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Successful constitutional complaint by Jehovah's Witnesses
Press Release No. 159/2000 of 19 December 2000
Judgment of 19 December 2000
2 BvR 1500/97
With today's judgement, the Second Senate of the Bundesverfassungsgericht (Federal Constitutional Court), with reference to the constitutional complaint lodged by the religious group, the Jehovah's Witnesses, overturned the judgement of the Bundesverwaltungsgericht (BVerwG, Federal Administrative Court) and remanded the case back to the Federal Administrative Court.
The background and the case history of the proceedings are explained in Press Release 116/2000, which is available upon request.
The Senate gave, in essence, the following reasons for its decision:
The decision of the Federal Administrative Courtviolates the complainant's constitutional right under Article 140 of the Basic Law in conjunction with Article 137.5(2) of the Weimarer Reichsverfassung [WRV, Constitution of the German Reich of August 11, 1919]. These statutes determine the conditions under which a group has a claim to the status of a religious body under public law.
1. The complainant provides the "Gewähr der Dauer" (guarantee of permanence) mentioned in Article 137.5 of the WRV. To meet this requirement, it is not necessary that, previously, the religious group successfully existed as a legally registered association. The fact that the complainant believes that the end of the world is near is also not contrary to the group's permanence. In a religiously neutral state, it is out of the question to use the complainant’s religious ideas to its disadvantage. Apart from this, the religious group continues to exist although the end of the world, which has been predicted several times by the complainant, has not taken place. Also from this point of view, there is no doubt as regards the permanence of the religious group.
2. Moreover, unwritten prerequisites that a religious group must fulfil to gain the status of a religious body under public law result from Article 140 of the Basic Law in conjunction with Article 137 of the WRV. In the context of the Basic Law, the status of a religious body under public law that is offered religious groups is a means for them to develop their religious freedom. It is supposed to support the religious groups' autonomy and independence. The fact that they can unfold their activities free of the patronage and interference of the state creates the preconditions and the framework in which the religious groups can make their own contribution to the foundations of state and society.
In the state established by the Basic Law, which is neutral as regards religious and philosophical creeds, and in which no state church exists, religious groups that have the status of a religious body under public law are fundamentally different from corporations under public law in the administrative sense and in the sense that the law of government organisation gives this concept. Groups enjoying the status of a religious body under public law do not exercise state functions, they are not integrated in the organisation of government, and they are not subject to state supervision. They are, however, granted certain sovereign powers due to their status as religious bodies under public law. These powers and other privileges facilitate the religious group’s shaping of its organisation and its activities in accordance with the religious principles that govern the way in which its members see themselves. The privileges increase these groups' possibilities of exerting influence; this, however, increases the risk that they may be misused to the detriment of the religious freedom of their members and to the detriment of other interests that are protected by the Constitution. The Basic Law enjoins the state to respect and to protect human dignity, and it obliges the state to safeguard and to protect the fundamental values of the Constitution. When determining the preconditions under which a religious group can gain the status of a corporation under public law, this responsibility of the state must therefore also be brought to bear.
3. From this it follows, on the one hand, that a religious group that wants to become a religious body under public law must observe the laws. Within and beyond the sphere of sovereign action, it has the civic duty to comply with the laws. It is true, however, that not every single infringement of a law makes it doubtful that the religious groups' observance of the laws is guaranteed. The groups that enjoy the status of a religious body under public law are free to request, in the case of differences of opinion with public authorities, judicial review of the question where, in an individual case, the legal boundary between religious freedom and the right to religious self-determination is situated. Many religions make, in individual cases, reservations in favour of their taking decisions for reasons of conscience. They insist on obeying, in the case of an inevitable conflict, the commandments of their faith more than the precepts of law. Out of consideration for the freedom of religion, which the status as a religious body under public law ultimately serves, such reservations do not stand in the way of the grant of this status, at least as long as the religious group is fundamentally willing to respect the law and to integrate into the constitutional order.
4. Moreover, a religious group that wants to become a religious body under public law must provide the guarantee that its future behaviour will not endanger: (1) the fundamental constitutional principles set forth in Article 79.3 of the Basic Law; (2) the fundamental rights of third parties, which are entrusted to the protection of the state; and (3) the fundamental principles of the liberal law of religious organisations and of the state's law on churches that are enshrined in the Basic Law. The state may not tolerate that a religious group that has the status of a religious body under public law systematically impairs or endangers the principles with regard to which the Basic Law, in Article 79.3, precludes any amendment. These principles include, inter alia, democracy and the rule of law. It is true that the individual fundamental rights are not immediately binding upon the religious groups that have been granted the status of a religious body under public law, except when they exercise sovereign powers. The state, however, may not grant a status that conveys special instruments of power and an increased influence in state and society to a religious group against which it would be entitled or even obliged to intervene to protect legal interests that are enshrined in the constitution. The Basic Law obliges the state e.g., to protect human life and physical integrity. Children can claim protection from the state for their fundamental right under Article 2.1 and Article 2.2(1) of the Basic Law. In this context, the best interest of the child is the orientation for the state's mission of protection under Article 6.2(2) of the Basic Law. Article 4.1 and Article 4.2 of the Basic Law require the state to protect individuals and religious groups from attacks and hindrances. Likewise, the behaviour of religious groups which have been granted a special status may not impair or endanger the liberality of the state's law on churches. The prohibition on a state church and the principles of neutrality and parity must remain untouched.
On the other hand, the legal requirements placed on a religious group that wants to become a religious body under public law may not themselves contradict the fundamental valuations of the law of religious organisations and of the state's law on churches that are enshrined in the Basic Law. On account of the principle of the state's neutrality as regards religious and philosophical creeds, the state may not judge a religious group that applies for designation as a religious body under public law by its faith but only by its behaviour. Moreover, the fundamental principles set forth in Article 20 of the Basic Law and the principles of the law of religious organisations and of the state's law on churches are structural framework conditions established by the order of the state, and only as such do they deserve protection.
From these principles, it cannot be inferred, e.g., that the internal structure of a religious group must be democratically constituted. Moreover, a religious group that is constituted as a religious body under public law is free to organise its relations with other religions in accordance with the way in which it sees itself, as long as it does not impair the regulating framework established by the Constitution. This would be the case, e.g., if such a religious group worked towards the realisation of theocratic rule
The state cannot request that the religious group's loyalty extend farther than this. The religious bodies under public law do not need to adjust their behaviour to the interests and aims of the state because religious freedom leaves it to them to decide how they fill the sphere of freedom granted to them by religious freedom. Moreover, "loyalty" is a vague concept that also describes an internal disposition, not only outward behaviour. At the same time, in observation of the Basic Law, it cannot be the goal to grant the status of a body under public law in order to secure the co-operation of a religious group through the granting of the privileges that attend that status. The Basic Law facilitates a co-operation of the religious bodies with the state but does not make it a condition.
In sum, the examination whether a religious body provides the guarantee that it does not impair or endanger: (1) the fundamental constitutional principles set forth in Article 79.3 of the Basic Law; (2) the fundamental rights of third parties, which are entrusted to the protection of the state; and (3) the fundamental principles of the law of religious organisations and of the state's law on churches, requires a complex analysis. In this context, it is the task of the competent courts to perform an overall consideration and evaluation of all the circumstances, including categorising the circumstances, that are of importance for the decision whether to grant a religious group the status of a religious body under public law.
5. In accordance with these standards, the judgement of the Federal Administrative Court cannot continue in force. The Federal Administrative Court correctly assumed that the complainant cannot be denied the status of a religious body under public law exclusively because of its fundamental attitude vis-à-vis the State alone, even if the complainant, in its religious teachings, regards the State as a "part of Satan's world". In its actual behaviour, the complainant accepts the State as a "transitional order that is tolerated by God."
The prohibition, under the teachings of this group, on adherents’ participation in State elections, also does not justify that is to be denied the status of a religious body under public law. It is true that the principle of democracy belongs to the so-called perpetual components of the Basic Law set forth in Article 79.3 of the Basic Law. The complainant, however, does not attack the principle of democracy as such; it does not want to substitute democracy with a different form of government. Its activities are apolitical, they are oriented toward a life beyond the polity. In the more than one hundred years of its existence, the complainant has, also due to its lack of influence on non-members, not constituted a real danger for democracy. Therefore, its attitude towards State elections is an aspect that can be taken into account as a category in the necessary overall consideration. It does not, however, alone by itself sufficiently justify the assumption that the complainant endangers the inviolable content of the principle of democracy.
6. The competent courts are now called upon to examine whether the fundamental rights of third parties, which are entrusted to the protection of the state, are contrary to granting this religious group the status of a religious body under public law. In this respect, it has remained open in the competent courts' proceedings whether the complainant impairs the children's best interests with the educational methods that it recommends and whether it, by pressure or by means of which the Basic Law disapproves, keeps members that are willing to leave the group within the group, thus impairing fundamental rights which are entrusted to the protection of the state.