Summary:

The Second Chamber of the First Senate of the Federal Constitutional Court reversed a judgment of the Higher Administrative Court (Verwaltungsgerichtshof) of Baden-Württemberg, which denied a religious community the right to establish a place of burial for parish priests in their church. In applying the exception and exemption provisions of the German Building Code and interpreting undefined legal concepts included therein, the Higher Administrative Court of Baden-Württemberg gave insufficient consideration to the freedom of faith and freedom to profess a belief (Art. 4.1 and 2 of the Basic Law). In particular, the binding character of the rule of faith invoked by the complainant cannot be denied without the use of expert help.

I.

The complainant is a legally organised religious association and belongs to the archdiocese of the Syrian-Orthodox Church of Antioch (Erzdiözese Syrisch-Orthodoxe Kirche in Antiochien) in Germany. In 1994, it built a church on a piece of land located in an industrial area. In 2005, the complainant applied for a permit to change the use of a storeroom in the basement of the church to build a crypt with ten burial sites, which was denied by the competent authorities.

II.

The Court decided as follows.

The complainant’s fundamental right under Art. 4.1 and 2 of the Basic Law has been violated. In the initial proceeding, the scope of protection of the conflicting fundamental rights was in part incorrectly determined and the performed balancing failed to reconcile them sufficiently with regard to their respective importance.

The protection of fundamental rights ascribed to religious communities includes the right to individually practice one’s belief or religion, to profess the faith and to cultivate and promote the belief. The scope of protection of freedom of faith and freedom to profess a belief can cover a conduct irrespective of the specific importance the doctrines of faith attribute to the conduct at issue. The right to adjust one’s conduct according to the doctrines of one’s faith and to act according to one’s inner religious beliefs is not only awarded with regard to imperative doctrines but also to such religious beliefs which identify a certain conduct as being the right approach in terms of handling a certain situation in life. Against that background, the burial of church dignitaries according to particular rites defined by faith and the corresponding mortuary practices are among the protected activities.

The denial to build a crypt constitutes an interference which is constitutionally not justified. Freedom of faith is not guaranteed without limits. However, these limits must be inherent in the Constitution. Such limits include fundamental rights of third persons as well as common values of constitutional status.

The post-mortal right to be respected does not constitute a limit inherent in the Basic Law for the complainant’s freedom of faith and freedom to profess a belief. The peace of the dead does not constitute a limit inherent in the Basic Law either, given that it is open to subjective determination categories in the same way as the post-mortem right to be respected. Consequently, measures do not violate the peace of the dead if they respect the dignity of the deceased and take the assumed will of the deceased into account. The complainant’s freedom of faith and freedom to profess a belief is not hampered by the sense of reverence of the bereaved or of the general public either. The basic liberties demand that there be scope for an individual definition of dignified remembrance of the dead. Accordingly, the state has to act with restraint, at least as far as borderline cases are concerned, when deciding which form of remembrance of the dead is still or is no longer respectful.

However, in general the complainant’s freedom of faith and freedom to profess a belief can conflict with the fundamental right to property (Art. 14.1.1 of the Basic Law) as well as the freedom of occupation (Art. 12.1 of the Basic Law) of the neighbouring land owners.

The fundamental right to property includes but is not limited to the right to use the neighbouring production plants to their full capacity. Limitations of use such as those requiring the owners to operate their machines only in compliance with certain noise control measures or only within certain hours would directly interfere with the freedom of occupation protected under Art. 12.1 of the Basic Law.

The remaining conflict of fundamental rights between the complainant’s freedom of faith and freedom to profess a belief on the one hand and the neighbouring land owners’ fundamental right to property and the freedom of occupation on the other hand, is to be resolved by balancing all circumstances according to the principle of practical concordance [translator's note: “praktische Konkordanz” is a legal principle of German Constitutional Law which describes the process of considerately balancing conflicting fundamental rights]. This requires that none of the conflicting legal positions is favoured over the other or ultimately prevails but that all legal positions are to be balanced as fairly as possible.

The Higher Administrative Court does not meet these requirements in its decision. It failed to sufficiently take into account the complainant’s freedom of faith and the freedom to profess a belief. Its decision lacks findings with regard to the actual use of the existing church. Furthermore, the Higher Administrative Court does not give sufficient consideration to what is guaranteed under Art. 4.1 and 2 of the Basic Law. The court thereby exceeds the limits of the – in principle constitutionally permissible – judicial plausibility check. The question how much importance a religious community attaches to a rule of faith is, primarily, a genuinely religious question which is as such not subject to an independent assessment by state courts. Finally, the Higher Administrative Court gives predominant weight to the interests of the neighbours without sufficiently examining the possibility of balancing the interests in order to achieve practical concordance.