European Interreligious Forum For Religious Freedom
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Voici la nouvelle encyclique co-publiée par Benoit XVI et le nouveau Pape François :
LETTRE ENCYCLIQUE LUMEN FIDEI DU SOUVERAIN PONTIFE FRANÇOIS AUX ÉVÊQUES AUX PRÊTRES ET AUX DIACRES AUX PERSONNES CONSACRÉES ET À TOUS LES FIDÈLES LAÏCS SUR LA FOI.


LUMEN FIDEI, encyclique des deux papes
1. La lumière de la foi (Lumen Fidei) : Par cette expression, la tradition de l’Église a désigné le grand don apporté par Jésus, qui, dans l’Évangile de Jean, se présente ainsi : « Moi, lumière, je suis venu dans le monde, pour que quiconque croit en moi ne demeure pas dans les ténèbres » (Jn 12, 46). Saint Paul aussi s’exprime en ces termes : « Le Dieu qui a dit ‘Que des ténèbres resplendisse la lumière’, est Celui qui a resplendi dans nos coeurs » (2 Co 4, 6). Dans le monde païen, épris de lumière, s’était développé le culte au dieu Soleil, le Sol invictus, invoqué en son lever. Même si le soleil renaissait chaque jour, on comprenait bien qu’il était incapable d’irradier sa lumière sur l’existence de l’homme tout entière. En effet, le soleil n’éclaire pas tout le réel ; son rayon est incapable d’arriver jusqu’à l’ombre de la mort, là où l’oeil humain se ferme à sa lumière. « S’est-il trouvé un seul homme qui voulût mourir en témoignage de sa foi au soleil ? » demande le martyr saint Justin. Conscients du grand horizon que la foi leur ouvrait, les chrétiens appelèrent le Christ le vrai soleil, « dont les rayons donnent la vie ». À Marthe qui pleure la mort de son frère Lazare, Jésus dit : « Ne t’ai-je pas dit que si tu crois, tu verras la gloire de Dieu ? » (Jn 11, 40). Celui qui croit, voit ; il voit avec une lumière qui illumine tout le parcours de la route, parce qu’elle nous vient du Christ ressuscité, étoile du matin qui ne se couche pas.
 
Une lumière illusoire ?
 
2. Cependant, en parlant de cette lumière de la foi, nous pouvons entendre l’objection de tant de nos contemporains. À l’époque moderne on a pensé qu’une telle lumière était suffisante pour les sociétés anciennes, mais qu’elle ne servirait pas pour les temps nouveaux, pour l’homme devenu adulte, fier de sa raison, désireux d’explorer l’avenir de façon nouvelle. En ce sens, la foi apparaissait comme une lumière illusoire qui empêchait l’homme de cultiver l’audace du savoir. Le jeune Nietzsche invitait sa soeur Élisabeth à se risquer, en parcourant « de nouveaux chemins (…) dans l’incertitude de l’avancée autonome ». Et il ajoutait : « à ce point les chemins de l’humanité se séparent : si tu veux atteindre la paix de l’âme et le bonheur, aie donc la foi, mais si tu veux être un disciple de la vérité, alors cherche ». Le fait de croire s’opposerait au fait de chercher. À partir de là, Nietzsche reprochera au christianisme d’avoir amoindri la portée de l’existence humaine, en enlevant à la vie la nouveauté et l’aventure. La foi serait alors comme une illusion de lumière qui empêche notre cheminement d’hommes libres vers l’avenir.
 
3. Dans ce processus, la foi a fini par être associée à l’obscurité. On a pensé pouvoir la conserver, trouver pour elle un espace pour la faire cohabiter avec la lumière de la raison. L’espace pour la foi s’ouvrait là où la raison ne pouvait pas éclairer, là où l’homme ne pouvait plus avoir de certitudes. Alors la foi a été comprise comme un saut dans le vide que nous accomplissons par manque de lumière, poussés par un sentiment aveugle ; ou comme une lumière subjective, capable peut-être de réchauffer le coeur, d’apporter une consolation privée, mais qui ne peut se proposer aux autres comme lumière objective et commune pour éclairer le chemin. Peu à peu, cependant, on a vu que la lumière de la raison autonome ne réussissait pas à éclairer assez l’avenir ; elle reste en fin de compte dans son obscurité et laisse l’homme dans la peur de l’inconnu. Ainsi l’homme a-t-il renoncé à la recherche d’une grande lumière, d’une grande vérité, pour se contenter des petites lumières qui éclairent l’immédiat, mais qui sont incapables de montrer la route. Quand manque la lumière, tout devient confus, il est impossible de distinguer le bien du mal, la route qui conduit à destination de celle qui nous fait tourner en rond, sans direction.
Une lumière à redécouvrir
 
4. Aussi il est urgent de récupérer le caractère particulier de lumière de la foi parce que, lorsque sa flamme s’éteint, toutes les autres lumières finissent par perdre leur vigueur. La lumière de la foi possède, en effet, un caractère singulier, étant capable d’éclairer toute l’existence de l’homme. Pour qu’une lumière soit aussi puissante, elle ne peut provenir de nous-mêmes, elle doit venir d’une source plus originaire, elle doit venir, en définitive, de Dieu. La foi naît de la rencontre avec le Dieu vivant, qui nous appelle et nous révèle son amour, un amour qui nous précède et sur lequel nous pouvons nous appuyer pour être solides et construire notre vie. Transformés par cet amour nous recevons des yeux nouveaux, nous faisons l’expérience qu’en lui se trouve une grande promesse de plénitude et le regard de l’avenir s’ouvre à nous. La foi que nous recevons de Dieu comme un don surnaturel, apparaît comme une lumière pour la route, qui oriente notre marche dans le temps. D’une part, elle procède du passé, elle est la lumière d’une mémoire de fondation, celle de la vie de Jésus, où s’est manifesté son amour pleinement fiable, capable de vaincre la mort. En même temps, cependant, puisque le Christ est ressuscité et nous attire au-delà de la mort, la foi est lumière qui vient de l’avenir, qui entrouvre devant nous de grands horizons et nous conduit au-delà de notre « moi » isolé vers l’ampleur de la communion. Nous comprenons alors que la foi n’habite pas dans l’obscurité ; mais qu’elle est une lumière pour nos ténèbres. Après avoir confessé sa foi devant saint Pierre, Dante la décrit dans La Divine Comédie comme une « étincelle, qui se dilate, devient flamme vive et brille en moi, comme brille l’étoile aux cieux ». C’est justement de cette lumière de la foi que je voudrais parler, afin qu’elle grandisse pour éclairer le présent jusqu’à devenir une étoile qui montre les horizons de notre chemin, en un temps où l’homme a particulièrement besoin de lumière.
 
5. Avant sa passion, le Seigneur assurait à Pierre : « J’ai prié pour toi, afin que ta foi ne défaille pas » (Lc 22, 32). Puis il lui a demandé d’ « affermir ses frères » dans cette même foi. Conscient de la tâche confiée au Successeur de Pierre,Benoît XVI  a voulu proclamer  cette Année de la foi , un temps de grâce qui nous aide à expérimenter la grande joie de croire, à raviver la perception de l’ampleur des horizons que la foi entrouvre, pour la confesser dans son unité et son intégrité, fidèles à la mémoire du Seigneur, soutenus par sa présence et par l’action de l’Esprit Saint. La conviction d’une foi qui rend la vie grande et pleine, centrée sur le Christ et sur la force de sa grâce, animait la mission des premiers chrétiens. Dans les Actes des martyrs, nous lisons ce dialogue entre le préfet romain Rusticus et le chrétien Hiérax : « Où sont tes parents ? » demandait le juge au martyr, et celui-ci répondit : « Notre vrai père est le Christ, et notre mère la foi en lui ». Pour ces chrétiens la foi, en tant que rencontre avec le Dieu vivant manifesté dans le  Christ, était une « mère », parce qu’elle les faisait venir à la lumière, engendrait en eux la vie divine, une nouvelle expérience, une vision lumineuse de l’existence pour laquelle on était prêt à rendre un témoignage public jusqu’au bout.
 
6. L’Année de la foi  a commencé à l’occasion du 50ème anniversaire de l’ouverture du Concile Vatican II. Cette coïncidence nous permet de voir que Vatican II a été un Concile sur la foi, en tant qu’il nous a invités à remettre au centre de notre vie ecclésiale et personnelle le primat de Dieu dans le Christ. L’Église, en effet, ne suppose jamais la foi comme un fait acquis, mais elle sait que ce don de Dieu doit être nourri et renforcé pour qu’il continue à conduire sa marche. Le Concile Vatican II a fait briller la foi à l’intérieur de l’expérience humaine, en parcourant ainsi les routes de l’homme d’aujourd’hui. De cette façon, a été mise en évidence la manière dont la foi enrichit l’existence humaine dans toutes ses dimensions.
 
7. Ces considérations sur la foi — en continuité avec tout ce que le Magistère de l’Église a énoncé au sujet de cette vertu théologale — entendent s’ajouter à tout ce que Benoît XVI  a écrit dans les encycliques sur la charité  et sur l’espérance. Il avait déjà pratiquement achevé une première rédaction d’une Lettre encyclique sur la foi. Je lui en suis profondément reconnaissant et, dans la fraternité du Christ, j’assume son précieux travail, ajoutant au texte quelques contributions ultérieures. Le Successeur de Pierre, hier, aujourd’hui et demain, est en effet toujours appelé à « confirmer les frères » dans cet incommensurable trésor de la foi que Dieu donne comme lumière sur la route de chaque homme.
Dans la foi, vertu surnaturelle donnée par Dieu, nous reconnaissons qu’un grand Amour nous a été offert, qu’une bonne Parole nous a été adressée et que, en accueillant cette Parole, qui est Jésus Christ, Parole incarnée, l’Esprit Saint nous transforme, éclaire le chemin de l’avenir et fait grandir en nous les ailes de l’espérance pour le parcourir avec joie. Dans un admirable entrecroisement, la foi, l’espérance et la charité constituent le dynamisme de l’existence chrétienne vers la pleine communion avec Dieu. Comment est-elle cette route que la foi entrouvre devant nous ? D’où vient sa puissante lumière qui permet d’éclairer le chemin d’une vie réussie et féconde, pleine de fruits ?

Rédigé par EIFRF le Monday, July 8th 2013 | Comments (0)

Here are the new guidelines adopted by the European Union Council of Ministers on 24 June, regarding EU external action and Human Rights policy. These are are extremely strong guidelines on religious freedom rights for minority faiths and on non-discrimination and equality for all.


New EU guidelines on FORB adopted by European Union Council of Ministers
EU Guidelines on the promotion and protection of freedom of religion or belief 
FOREIGN AFFAIRS Council meeting Luxembourg, 24 June 2013 
 
The Council adopted the following guidelines: 
 
I. Introduction 
 
A.  Reason for Action 
 
1. The right to freedom of thought, conscience, religion or belief, more commonly referred to as the right to freedom of religion or belief (FoRB) is a fundamental right of every human being. As a universal human right, freedom of religion or belief safeguards respect for diversity. Its free exercise directly contributes to democracy, development, rule of law, peace and stability. Violations of freedom of religion or belief may exacerbate intolerance and often constitute early indicators of potential violence and conflicts.  
 
2. All persons have the right to manifest their religion or belief either individually or in community with others and in public or private in worship, observance, practice and teaching, without fear of intimidation, discrimination, violence or attack. Persons who change or leave their religion or belief, as well as persons holding non-theistic or atheistic beliefs should be equally protected, as well as people who do not profess any religion or belief.  
 
3. Violations or abuses of freedom of religion or belief, committed both by state and non-state actors, are widespread and complex and affect people in all parts of the world, including Europe.  
 
B.  Purpose and scope 
 
4. In promoting and protecting freedom of religion or belief, the EU is guided by the universality, indivisibility, inter-relatedness and interdependence of all human rights, whether civil, political, economic, social or cultural.  
 
5. In line with universal and European human rights standards, the EU and its member States are committed to respecting, protecting and promoting freedom of religion or belief within their borders.
 
6. With these Guidelines, the EU reaffirms its determination to promote, in its external human rights policy, freedom of religion or belief as a right to be exercised by everyone everywhere, based on the principles of equality, non-discrimination and universality. Through its external policy instruments, the EU intends to help prevent and address violations of this right in a timely, consistent and coherent manner.  
 
7. In doing so, the EU focuses on the right of individuals, to believe or not to believe, and, alone or in community with others, to freely manifest their beliefs. The EU does not consider the merits of the different religions or beliefs, or the lack thereof, but ensures that the right to believe or not to believe is upheld. The EU is impartial and is not aligned with any specific religion or belief. 
 
8. The Guidelines explain what the international human rights standards on freedom of religion or belief are, and give clear political lines to officials of EU institutions and EU Member States, to be used in contacts with third countries and with international and civil society organisations. They also provide officials with practical guidance on how to seek to prevent violations of freedom of religion or belief, to analyse cases, and to react effectively to violations wherever they occur, in order to promote and protect freedom of religion or belief in the EU's external action. 
 
C.  Definitions 
 
9. Freedom of religion or belief is enshrined in Articles 18 of both the Universal Declaration of Human Rights (UDHR) and of the International Covenant on Civil and Political Rights (ICCPR), which should be read in the light of the UN Human Rights Committee's General Comment n°22.  
 
Under international law, FoRB has two components: 
(a) the freedom to have or not to have or adopt (which includes the right to change) a religion or belief of one’s choice, and  
(b) the freedom to manifest one's religion or belief, individually or in community with others, in public or private, through worship, observance, practice and teaching.  
 
10. In line with these provisions, the EU has recalled that "freedom of thought, conscience, religion or belief, applies equally to all persons. It is a fundamental freedom that includes all religions or beliefs, including those that have not been traditionally practised in a particular country, the beliefs of persons belonging to religious minorities, as well as non-theistic and atheistic beliefs. The freedom also covers the right to adopt, change or abandon one's religion or belief, of one's own free will." 
 
Right to have a religion, to hold a belief, or not to believe 
 
11. Theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief are protected under article 18 ICCPR. The terms “belief” and “religion” are to be broadly construed and the article's application should not be limited to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. States should not restrict the freedom to hold any religion or belief. Coercion to change, recant or reveal one’s religion or belief is equally prohibited.  (...)
 
see full document:

eu_guidelines.pdf eu guidelines.pdf  (229.03 KB)

Rédigé par EIFRF le Monday, July 1st 2013 | Comments (0)

La CEDH demande à la France de ne pas renvoyer un chrétien copte en Egypte
Le 6 juin 2013, la Cour Européenne des Droits de l'Homme a rendu un arrêt dans l'affaire M.E /France. Le requérant, un chrétien copte d'Egypte qui avait demandé le droit d'asile à la France, soutenait que son renvoi en Egypte constituerait une violation de l'article 3 de la Convention (« Nul ne peut être soumis à la torture ni à des peines ou traitements inhumains ou dégradants. »). La France soutenait que ledit requêrant n'apportait pas la preuve de ce qu'il avançait, et que rien dans les rapports internationaux n'indiquait que cette violation serait susceptible de se produire si le requérant était renvoyé en Egypte.

La Cour a pris position pour le requêrant et contre la France, en jugeant que "la décision de renvoyer le requérant vers l’Egypte emporterait violation de cette disposition si elle était mise à exécution." Elle déclare aussi "indiquer au Gouvernement, en application de l’article 39 de son règlement, qu’il est souhaitable, dans l’intérêt du bon déroulement de la procédure, de ne pas expulser le requérant jusqu’à ce que le présent arrêt devienne définitif ou que la Cour rende une autre décision à cet égard."

Lire l'arrêt en entier : http://www.refworld.org/pdfid/51b192f24.pdf

Rédigé par EIFRF le Friday, June 14th 2013 | Comments (0)

Statement by PACE rapporteur on « the protection of minors against sectarian influence » about German religious statuses appears to be wrong.
On 10 June 2013, PACE rapporteur on "the protection of minors against sectarian influence" at the Committee on Legal Affairs and Human Rights, Rudy Salles (France, EPP/CD), published a press release (http://www.assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView.asp?ID=8819in which he “welcomes the German authorities’ determination to combat the phenomenon of sectarian abuses”.
 
Quoted in the release, Rudy salles said: “This task is made considerably easier by the fact that the German state recognizes only a limited number of religions in law, such as the Catholic and Protestant Churches, the Jewish community and certain Muslim communities, which automatically rules out other movements acquiring the status of a ‘religion’".
 
Unfortunately, this statement is everything but true. The reality of the German religious statuses is a little more complex, and when examined it is obvious that the Rudy Salles’ statement is wrong. First of all, he is referring to the special privileged status that a few religions get that is different than registering as a religion, which many do.
 
In Germany, Religious organizations are not required to register with the state. But if they wish to qualify as nonprofit associations with tax-exempt status, they must register. State level authorities review registration submissions and routinely grant tax-exempt status. If a religious organization wants to apply for this status, it must provide evidence through its statutes, history, and activities that it is a religious group.
 
Then, beside the separation of State and religion, a special partnership status exists in Germany for religious groups which makes them “partners” of the State. This status is called “Public Law Corporation” (PLC), and entitles the group to have public chaplains, and to levy tithes on its members (collected by the state). PLC status gives tax exemptions and other rights.
 
It’s very interesting to compare which religious groups have the PLC status with the Rudy Salles’ statement, in order to see if he is conducting a fair investigation in order to make his report. Currently, around 180 religious groups have been granted PLC status in Germany, including many groups labeled as “sects” or “cults” by some French authorities linked to Rudy Salles. Amongst these religious groups are the Church of Jesus Christ of Latter-day Saints (Mormons), Seventh-day Adventists, Mennonites, Baptists, Methodists, Christian Scientists, and the Salvation Army. Jehovah’s Witnesses have been granted PLC status in 13 federal states.
 
It is also interesting to see that no Muslim communities have been granted PLC status per the US State department report 2011, contrary to Rudy Salles’ statement.

Rédigé par Eric Roux le Friday, June 14th 2013 | Comments (0)

Bashy Quraishi is Chairman of ENAR Advisory Council, Chair of European Platform for Jewish Muslim Cooperation and Secretary General of EMISCO (European Muslim Initiative for Social Cohesion).
FECRIS is European Federation of Centres of Research and Information on Sectarianism.



Rédigé par EIFRF le Thursday, June 13th 2013 | Comments (0)

I Mercanti del Tempio is an academic book directed by Antonio Fucillo, containing various contributions of several professors. It has been published by G. Giapicelli Editore. Here is an excerpt of the book, the chapter on the finances of the Church of Scientology, written by Germana Carobene, fellow researcher in Ecclesiastical Law at Napoli University.


Translated excerpts from the book "I mercanti del Tempio" (Merchants of the temple)
You can buy the book (in Italian) here:
http://www.ibs.it/code/9788834819814/fuccillo-antonio/mercanti-nel-tempio.html


Chapter VI
 
Financial tools and means
of the Church of Scientology in Italy
 
Germana Carobene
 
 
SUMMARY: 1. Economical contribution and religious motivations. - 2. Qualification of “religious confession” from a tributary perspective. - 3. Relationship between economical-religious activities and fiscal regulations. - 4. Penal issues. - 5. Organization of Scientology in Italy. - 6. Final conclusions.
 
 
1 . Economical contribution and religious motivations
 
Within the scheme of the religious activities – those in which the rights of freedom are concretely practiced – an important sector is that formed by the different forms of economical intervention through which the subject/faithful participates to the organization and functioning of his group of affiliation. Many religious confessions, even those of ancient dating, foresee the obligatoriness of the payment of a “tax” for the participation to the community’s life and/or the payment of amounts of money for the utilization of certain performances.1 They need, in fact, economical means for their own upkeep, for the construction of places of worship and their maintenance, for the publication of books and information materials, for the support of members performing specific functions.
Despite their “deep differences, all religions give rise to complex provisions that orient and condition the ideals, the inner beliefs, the deep motivations and aspirations and the socially relevant exterior behaviors, from time to time imposing, forbidding or at least suggesting or advising against, the performance of acts far broader and numerous than the ones we use to consider worship acts” 2.
In modern societies, traditional typologies of religious denominations stand next to new figures/movements, with different modalities of interventions and management of the religious feeling, for which the detection of new juridical parameters respecting the right of freedom of religion of the individual and of the collectivity are needed, and of which the forms of funding may represent a natural objectification. One of the modalities of the performance of the individual’s freedom is, in fact, dependent upon the possibility of fully participating to the group’s life that, from a corporative viewpoint, can manifest itself with the will to take some services, even with fee, offered to the associates/participants or adepts/believers, whatever one wants to call them.

We then witness the arising of complex legal issues, clearly a consequence of an inadequate knowledge of the legislators, of modalities which are “different” from those traditionally known, despite the particular favor that our legal system grants to various forms of associationism, amongst which also, and most of all, those having a religious connotation3. But it is evident that the granting of special rights or privileges recognized and granted to these forms of spontaneous aggregation might favor fraudulent attempts. It is therefore necessary to detect sure parameters while ensuring, at the same time, that they do not mortify or repress excessively the rights of freedom.
The most common financial modality is notoriously that of the spontaneous donation with which the faithful participates to the community’s life, complying in the first place with a conscience obligation.  The element that characterizes this particular case in point is the “relationship between the specific interest of the one acting and the concrete outcome that he expects to reach, indeed through the performance of that particular act4. In that respect one can understand how specific actions are perceived by the subject, not only as mandatory, but also endowed of a much stronger and pregnant moral engagement than a binding legal enforcement. The objective that the individual set for himself can be tied to the fulfillment of an immediate wellbeing, but also to a spiritual or supernatural aim, not easily identifiable through legal means, even if legitimate beyond any doubt.
A particular sector is also represented by interventions which are not donations, where the subject/believer correspond an amount of money in exchange of the delivery of certain goods/services. Such amounts, within the movement, can be subjected to exact price lists, naturally susceptible to variations, in alignment with the typical mechanisms of the contractual deeds of private nature. The spiritual aim, cause of the contract, must be, in any case, the object of a precise juridical evaluation, for the fact that it represents one of the elements characterizing the specific provisions. Naturally, such relationships have to arise within a group/movement and be exclusively reserved to the followers, so to avoid that a tout court commercial activity is set up.
And it is in this particular contest that a variegated jurisprudence has been developed in the course of the years, most of all in relation to Scientology. The peculiar modalities of administration of its religious services structured as courses “with fee”, have induced some judges to deny the religious nature of the association and, consequently, any fiscal facilitation.  Such statements have been overturned more than once by the Supreme Body of Legitimacy (Supreme Court of Cassation) that, in the presence of the afore mentioned elements regarding the “delivery of services of religious nature only for the followers”, has underlined how the performance of an activity aimed to the raising of funds, necessary to the performance of the institutional activities of the entity, is not incompatible with the qualification of religious association.
 
2. Qualification of “religious confession” from a tributary perspective
 
            There are, therefore, peculiarly complex legal issues tied to these modalities of financial participation, typical of Scientology, a religious confession whose activity has been accompanied by several jurisprudential interventions, both on penal and tax grounds, with specific reference to the issuance of invoices for the delivery of goods and services, to the compliance with the provisions regulating book keeping, to end with the most serious hypothesis of the crime of fraud. Naturally, in the related variegated jurisprudential case study, the subjugation to the specific fiscal provision, foreseen for the religious associations, has dictated the need to evaluate, preliminarily, whether such a movement could fall under that religious connotation or if the general provision for the legal persons should apply.
To this regard, there are some decisions issued by the Supreme Court of Cassation, both on penal and fiscal grounds, which are particularly relevant, as they clarified multiple doubts of interpretation even though not succeeding, due to the lack of specific law references, to establish universally accepted criteria.
The starting point can be found in a decision of the Supreme Court, Penal Section, of 1997 5 that underlined the necessity to examine the profile of the religiosity of Scientology using the parameters outlined by the Constitutional Court in 1993 6, which established that, when asking for tax exemption as per Presidential Decree # 633/1072 and Presidential Decree #598/1973, it is not true that each single association defining itself “religious” can be the arbiter of its own taxability, because such a qualification must be assessed case by case according to the criteria inferable by the entirety of the provisions of the legal system, with reference to the actual nature of the entity and the activity concretely performed 8.
Such statements did not however succeed in providing precise criteria fit to evaluate the essence of the religious phenomenon and of the activities concretely qualifiable as such.
More incisive appears to be the arguments developed in the decision 195/19939, where the Constitutional Court, declaring the illegitimacy of some regional provisions granting certain subsidies for the construction of worship places only to confessions who had undersigned a Treaty with the State, specified that, lacking a Treaty, in order to recognize the confessional nature of a movement, one can refer to some guidelines: previous public recognitions, statute of the entity10 and common consideration.
From the words of the Court it emerges, however, the incompleteness of such criteria, explicated with the use of the adverb “also11, which leaves room to interpretation, and that’s why an actual assessment should be done on the statements contained in the statute so to evaluate whether the enunciations it contains correspond to the actual activities performed.
Based on a concrete analysis of the activities, and accepting the definition of religious confession as a “complex of relationships between Man and the Sacred”12, the jurisprudence ended up including in the broad genus of religion also the confession of Scientology. Factually13 the religious nature of the movement was recognized in multiple occasions, and in some instances also the Finance Police came to identical conclusions granting to the Church of Scientology the right to apply the provisions exempting the religious confessions14 from tax obligations.
In a decision issued in 1997 by the Tax Commission of Milano, it was opportunely underlined that the religious nature “is identifiable both in the statutory enunciations of the entity that align to the purely fideistic aims and to the diffusion of the creed practiced by its members or adepts, and in the modalities used to find the needed resources to pursue the ecclesiastic aims, typical of these associations and referable to enrollment fees, offers, donations, legacies, etc. , income that cannot be considered as an exchange for services or sale of goods, like in commercial activities” 15. Starting from this indispensable preliminary remark of principle, the performance of a commercial activity, even in the presence of a statute qualifying the entity as a religious and no profit one must be, therefore, the object of a concrete evaluation: an assessment of the activities actually performed becomes thus necessary. Only in the presence of a certain and actual analysis one will be able to apply art. 4 of the VAT discipline, and particularly its paragraph 4, which specifically exempts the services performed by religious associations for their associates, partners and participants, when done in alignment with their statutory aims16. Last relevant jurisprudential interventions on tax ground, have been two twin decisions issued by the Supreme Court in 2008, with which two appeals filed by the Ministry of Economy and Finance against Scientology were rejected, with the reiteration by the Court of the religious nature of the movement17.
 
3. Relationship between economical-religious activities and fiscal regulations
 
Also particularly interesting are the observations of the Tributary Section of the Supreme Court of 200018 that completely cancelled a decision issued by the Court of Appeals of Milano19. The latter had in fact denied the qualification of religious association to Scientology on the assumption “of the intense interest having a strictly commercial nature”, evident in its modus operandi, but also because “in order to have a religious association one needs to have that quid pluris which qualifies and justifies the economical operations performed and that must be researched indeed in the aims of spiritual improvement of the associates”20.
According to the Supreme Court, it has to be highlighted how “the assertion of the exclusively speculative and commercial nature of the activity concretely performed by the appealing entity, and described in the appealed decision, appears to be substantially apodictic and, in any case, not adequately substantiated, not having that judge clarified the reasons for which he decided to exclude that the mentioned activity, as far as the religious nature attributed to it by the author is concerned, can be seen as an integrant cession of goods and delivery of services to the associates and followers, performed in alignment with the statutory aims of proselytism and confessional practice of the author itself. It derives that one needs to examine the actual characteristics of the activities actually performed by the association but, and most of all, to analyze whether such qualities can results from the elements clearly indicated by the famous constitutional decision # 195/1993 21.
In his evaluations the judge must include the consideration that the search of economical means is needed for the functioning of the association and that the profits remain at disposal of the association, not being envisioned or implemented any distribution amongst the associates22. It is a known fact that, in order to distinguish the associations from the societies, the decisive factor is not the qualification of not recognized association given by the contractors, but the investigation of the substance of the act brought into existence. For an entity to be qualified a “society” it is needed that it pursues the purpose of dividing amongst its members the profits made, as per art. 2247 of the Civil Code 23. In our case, the statute of the Hubbard Dianetics Institute, not only does not foresees such distribution, but it also explicitly excludes it and it clarifies that, in case of dissolution of the association, its goods must be devolved to associations having similar aims. Naturally this does exclude the possible performance of commercial activities, provided that there is an evident for profit activity – objective or subjective one. The Statute articles, however, show a solely “idealistic” purpose, aimed to the achievement of a general betterment and an increased spiritual awareness of the associates. In such an instance, therefore, a selfish purpose is totally missing, nor the request of fixed contributions can justify the exclusion of an altruistic intent if it takes on the aspect of “reimbursements of expenses”, even if  calculated “in large amounts”24. It is also to be borne in mind that the delivery of goods/services is exclusively intended for the believers/associates; there is no trace of activities of delivery of services to the public in exchange of a fee, which would be a factor in qualifying an activity as a commercial one.
            The main nucleus of the rulings issued by Tax Courts is formed by the statement of principle according to which “the corporative entities are not considered commercial companies when the performances are rendered solely in favor of the associates, in conformity with the institutional aims laid out in the statute”25. The current law reference is article #87 of the Unique Text of the Taxable Income, Presidential Decree #917/1986, known as TUIR, which replaced article #2 of the Presidential Decree #598/1973 and that identifies as taxable subjects “the entities … private, which are different from societies … that do not have as their exclusive or main purpose the performance of a commercial activity”. The notion of commercial activity, as inferred by this same law reference at art. #51, which retrieved article #51 of the cited Presidential Decree of 1973, definitely excludes from it the association with religious orientation.
            The core of the problem is related the fiscal treatment of the performance of services against the payment of specifically determined contributions, but article #111 of TUIR, paragraph 3, clearly excludes that such performances can be considered having a commercial nature if executed in alignment with the institutional aims of the association and only in favor of associates or participants. Naturally the assessment of the inexistence of a commercial activity determines, as a consequence, the inexistence of the obligation of the bookkeeping and the filing of income tax returns.
It derives that for the performances of services – not part of the entrepreneurial activities – as per art. #2195 of the Civil Code, to be considered “not commercial”, there must be the concurrent existence of three conditions: the performances have to be rendered in conformity with the institutional aims of the entity; the lack of a specific organization; the contributions for the performances do not have to exceed the direct costs, i.e. they do not have to produce profit or richness27.
Also, it is important to underline the problem of the so called taxation for the “non corporate entities”, expression with which part of the doctrine28 has made a distinction amongst the subjects undergoing a corporate taxation. To this regard, it is noted that some of these subjects are in a midway position in the production of a profit meant for future and possible distribution to share holders, associates or participants; these are, therefore, entities which are instrumental to the achievement of a profit by third parties29. It is possible that some “not midway” entities can be owner of taxable profit, because nothing excludes that the profit produced can be utilized within the entity, for its institutional aims, “autonomous in respect to the commercial activity producing profit”30.
            In the evaluations of such issues it is important to verify, with particular attention, the content of the performance and not only in relationship with the do ut des – delivery of goods/services vs. amounts of money. The objective of the tax legislator is, in fact, that of granting financial facilitations to those associations that have a leading altruistic objective.  Article 111 of TUIR is in fact particularly profitable for those organizations that do not have the simple objective of delivering services to their own associates, but that characterize themselves as having an institutional sphere and different and additional aims not limited to the sale and performance of goods/services to the associates. In such an instance the profit produced can represent a financial leftover, not taxable, destined to the institutional activities of the entity itself.
            The delivery of services to the associates wanting to satisfy idealistic and spiritual necessities, within a well defined contest – because reserved to the members of the movement – allows to consider with greater attention the self-organizational momentum  compared to the commercial one, but it allows, at the same time, the overcoming of the remaining concerns of fiscal caution31.
            An evident dyscrasia exists between the positions usually advocated by the ordinary judges, who tends to deny to Scientology the qualification of religious association and to underline the commercial nature of its activities, and the opposite trend of the Supreme Court, which intervened on this point to underline, contrarily, the necessity of a more correct positioning of the case in point. For the Supreme Court there is not, in fact, a contradiction between the economical performances and the religious nature of the entity. The organization of courses, aligned with the institutional aims (sports for a sport organization, religious for a religious entity, etc.) for its own associates is to be considered legitimate, as it is a natural modality with which the institutional aim is achieved, and the payment of amounts of money does not contrast with the functional character of the association. This, obviously, within the limits in which there is a connection, where the performances are reserved to the associates and where there are no unrelated/different activities.
 On legal grounds, a different argument has been developed in regards to the Narconon centers, connected to Scientology, but specifically devoted to the assistance of people addicted to drugs. In such an instance the issue under discussion was the delivery of goods/services, because the fee paid as a contribution for the permanence in such centers cannot be configured as a membership fee, but should be more correctly considered a specific compensation existing because of a synallagmatic contract, with the consequence that “the service of room and board given by the Narconon community has to be considered a commercial activity32.
 
4. Penal issues
 
Examining the juridical issues having penal implications, these fall, with no doubt, within the typology of the crime of fraud. It is evident that if one denies the confessional nature of the movement, the juridical nature of both the activity and the juridical subject, changes. The first one is thus considered a mere commercial activity, aimed to the production of a profit, and the subject ceases to be an association and becomes an atypical commercial company. The consequences, from a penal viewpoint, are that all the assertions about the spiritual nature of services and activities degrade into trickeries and deceptions and for the Tax Office, the profit becomes taxable.
In the massive jurisprudence that concerned Scientology, the preliminary problem was tied to the possibility to fit into the qualification of the religious association category or, at least, of the cultural one. Such difficulties, as already remarked, can be easily overcome with a correct evaluation of the statutory definition of its institutional aims, along with an actual verification of the nature and aims of the activities concretely performed, with particular regard to the courses reserved to the adepts – auditing and training.
If such performances determine economical profit for the association, this element cannot affect the nature of its activity, due to the fact that the collection of funds, in exchange for services/cession of goods, is a common element of the associations, including those of religious vocation, and in that respect one cannot simplistically talk about “lucrative activity”33. As already underlined, in the perspective of tributary profiles, in fact, as per art. 4 of the Presidential Decree 633/1972 for the VAT and art. 20 of Presidential Decree 589/1973, then become art. 111 UIR and now art. 148 TUIR, the profit produced through the specific contributions of the partners, associates and participants for the performances of services given to them by the associations for their institutional aims, is not taxable, if these are associations of political, union, religious, artistic and sports nature. Same goes for the sale of publications done mainly to partners, associates or participants.
In the quoted penal decision #163/1995 of the Supreme Court, it was underlined that the public administration or, in case of controversy, the legal system bodies, must assess “if a group of people that qualify itself as belonging to a religious confession, actually has such qualities”. To these fundamental principles, as already underlined, one must add the punctual directives of the Constitutional Court, contained in the famous decision #195/1993, according to which “it is not enough for the appellant to qualify itself as a religious confession. Nulla quaestio when there is a Treaty with the State, but lacking this, the confessional nature can also be established by previous public recognitions, by a statute that clearly expresses its character or, in any case, by the common consideration”. The investigation of the judge cannot, or should not, be directed to an evaluation of the concept of “religiosity” of a movement, because it is not the religion or the religious feeling the object of the constitutional protection, but the freedom of each one to choose and practice owns faith34.
It is evident that the protection constitutionally offered by art. 19, implies that the religious association as such cannot be prosecuted, but this does not mean or could mean that the association does not commit crimes, or that it could establish itself to commit crimes using the “shield” of the religious belief, because if this is the case, it would commit the crime described at art. 416 of the Penal Code35.
We remark that, on penal ground, we must add to these issues, the necessity of applying the known principle according to which societas delinquere non potest and the certain and unequivocal detection of the subject for purpose of application of the penalty, obeying to the dogma of the imperativeness of acting in this determined sector of the law system36. These conquers of the penal code, entrenched in our legal culture since 18th century, seems to have been put aside in the last trial suffered by Scientology in France, in which, beside the personal responsibilities of some followers, it was envisioned the responsibility of the movement, or at least, of the national church as a whole37.
Such delicate issues represent, in a more broad analysis, the argument of the balance related to the limits to the freedom of religion and most of all to its practice, codified on a penal ground, but allow, in the case in point, to underline that an accusation against a legal person can be quite hazardous38 – mostly because related to a religious minority – that could seriously come into collusion with the rights of freedom granted in a democratic society.  As correctly underlined by the cited French decision, the starting point must be represented by the fundamental assumption that the single violations of the rights do not entail – and cannot entail – a tout court conviction of the religious doctrines which are the basis of the beliefs of the adepts. It not competence of the Court to evaluate the religious character of specific actions, but just if they could potentially fall in a category of facts having a penal relevance39.  In the subsequent development of its reasoning the Court abandons, however, such correct assumptions, to reach a global conviction of the movement and particularly of two legal persons structured in the organizing board of the French church.
It is evident that it does not have to be the religious or pseudo-religious context the object of a conviction, but the single and actual deviating “behaviors” specifically detected. Moreover it is natural that in the penal perspective, if the “religion” is not a juridical good protected by a secular legal system, there is no criminal case in point, in application of the note maxim nullum crimen, nulla poena sine iniuria.
In our country the penal convictions have only concerned physical persons, precisely detected. The last legal instance is that of the Court of Appeals of Cagliari that acquitted an executive of Scientology convicted in first instance to four years jailing for continued extortion40.
 
5. Organization of Scientology in Italy
 
In the specific evaluation of the Scientology confession, at least with reference to our country, is it a known fact that it is organized with the legal pattern of the no profit associations with religious character and it is therefore legally subjected to the regime of articles 36, 37 and 38 of the Civil Code, to which must be added the tax provision set for political, union and religious associations41. The basis of the single associations is a statute in which are expressly foreseen the means of funding of the group, represented by: a) membership fees and annual fees of the associates; b) the “differentiated contributions” of the believers to receive institutional services; c) compensations for the sale of books, publications, materials, recorded lectures and religious artifacts of Scientology; d) donations and heritages by associates or third parties, institutions or public or private entities. If the enrollment fees do not represent a relevant income of the balance sheet, the main income is represented by the “contributions” at point b), exclusively reserved to partners, associates o participants for the delivery of intellectual services differentiated based on the individual performances. It is preferable to use the composed term “differentiated contributions”, while the term “ price” is solely reserved to the payment of books42.
The concept of “contribution” includes, etymologically, a meaning of participation to a common purpose and it differentiates itself from the term compensation, because in such an instance the relationship between two subjects ends at the moment of the exchange of the good/service vs. money. The term contribution contains a quid pluribus because of the existence, within the group, of a common purpose and it’s only within the group that the offers of goods or services take place vs. amounts of money. In synthesis, when the contributor/believer pays an amount, not only he obtains a certain performance, but he also contributes to the collective purpose of his group of belonging, thus qualifying further the compensation as a contribution. Not necessarily a contribution has to exceed the market value of a certain good, but it is evident that some goods cannot be quantifiable/qualifiable simply using the market laws of the parameters43.
The headword “contribution”  is used because the payment is only done by the associates, with clear exclusion of extraneous third parties, and because we are talking about so called services extra commercium: the training – the study of the doctrine of Scientology – and the auditing – the spiritual counseling. Naturally, as they are contributions done in favor or of a movement/association the payment of the amounts is also, concurrently, a mean of participation to the achievement of the common purpose. And it is for this reason that the concept of “price” is reductive, same goes for the term donation in which the compensation is lacking, typical of the structural modalities of Scientology. The religious activities, in fact, for which a payment of amounts of money is foreseen, with precise price lists, represent a mandatory route for the Scientologist – the “bridge” – the objective of which “total freedom”, for the salvation of the individual and the collectivity.
The principle fulcrum of the activities of religious nature, with exact cost which varies depending on the level, is therefore the training and the auditing. The first one is divided in two sectors: Division 6 courses (the organizational structure of the Church of Scientology is divided in more divisions), which are preliminary ones and mostly related to the practical life improvement (to improve the ethics of the individual, ups and downs in life, to engage and maintain a marriage, courses related to the methodology of Dianetics, etc.) and Division 4 courses. Both types of courses are administered in classrooms called “academies” and they foresee the intervention, in the role of a supervisor, of a qualified member of the confession44. The auditing, definable as “spiritual assistance” is divided into several categories: self- analysis, Book one auditing, professional auditing, which in turn, is divided in three sub-categories: co-auditing; auditing administered by a Minister and solo auditing45.
Also the professional auditing is administered by an auditor and a believer, but in this hypothesis, that represents a more advanced level of spiritual advancement, one also use a special artifact called E-meter, that allows the detection of areas of spiritual sufferance and distress of the believer and, through the auditing, their elimination. The concept is that the spiritual improvement of the person depends indeed from the elimination of the engram (negativities) for the fact that deepest and true nature of the human being is that of spiritual being that with the auditing, gets progressively freed46. The auditing of this kind requires, for each hour, a full time engagement of the auditor and, part-time, of other four people. Along with the courses and materials is the main source of income of the Church. In the confessional structures delivering advanced spiritual counseling – but currently they are not present in Italy – the cost of the auditing is greater.
The last type of professional auditing is the solo auditing, done by the belier himself after having reached a well precise spiritual condition, called Clear, and for all the levels that follow – except for the spiritual level called OT IV and OT V, for which the spiritual counsel is again administered by an auditor. With OT it is mean a spiritual state above the Clear; all the level coming after this one, follow a precise sequence that, step by step, leads one to the eight level. The solo auditing does not have a cost; the only cost is represented by the supervision administered by specific religious personnel of the Church.
A non controversial source of income,  that does not have jurisprudential relevance, is that of the amounts of money received for the purchase of the books of Hubbard, also sold to the public. Other religious materials, represented by the courses packs, specific publications, lectures, etc and the E-meter itself, are instead given only to partners, associates and participants and they are considered extra commercium. The purchase of religious services comes about through an application on a pre-print form that is not related to the object of the service and does not contain indication of the amounts, but that underlines the religious and not commercial nature of the relationship. At the moment of the payment an invoice is released. To the specific performances correspond specific contributions for which details lists, also called “price lists”.
It is important to underline that specifically envisioned modalities of reimbursement exist for the believers who request it, because they do not intend to participate to the doctrine/continue their route in the movement any longer or because they have been expelled and sent out.
 
6. Final conclusions
 
The contractual modalities utilized by groups/movements with a religious connotation should then be analyzed with the prism of the religious interest, not an external but an internal aim of the subject’s activity, that structures and establishes the concrete legal position of the cases in point47. In such a hypothesis one has to preliminarily qualify the type of the performance, evaluate if these are donations, natural obligations or if, more correctly as it seems, if we are facing a payment and if this hypothesis can fall in the category of synallagmatic contracts, because of anomalous modalities of our religious feeling, but legally legitimate. It is obviously necessary to point out that the synallagmatic contract must keep into account the specificity of the performance – religious courses – and of the adhesion to a certain spiritual route also tied to the participation to a movement and not a simplistic “do ut des” relationship.
In the evaluation of a potential crime of fraud, one wonders if the trickeries can be detected, for the fact that, dealing with promises of self-improvement, of getting rid of negativities, superterrestrial life, etc, it is evident since the beginning that it will be quite difficult that the aim will be reached or anyway one will be needed to assess it. Another observation is that related to the fact that the price/payment of the courses is not tied to any objective datum and thus it may appear out of proportion compared to the cost of the performances. From a legal perspective of this crime, also, the demonstration of the intentional will is fundamental.  Not only it depends upon the material acts performed by the individual, but also from the awareness that the individual had at the moment of the actual action. It would then be necessary to demonstrate that, for example, the “personality test” is perceived as a “fraudulent tactic” in a subjective way, while it is instead known that for the adepts of Scientology is one of the tools used for proselytism, besides being a mean to verify their own religious advancement. It’s opportune to stress that this is not the only mean to have access to the confession, nor it is the only instrument of “advancement” within it. It is one of the methods used for religious proselytism – a free one – through which one leads the subjects to pose themselves questions and address to Scientology48. The test is, in fact, integrated in the practice of the doctrines of the movement and its purpose is to measure the personality, the level of self-awareness and the success in life.
It is evident that only a deviating behavior can bring about a potential criminal instance, and not the simple application of Hubbard’s doctrines. For the fact that one is addressing to a spiritual center – even taking into account the possibility that the subjects are not aware they are resorting to an actual religious confession – it goes without saying that they cannot claim a scientific approach tied to psychological or psychotherapeutic practices, but that they are asking for an assistance of spiritual and metaphysical nature49.
The problem of the compensation is interesting because it imposes an evaluation in the merit on the good sold and on the adequacy of the price “because in the case in point we are talking about goods (happiness, spirituality and things of this type) for which there are no criteria of evaluations to which one can refer to (a market), not being in circulation and in any case, for the fact that it would be inconvenient to adopt as a parameter the judge’s evaluation criteria; the only possible solution then would be that of sticking to the subjective evaluation of the parties”50.
And it is always important to reiterate that “in the execution of the financial contribution for religious aims, what comes into existence is a “liberal” will of the contributor that is not just pursuing the enrichment of the beneficiary of this act, but the achievement of the ultra-personal purposes of the activities of the confession or of the religious group51.  This principle is also valid in the hypothesis where the financial contribution corresponds to the performance of a spiritual service, because the subject/believer is not merely buying that, but he participates to the life of the movement he belongs to52, also from an economical viewpoint.
Such statements about liberality can be overlapped to the hypothesis of payment of spiritual goods/services. The payment of amounts of money is not simplistically devoted to the achievement of a personal objective, but it’s an integrating part of the participation to the collective life inside the movement. It is equally needed to underline that the possibility of a reimbursement of services that the subject does not want to attend anymore, envisioned by the statute, implies the automatic ousting from the group, because it is clear that its objectives are no more shared. This makes, thus, even more evident that the financial participation is not merely connected to the achievement of the good/service, but it entails the will of participation to a common plan, which has to be fully shared by the subject/believer.
 In such hypothesis one need to verify the qualification of the religious purposes that justify the act in its causal profile and therefore in the genetic moment, but also to verify the actual collective destination of what has been paid53.
The performance of legal/social acts may represent one of the forms of expressions of the personal identity with which one can claim – and which can be obtained – an adequate juridical relevance for the different cultural and religious forms54 that characterize the actions of single individuals and thanks to that open the road to the juridical recognition of a cultural expression to be situated in the broader genus of the fundamental rights. The religious factor can – and must – represent a positive experimentation of a modern objective pluralism – meant as an implicit recognition of a plurality of the fundamental values – within the categories of the civil law55.
 
Foot Notes
 
1.     The new codex juries canonici poses the spontaneous offer as the first one of the possible resources of the Church, whereby the previous codex of 917 was presenting in the first place the tax. For the fixed rights paid for the administration of the sacraments it replaces the old term taxae with that of oblationes/offers: see  P. VALDRINI Et al., “Droit canonique”, Paris, 1999, p. 567.
 
2.     S. FERLITO Le religioni, il giurista e l'antropologo, Soveria Mannelli, 2005, p. 72.
 
3.     Cfr. F. FINOCCHIARAO, Aspetti pratici della libertà religiosa in uno Stato in crisi, in Dir. eccl., 2001, I, page 3 and following ones of the same author, Scientology nell'ordinamento italiano, in Dir. eccl., 1995,111, p. 603 ss.; P. COLELLA, La disciplina di "Scientology " nell'ordinamento italiano, in Giur. it., 2000, V, p. 2446 ss. e N. COLAIANNI, La libertà religiosa secondo le confessioni "altre" (Testimoni di Geova, Buddhismo, Scientology), in A.A.W., La libertà religiosa, tomo 11, Atti del Convegno di Napoli, a cura di M. TEDESCHI Soveria Mannelli, 2002, p. 659 ss.; G. D'ANGELO, Nuovi movimenti religiosi tra (pretesa) uniformità di qualificazione e (reale) diversificazione dei relativi profili disciplinari: la Chiesa di Scientology nella più significativa giurisprudenza, in Dir. eccl., 2003,II, p. 710 ss. Cfr. P. CAVANA, Verso nuove forme di organizzazione religiosa nell'ordinamento italiano: le associazioni di promozione sociale con 'Finalità di ricerca etica e spirituale", in Dir. Eccl., 2003,2, p. 493 ss., for a reconstruction of the “no profit” sector.
 
4.     A. FUCCILLO Dare etico, Torino, 2008, p. 3
 
5.     Supreme Court. section  VI penal, 22 October 1997, both in Cd Juris Data, Sentenze della Cassazione Penale, testo integrale, 1995-1998 I° sem.
 
6.     Constitutional Court, decision 5 November 1992, n. 467, in www.giarcost.org.
 
7.     See decision of the constitutional Court n. 195/1991, in www.giustcost.org, about the constitutional legitimacy of articles 20 Presidential Decree. n. 598/1973 e 4, paragraph 4, of Presidential Decree 633/1972 with reference to articles 3, 8, 53 of the Constitution: such provisions (based on which, the religious confessions not officially recognized by the legal system enjoy a general fiscal exemption) were endangering the principles of equity and contributive capability foreseen by the fundamental chart, for the fact that the treaties reserves to the latter a more restrictive treatment fiscal-wise, just limiting the exemption from tributary obligations with exclusive reference to the activities of religion, belief and charity, education. This argument was posed to the Constitutional Court by the Public Prosecutor of the Court of Torino, IV Penal Section, of 5 November 1996. The Constitutional Court, that intervened to examine this issue, with the already quoted decision of 5 November 1992, declared the argument not grounded, considering that the tax facilities granted to the confessions not officially recognized by the State had to be considered valid ex lege also in favor of religious entities that had undersigned a treaty. Articles 4 of the Presidential Decree 633/1972 and 20 of the Presidential Decree 598/1973, included in article 11 1 T.U. related to income taxes, contained in of the Presidential Decree 917/1986, that subject in matter of VAT and Corporate tax, considering them commercial activities, also the cession of goods and performance of services done in alignment with the institutional aims of political, union and sector, religious, charitable, cultural and sports associations. See N. COLAIANNI, Caso Scientology: associazione religiosa o criminale? in Foro it., 1995,II, 694. See also Supreme Court, sect. I civ., 29 March 1990, n. 2573 on Corporate Tax: «If from one side what’s important here is the activity performed and not the declared aim …. It is needed that in the statute the activity that the subject intends to perform, is exhaustively described and the object is clearly indicated », object that in the case in point had a religious appearance, under which an exclusively commercial activity was performed and illegally subtracted to the control, to the protection, to the discipline of the State, with the claimed existence of “superior” religious precepts.
 
8.     It is also important to underline that the religious associations and not the confessions enjoy, as per article 4 of the Presidential Decree are the object of fiscal facilitation. On such fundamental distinction also the Constitutional Court intervened and delineated a separation line with two decisions: # 195/1993 with which makes a distinction between confession and association with religious aims. Such difference, as this supreme body of constitutional control states, finds its positive juridical fundament in articles 5 and 19 of the Constitution: the first one, included in the “Fundamental Principles” and the other ones in the “Title of civil relationships: duties and rights of the citizens”. The subjects forming the associations are individually determined and they represent the beneficiaries of the provisions of articles 18 and 19 of the Constitution, they are not – nor could they be – the confessions generally defined.
 
9.     Constitutional Court, 27 April 1993, n. 195, in Foro it., 1994, I, 2986 ss. Note of comment by N. COLAIANNSI, Il concetto di confessione religiosa. See also G. DI COSIMO, Sostegni pubblici alle confessioni religiose, tra libertà di coscienza ed eguaglianza, in Giur. cost., 1993, p. 2165 ss.; G. CASUSCELLI, Ancora sulla nozione di "confessione religiosa": il caso Scientology, in Quad. dir. pol. eccl., 1998,111, p. 809 ss.; R. ACCIAI, La sentenza  n. 195 del 1993 della Corte Costituzionale e sua incidenza sulla
restante legislazione regionale in materia di finanziamenti all'edilizia di culto, in Giur. cost., 38, 1993, p. 2 151 ss.; G. DI COSIMO, Alla ricerca delle confessioni religiose, in Dir. eccl., 1998, I, p. 42 1 ss.
 
10.   Based on its statute, regularly recognized by the Italian State, Scientology is an association defining itself “Church of  Scientology” that intends to perform essentially spiritual activities: see Opinion # 767 of 10 May 1989 issued in advisory meeting by the State Council and published in Quad. dir. pol. eccl., 1990, p. 940 ss.
 
11.   In decision # 195/1993 one in fact reads that the admission to the benefits “nulla quaestio when there is a treaty with the State. Lacking this, the nature of confession can be evidenced also by previous public recognitions, by the statute clearly expressing its character or, anyway, by the common consideration”. (S 5).
 
12.   P. BELLINI, Confessioni religiose, in Enc. dir., vol. VIII, Milano, 1961, p. 926. With reference to legal precedents, see Cassation Penal Section VI of 22 October. 1997, # 1329, in Foro it., 1998, 11, p. 6 ss. and Courts of Appeals of Milano, I penal section 5 October 2000, # 4780, in Giur. it., 2001, I, 11, p. 1408 ss. With a comment of P. COLELLA, Ancora a proposito di 'Scientology'; Civil Supreme Court, Tributary Section, 22 October 2001, # 12871 partially reproduced on Corriere giur., n. 1, 2002, p. 41 ss., followed by a comment of  P. COLELLA, Sul carattere 'religioso' dell'Associazione di Scientology (p. 44 ss.). See also R. SARACINO, Scientology fra libertà religiosa e diritto comune, in Dir. eccl., 2001,II, p. 112 ss.
 
13.    See decision of the Courts of Trento, Bolzano, Milano, Lecco, Bergamo, Monza, Novara, Roma, Nuoro. In the first decision on this issue the Court of Lecco, Penal Section, 23 October 1991, unpublished, it is underlined that due to its religious nature, the association was not bound to the obligation of the book keeping. See Tax Commission of First Instance, Roma Section VIII, 23 March 1996, # 4600/95, partially published in  Giurisprudenza di merito, 2, 1997, p. 395 followed by a brief comment of  M .A. MILONE, Associazioni con scopi esclusivamente filosofico - religiosi: regime tributario, p. 396 ss. See also Tax Commission of Second Instance of Como, Section V, # 1771/1995 of 30 May 1996; Tax commission of II Instance of Bergamo, Section V, and # 257 of 1 March 1996, all unpublished. Also the assessment done by the Finance P0olice had underlined that the activity of the Association was tied to the performance of religious services to its associates/participants.
 
14.   See Minutes of the Tax Police of Ravenna of 7 February 1994, not published.
 
15.   Decision of the Tax Commission of Milano, Section #60, of 28 May 1997, unpublished. In this decision it is underlined that “if this is true in principle, the performance of the commercial activities, even if at the presence of a statute that qualified the entity as no profit and religious in nature, as res facti, must be the object of a case by case assessment …. Therefore the actions of assessment of the actual activity must therefore start from the claims done by the Finance Police against the association”. (Page 7 of decision.).
 
16.   A decision of the Tax Commission considered being able to “align with the prevailing and consolidated jurisprudential orientation … according to which the activity performed by the appellant /Scientology) is religious-cultural in nature and, thus, not commercial, with the consequent effects ---- of lack of obligation of invoicing and payment of VAT on the sale of goods and services done by the adherents”: Regional Tax Commission of Milano, 8 March 2002, unpublished, which concludes that “ the religious nature of Scientology, lacking a definition of the concept of religion in our legal system, has to verified on the bases of different indexes, as stated by the Constitutional Court, such as previous public recognitions, the Statute, the common consideration.”
 
17.   Decisions of the Civil Supreme Court, Tributary Section, 17 June 2008, #16345 and #16346. In the first one it is underlined that in order to religious qualification of the Association of Scientology there are already legal precedents from previous decisions that, in penal seat, acquitted all the defendants from tax crimes. It is also underlined that the religious nature of an association does not exclude the performance of a commercial activity by the same entity, mostly with regards to the delivery of goods and serviced reserves to the associates. The Supreme Court brings up how, once again, the Second Instance judges have apodictically denied the religious nature of the association, neglecting to execute a deep and detailed analysis about the activities it actually performed, with particular attention to those deriving by a comparison with the statute bylaws, to which they are instrumentally related. With a similar reason the Civil Supreme Court, Tributary Section, 29 January 2002, cancelled a decision, # 58/11/98 of 30 September1998 in which the Tax Commission had convicted the Association of Scientology, reaching the conclusion that the activity performed was commercial and the nature of the association not a religious one. The Supreme Court however considered that the judges of the Second Instance, with a scarce and contradictory reasoning, had violated article 4 of the Presidential Decree # 633/1972. Identical decision of the Civil Supreme Court, Tributary Section of 29 January 2002, # 1098 and Civil Supreme Court, Tributary Section of 22 October 2001 # 12871.
 
18.   Supreme Court, Tributary Section, 22 October 2001, #12871, with a comment of LUPI, Spunti sulla tassazione delle associazioni e sulla compatibilità tra loro carattere religioso ed effettuazione di prestazioni a pagamento degli associati (nota a Cass., n. J2871/2001), in Riu. dir. trib., 2002, 2, p. 144 ss.
 
19.   Court of Appeals of Milano, III Penal Section, 5 November 1993. The central issue was that of tax obligations. The structure of Scientology was claiming its religious character and the consequent applicability of the fiscal provisions for the religious associations. Such aim was expressly envisioned in its statute. See art. 2, of the Presidential Decree of 29 September 1973, # 598 confirmed by art. 87 of the Presidential Decree of 22 December 1986, # 917 according to which “the exclusive or main object of the entity is determined by its incorporation papers, both existing as a public deed or as a private certified agreement and, lacking any of them, on the basis of the activity actually performed.”
 
20.   Hypothesis that does not exist in the case in point where “the speculative intent is dominant … and the profit purpose is a priority to a degree that the consistency and quantity of the financial operations performed have surely exceeded any other aim, this acquiring such a relevance, prominence and autonomy to be put forward the profit purpose to any other potential plan (also spiritual or religious).
 
21.   It is moreover important to reiterate that the qualification of “non commercial entity” cannot be canceled, even taking into account the possibility that our legal system grant to the same subject the possibility to perform a commercial activity. Based on article 20 of the Presidential Decree#. 598/1973 or article 111, of the Presidential Decree #917/1986, in fact, “they have to be considered performances of commercial activities also the delivery and sales of goods to partners, associated or participants vs. the payment of specific or supplementary compensations, determined on the basis of greater or different performances to which they are entitled.”
 
22.   Very clear and accurately described all these considerations in the quoted decision of the Supreme Court, Tributary Section, # 15363/98, 13 October 2000.
 
23.   To this regard more times the jurisprudence has expressed its opinion: Supreme Court 6 August  1979, # 4558, in Foro it., Rep., 1979, voce Società, n#128; Supreme Court 22 February 1979, #, ivi, 1979, # 136; Supreme Court 27 February 1976, # 639, in Giust. civ., 1976, I, p. 895; Supreme Court 6 October 1972, # 2895, in Foro it. Rep., 1972, voce Società, # 138; Supreme Court 26 November 197 1, #3448, in Giust. civ., 1972, I, p. 527. Also see the doctrine and for all F. GALGANO, ‘Le società in genere. Le società di persone’, Milano, 2007, who specified that if the contract occurred amongst different people to discipline the performance of a common activity excludes any division of the profits, or if in the contract it is stated that the parties are exclusively motivated by idealistic aims, one must exclude the existence of a commercial relationship, because article 2247 of the Civil Code considers societies just the collective company performed with the purpose of a division of the profits (see particularly page 39).
 
24.   W. BIGIAVI, La professionalità dell'imprenditore, Padova, 1948, p. 96 note 30.
 
25.    This expression is present in the Court of Appeals of Roma, I Penal Section of 3 July 1995, # 2574; a comment to this decision was done by A, PERINI, Enti non commerciali di tipo associativo ed omessa dichiarazione dei redditi, in Il Fisco, 26, - 1996, p. 6321 ss.
 
26.   To such provision the analysis of the dictate of articles 108 e 111 of TUIR can be added, such articles disciplined the determination of the profit for the non commercial entities having an associative nature. Article 108, paragraph 1, second part, underlines that “cannot be considered commercial activities the performances of services not falling under article 2195 of the Civil Code when done in alignment with the institutional aims of the entity without a specific organization and toward the payment of amounts that do not exceed the direct costs” and article 111, paragraph 1, specifies that “it is not considered a commercial activity that performed for the associates or participants, in alignment with the institutional aims, by the associations … and by other non commercial entities of associative nature” and in the second part of this same paragraph it is excluded that the amounts paid by the associates as fees/contributions contribute to form up the profit of the association”.
 
27.    See Supreme Court, Section I, 8 September 1999, #9529, in Corr. tributi, 2000, #2, page 182 ss. “One can peacefully verify that the associates perform duties in favor of the association, but not aimed to its survival or the institutional aims, but rather to obtain services aimed to satisfy personal interests: in such a case it is correct to qualify such activity as a commercial one. And therefore it is possible that the non commercial entities perform institutional activities and commercial activities, with the consequent need of an exact distinction of the single operations related to one or the other of the activities”. See MAZZELLA, Quando una associazione religiosa esercita attività commerciale, in Giur. merito, 2000, 6, p. 1291.
 
28.   A. PROTO PISANI, La fiscalità degli enti non societari, Torino, 2001, particularly p. 185.
 
29.    See L. CASTALDI, I rapporti economico patrimoniali tra associati e associazione nella disciplina delle  imposte dirette e nell'IVA, in AA. W., Il regime fiscale delle associazioni, by A. FEDELE, Padova,  1998, p. 63 ss.
 
30.   R. LUPI, Spunti sulla tassazione, cit . , also underlines that “the profit relevance can in any case be conceptually excluded, regardless of any facilitation intent, in the hypothesis where the associates satisfy, all together, through the association, their own personal need of culture, sports activity or, like in the case in point in the decision, spirituality. This explains the ration, halfway between facilitation and the specification of the concept of profit meant in article 111 TUIR” (p. 144).
 
31.   In that same meaning, in relation to another local sear of the “church of Scientology” see Provincial Tax Commission of Ravenna, 20 December 1999, # 183, unpublished. We have thus to highlight the complete synchrony if the previous decision of the Supreme Court, 27 February 1997, # 1753, that had reviewed the different hypothesis of a religious association (Jehovah’s Witnesses) that was distributing publications with fees to non associates, knocking door to door with pamphlets, Bible editions and similar things. In this case the Supreme Court had excluded the applicability of the provisions on the associations, reiterating the profit nature of such income.
 
32.   Regional Tax Commission of Emilia Romagna, Section IX, with comment on Il Fisco, 8, 22 February 1999.
We observe in another ruling that “it becomes clearer and clearer the intention of the tax legislator of assessing the commercial or non commercial nature of the entities on the basis of actual parameters and not on merely formal ones, and of preventing the risk of a fraudulent use tax-wise, of aims socially aims that could socially be defined as no profit ones. This is far more relevant for the religious aims: for these ones, in fact, the legal system inhibits, secularly, any intrusive evaluation of the merit; but concurrently reserves itself to assess whether under the untouchable shield of freedom of religion actually a profit activity, of fiscal interest, is prospering. Supreme Court, Penal Section III, 16 December 1999.
 
33.   See Court of Novara, 19 November 1992, # 231/1/88, unpublished page  6: decision of Judge of Preliminary Hearing of “no case” for omitted invoice and book keeping; dissimulation of activity: utilization of invoices for nonexistent operations, for omitted membership book and inventory book. Legal precedents: Court of Lecco, 12 December 1991, # 256/91. Similar case, Court of Nuoro, 10 November 1993, # 220/92, also ruled as “no case”. Also in such a hypothesis, based on the consideration of its religious nature, the entity was considered not falling under the provisions of Corporate Tax and VAT tax. Same, Court of Bergamo, 15 November 1994, #1111/88.  Interesting and similar reasoning issued by the Court of Roma, 30 March 1995, #17213/90, that states that, in order to evaluate the religiosity of the association one needs “not to abide to the interpretation given in more than one occasion by the Ministry of Finance (i.e. that such an entity falls within the category of the private institute of education without a recognition) for the fact that reading its statute and seeing the type of activity performed it derives that the aims pursued (surely lacking any profit purpose) are essentially religious ones”. Similar cases: Court of Monza, 20 March 1995, #1466/90; Court of Appeals of Roma, I Penal Section, 3 July 1995, # 421/92.
 
34.   For a reconstruction of the judiciary events, see M. MORRA, Il "caso" Scientology. Associazioni non riconosciute religiose: aspetti giuridici - fiscali e processuali, in Dir. civ. e proc. civ, .I, 4,2000.
 
35.   See Supreme Court, United Civil Sections, 17 December 2002, #18015, in Giust. civ. Mass., 2002, 2207.
 
36.   With reference to such principle, see, in the Italian experience, the notorious decision of the Constitutional Court, 8 June 1981, #96, published in Giust. pen., 1981, I, C. 226 ss.; in Riv. it. dir. proc. pen, 1981, p. 11 47 ss. With a note of M. BOSCARELLI, A proposito del “principio di tassatività”, p.1147 ss.; in Giur. cost., 1981, p. 806 ss. With note of  P.G. GRASSO, Controllo sulla rispondenza alla realtà empirica delle previsioni legali di reato, p. 808 ss.; in Dir. famiglia 1982, p. 311 with note of  F. DALL'ONGARO, L’illegittimità costituzionale del reato di plagio, p. 3 11 ss.
 
37.   Decision of 27 October 2009, Tribunal Correctionnel, de Paris, XII chambre, # 835623 114 C. Association Spirituelle de 1'Eglise de Scientologie, S. SEI, et autres, unpublished, commented by CAROBENE, Le minoranze religiose tra normativa penale e diritti di libertà: rilievi a margine di una recente sentenza di Scientology, in Atti Convegno Laicità e dimensione pubblica del fattore religioso. Stato attuale e prospettive, 17-18 sett. 2009, being printed and in www.statoechiese.it.
 
38.   On the general concept see M. BASILE, A. FALZEA, Persona giuridica, in Enc. dir., vol. XXXIII, Milano, 1983. In Italy a legislative decree, 8 June 2001, #231, has introduced in our legal system the penal responsibility of societies for the commission of illegal deeds – in their own interest and advantage – by people who operated inside the organization of these societies.  It did not take into account only the activities that imply the commission of crimes but also those which came about due to a defect of organizational control by subjects at the top. We are faced with instances of fault, traceable back to the entity’s responsibility just in those cases where it is not able to prove that it has either enforced and applied an adequate system of prevention and protection to avoid the commission of crimes at the top, and also has established an autonomous body of control entrusted with all disciplinary and surveillance powers. The measure has represented important news in the field of Italian law, because it definitely gets rid of one of the key principles of our legal system, tracing back to Roman Empire law system and covered by the famous Latin maxim societas delinquere non potest. In fact, differently from the systems of Common Law, which recognize since time the responsibility of the entity and the figure of the corporate crime, still today the continental legal systems remain generally tied to the Roman principle of the individual penal responsibility, “even if they feel the need to introduce, against the society, appropriate measures to hit corporate criminality”, F. MANTOVANI Diritto penale, p.g., Padova, 1988, particularly p. 146. And in fact a recent amendment of the French penal code introduced the responsibility of the legal persons, both in autonomous way, that as cooperation with the physical people acting on their behalf.
 
39.   For the fact that the relationships in penal law always imply a psychological investigation, it seems difficult to detect in the moral entity one that has a legal relevance for the penal law. That’s why the penal code of 1930 was excluding this capability for the legal persons and in the Ministerial Report (I, 243) one read: “one can assert that our positive law, at least as a rule, does not recognize to the collective entities the quality of subject with penal relevance”. The principle of personal penal responsibility has been made into a constitutional principle (art. 27 paragraph 1 constitution), but from a common law viewpoint, even if a specific provision is missing in the penal code and in compliance with the directives of the Constitution, the principle is considered as a derivation of article 197 paragraph 1, that only envisions a civil obligation of guarantee of the legal person in the case when the person representing or administering it, commits a crime: see F. MANTOVANI, Diritto penale, cit., p. 149. It is of interest to quote a decision of the Trib. Correct. Paris, 3 July. 1982, unpublished but mentioned by  C. DUVERT, Sectes et droit, Presses Universitaires d'Aix-Marseille, Aix-en-Provence, 2004 p. 225, note 17: “les dirigeants de l'association (l’Eglise  de Scientologie) ne cachent pas que les 'rentrée d'argent'sont essentielles pour la survie de leur organization” and underlining that “n’en résulte pas pour autant que cette organisation ait une finité commerciale les mentalités anglo-saxonnes étant, à cet régard, très différentes des mentalités latines et la réussite financière étant considerée comme le principe de base du succès de tout groupement fut-il religieux”.
 
40.   Court of Appeals of Cagliari, Penal Section, #545 of 13 May 2010, unpublished.
 
41.   Based on the Presidential Decree 22 December 1986, article 87, the Hubbard Institute qualifies itself as not falling under the corporate tax obligation as “ not a commercial entity” and also article 111, according to which in matter of religious associations “are not considered the performance of a commercial activity … the sale of goods and the delivery of paid services when done in alignment with the institutional aims, for its own associates or participants”: See what reported in the decision of the Court of Novara, 19 November 1992, unpublished.
 
42.   As far as the Italian associations are concerned, the contributions done by the believers to purchase institutional services and materials are the major and main source of funding, The only exception is the National Church of Scientology because it does not deliver religious services to the believers and it is mainly supported by the contribution of the major Italian association (Milano).
 
43.   In 1993 in the USA the IRS (the American tax office) had verified that the contributions set by the Church of Scientology for the services and the goods were only allowing the coverage of all costs.
 
44.   The contributions are differentiated and there is a list of contributions. The division 6 courses cost an average of 180 – 200 euro; the Division 4 courses cost an average of 800-1,400 euro.
 
45.   The first modality, the Self Analysis, is a type of auditing done by the believer by himself utilizing specific lists of items and the system of utilization contained in the book. Self-analysis produces betterments and can raise the spiritual tone of the person but does not allow progress much further on the Bridge. The cost corresponds to the price of the book. The Book One auditing envisions the participation of an auditor that could be incorrectly defined as a “Minister of the Faith” that helps the “preclear”, i.e. the believer, that hasn’t yet reached the state of “clear” to achieve a spiritual improvement objective. Such activity is based on the methodology described in “Dianetics” published in 1950 and indicated as “Book One”, and it is practiced in intensives of 12,30 hours each, for a contribution of approximately 200 euro.
 
46.   Amongst the various under-categories into which the professional auditing is divided, the first one is represented by the co-auditing, which a mutual auditing between two believers who follow specific courses, who study together and receive in alternative way the counseling. In this case there is not an amount to pay for the auditing but just for the specific courses to follow. Other instance of professional auditing is that administered. It is also done with periods of spiritual counseling of 12, 30 hours and each one of them costs 1,000 – 1,500 euro in the Italian Churches.
 
47.   Such concepts have been effectively underlined by A. FUCCILLO, Dare etico, cit., page 6, even if with reference to the donations: “The relationship between spirit of liberality and religious interest should be perhaps re-read and reinterpreted underlining the incident the second has on the first one, i.e. considering the religious interest not as an external aim, but as a trait of internal connotation. It could be said, in essence, the acting for liberality and its subsequent juridical positioning” but the analysis of the association could be well adapted to our case in point. On the analysis conducted in the United States in regards to selfish, transcendent altruistic motivations of the “religious donations”, see bibliographic indication at page 29 of S. BERLINGO’, Enti e beni religiosi in Italia, Bologna, 1992.
 
48.   On the brochure of the test, published in Le procès de L’Eglise de Scientologie, Paris, 1997, one reads, in the last page of the test that it should be sent to the Centre Hubbard de Dianétique, with the specification, at the bottom, that it is a department of the Association Spirituelle de 1'Eglise de Scientologie (p. 184).
 
49.   In the religious services enrollment forms one reads that “the aim of Scientology and all its religious services --- it to help the follower to increase for themselves and for the ecclesial community the awareness of the spiritual nature of the human being; to improve own spiritual relationships with oneself, the universe and other forms of life, and the infinity and to reach the complete spiritual freedom for self and all the rest (point 1) and that “the church does not make claims and does not authorize anybody to promise, and much less to guarantee, from the practice of Scientology, physical, spiritual, social or any kind of betterment gains. (point 3)
 
50.   Court of  Roma, fraud and circumvention o fan incapable person, 17 September 1985, unpublished, in which it is also underlined the dangerousness of the influence of the judge on “issues and sphere of activities which are lacking any penal relevance” not only quoting the religious affiliation phenomena  but also those of collectivism (!): see page 11 of the decision.
 
51.   A. FUCCILLO,  Dare etico, cit., p. 123.
 
52.   It is underlined that the liberal act becomes then an act of solidarity - ethical in its classic meaning - and that its outcome does not either belong to whom made it possible with his work or to those who deal with the object directly, but at all effects, to the entire collectivity. The gratification of those who acted remains that of a prevailing moral nature and represents an example of concrete performance of his freedom”: A. FUCCILLO, Dare etico, cit., p. 131.
 
53.   “The entire support system (fiscal provisions) towards these forms of active participation is based on the worthiness  of the aims pursued and translated in the achievement of works benefitting the entire collectivity”
A. FUCCILLO, Dare etico, cit., p. 132.
 
54.   M. RICCA, Diritti della coscienza, identità personale e multiculturalismo, in AA.VV., Studi in onore di Anna Ravà, by C. CARDIA, Torino, 2003, p. 672 ss.; N. COLAIANNI, Eguaglianza e diversità culturali religiose. Un percorso costituzionale, Bologna, 2006 particularly p. 30 ss.; the same author in another passage had underlined that “the religions crowd the political sphere with their different views of the world, they become cultural components, they act as moral or cultural entrepreneurs with their own identity to safeguard and promote. The worship places emptied by the secularization prompt them to find room in public places, to highlight more than the belief, the belonging”. (p. 9).
 
55.   S. TALONE, Diritto privato globale, objective pluralism e libertà di religione, Soveria Mannelli, 2006 particularly from page145.
 
 

Rédigé par EIFRF le Sunday, May 26th 2013 | Comments (0)

By Patriarchate Bartholomew :


NEW ENCYCLICAL ON THE 1700th ANNIVERSARY SINCE THE EDICT OF MILAN
Protocol. No. 441
 
PATRIARCHAL AND SYNODAL ENCYCLICAL
ON THE 1700th ANNIVERSARY SINCE THE EDICT OF MILAN
 
+ PATRIARCH BARTHOLOMEW
 
By the Mercy of God Archbishop of Constantinople-New Rome and Ecumenical Patriarch
 
To the Plentitude of the Church: Grace and Peace from God
 
“Blessed is our God, who so deemed” and orders all things for all people, who has led us to “this day of the Resurrection” when “all has been filled with light, heaven and earth alike.”
 
This year marks the 1700th anniversary since the issue of the Edict of Milan about religious freedom. Therefore, we are communicating to the Church in all places and times in order to address a message of hope, love, peace and optimism from the most holy Apostolic and Patriarchal Ecumenical Throne in as much as the Church is the continual presence of God. “Whoever has seen the Son has seen the Father” (John 4:9), and whoever has seen the institution of the Church has seen the divine-human Lord and the Holy Spirit, who are with us.
The Church is precisely such an institution in freedom. “Such is Christianity: it grants freedom to those in slavery.” (St. John Chrysostom, Homily IX on 1 Corinthians 193).
As a result of the Edict of Milan, the persecutions against Church and religion, previously licit, ceased; and for the first time in human form, freedom of religious conscience was instituted in the world. However, the freedom that Christ granted us (see Gal. 5:1) is not mere “form” and “letter”. It is genuine freedom, which we are always seeking in order that all things may become “new.” Otherwise, how can we possibly expect a new heaven and a new earth?
Until the time of Constantine the Great, the history of the world, namely the period of “Old Israel” before Christ, and after the divinely incarnate presence of the “New Israel,” the free expression of conscious faith is replete with problems and persecutions to the point of martyrdom by blood for the sake of truth.
 
***
 
History recounts the persecution of individuals who shared a different perspective and faith about God from that proclaimed by the worldly authorities or the society, which they inhabited.
The Old Testament refers to the world leader, King Nebuchadnezzar and the creation of a large image of his person, which he demanded that all of his subjects should worship by bowing down before it.
“The three holy children” were cast into the fiery pit because they refused to worship the idle of Nebuchadnezzar. They refused to render the status of divinity to a secular ruler, which he claimed for himself. St. Solomone and the Seven Maccabean children were persecuted with martyrdom alongside their teacher Eleazar. The fiery pit publicly rejected the authority of Nebuchadnezzar and foreshadowed the mystery of our all-holy Theotokos, by rejuvenating and preserving the three children unharmed, just as the fire of divinity preserved the Virgin Theotokos.
The captive children, who refused to worship the irrational and arrogant human ruler claiming the features of God, cried out aloud in the pit: “let all God’s works praise the Lord.” In so doing, they prefigured the freedom brought by the Lord, “who became as one under the law so that he might win those under the law.” (see 1 Cor. 9:20)
 
***
 
In ancient Athens, the Philosopher Socrates was condemned to death on the charge that he accepted the gods worshipped by the city. Similarly, there are many individual persecutions recorded by the classical Greek authors about those who supported different beliefs, such as the example of the persecution of Anaxagoras of Clazomene, who claimed that the sun is a fiery rock, or Diagoras of Milos, who criticized the ancient idolatrous mysteries and discouraged citizens in these.
There is not doubt that physical or ideological persecutions through the centuries, which sometimes led and continued to lead to death by martyrdom, nevertheless did not abolish religious tolerance among people, as this was formally proclaimed in the Edict of Milan.
 
***
 
The Roman emperors had an absolutist mentality, rendering themselves leaders even of religion. Indeed, they reached the point of demanding recognition for their divine status, which required equivalent honor.
The rejection of Christians of such imperial demands provoked anger in as much as it questioned imperial authority. The result anthropocentric worldview was the well-known merciless persecutions, which filled many shrines with martyrs who “washed their robes and made them white in the blood of the lamb.” (Rev. 7:14)
Ultimately, the persecutions against religion affirmed the words of St. John Chrysostom: “One who fights against God can never destroy good to the end; instead, such a person may perhaps not feel that he is doing something terrible at the outset of his daring act. However, if he persists in his madness he can never lay a warring hand on God, because he will never avoid the hand of the invincible God.” (To those Opposed to the Monastic Life 1, PG 47.319)
 
***
 
Emperors Constantine the Great in the East and Licinius in the West accepted the fact that, after three centuries of harsh persecution against the Christians, religious hatred and constant oppression resulted in no benefit for the empire. Therefore, they decided to allow Christians the freedom to practice their faith and worship of God. The content of the ever-relevant Edict of Milan in the 313 AD, which reflects the will of Constantine the Great, “who understood the craft of bitter warfare,” constituted the basis of the freedom of religious conscience that was recognized many centuries later.
 
***
 
The Edict of Milan contains advanced positions on religious freedom, expressed in thirteen sections. It institutes principles which are foreign for that period of the fourth century but which still remain principles and signposts, even if some claim that these principles can also be fully applied in a world that lies in evil and in justice, where darkness prevails instead of righteousness and light.
The Edict confesses and declares: respect for the thought and will of every person to care for the divine affairs as he wills; regard and respect for the divine and freedom of choice in religious matters to Christians and all people without discrimination; the return without delay to the community of Christians, the Church and the Synod of places of worship and other assets which were seized and taken from them; and all these things in order that “the divine care, which protects us and which we have already experienced in many situations, may remain securely with us forever.”
 
***
 
This Edict and the consequent reformations of Constantine the Great introduced to the world the concept of human rights. For the first time the above-mentioned values were established: respect of religious tolerance, freedom of expression of religious conscience – values of human life – and all such values, which comprise the basis of the relevant legislation that is valid today and the various contents of occasional declarations by international organizations and state bodies.
Constantine the Great, who received his vocation from above, embraced all people, citizens and faithful, believers and unbelievers, thereby becoming a servant of the peaceful welfare and the salvation of all humanity. From his time onward, the Church of Christ transfigures institutions and regenerates the world, precisely as the burning bush on Mt. Sinai that was not consumed, the Womb that contained the uncontainable, namely Life in order that we may have life. (see John 10:10)
 
***
 
If we carefully observe the history of the world since that time, especially today, after 1700 years from the declaration of the Edict of Milan by Constantine the Great, we sadly ascertain that the various regulations about religious freedom have unfortunately been violated on numerous occasions in the past, not only against Christians, but sometimes even by Christians themselves against their fellow Christians and against the adherence of other religions.
Regretfully, when Christians became the majority within society, there were some instances of overzealous tendencies. One of the more contemptible instances of such spiteful conduct among Christians was the great schism and division of the One Church, which ignored in later generations that “Christ is not divided” (1 Cor. 1:13) and that we humans are “earth and ashes.” (Sir. 10:9) We overlooked and continue to overlook the aguish of the division of the seamless garment of the Lord, the Church, both locally and in every parish as One, Catholic, and Apostolic. Thus, as another “furnace of evil” (Prov. 16:30), we no longer enjoy love, peace, and tolerance; nor do we ask ourselves and one another the crucial question: “shall not the judge of all the earth do what is just” (Gen. 18:25) for us as well?
 
***
 
Last century, the Orthodox Church in particular was persecuted relentlessly by the atheist regime and other states, which depended on this regime ideologically, especially in the countries of Eastern Europe. In some countries, Christians are still, to this day, treated with great disfavor, despite the fact that many international treaties have now been universally recognize the right to religious freedom.
The relevant reports on religious oppressions by the appropriate international organizations are replete with specific examples of religious oppression against Christian religious minorities in particular as well as individual Christians.
To this very day, unfortunately, we must emphasize that religious tolerance and freedom of worship are an achievement of civilization. There are vast regions of the world that are inhabited by people, who do not tolerate a different religious faith from theirs. Religious persecutions continue to exist, even if they do not assume the same form as persecutions of the early Christians. Various unfavorable discriminations against adherents of several religious faiths still persist and are sometimes intensely oppressive. In many cases, religious fanaticism and fundamentalism prevail, so that the Edict of Milan is still relevant in our times and addresses those people, who, despite the passing of 1700 years since its declaration, have yet to apply it completely.
 
***
 
As we observe the journey of humanity from this sacred Center of Orthodoxy, we can freely admit that, despite the rapid progress of science and human discoveries, unfortunately the world has as a whole has not yet reached the noble concept and perception of religious freedom and that we still need a collaborative effort to achieve this goal.
Nonetheless, contemporary religious persecutions against Christians once again reveal the power of faith and the grace of sanctity.
 
***
 
Fathers, Brothers, and Children in the Risen Lord,
 
The anniversary that we celebrate is a crucial sign. It signifies that, when man loses his unity with the Church, whose constitution lies in the Trinitarian unity, he also loses his freedom. For one loses oneself when one loses all others. Everything in the Church is illumined by the Trinitarian unity, particularly the Eucharistic sacrament, which comprises the very heart of the Church as a gift from the Father through the Son in the Holy Spirit. If man preserves the Trinitarian unity, man is preserved as person and communion. If we preserve and experience this unity, the divine – human unity, then we preserve the unconfused and undivided unity of the two natures in Christ, which are extended to us as a blessing in the unity of truth and life, institution and grace, law and freedom. Those things that appear antithetical in fact interpenetrate without change and without alteration in accordance with the model of the Theotokos, who brought the opposites into the same. At the same time, this interpenetration reveals the constant presence at all times and in all places of Christ, divine and human, who continues to journey in the field of history with another form. He journeys with every person who struggles searches and despairs not in order to grant “magical solutions” as some sensory narcotic but in order to open his eyes, grant new senses and lift him toward heaven, while bringing down to earth the Holy Spirit which enters our earthly knead as a Trinitarian leaven.
No human institution, even if labeled ecclesiastical, can contain, tolerate, and satisfy the man, who breathe God within and desires what lies beyond, namely ongoing perfection in Christ. Nor is it possible for such a man to be satisfied with any promise or worldly perspective when he thirsts for the inconceivable and humanly inaccessible. All human existence cries “No!” to every secular institution, which supposedly claims that it leads to the mystery of life and salvation.
Every mechanical and seemingly “good” spiritual institution is “only” ready is frail, dissolved and non-existent. Therefore, the Lord, who knows all things and guides human hearts, came to shatter these “prisons” so he was persecuted and continues to be persecuted. However, in the end He was victorious in His Resurrection. He destroyed deceit. He overthrew the bankers’ tables and the merchants’ benches, namely those who had converted God’s temple into “a house of commerce.” (John 2:17) He liberated humanity from the “curse” of the law. (Gal. 3:13) Through His descent into hades, “chains were broken, gates were shattered, tombs were open, and the dead were brought to life.” (Aposticha, Great Vespers, Holy Friday)
Thus, all those who were “dead” from love, freedom, human rights, faith, hope, expectation, light, righteousness, truth, life, passed over into light: “and none was left dead and buried.” (Catechetical Homily of St. John Chrysostom)
And thus was constituted the holy Church, which through the ages, the martyrs, the ascetics and the righteous, despite persecutions and human temptations, is no “prison,” but freedom and, like death, powerful love. As the herald of this truth through the centuries, the Church is the continuation and consequence of the womb of another Mother, “wider than the heavens,” which gives birth to freedom. Thanks to the Church, all of us are children of the free woman (Gal. 4:31), children of freedom, which is acquired through obedience to the divine truth and love. If human institutions are afraid of human freedom, either dispelling, or disregarding, or even abolishing it, the institution of the Church, generates free persons in the Holy Spirit. And the Spirit constitutes the entire institution of the Church in as much as it “breathes where it wills but you do not know where it comes from or where it goes. So it is with everyone who is born of the Spirit.” (John 3:8) The indefinable nature of freedom is the rock of our faith.
 
***
 
The Wisdom of God, the Lady Theotokos our Pammakaristos and Conciliation, St. Demetrios Kanavis, St. George the Trophy-bearer of the Phanar, and all the saints of our Church are not keepers of the law but legislators according to St. Symeon the New Theologian. The institution of the Church is charismatic, and the charismata of the saints function as institutional signposts for the faithful of the Church.
One can truly and experientially say that charismatics do not exist but in fact become and are continually born for charisma is not granted as a static quality, but as a blessing, which is granted perpetually. Charismatics are those who are truly free because they are aware of the ultimate weakness of humanity and goodness of God. Such is the teaching that has trickled down to us from the Edict of Saint Constantine.
Those who see everyone else good and pure, regarding themselves as being “beneath all creation,” possess the grace of compunction and humility. They recognize the gifts of inner rest and illumination, they regard nothing as their own achievement, nor do they exploit any opportunity to expand their “authority” by “undermining” others, namely by limiting the freedom of others. The saints marvel at God’s ineffable love and spontaneously return this love directly to the Giver of al gifts. This is precisely what renders the saints worthy of continually receiving gifts that are new, greater, spotless, spiritual, a blessing for all creation, general achievements. In turn, they continue to reserve to have no high regard for themselves. Their highest regard is God.
As soon as they become aware that the world honors them, the saints are surprised, worry, and withdraw. They retire behind the curtain of feigned foolishness or ignorance, which in fact is true freedom. They are comfortable because they live, follow, and contribute to the flow of divine blood and grace within the body of the Church community.
 
***
 
Brothers and Sisters in the Lord,
 
Human rights and the freedom of religious conscience are gifts which were “once given to the saints” (Jude 1:3), but which are constantly acquired along the journey of life. They are acquired through the experience of communion in Christ within the harmonious cosmic liturgy. We have been talking for 1700 years about the freedom of human conscience. However, the Orthodox Church always – and particularly in the recent years of global changes within the last tragic century – foresees and discerns in its entirety the “prevalence in the world of peace, righteousness, freedom, fraternity and love among all peoples, and the elimination of all racial and other distinctions,” as would be decided by the coming Holy and Great Synod.
These sacred gifts are experienced through grace in the Divine Liturgy, where the creation of the world is revealed. It is humanly impossible to comprehend the magnitude of our freedom because we do not respect human beings as the image of God. And if we do not love our neighbor, we do not truly love God.
In this world, people naively imagine that “all things are fluid and nothing is permanent and it is not possible to cross the same river twice” (Heraclitus), namely that all things come and go and are forgotten, while human stones and graves cover them.
The Lord granted us the mystery of memory in freedom, when he proclaimed that “nothing is covered up that will not be uncovered” (Luke 12:2) and that all things culminate in the truth of freedom in Him and in the sense of doxological gratitude “for all that we know and do not know.”
Therefore, beyond external differences and distances, beyond worldly changes and exchanges, beyond the “rational” West and East, from the creation of the world we have seen God’s love, which dispels the falsehood of deceit like an irruption in silence, granting us the truth of life as a blessing of freedom and unity, as a journey of surprises leading to the endless journey toward Pascha, which is Jesus Christ Himself. “It was no messenger or angel but His presence that saved” (Is. 63:9) us in freedom and for freedom. He is with us after His ascension, “neither separated nor distant from us.” (Kontakion of the Feast of the Ascension) He stands beside us even when it appears that He abandoned us. Finally, He grants us the assurance that He is always present manifesting His glory in love and kenosis, depicted in icons as the king of glory in His resurrection, delivering Adam and Eve from hell, even while hanging peacefully on the wood of the Cross in ultimate humiliation.
 
***
 
“Great are you, O Lord, and wondrous are your works, and no word suffices to Hymn your wonders.” In any case, “every hymn is inadequate, hastening to describe the multitude of Christ’s great compassion.”
Our Modesty, together with our brothers in the Holy Spirit and concelebrants in the Lord, stand before the “empty tomb” with the myrrh-bearing women and behold that “the stone has been moved.” We witness in ecstasy and awe the Risen Lord, who trampled down death by death, liberating us from the bonds of flesh and consuming hades, while granting us life.
Thus, on the occasion of our commemoration of the granting to Christians of the right to freedom of faith and worship, from this sacred Center of Orthodoxy, which has served in captivity the true freedom of humanity in Christ and of the ecclesiastical body, we express our intense concern, anxiety and protest for the ongoing persecutions throughout the world. In particular, today we fervently pray for the Christian populations of the geographical regions of the Middle East, who experience frequent murders, kidnappings, persecutions and threats, which have culminated in the kidnapping of two brother Hierarchs, whose whereabouts are still unknown, namely the distinguished and most reverend Metropolitan Paul of Aleppo, well-known for his spirituality and significant ecclesiastical, social and educational ministry, as well as the Syrian Jacobite Metropolitan Yohanna Ibrahim of Aleppo.
We wholeheartedly share in the pain, sorrow and challenges faced by Christians in the Middle East and Egypt, and especially in the ancient and senior Patriarchate of Antioch. Beyond any political stance, we categorically condemn once again the use of all forms of violence, appealing to the rulers of this world to respect the fundamental human rights of life, honor, dignity and property, recognizing and praising the peaceful lifestyle of Christians as well as their constant effort to remain far from turmoil and trouble.
We express our concern as the Church of Constantinople that, 1700 years after the issue of the Edict of Milan, people continue to be persecuted for their faith, religion and conscientious choices.
The Ecumenical Patriarchate will never cease, through all the spiritual means and truth at its disposal, to support the efforts for peaceful dialogue among the various religions, the peaceful solution to every difference, and a prevailing atmosphere of toleration, reconciliation and cooperation among all people irrespective of religion and grace.
In condemning every form of violence as contrary to religion, we proclaim from the Ecumenical Patriarchate that truly great is “the mystery of our religion; God was revealed in flesh, vindicated in spirit, seen by angels, proclaimed among gentiles, believed in the world, taken up in glory” (1 Tim. 3:16), governs the world and the affairs of the world in accordance with His incomprehensible will and judgment, and will come again in glory as the righteous judge of the entire world.
To Him be glory, might, power, honor, worship, and the kingdom to the endless ages of ages. Amen.
 
In the year of the Lord 2013, May 19.
Your fervent supplicant to God,
 
+ Bartholomew of Constantinople
 
+ Athanasios of Chalcedon, co-supplicant
+ Apostolos of Derkoi, co-supplicant
+ Evangelos of Perghe, co-supplicant
+ Germanos of Theodoroupolis, co-supplicant
+ Irenaios of Myriophyton and Peristasis, co-supplicant
+ Chrysostomos of Myra, co-supplicant
+ Gennadios of Sassima, co-supplicant
+ Evangelos of New Jersey, co-supplicant
+ Kyrillos of Rhodes, co-supplicant
+ Damaskinos of Kydonia and Apokoronos, co-supplicant
+ Constantine of Singapore, co-supplicant
+ Arsenios of Austria, co-supplicant

Rédigé par EIFRF le Wednesday, May 22nd 2013 | Comments (0)

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