract, services are provided for and on behalf of another. The question of whether a situation of personal dependence exists is to be answered in the light of the overall circumstances of the individual case and bearing in mind the commonly-held opinion. Furthermore, he added that the extensive case law of the Federal Labour Court must also be borne in mind. Another problem is that of drawing the dividing line between an employment relationship and activity based on the rules of the group or community. The new religious and ideological communities and psychogroups frequently maintain that their members are merely doing their duty within the group. It is true that case law recognises that membership of an association may be considered as a legal basis for the provision of a service, irrespective of the nature of the association and indeed even whether it is a religious or ideological community. Here again, it could be argued that a service is being provided by a dependent individual -- i.e. that a normal employment relationship exists. An agreement between a new religious or ideological community or a psychogroup and a person working for it does not lose the qualification of employment relationship merely because the organisation claims that the relationship is based on membership of the association or group. The case law of the Federal Labour Court has consistently maintained that the fact that certain duties may arise out of membership in an association cannot be used as an excuse to circumvent the mandatory protective provisions of labour law. Where the membership rights of the association member obliged to perform the task in question do not allow him to exert influence on the association, the Federal Labour Court invariably assumes that a contravention of the mandatory protective provisions of labour law has occurred. Furthermore, a breach of labour law may also occur if the association member (who to a large extent is obliged to provide labour as a dependent individual) has neither a claim to an appropriate remuneration nor is he/she entitled to care. Where the aim of the association is an economic one, the relationship is de facto one of employee to employer. In the presence of circumstances such as these, where the intention is to side-step labour law, it should be assumed that an employment relationship does exist, with all that this entails. These are also the considerations which led the Federal Labour Court to conclude in its above mentioned Scientology Organisation ruling that an employment relationship did indeed exist. The Federal Ministry of Labour and Social Affairs has pointed out that one of the problems which arises when dealing with providers of services, such as life-counselling services, is that although the providers appear to be self-employed, they are to all intents and purposes employees of their new religious or ideological community or psychogroup. This form of sham self-employment would seem to represent an attempt to dodge the labour and social security laws and the attendant financial obligations. The pseudo self-employed person who offers services on his own behalf is an employee, even if the contract concluded with him is inaccurately described as a job-specific or a service agreement or whatever, and it is therefore subject to the customary labour law stipulations. Even within the context of new religious and ideological communities and psychogroups, the distinction between the genuinely self-employed and the pseudo self-employed must be defined according to the criteria set out by the Federal Labour Court. This is not without its difficulties, since this approach takes no account of possible special and psychological dependencies which may arise in the context of new religious and ideological communities and psychogroups. In those cases where we are bound to assume that the persons in question are employees, a particular problem arises with regard to the wage paid to those who work for new religious and ideological communities and psychogroups. It has emerged from labour court cases, especially in the south of Germany, that the work the employees are required to do takes up so much of their time that any other employment is out of the question. In return for this work, they receive an extremely low wage. In principle, wage levels are determined by reference to a collective agreement. However, in public debate, it is often forgotten that an employee is entitled to a collectively negotiated wage only if both he and his employer are bound by the agreement or if a generally binding wage agreement is applicable. Only then are collective agreements directly applicable and binding. In the world of the new religious and ideological communities and psychogroups, individual contracts posited on collective agreements tend to be the exception. Consequently, employment contracts provided by new religious and ideological communities and psychogroups fall outside the scope of collective agreements. Where the wage paid to the employee is wholly disproportionate to the effort he is expected to provide, to such an extent that it may be said that the employment contract is immoral or exploitative and hence null and void under the terms of Section 138 of the German Civil Code, Section 612 would apply, in which case the employer would be required to pay the local going rate for the work in question. Again, in determining this rate, reference would be made to the relevant collectively agreed wage. In the case of individual contracts, it is noteworthy that many statutory entitlements, especially regarding continued payment of a salary in the event of illness and the statutory minimum number of days' leave are either limited or excluded altogether. Such an agreement would also be null and void under the terms of Section 134 BGB. Since these are individual entitlements, it is up to the employee himself to lodge a complaint. An additional problem is that of working hours which exceed the limits set down in labour legislation. The problem becomes particularly acute when the individual is put under extreme pressure to work hours far in excess of the maximum as specified in legislation on working time. It would be possible in such cases for the trade inspectorate to intervene and impose fines or, in especially serious cases, call for a term of imprisonment to be imposed. Another problem is posed by in-house training of employees. In principle, it is up to the employer to decide how such training is organised. Nevertheless, the employer is under an obligation to safeguard his employees' health and their individual rights. It follows that if an employer were to behave in a manner contrary to the law, it would be possible to investigate only if individual employees were to ask for action to be taken. The Federal Ministry of Labour and Social Affairs feels it would be useful to re-state clearly that an employee may at any time refuse to participate in in-house training or continue with such training if he feels that its content or method violates his rights as an individual or any other rights. It would also be helpful to have a provision stating that an employee cannot be forced to remain silent on in-house training and that he has a right to be heard by the competent authority if the training violates his basic rights or criminal law or if he is called upon to violate the rights of others. Yet another problem is posed by members of new religious and ideological communities and psychogroups who take up employment outside their new religious or ideological community or psychogroup. Many employers are feeling a growing need to guard against taking on members of new religious and ideological communities or psychogroups. This is especially true of organisations whose declared aims include the acquisition of influence in business life. One way for the potential employer to protect himself would be to put a suitable question to the applicant during the interview or on the application form or to include an appropriate clause in the contract of employment. The right of the employer to ask the question is recognised only if he has a justifiable and valid interest, worthy of protection, in receiving an answer to his question. This is the conclusion to be drawn from the ruling of the Federal Labour Court. The Federal Labour Court has always accepted the existence of such an interest, provided the information being sought was necessary in order to ascertain the suitability of the applicant for the post. Thus, questions relating to the applicant's religion or ideological leanings are acceptable if the employment on offer is with a company that might be termed a trend-setter. Otherwise, questions as to the applicant's religion or ideology are not permissible. Once again, it should be pointed out that as a result of the Federal Labour Court's decision not to recognise Scientology as a religious or ideological community, it is permissible to ask an applicant whether he or she has links with Scientology. However, even membership in organisations other than religious or ideological communities is rarely an indicator of the suitability or otherwise of an applicant for a post. For this reason, employers have regularly been denied the right to ask about membership in associations or organisations. These questions are permissible only if membership in a particular organisation is held to be incompatible with a person's functions within the company. It should also be borne in mind that private employers enjoy far more liberty than public sector employers when it comes to the questions they may or may not ask. It is also of interest to note in this context that according to Scientology's own lights, it is acceptable to reply untruthfully if asked if one is a Scientologist. On the other hand, one is bound to tell the truth if asked whether the technology of L. Ron Hubbard would be applied or if one is a member of the IAS. It should be remembered that under Section123 of the German Civil Code, an employer is entitled to reconsider his employment relationship with any employee who has given a false answer to an employer's permissible question about membership in this type of organisation. Another possibility for the employer is to append a statement to the employment contract or include it as a clause therein, in which the employee declares that he is not a member of any of the organisations in question and will not join one. Of course, this option exists only to the extent that the employer has the right to ask a question about membership in the first place. The situation is less clear as regards the person who joins a particular organisation during the course of an existing employment relationship. The Federal Labour Court places a very restrictive interpretation on the right to ask the question in the framework of an existing employment relationship. With regard to the general question of dismissal of members of new religious and ideological communities and psychogroups, there are to date no instances in labour court case law of dismissal being justified solely on the grounds of membership of such a group. Other features have to be taken into account which preclude suitability for a particular post. An additional possibility is forced dismissal, where other employees, customers or other persons pressure the employer into dismissing an employee who belongs to a new religious or ideological community or psychogroup and where the employer's sole option, in order to resolve the conflict, is to dismiss the person. Furthermore, dismissal could be envisaged where an employee has been active on behalf of his organisation and in so doing betrayed commercial or industrial secrets to the organisation, perpetrated fraud for the benefit of the organisation or sought to recruit for the organisation among co-workers during working hours using resources belonging to the company. The two labour court rulings so far handed down on this question have since been confirmed by the Higher Labour Courts of Berlin and Rhineland-Palatinate. The fact that dismissal is authorised under these circumstances is by no means specific to the particular set of problems under review. 5.5.5 Legal provisions to be adopted in future Introduction The discussion of the problems which regularly occur when dealing with new religious and ideological communities and psychogroups has caused the Enquete Commission during the course of its debates to consider in some detail not only what needs to be done by way of information gathering but also potential ways of minimising conflict. It is a fact that there are many such conflicts, not only at an individual and family level, but also within society as a whole. The private counselling and information centres and self-help centres which operate in the Federal Republic of Germany and have provided active assistance for some time, have also come into conflict with problem groups. During the hearing on Article 4 of the Constitution, the invited experts made it clear when discussing the question of "public funding for private counselling centres" that whether or not there would be objections from a constitutional law point of view would depend on the way in which the counselling centres gathered their information. As was made clear during the non-public hearing of "Counselling and information centres for so-called sects and psychogroups" on 2 December 1996, the representatives of the agencies consulted also feel it would be a good idea to establish a Foundation to provide overarching legal assistance and financial support both for the agencies themselves and for those who leave the sects or who have been otherwise affected by them. Form of the foundation It should be a public law foundation, created jointly by the federal and the state-level authorities. The fact that the federal and state-level authorities would be both involved will send a political signal throughout the Federal Republic of Germany that a uniform approach is being applied. The work of the foundation should be supported by a scientific advisory board. Functions of the foundation The foundation should cover the following fields of responsibility:
In 1992, the Federal Administrative Court (BVerwG) took a decision regarding the legality of public funding for registered associations which take a critical stance vis-à-vis the aims and activities of new religious and ideological communities and psychogroups. In one case, the issue in litigation was the provision of public funds by the Federal Republic of Germany to an umbrella organisation, which included both individuals and associations based in Germany and Austria, dealing with problems associated with so-called new religious movements (Federal Administrative Court, judgement of 27 March 1992 7 C 21.90, in: "Entscheidungen des Bundesverwaltungsgerichts" (Judgements of the Federal Administrative Court) -- BVerwGE -- Vol. 90, p. 112ff.). A second case had to do with the provision of public fund by a municipality to an association involved in youth welfare services which, inter alia, provided information, advice and help to individuals personally affected by "destructive cults" (Federal Administrative Court, judgement of 27 March 1992 7 C 28.90). In both cases, actions had been brought against the funding by registered associations which had been affected by the activities of the association which had received the funds and which had been summoned to appear in court. In both cases, the Federal Administrative Court acknowledged that the plaintiffs were entitled to protection under Article 4 of the Constitution. In the first case, the Federal Administrative Court found that by providing funds to the summoned association, the defendant had wilfully interfered with the basic rights of the plaintiff. According to the summoned association's own statutes, its aim was to combat "religious and ideological abuses" ascribed to new religious movements and to inform the public about them. This was the aim which the public funds were intended to promote. The Court stated that the deliberate intervention in the plaintiff's basic rights (which was created by the provision of public funds to the summoned association) required proper authorisation on the part of the defendant. Unlike a situation where the Government makes statements of its own, the German Federal Government's power to perform public relations activities could not be interpreted as proper authorisation for the provision of public funds. Instead, this power was an expression of its function as a public governing body and represented authority to intervene derived directly from the Constitution. On the other hand, the use of federal budget resources to provide funds to a private association represented a (genuine) administrative act on the part of the Federal Government. In addition, even when the government itself wanted to warn the public with regard to the activities of certain religious and ideological communities, the government was obliged to exercise restraint and maintain neutrality in the interest of the parties whose fundamental rights were affected. The government was not allowed to discharge these legal obligations by funding an association which could invoke the basic right to freedom of expression in order to make utterances verging on the defamatory. The duty thereby imposed upon government to maintain strict neutrality in the case of funding measures of the kind discussed above and to avoid any arbitrary or unreasonable curtailment of basic rights enshrined in Art. 4 of the German Constitution in the mutual relationship of parties enjoying such basic rights also imposed the requirement on government to obtain separate authorisation for such funding. (BVerwGE, Vol. 90, p. 112 ff., p. 124). The Court came to the conclusion that German Federal Government did not have such authorisation, and that, hence, it did not have the right to provide funds to the summoned association either as an institution or for projects in connection with the plaintiff. The Federal Administrative Court followed a similar line in the second case. Providing funds to the summoned association affected the plaintiff's basic right to exercise its faith without interference. As its past publications and activities had shown and in line with its statutes, the summoned association had made critical and even deprecating comments about the plaintiff, and the defendant had supported the association financially in these activities whilst being fully conversant with its aims. The decision to provide funding had been based on the content and the aims pursued by the association in its activities. In order to provide such funds, the defendant needed proper legal authorisation in the form of an Act. The very fact that such authorisation did not exist was sufficient to make provision of funds provided to the association illegal. The German Federal Government published a written statement with regard to the implications of these decisions. In a letter sent to the Enquete Commission on "So-called Sects and Psychogroups" on 9 October 1997, Claudia Nolte, MP, the Federal Minister of Family Affairs, Senior Citizens, Women and Youth Affairs, announced that the German Federal Government had discontinued its institutional funding of the association summoned in case 7 C 21.90 by means of a notice issued on 16 July 1992. Furthermore, against the background of the judgements outlined above, the Ministry had prepared a bill intended to provide the legal authorisation for funding stipulated by the Federal Administrative Court. The intention was to add a third paragraph to Section 14 of the Social Code VIII (SGB VIII; Welfare Services for Children and Adolescents). The new paragraph would read as follows: "Services for the protection of the welf are of children and adolescents provided within the educational environment shall also include measures designed to inform and educate children and adolescents about the activities of groups which may pose a threat to young people (youth sects and psychogroups)." However, these efforts aimed at creating proper legal authorisation for the provision of public funds to private information and counselling centres failed to find acceptance during the stage of interdepartmental co-ordination because of substantial constitutional doubts. According to the letter written by the Federal Minister, it is generally impossible for constitutional reasons to create the kind of legal basis deemed necessary by the Federal Administrative Court in its judgement. The Enquete Commission has thoroughly examined this question of public funding for information and counselling centres and also raised the issue with the constitutional law experts at the hearing held on 12 December 1996. 321 ) The experts emphasised that the requirement of a legal basis for the provision of public funds was linked to the question of the indirect latent intervention constituted by the funding. It could be inferred, for instance, from the Federal Administrative Court judgement that the mere collection of information by the funded association did not lead to an intervention in fundamental rights. Except for the view which was put forward during the hearing (but which is at variance with the Federal Constitutional Court's case law) that Art 140 of the Constitution, in conjunction with Art. 136 (1) of the Constitution of the Weimar Republic, represent a legal reservation for the freedom of religious beliefs, no objections were raised on constitutional grounds against the introduction of a statutory provision with regard to the funding of private information and counselling centres, providing that such funding was necessary to safeguard the legal interests protected under Art. 2 (2) of the German Constitution. Generally speaking, even provisions which constitute interventions in the freedom of religious and ideological belief, which according to the prevailing view are unreservedly vouchsafed, are not precluded if they are needed to protect the legal interests mentioned abovee. In this context, has pointed out that according to the Federal Administrative Court's own case law, it is permissible to intervene in unconditional basic rights insofar as this is necessary in order to protect those legal interests which are enshrined in the German Constitution itself and entrusted to the care of Government. According to Herzog, it is for this reason that Government is obliged to intervene to protect life and limb not only in the case of ritual murder but also in the event of exorcism involving bodily harm or unlawful detention. 322 ) According to information in the possession of the Enquete Commission, the possibility of physical force being used within new religious and ideological communities and psychogroups cannot be precluded. Moreover, as the Commission's Interim Report explains, instances have come to light during hearings on the situation of children and adolescents in new religious and ideological communities and psychogroups of physical force being used against children (corporal punishment, enforced meditation, and sexual exploitation). Evidence was also produced at the hearings on the situation of adults in new religious and ideological communities and psychogroups of possible unlawful detention. In addition, there were reports on meditation techniques which, whilst
potentially beneficial, could also have a very harmful effect on certain
individuals if used improperly. Furthermore, cases in which members of
new religious and Against this background, the Commission does not rule out the possibility of finding a legal construct which would allow government to provide funds to private counselling and information centres, provided they supply objective information to the general public or to individuals regarding potential dangers involved in joining certain groups and the possibilities for leaving them, bearing in mind also the individual's constitutionally guaranteed freedom of religious and ideological beliefs (cf. the recommendation for action in Chapter 6.2.2.2). 5.5.5.3 Act on Commercial Life-counselling Services The last 20 years has witnessed the rise in the Federal Republic of Germany of a "psychomarket", which has become increasingly bewildering as it has continued to expand. According to the Enquete Commission's findings, this market is now able to offer around a thousand different approaches, methods, techniques and procedures. They are designed to heal mental or psychosomatic disorders, help the individual manage a life crisis or a change in circumstances, improve his mental faculties or increase his self-assertiveness, ability to cope with conflicts or self-esteem. Also available on the market are personality training seminars, which are much appreciated by companies for their personnel development programmes. The term which is now commonly used to describe such services is "life-counselling". The providers of such services come from a wide variety of backgrounds. In addition to the countless individual suppliers, the market is host to esoteric groups, faith healing communities and neo-revelationist groups offering new experiences and healing, exotic and/or foreign religious communities also offering new experiences, meditation and healing, and so-called "psychogroups" offering personality development services and what are known as "success courses". The range of methods -- or amalgams of different methods -- on offer is equally bewildering. According to the information obtained by the Enquete Commission, which has had a study made of the alternative self-help market, providers work with combinations of diverse methods, which in most cases are taken from a variety of fields. There are numerous body techniques, consciousness-altering procedures and creative methods, as well as esoteric healing or interpretation methods. In parallel, certain relatively clearly-defined methods and schools also exist. The number of methods is growing all the time. No matter whether they focus on the content or the financial aspects, it is impossible for consumers to navigate their way through this complex market. Likewise, there has recently been a rise in the volume of complaints from consumers about negative personality changes, damage to health and over-charging. In part, this has to do with lack of transparency in supply, which, if it existed, would give the consumer an opportunity to find out about the provider's qualifications, the methods used, the duration of the course and the financial commitment involved prior to signing a contract with a commercial provider of services. The creation of transparency in the market cannot and should not lead to the market's disintegration, since the market is merely the reflection of society's need for such self-help programmes and, given the ever-growing demand, the market fulfils a function within society. Nevertheless, the individual consumer needs protective rules which put him/her in a position to understand the consequences before signing a contract and taking a decision in the light of this knowledge. Furthermore, as no study has been carried out on the typical risk profiles of the various methods and techniques, it is virtually impossible for the consumer whose interests have been harmed to make a provider of the life-counselling service liable for damage caused by malpractice. For this reason, it was necessary to remove from the bill on commercial life-counselling services a clause which had originally been included in order to make it easier for clients who have suffered damage to provide evidence in support of a claim for damages. The Enquete Commission recommends that providers operating in the "psycho-market" should protect their clients by continually checking their services for tolerance problems and safety, including possible unwanted side-effects, by applying recognised quality assurance methods used in psychotherapy and in psychosocial practice in order to minimise potential health risks. As the Enquete Commission is of the view that the existing law frequently fails to protect the individual effectively, it is in favour, as explained in section 6.2.3, of creating legislation to govern the provision of life-counselling services on a commercial basis. 5.5.5.4 Introduction of criminal liability for legal entities and associations of persons Under the existing law of the Federal Republic of Germany, it is not possible to hold legal entities or associations of persons liable for criminal offences. Current criminal law is based on fault by an individual, just as the punishment presumes fault by an individual. In the field of new religious and ideological communities and psychogroups, a problem arises when a member of a group commits a criminal act related to membership of the group and the specific duties of the member therein. For instance, in the "Narconon" drug rehabilitation centre case, a manager was held responsible for breaches of the law governing non-medical practitioners. However, the type of treatment provided by the "Narconon" centre is based on rules and methods dictated by internal instructions of the Scientology Organisation. Under German criminal law, however, sentences in such cases can only be passed against individual members, even if they have obeyed the rules of an association and if they have acted in line with the association's doctrine. In this instance, as in other cases where individuals were held liable for criminal offences, the personal and financial conditions of the accused were taken into due consideration, as is permitted by law, in assessing the punishment. In some cases, the fines set had to be commensurate with an individual's very low personal income, even though the offence in question was committed on behalf of -- or at least in the interest of -- what was perhaps an internationally operating and economically strong organisation. Moreover, because of this legal situation, it has been possible for the organisations in question to argue in public that the criminal accusations were not directed against the organisation itself, but at individuals who unfortunately failed in their duty. This was the line of argument used, for example, when a public prosecutor searched premises belonging to the Scientology Organisation in Munich, inter alia, because of suspected breaches of the law governing non-medical practitioners. This brief review shows that the question of the criminal liability of associations of persons does have some relevance to the problems associated with new religious and ideological communities and psychogroups. The introduction of criminal liability for legal entities and associations of persons was the subject of both a conference of Germany's ministers of justice held in the summer of 1997, and an international symposium organised by the Max Planck Institute of Foreign and International Criminal Law in Freiburg in early May 1998. The Ministry of Justice and European Affairs of the State of Hesse has also tabled a draft on this subject. In a letter dated 18 November 1997, the Federal Minister of Justice announced that his Ministry would be examining the issues from the perspective of comparative law and European law. Furthermore, the Federal Minister of Justice said that the question would be on the agenda of the Commission for a reform of the system of criminal law sanctions. 323 ) The German Federal Government has yet to give its reply to the written question submitted by the SPD's parliamentary group on these issues (Bundestag Doc. 13/9682). Although the discussion of this question to date has concentrated on the area of white-collar crime, there are nevertheless parallels with the work of the Enquete Commission. When dealing with new religious and ideological communities and psychogroups, situations may arise in which an individual gets into conflict with criminal law by following the doctrine and the practices of his group. Then again, it is possible to envisage a set of circumstances, such as prevail in business life, in which there is collusion between a large number of individuals and where, in terms of criminal law implications, it is not possible to establish the personal liability of the perpetrators with the degree of certainty required for a reliable conviction. Consequently, the Enquete Commission advocates continued discussion and study in order to find an appropriate solution to the question of criminal liability of legal entities and associations of persons (see Chapter 6.2.2.4). 5.5.5.5 Making the organisation of so-called pyramid games a separate criminal offence While it is now clear -- owing to the Federal Court of Justice's judgement of 22 October 1997 (5 StR 223/97) 324 ) -- that the organisation of so-called pyramid games (cf. Chapter 5.3) is a prohibited method of progressively recruiting customers (Section 6c of the Fair Trade Act) and thus a punishable offence, it would be advisable to follow the Austrian example and to make the organisation of pyramid or chain-letter games a separate offence. The initiation and organisation of such gambling, based on the unfair use of behavioural psychology techniques to influence people and induce them to participate has developed into a serious problem. 325) The damage caused by the initiation and organisation of such games runs into millions, and it is not uncommon for participants to wind up ruined. It is almost by chance that Section 6c of the German Fair Trade Act embraces pyramid games, which it construes merely as a particular case of progressive customer recruitment with the intent of selling goods and services. For this reason, there was also some controversy until the Federal Court of Justice judgement with regard to the question as to whether the organisation of pyramid games fell within the scope of Section 6c of the German Fair Trade Act at all. In its current version, Section 6c does not issue any clear warning. It takes a legal expert to know that pyramid games fall within its scope. Moreover, only non-merchants are currently protected by Section 6c of the German Fair Trade Act. Distinguishing between merchants and non-merchants in connection with the organisation of pyramid games does not seem to be justified. Participation in a pyramid game is not likely to be less pernicious to merchants than to non-merchants. For purposes of prevention, the law in its description of the offences should distinguish between the various types of participation, i.e. initiation, recruitment for, or other encouragement of, the game. Finally, the threatened punishment should vary, depending on the severity of the damage caused. System initiators who may win millions usually invest much more criminal energy than participants who have brought in other players at a lower level. The punishment threatened under Section 6c of the German Fair Trade Act does not take this into consideration at present. It should also be examined whether or not the new offence should be included in the German Penal Code. _______________ NOTES: 282 ) Cf. German Bundestag, Interim Report of the Enquete Commission on "So-called Sects and Psychogroups", 1997, Bundestag Doc. 13/8170, p. 60ff., and p. 83ff. 283 ) A comprehensive record of case law up to the end of the 1980s can be found in Abel, R.B. et al.: "Die Rechtsprechung zu neueren Glaubensgemeinschaften", (ed.): Aktion Psychokultgefahren e.V. Düsseldorf, Verlag Norbert Potthoff Krefeld, 1991, as well as in Scholz, R.: "Probleme mit Jugendsekten", Reihe Beck-Rechtsberater in dtv. On the latest developments, see Abel, R.B.: "Die Entwicklung der Rechtsprechung zu neueren Glaubensgemeinschaften" in: Neue juristische Wochenzeitschrift (NJW) 1996, p. 91ff. and Abel, R.B.: "Die aktuelle Entwicklung der Rechtsprechung zu neueren Glaubensgemeinschaften", in NJW 1997, p. 426ff. 284 ) Cf. Franz, W.: "Zu Rechtsfragen im Zusammenhang mit sogenannten Jugendreligionen", in Deutsches Verwaltungsblatt, 1987, p. 727ff. 285 ) Cf. Scholz, R.: "Probleme mit Jugendsekten", p. 62. 286 ) Cf. Scholz, R.: "Arbeits- und sozialrecthliche Probleme durch Jugendsekten", in: Zeitschrift für Sozialhilfe und Sozialgesetzbuch, 1992, pp. 618ff. 287 ) Cf. NJW 1996, p.143 (= Neue Zeitschrift für Arbeitsrecht -- NZA -- 1995, p. 823). 288 ) Cf. Scholz, R.: "Probleme mit Jugendsekten", p. 73f. 289 ) In connection with Scientology, see Abel, R.B.: "Die Entwicklung der Rechtsprechung zu neueren Glaubensgemeinschaften", in: NJW 1996, p. 91ff., p. 95. 290 ) Cf. Scholz, R.: "Probleme mit Jugendsekten", p. 47 291 ) Hamburger Abendblatt of 21 January 1998, p. 12. 292 ) Cf. report in "Der Spiegel", issue 37/1996, p. 62. 293 ) Cf. Abel, R.B.: "Die Rechtsprechung zu neueren Glaubensgemeinschaften in den Bereichen des Zivil- und Finanzrechts" in: Abel, R.B. et al.: "Die Rechtsprechung zu neueren Glaubensgemeinschaften", p. 75ff., p.93. 294 ) Cf. Bundestag Doc. 13/8170, p. 24ff. 295 ) Based on average court costs and the lawyers' fees for both parties. 296 ) Approx. DM 60,000. 297 ) Total amount including the gross costs of the opponent in the event that the opponent wins the action entirely. Usually a settlement is arrived at, in which case the costs of each of the parties will amount to approx. DM 10,000 to DM 15,000, depending on the duration of the proceedings. 298 ) The Scientology Organisation uses an internationally operating secret service that is well versed in the art of psychological warfare (cf. Freie und Hansestadt Hamburg, Landesamt für Verfassungsschutz: Der Geheimdienst der Scientology-Organisation -- Grundlagen, Aufgaben, Strukturen, Methoden und Ziele, 1998, p.18 ff., 61ff.). 299 ) See also the minority opinion of the working party of the SPD group in the Enquete Commission on "So-called Sects and Psychogroups", p. 307. 300 ) Solte provides an overview in: Listl, J./Pirson, D.: Handbuch des Staatskirchenrechts 1, 2 nd edition, 1995, p. 425ff. The newly incorporated communities are shown to have less than 100,000 members each. 301 ) BverwG 7C 11.96, in: NJW 1997, p. 2396 with a discussion by Abel, R.B., in: NJW 1997, p. 2370. 302 ) Cf. Weber, H. in: Listl, J./Pirson, D.: Handbuch des Staatskirchenrechts 1, 2 nd edition, 1995, p. 577. 303 ) As in the decision on the recognition of the Jehovah's Witnesses as a corporation under public law; see Chapter 5.5.3.2. 304 ) Cf. Klein, F./Orlopp, G.: Abgabenordnung, 4 th edition, Art. 52, comment 2 with a reference to the Federal Court of Auditors (BFH), Federal Tax Gazette (BStBl), p. 85, 106. 305 ) 2 nd GKV-NOG of 23. 6. 1997, BGBl 1 (Federal Law Gazette), No. 42, p. 1520ff. 306 ) Cf. Kind, H.: Ausgewählte Zitate und Auszüge aus dem Schrifttum von L. Ron Hubbard, Info-Sekta Zurich 1994, p. 22. 307 ) Cf. Mende, W./Nedopil, N.: Nervenärztliches Gutachten vom 21. 12. 1984 in der Verwaltungsstreitsache Landeshauptstadt München gegen Scientology-Vereinigung, unpublished; Kind, H.: loc. cit., p.24. 308 ) Cf. judgement of the 13 th Chamber of the Tribunal de Grande Instance of Lyons of 22 Nov. 1996 in conjunction with the decision of the Appellate Court of Lyons of 28 July 1997; Schuch, F.: Scientology: Empirical report, in: Arbeitsgemeinschaft der österreichischen Seelsorgeämter, Werkmappe "Sekten, religiöse Sondergemeinschaften, Weltanschauungen", No. 73/1995. 309 ) This is a summary of the advice given: Do not present yourself as a medical doctor, do not give a diagnosis, do not make any statements regarding how the treatment works, do not carry out a specific, individualised treatment, do not make speeches, and ask for a written confirmation that no medical service was offered. 310 ) Since 20 Aug. 1997, the wording of Section 302a of the German Penal Code, which defines usury and exploitation as a punishable offence, has been included in Section 291 of the German Penal Code in the 13 Aug. 1997 version of the Anti-corruption Act (BGBl. I, No. 58, p. 2038ff.). Since no commentaries are as yet available on the new text, the bibliographic references appearing here still relate to the old version of Section 302 a of the German Penal Code. 311 ) Cf. Tröndle, H.: "Strafgesetzbuch und Nebengesetze", 48th. edition., Section 302a, para. 25 w. N. 312 ) Cf. Stree in Schönke, A./Schröder, H.: "Strafgesetzbuch Kommentar". 25 th edition., Section 302a (18); BayObLG, NJW 1985, 873. 313 ) Cf. Official justification, Bundestag Doc. 7/3441 p. 40. 314 ) Cf. Stree, loc. cit., Section 302a (23). 315 ) Cf. Kindhäuser, U.: Nomos Kommentar zum Strafgesetzbuch, as of June 1997, Section 302a (30). 316 ) Cf. Stree loc. cit., Section 302a (27); Report of the Special Committee on Criminal Law Reform, Bundestag Doc. 7/5291 p. 20. 317 ) Cf. Kindhäuser, U.: Nomos Kommentar zum Strafgesetzbuch, Section 302a (34); Official justification in Bundestag Doc. 7/3441 p. 41; Samson in "Systematischer Kommentar zum Strafgesetzbuch", as of November 1997, Section 302a (36). 318 ) Cf. Schäfer/Wolf. In: Leipziger Kommentar, StGB, 11th. edition, Section 302a (21) StGB; Lackner, K.: Strafgesetzbuch, 2 nd edition, Section 302a (8); Stree loc. cit., Section 302a (27). 319 ) Cf. Scheffler, U. "Zum Verständis des Wuchers gemäû §302a StGB", in Goltdammer's Archiv Für Strafrecht (GA), 1992, p. 1ff., (p. 2ff.); Schäfer/Wolff, in: Leipziger Kommentar, p. 2ff., StGB, 11 th edition., Section 302a history. 320 ) Cf. description given in Abel, R.B.: "Die aktuelle Entwicklung der Rechtsprechung zu neueren Glaubensgemeinschaften, in: Neue Juristische Wochenschrift -- NJW -- 1997, p. 426ff. (427). 321 ) Cf. description of the hearing in the Interim Report of the Commission, Bundestag Doc. 13/ 8170, p. 17. 322 ) Cf. Herzog, R., in Maunz-Dürig, "Kommentar zum Grundgesetz", as of June 1996, Art. 4 (112). 323 ) In addition, under the terms of the Council Act of 19 June 1997 on the preparation of a second protocol to the Convention on the Protection of the Financial Interests of the European Communities, the Member States of the European Community are required, where necessary, to introduce criminal liability for legal entities in connection with certain criminal offences (cf. EC Official Journal No. 97/C 221/02). Articles 3 and 4 of the second Protocol require the Member States to take the necessary steps to ensure that legal entities can be held liable particularly in cases of fraud, bribery and money laundering. 324 ) NWJ 1998 p. 390ff. 325 ) Cf. Willingmann, NJW 1997, p. 2932.
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