Peter Pitzinger (AT)
Head of Landesstelle für Sektenfragen
Federal Department for Environment, Youth and Family (ministerial office), general secretary of the Austrian Family Federation, since 1993 at the office of the regional government of Lower Austria as regional family official (leader of the family section of Lower Austria), since 1997 also cult consulting official of the region. Since 2004 common representative of the Austrian regions for family concerns.
OBSERVATION OF RELIGIOUS GROUPS BY THE STATE AND FREEDOM OF RELIGION
Presentation of the Austrian Model.
Ladies and Gentlemen,
thank you for giving me the possibility of contributing to the annual conference of FECRIS with my short intervention on the conflict between the observation of religious groups by the State and religious freedom.
Allow me first to introduce myself: I am a jurist and since more than 20 years I work in that branch of politics concerned with family matters. Since 1993, I am the leader of the section responsible for family matters in the regional government of Lower Austria, competent among other things for family support and child care. Lower Austria is the largest region of Austria. Very early I was confronted with the problem that cults hurt families and the government of Lower Austria organised conferences giving information on this subject. In 1997, a small separate section was created, the “Landesstelle für Sektenfragen” (regional office for sectarian questions) which I head besides my other occupations.
In my intervention, I want to speak about the constitutional basis, about the dangers arising from cults, about the question of what is a religion, and about the organisations permitted to observe religious groups. I think it is important to treat those subjects also from the point of view of religious freedom, because very often religious freedom is abused by problematic groups and cults.
Freedom of belief, conscience and confession as well as the right to practise religion have a great tradition in Austria. Those rights were already granted 1867 for the first time in the constitution which is still in use. After the First World War, the contract of St. Germain laid the basic rights for the public practise of religion. But the main source of religious freedom is the European Convention on Human Rights (ECHR), which since 1964 in Austria is applied by the constitution. You certainly know article 9 of the ECHR that provides for freedom of thought, conscience and religion. In this text, also various kinds of functions are listed, i.e. divine service, education and regarding religious habits. But of course this freedom is not without limits. Limits may be set by laws that in a democratic society are required to preserve public security, public order, morality, and the protection of rights and freedoms of others. This was recently pointed out by recommendation 1804 of the Council of Europe of 29 June 2007.
In Austria, religious groups have three possibilities to establish themselves as communities: as „a recognised church and religious society”, as “a registered religious confessional community” or as a normal association.
To be a recognised as a church has advantages i.e. the recognition as corporation under public law with several privileges: tax exemption, transmission time in public radio and television, the right to establish schools, to have teachers of religion in public schools, etc.
At present, 13 churches and religious societies are recognised in Austria:
I want to point out that the Islam is recognised since the days of the monarchy (1912). Recognition of the Mormons in 1955 was obviously a farewell present to the Americans and the Care packets from the US State of Utah during the occupation after World War 2.
Of course that legal position is attractive, therefore also other communities want to obtain this status. After many years of quarrels with the Austrian Constitutional Court, the Jehovah’s Witnesses were close to recognition. The legislator reacted and in 1998 created an additional hurdle, the legal form of a “religious confessional community” as a corporation of private law. Now there are concrete prerequisites to be fulfilled. Some problematic associations such as Scientology and Sahaja Yoga were unable to comply with them and had to withdraw their applications. For those groups, the legal form of association may be applied.
What are now the hurdles that have been established? Applications have to prove that at least 300 members exist and must provide information about the doctrine, the statutes and the way of financing. However the reasons for refusal are very important as they lead us directly to the cult problem.
Legal status must be refused if requested, in relation to the doctrine or its application, for the protection of the interests of public security, public order, health and morality or for the protection of the rights and freedoms of others, interests that are normal in a democratic society, especially in the case of challenge to illegal and punishable activities, in the case of obstacles to the psychological development of youngsters, in case of violation of psychological integrity and of the application of psychotherapeutic methods, especially in order to convert people.
You will notice that herewith the hurdles of article 9 ECHR have been accurately applied. If religious communities implement those conditions, they get a “quality seal” from the State. The following 10 confessional communities have been registered in the meantime:
· Baha‘i religious society Austria
· Federation of Baptist communities in Austria
· Federation of evangelical communities in Austria
· The Christian community – movement for religious renewal
· Free Christian community/Pentecostal community
· Jehovah’s Witnesses
· Church of the Seventh’s Day Adventists
· Hindu religious society
· Mennonite free church Austria
· Pentecostal community of God in Austria
If those groups now want to be recognised, they must fulfil further prerequisites, for example a minimum number if adherents (2 per mille of the Austrian population), existing since 10 years as a confessional community and a “positive basic attitude towards society and State”. This particular point on the positive basic attitude, is crucial, because within a few weeks, the Jehovah’s Witnesses are allowed to apply for recognition, because they have the required number of adherents and are a confessional community since 1998.
We see how by these regulations the chaff is separated from the wheat. Many groups already fail at the first hurdle, for example Scientology and smaller groups with Hindu background
(classical “cults” and “youth religions”). Some others may fail the second hurdle.
But how can the cult authority decide that a positive basic attitude towards State and society exists and that the financial means are only used for religious purpose? The authority can only judge if it has information about the groups. However, information needs observation. Observation may be done by public authorities, but also by private and ecclesiastic cult information offices. According to our Constitutional Court, the religious communities must accept this observation with respect to dangerous facts. Only the recognised churches and religious societies have to have their own internal administration and autonomy.
The Austrian Nationalrat [the first chamber of parliament] has opted several times for increased information and educational work about the dangers of cults. Finally, in 1998, as a result of those efforts, a law was made to establish the Bundesstelle für Sektenfragen [Federal office for sectarian questions]. The reason for the establishment by law was not at least the observation of basic legal requirements of the ECHR. Recognised churches are not touched by this law, they will not be observed.
The task of the federal office for sectarian questions is to document and inform about the dangers that may arise from cults or from cult like activities. This is done by collection of information, consulting concerned people, cooperation with other offices, and by research projects.
Those dangers must threaten:
Herewith, there is also a good definition of the notion “cult”.
Cults are religious or ideological communities or activities from which the named dangers may arise. It is important to note that not only the activities of “faith” are crucial, but there also may exist other motivations behind the dangers, for example political or economical goals. In any case attention must be paid to the fact that there are also possibilities for the State’s intervention in the area of consumer protection and of course penal law.
The Federal office for sectarian questions reported in its recent annual report for 2005 a number of 1.800 inquiries, related to more than 300 groups. Most of the inquiries were related to Scientology, followed by the neo-Hindu group Sahaja Yoga. Many conflicts also arose from the booming esoteric marked.
My own office, the Lower Austrian regional office for sectarian questions was already installed 1997 and has the task to give and coordinate information and prevention against cults and esotericism. Also the regions of Upper Austria, Tyrol and Styria have such offices or support such institutions. All dioceses of the Catholic and the Protestant church in Austria have authorised representatives or special institutions. But valuable work is also done by independent associations, in the first place I want to mention the Gesellschaft gegen Sekten- und Kultgefahren [association against the dangers of sects and cults] in Vienna, in which FECRIS’s president Friedrich Griess works in a leading position. Finally, there are also family consulting offices with a special emphasis on cults.
An important reference to the praxis: in daily work, the public offices have it much easier, because the praxis of the concerned groups to sue the offices or their employees does not work with the public offices, because the Austrian law of liability does not provide personal liability of the employees except if they are guilty or negligent.
The fields of conflicts are multiple, and if I talk about “religious groups”, then the question arises whether all groups are religious which claim to be so. Can also a commercial enterprise selling “spiritual products” refer to “religious freedom”? First, we must examine the fields of economical conflict. The “youth religions” of the seventies have changed to market oriented “midlife crisis religions”. A spiritual demand that the churches cannot or don’t want to satisfy, creates related bidders on the market. Here we have to pay special attention to consumer protection and to the fact that a commercial bidder gains advantage in competition by unduly slipping into the legal form of a religious community.
The second field of conflicts is of political nature. If an organisation has as its main purpose to modify the established law or form of government, then the political purpose dominates and this group should establish itself as a political party.
The third field of conflict is of medical and psychological nature. I do not need to explain in detail how some offers and worlds of ideas can endanger health and the life of people. This danger has been especially taken into account in the above mentioned reasons to refuse the status of a confessional community.
What is a “religion“? The notion “religion” is not defined by law. Similar to the notion of “art”, an exact legal definition is not possible. In parliamentary material, religion is defined as a “historically grown structure of convictions with presentable contents, which explain mankind and the world in its transcendent relation, as well as accompany them with specific rituals, symbols and orientations for acting which correspond to the basic teachings.” The wording “historically grown structure” is not very useful in connection with new religious movements which cannot look back to a tradition. But the State must have the possibility of identifying a religious community and to limit its activity at best in its area. In literature, a religious (or ideological) community is understood to be each union of people who try to universally understand the cosmic system, to recognise and to evaluate the position of man in the world seen from this comprehensive world view, and who comprehensively want to witness for this conviction and according to it. If this conception is based on a personal faith in God or if not, a transcendental relation exists anyway, then it is “religion”; if the transcendental relation is missing, it is a “non religious world view”.
The German Constitutional Court states that the claim and the self-understanding of a community alone are not enough. Rather, the spiritual contents and the external appearance must be adequate to a religious community. Apparently, the Austrian courts are more naïve. Here it could happen that, just with respect to Scientology, then public authorities and courts mainly base themselves on self-presentations and ordered expert opinions. Here we see again the important function of observers and documenters, in order to get really objective reports and expertise. Also in conflicts about custody for minors – today a very actual problem in Austria, as nearly every second marriage ends in divorce - unfortunately only PR-material of the groups is use to find a decision.
The US-American jurisdiction  has adopted three elements to characterise a religious conviction: ultimate concern, extra temporal consequences and transcendent reality. In Austria there is little jurisdiction. Essential for religions is however their aim to comprehensively influence and shape the whole life of their members. Earlier, the personal belief in God was essential, but since in 1983 when the Buddhist religious society was recognised, this point has been dropped.
As a summary, I can state:
In Austria, the observation of religious groups by the State is based on a fundament of rights and legality. Inasmuch those informational activities are neutral and objective, such institutions are not only legal, but even mandatory for the State and society. As there is no doubt, that there also exist religious groups which endanger physical or psychological health of people, free development of the human personality, the integrity of family life, of property or of the financial autonomy of people or the free spiritual and physical development of children and youngsters, such observing institutions in reality serve religious freedom, because they help to point out or to prevent any abuse of that important basic right. For the assessment of the potential of danger by public offices, also information from non-public sources (associations, churches) is very important. Thus also private institutions of cult counselling and research help to protect religious freedom.
 The list of conflict fields was taken from the expertise by Potz & Schinkele „Die "Scientology-Kirche Österreich" - die Voraussetzungen für den Erwerb der Rechtspersönlichkeit als eingetragene religiöse Bekenntnisgemeinschaft, öarr 1999, 206-251, [The „Scientology church Austria“ – the preconditions to obtain the legal personality as a registered religious confessional community]
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