ICSA E-Newsletter

Vol. 4, No. 1

February 2005

Legal Regulations and Police Responsibilities with Regard to Totalitarian Groups

Ferran Alonso

Totalitarian Groups Analysis Unit

Catalan Police Force, Mossos d'Esquadra

Barcelona, Spain

This paper is based on a presentation at the American Family Foundation conference in Hartford, Connecticut, October 17-18, 2003.

Abstract

This paper first reviews the topic of legal regulations and police responsibilities with regard to totalitarian groups as these elements are addressed in the Spanish Constitution, l’Estatut d’Autonomia de Catalunya, the Religious Liberty Law of Spain, the European Parliament, and the Spanish Penal Code. It then discusses police responsibilities in regard to prevention and response.

In democratic societies, the main objective of police organizations is to protect citizens’ security and to guarantee their rights and freedoms. Every police action is subjected to the principle of legality. In other words, as police officers, we must act according to the law.

In this sense, let us look at what aspects of the Spanish Constitution, l’Estatut d’Autonomia, the Religious Liberty Law of Spain, the European Parliament, and the Spanish Penal Code relate to totalitarian groups. I have bolded those sections of the law that I think are most relevant to totalitarian groups.

The Spanish Constitution

Part I of the Spanish Constitution of 1978 establishes “fundamental rights and duties.” Section 10 of Part I says (emphases added here and in subsequent quotes):

1. The dignity of the person, the inviolable rights that are inherent, the free development of the personality, and the respect for the law and for the rights of others are the foundation of political order and social peace.
2. Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.

With regard to “rights and freedoms,” the Constitution states:

1. Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance.

In relation to “fundamental rights and public freedoms,” we read:

1. Everyone has the right to life and to physical and moral integrity, and under no circumstances may be subjected to torture or to inhuman or degrading punishment or treatment. The death penalty is hereby abolished, except as provided for by military criminal law in times of war.

And Section 16 of Part I establishes that:

1. Freedom of ideology, religion, and worship of individuals and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law.
2. No one may be compelled to make statements regarding his or her ideology, religion or beliefs.
3. No religion shall have a state character. The public authorities shall take into account the religious beliefs of Spanish society and shall consequently maintain appropriate cooperative relations with the Catholic Church and other confessions.

Section 22 grants the right of association, but:

1. Associations that pursue ends or use means legally defined as criminal offences are illegal.

Section 27 deals with education:

1. Everyone has the right to education. Freedom of teaching is recognized.
2. Education shall aim at the full development of human personality, with due respect for the democratic principle of coexistence, and for basic rights and freedoms.
3. The public authorities guarantee the right of parents to ensure that their children receive religious and moral instruction in accordance with their own convictions.
4. Elementary education is compulsory and free.
5. The public authorities shall inspect and standardize the educational system in order to ensure compliance with the laws.

Estatut d’Autonomia de Catalunya (Self-Governing Statute of Catalonia)

The Self-Governing Statute (Estatut d’Autonomia de Catalunya) is the main proprietary law in Catalonia. Its Section 8 establishes that the citizens of Catalonia have the same rights and duties as those declared in the Spanish Constitution.

The Religious Liberty Law of Spain

Another law that we must take into account is the Religious Liberty Law of Spain, passed in July 1980. Article 1 of this law establishes that:

1. The State guarantees the fundamental right to freedom of worship and religion recognized by the Constitution.
2. Religious beliefs shall not cause unequal or discriminatory treatment under the law. No one may be deprived of any occupation, or activity, or public position, or employment for reasons of religion.
3. No faith shall be the official State religion.

Article 2 guarantees that citizens may:

1. Profess whatever religious beliefs they freely choose, or profess none at all; change or relinquish their faith; freely express their own religious beliefs or lack thereof; or refrain from making any statement in such regard.

2. Take part in the liturgy, and receive spiritual support in their own faith; celebrate their festivities; hold their marriage ceremonies; receive decent burial, with no discrimination for reasons of religion; be free from any obligation to receive spiritual support or participate in religious services that are contrary to their personal convictions.

3. Receive and deliver religious teaching and information of any kind orally, in writing, or by any other means; and choose religious and moral education in keeping with their own convictions for themselves and any non-emancipated minors or legally incompetent persons, in and outside the academic domain.

4. Meet or assemble publicly for religious purposes, and form associations to undertake their religious activities in community in accordance with ordinary legislation and the provisions of this General Act.

Article 3 establishes that:

1. The rights deriving from the freedom of worship and religion may not be exercised to the detriment of the rights of others to practice their public freedoms and fundamental rights, or to the detriment of public safety, health, and morality, elements that constitute the order ensured under the rule of law in democratic societies.
2. Activities, purposes, and entities relating to or engaging in the study of and experimentation with psychic or parapsychological phenomena, or the dissemination of humanistic or spiritualistic values or other similar nonreligious aims do not qualify for the protection provided in this Act.

European Resolution on Cults

Before I begin with those offences typified in the Spanish Penal Code that might pertain to cultic phenomena, let first examine what the European Parliament established about “cults” with its Resolution on cults in Europe (March 1997). This Resolution:

A.  Reaffirms its attachment to the basic principles of democracy and the rule of law, such as tolerance, and freedom of conscience, religion, thought, association, and assembly.

D.     [states] Whereas, many religious and other sects are perfectly legitimate and are therefore entitled to have their organizations and activities protected under the guarantees of individual and religious freedom enshrined in the European Convention of Human Rights.

E.      Whereas, however, some cults operating through a cross-frontier network within the European Union are engaging in activities of an illicit or criminal nature and in violations of human rights, such as maltreatment, sexual abuse, unlawful detention, slavery, the encouragement of aggressive behavior or propagation of racist ideologies, tax fraud, illegal transfers of funds, trafficking in arms or drugs, violation of labour laws, the illegal practice of medicine, and so on, …

1. Reaffirms the right to freedom of thought, conscience, and religion, and to freedom of association, subject to the limits imposed by the need to respect the freedom and privacy of the individual and to provide protection from practices such as torture, inhuman and degrading treatment, slavery, and so on; …

2. Calls on the member States to ensure that the legal and police authorities make effective use of existing legal provisions and instruments at the national level, and cooperate actively and more closely, particularly within Europol, to combat the attacks on the fundamental rights of individuals of which certain cults are culpable.

This Resolution contains other provisions that we should consider:

First, there is the problem of terminology. The terms cult and sect are ambiguous, and there is a lack of unified criteria among the different European states regarding their meaning and use. For instance, section E of the Resolution specifies various cultic illegal activities, some of which, such as trafficking in arms or drugs, could even be associated with organized crime.

Second, the legislation relative to this phenomenon is uneven in European Union countries. Some countries have specific laws or penal regulations; others have not yet considered this problematic issue in their penal codes. This fact makes cooperative actions among the different European countries difficult.

Spanish Penal Code

With regard to the Spanish Penal Code, the following should be considered:

• The terms cult and sect do not appear in the Spanish Penal Code because of their conceptual ambiguity and the resulting difficulty in juridical application; furthermore, the concept has religious connotations that could make one think the Code contains a religious pursuit or discrimination. The Spanish Penal Code does not “criminalize” any group. On the contrary, one will see that religious freedom is protected in the Spanish Penal Code. Only when the members of a group or association commit an offence or crime typified in the Penal Code does the obligation to act exist.

• From a criminological point of view, the Code establishes that the main feature of these destructive groups is the “use” of mind control techniques.

• A specific law for this phenomenon does not exist in the Spanish Penal Code. Different articles in the Penal Code typify all the possible offences that could be committed by groups that use mind-control techniques.

Let’s now look at which articles these are. The article that specifically refers to cultic phenomenon is Article 515.3. This article is included in Chapter IV, Section 1, in relation to the crimes against the fundamental rights and public freedoms:

Art. 515.3. Associations will be unlawful that, even with a legal purpose, use violent means or means that alter or control the personality to achieve their aims.

This article focuses on no ideology, faith, small group, or religion, but rather on illegal practices. Moreover, Spanish legislation guarantees religious freedom and no discrimination on that basis. In this sense, the same Article later says:

Art. 515.5. Organisations that “incite discrimination, hatred, or violence against persons, groups, or organisations because of their ideology, religion, or beliefs, or also race, ethnic origin, or nationality of their members or some of their members” shall be deemed unlawful.

However, in the same sense, both religious and non-religious groups that violate this article are likewise illegal.

Besides article 515.5, Articles 522 through 526 typify the crimes against freedom of thought, religious beliefs, and respect for the deceased:

Art. 522.1. The people who use violence, intimidation, force, or any other illegal means to prevent a member or members of a confession from developing their own religious acts are penalized by fine from four to ten months.

Art. 522.2. The same punishment applies to those who use the same means to force someone to practice or to attend religious acts, or who force people to reveal their beliefs, or to change them.

Art. 523. Those who, with violence, threats, or tumult, impede, interrupt, or disturb the acts, functions, ceremonies, or demonstrations of the religious confessions entered in the public register of the Justice and Home Affairs Ministry (Department) are penalized by imprisonment from six months to six years if the offence is committed in a place destined to religious services, and by fine from four to ten months if it is committed in any other place.

Art. 524. Those who profane or desecrate a temple or a place destined to religious services are penalized by imprisonment from six months to one year, or by fine from four to ten months.

Art. 525.1. Those who verbally or in writing, with the intention to offend the feelings of a denomination member, make mockery of the dogmas, the beliefs, and the ceremonies of a denomination, or hurt the practitioners in public, are penalized by fine from eight to twelve months.

Art. 525.2. The same punishment applies for those who in public make mockery of a person who does not believe in any religion.

Art. 526. Those who violate a sepulchre, or profane a corpse or the ashes, or, with the intention to outrage, destroy, change, or damage the graves, the mausoleums, the tombstones, or the niches, are penalized by fine from three to six months and remain under house arrest from twelve to twenty-four weekends.

As stated above, the main feature that distinguishes any one criminal group from a mind-control group is the “use of means or techniques to control or to alter the personality of the citizens.” The use of these techniques could be applied to other crimes also noted in the Spanish Penal Code. The analysis of the different types of crime that group members, especially the leaders of the group, can commit demonstrates a wide range of potential crimes. For this reason, we will consider only those crimes that could be most likely related.

1. Injuries

Art. 147. People who, by any means or procedure, cause to another person any injury to his/her physical integrity, or physical or mental health, are penalized by imprisonment from six months to three years, provided that the injury requires medical or surgical treatment.

2. Offences against moral integrity

Art. 173. People who impose upon another person a degrading treatment and seriously damage his/her moral integrity are penalized by imprisonment from six months to two years.

3. Offences against individual freedom

Chapter I. This chapter is about illegal detentions and kidnappings.

Art. 163. People who deprive someone of his/her freedom of movement are penalized with imprisonment from four to six years.

Art. 164. The kidnapping of a person, for which a condition is demanded in exchange for his/her liberty, is penalized by imprisonment from six to ten years.

Chapter II. This chapter is about threats.

Art. 169. People who threaten another person with the intention to damage him/her, or his/her family or people closely related to them, are penalized by imprisonment.

Chapter III. This chapter is about coercions.

Art. 172. Those who, without being legally authorised, stop another person, by violence, from doing something that is not legally prohibited, or force him/her to do something that he/she does not want to do, are penalized by imprisonment from six months to three years.

4. Crimes against life

Art. 138. People who kill another person are penalized by imprisonment from ten to fifteen years.

Art. 141. People guilty of instigation, conspiracy, and proposal to commit murder are also penalized by imprisonment at one or two degrees less than the punishment established for murderers.

Art. 143. People who induce another person to commit suicide are penalized by imprisonment from four to eight years.

5. Crimes against workers’ rights

Art. 311. Those who use deception or take advantage of a precarious situation to impose on their workers conditions that prejudice their interests, or suppress or restrict their rights as recognized by statutory provisions, collective agreements, or individual contract, are penalized by imprisonment from six months to three years.

6. Crimes against sexual liberty

The articles related to these crimes are Articles 178 through 194. These articles talk about sexual attacks, crimes related to prostitution, and child corruption.

7. Professional intrusion

Art. 403. People who perform acts pertaining to a profession without bearing official recognition or an academic degree in that profession are penalized by fine from six to ten months.

8. Crimes against the Public Treasury and the “Welfare and Social Security” system

These crimes are discussed in Articles 305 through 310.

9. Crimes against property and against the socio-economic order: swindles

Art. 248. The people who swindle are those who, with the intention to obtain a profit, use deception sufficient to induce another person to erroneously make a disposition that causes loss to himself/herself or to another person.

10. Crimes against family rights and duties

The crimes included in Section XII are about illegal marriage, the alteration of paternity status, crimes against family rights and duties, and the abandonment of family, children, or disabled relatives.

11. Crimes against the Spanish Constitution: illegal association

Art. 515.3. Those associations will be unlawful that, even having a legal purpose, use violent means or means that alter or control the personality of individuals to achieve their aims.

In this legal framework, we have seen that freedom of religion and beliefs is assured, as well as the person’s dignity, moral integrity, and free development of the personality. Thus, the public freedom of ideology and religion must coexist with the individual’s fundamental rights.

Police Responsibilities

The Totalistic Groups Unit of Mossos d’Esquadra (Catalan Police) began in 1992. However, before this date, the Catalan Police had been carrying out some investigations with regard to totalist groups.

The name Totalistic Groups chosen for the unit is not accidental; it responds to a double need. On one hand, the name is appropriate in the context of the need to ovoid the term sect (cult in English) because:

• The meaning of the terms is ambiguous, and they have religious connotations.

• The terms create difficulty for juridical application.

• The terms carry a social stigmatization load.

• On the other hand, the name is relevant because:

• The phenomenon of totalitarianism includes a wider range of groups with different characteristics than those that pertain strictly to cults and sects.

•  It places the focus on illegal group practices.

• It was the term used in the First International Congress about Cults held in Barcelona in 1993.

The main goal of the Totalistic Groups Unit is the analysis of those groups that could be using mind-control techniques (to alter or control the personality), primarily in the Catalan territory. But because many of these groups spread and maintain connections across Europe, it also is important to know how this phenomenon is developing in the other European countries.

The tasks of this Unit are divided into two action fields: prevention and reaction (response).

Prevention

Prevention strategies encompass a number of components:

•  Mass-media collaborations

Members of our Unit have taken part in different radio and TV shows and have also collaborated in writing some press releases.

•  Legal-system collaborations

We have taken part, from a police perspective, in the “Research about the Juridical Implications of the Psychological Manipulation Groups phenomenon.” Because it is a useful juridical guide, this research is very important to the continuous education of judges and the development of police tasks.

We are participating in the Catalan governmental “Commission of study and analysis of the situation of ‘sects’ in Catalonia.” This Commission is an assessment and advising organ to the Catalan government in this matter.

• Conferences

We have given some talks to high-school students and to neighbourhood councils. The objective of these talks is to share with the population, in the most objective way possible and without criminalizing any group, the indicators of and potential risks associated with those groups that are using techniques of mind control.

•  Education, training, and information

Because of the complexity of this phenomenon, knowing the different perspectives of analysis—juridical, theological, psychological, sociological and anthropological—is very important. In this sense, we establish contacts with specialists in this matter and attend specialty conferences and training courses.

Regarding the “information task,” we have various information sources. On one side, we have the information obtained from the citizens and from our attendance at different events or public meetings; on the other, we have the information obtained from newspapers, magazines, books, TV, and radio programs. There is also collaboration and cooperation among the various police units and organizations in Spain.

• Citizens’ assistance

Our unit receives quite a few telephone calls for advice on the matter. We try to obtain information about the dynamics of the group and determine whether it is conducting illegal practices.

We also interview citizens who have had some type of a problem situation with any group. If this trouble is typified as a crime or offence in our Penal Code, we invite the individual to make an official complaint.

Reaction (Response)

Reaction tasks are less diversified, focusing primarily on the investigative process:

• Investigations

The members of our unit give support and advice to the operative groups that are in charge of the investigation.

The primary difficulties in the investigation process are the following:

• The inherent difficulty in proving psychological manipulation (the means to alter or control the personality) because of the heterogeneous character of the groups and the varied techniques used by these groups.
• The difficulty in attaining enough critical members of the same group to establish patterns of group dynamics and  processes. Generally, the witnesses are relatives or friends of the victim, but getting direct witnesses is difficult.
• With regard to the psychological injury crimes, the difficulty in establishing the causal relationship between group practices and psychological damage.
• The difficulty of carrying out long-term investigations in groups that are, in general, hermetic.

Conclusions

Spanish legal regulations are enough to combat the illegal practices of some groups that use techniques of psychological manipulation.

Multidisciplinary work and investigation is necessary to improve valid and reliable instruments that demonstrate the relationship between the wide range of manipulation techniques used by some groups and the psychological damage or abuse that results from the respective techniques.

Within the Spanish legal framework, freedom of religion and religious beliefs is assured, as well as the person’s dignity, moral integrity, and free development of the personality. Thus, public freedom of ideology and religion must coexist with the individual’s fundamental rights.