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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 6 May 2008, 2 BvR 337/07 [CODICES]
Abstract

First Chamber of the Second Senate

Order of 6 May 2008

2 BvR 337/07

Headnotes (non-official):

Lay judges are subject to a duty of abiding by the Constitution when acting in a private capacity.

 



Summary:

I.

The complainant was a lay judge at a Labour Court. In January 2008, the Higher Labour Court removed him from office. In its reasoning, the Court stated that since 1989 the complainant had been a member of a rock band which from 1988 onwards had appeared in more than 200 concerts at home and abroad with a number of other right-wing extremist skinhead bands. Taking the lyrics of the songs and the performance of the band into consideration, the Higher Labour Court came to the conclusion that these brought to mind the Nazi regime, glorified violence and were evidence of an anti-constitutional ideology. The Court held that the conduct of the complainant constituted a serious breach of his official duties justifying his removal from office.

In his constitutional complaint against the decision of the Higher Labour Court, the complainant in essence criticised the violation of his fundamental rights pursuant to Article 5(1) first sentence of the Basic Law (freedom of expression) and Article 5(3) first sentence of the Basic Law (artistic freedom).

II.

The First Chamber of the Second Senate of the Federal Constitutional Court decided that the complainant’s removal from office was unobjectionable under constitutional law.

In essence, the decision is based on the following considerations:

The challenged decision does not violate the complainant’s right to artistic freedom. The removal from office constitutes an interference with this fundamental right. It is, however, justified. It aims to achieve a purpose legitimate under constitutional law and is based on a sufficiently specified statutory provision. In the case at hand, the interpretation and application of the provision are also unobjectionable under constitutional law.

Guaranteeing artistic freedom potentially conflicts with all kinds of constitutional provisions. The resulting conflict is to be resolved in each case by considering the circumstances of the particular case. A potential conflict can arise with the constitutional principle that civil servants and judges – including lay judges – are required to uphold the constitutional order as it is one of the interests protected under the Constitution.

Not only professional judges, but also lay judges are subject to a special duty of abiding by the Constitution. This results from the fact that lay judges fulfil tasks on equal terms with professional judges, even though Article 33(5) of the Basic Law only recognises the traditional principles of permanent civil service and is thus not directly applicable to lay judges. The Basic Law requires that legislative power be exercised through state courts. A court is not defined as a “state” court merely because it is constituted on the basis of state law or because its mandate is to fulfil state tasks. Rather, its connection to the state must also be sufficiently assured in terms of personnel. For this reason, the Offices of Justice of the Laender are to have strict regard to the fact that only persons may be nominated for the post of lay judge who can guarantee that the judicial duties which they are subject to by virtue of the Constitution and which they have confirmed under oath will be fulfilled without reservation at all times. The lay judge’s, just as the professional civil servant’s or judge’s duty of abiding by the Constitution carries particular weight given that the Constitution is not neutral in value, value-neutral; rather, it is in favour of core fundamental values. It protects these values and has assigned the state the task of securing and guaranteeing them.. This precludes the state from admitting applicants to exercise state authority or permitting citizens to remain in (honorary) positions involving the exercise of state power if they reject and challenge the free democratic legal and social order.

The interference with artistic freedom is based on a sufficiently defined statutory provision, namely § 27 first sentence of the Labour Court Act. In accordance with this provision, a lay judge is to be removed from office if he has seriously breached his official duties. This provision is unobjectionable under constitutional law.

Finally, the interpretation of the provision by the Higher Labour Court is also unobjectionable as regards the complainant’s constitutional rights. The fact that the Higher Labour Court saw a grave misconduct in the complainant’s participation in the activities of the band justifying a removal from office does not constitute a disproportionate interference with the right to artistic freedom.

Nor has there been a violation of the fundamental right of freedom of expression. The decision of the Higher Labour Court remains within the boundaries of freedom of opinion as delineated by general laws and does not disproportionately interfere with the complainant’s fundamental right.

Languages available

Additional Information

ECLI:DE:BVerfG:2008:rk20080506.2bvr033708

Please note that only the German version is authoritative. Translations are generally abriged.