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The absolute exclusion of exemptions from the special protection of silence on Good Friday is incompatible with the fundamental rights

Press Release No. 87/2016 of 30 November 2016

Order of 27 October 2016
1 BvR 458/10

The provisions of the Bavarian Act on the Protection of Sundays and Public Holidays (Bayerisches Gesetz über den Schutz der Sonn- und Feiertage – FTG) that recognise Good Friday as a public holiday and provide it with a qualified atmosphere of peace and quiet are generally compatible with the Constitution. However, the absolute exclusion of exemptions (Befreiungsfestigkeit) that applies to this day and according to which exemptions – even exemptions for important reasons – from the prohibition of activities are barred from the outset (Art. 5 sub-sentence 2 FTG) proves to be disproportionate. This is what the First Senate of the Federal Constitutional Court held in an order published today. Thus, the Court granted the relief sought by the constitutional complaint of an ideological community against the partial prohibition of a public event that had been planned to take place on Good Friday.

Facts of the Case:

As an ideological community, the complainant is a recognised body under public law (Körperschaft des öffentlichen Rechts). According to its programme, it defines itself as a community that represents the interests and rights of non-denominational persons on the basis of Enlightenment and secular humanism. The complainant advocates, inter alia, a strict separation of church and state. The complainant announced a ticketed event in a theatre in Munich to take place on Good Friday. The event’s motto was “Religion-free Zone Munich 2007”; in addition to the prohibited part it comprised film screenings (“Atheist Film Night” / “Free Spirits’ Cinema”), a chocolate buffet as well as explanations on the interests and presentation of the aims of the ideological community. The party that was planned to take place towards the end of the event – the “Heidenspaß-Party” [translator’s note: literally: “heathen-fun party” according to a common colloquial usage of the term “Heiden-” as a prefix denoting an emphasised degree, but which is here also a play on words] – and which the complainant had announced as a “Dance for Free Spirits” to be accompanied by a rock band, was prohibited.

According to the public authority, the last part of the event would have violated the provisions of the FTG. The FTG determines that Good Friday is a “silent day” which is subject to prohibitions going beyond the general protection of Sundays and public holidays; accordingly, public entertainment events that do not preserve the day’s solemn character as well as any kind of musical performances taking place in venues licensed to serve alcohol are prohibited on Good Friday. Unlike in the case of the other “silent days” the FTG determines that an exemption from the prohibition to perform such activities is ruled out for Good Fridays (Art. 5 sub-sentence 2 FTG). The complainant’s legal remedies initiated against this prohibition were not successful. With the constitutional complaint, the complainant claims in particular that its rights to freedom of belief and freedom of assembly have been violated (Art. 4 sec. 1 and 2, Art. 8 GG).

Key Considerations of the Senate:

The admissible constitutional complaint is well-founded.

1. The recognition of Good Friday as a public holiday and its further specification as a silent day including the prohibition of certain public entertainment events and musical performances in venues licensed to serve alcohol interferes with the general freedom of action as well as potentially with the freedom of occupation and the freedom of arts. In special constellations, it can also interfere with the freedom of belief and the freedom of assembly that are protected as fundamental rights.

2. a) Such interferences can generally be justified on the basis of the constitutionally guaranteed protection of Sundays and public holidays and the legislature’s constitutional power to recognise public holidays and determine the nature and extent of their protection (Art. 140 of the Basic Law, Grundgesetz – GG – in conjunction with Art. 139 of the Weimar Constitution, Weimarer Reichsverfassung – WRV). Sundays and holidays recognised by the state are protected by law as days of rest from work and of spiritual edification. On these days, bustle in form of gainful labour and in particular the exercise of dependent employment should generally be suspended so that individuals can seize the opportunity to spend such days alone or with others without being obstructed by working day duties and demands. The social significance of the protection of Sundays and public holidays in the secular sphere essentially results from the synchronous clocking of social life. In that respect, the rule primarily pursues the secular-social aims of personal rest, recreation and distraction. In addition, the provision is also of religious significance, given that it also addresses opportunities to practice one’s religion and aims to provide believers with a means to shape the atmosphere of these days in a way that conforms with their belief.

b) According to these standards, declaring Good Friday a public holiday does not raise constitutional objections. It can be based on the legislative regulatory power and does not violate the principles of neutrality or equality. Within its leeway to design, the legislature can also recognise precisely those days as public holidays that are important for large parts of the population due to traditions or for cultural, religious or ideological reasons. This does not impair the possibilities of members of other religions and beliefs to adequately celebrate their holidays.

c) As such, the specification that Good Friday is a silent day that is subject to special rules and the thus created qualified protection is generally justified, too. The legislature has the right to determine the nature and extent of the protection of the public holiday statutorily. In that respect, the legislature is free to establish for certain days a setting to protect rest and silence that goes beyond the mere rest from work. As for the specific reach and comprehensiveness of the legislatively determined protection, its limits need to be assessed with regard to the provision’s proportionality. Generally, the introduction of a particular degree of protection that corresponds to the consolidated significance of Good Friday according to Christian tradition also does not raise effective concerns in view of the Basic Law’s understanding of neutrality as long as the legislature confines itself to providing a protected setting that only gives people the freedom to spend such days in a religious way or otherwise qualified manner. Yet it is up to the individuals to fill this setting, either by themselves or in a community. In that respect, the right to focus the selection on those days that are of specially determined significance only to some parts of the population reflects the legislature’s democratically legitimised leeway to design. Thus, the question of how many church members actually celebrate Good Friday with a view to its religious meaning with their community or privately in seclusion is not relevant here.

3. However, the specific nature and scope of the protection of Good Friday proves to be disproportionate. The strictness of the exclusion of exemptions also in constellations in which the protection of the public holiday clashes with the guaranteed freedom of assembly or the freedom of religion and belief of others cannot be held to constitute an appropriate balance of the constitutional positions at issue. Thus, the strict exclusion of exemptions as set out in Art. 5 sub-sentence 2 FTG is incompatible with the freedom of belief and the freedom of assembly and void.

Generally, entertainment events and musical performances in venues licensed to serve alcohol do not qualify as assemblies within the meaning of Art. 8 GG nor as a means to practice one’s freedom of belief; equally, assemblies cannot normally be held to constitute entertainment events. However, if this is exceptionally the case, this can lead to diverging, irregular assessments of the appropriateness of prohibitions aiming to protect the silent character. Here, the prohibition does not only concern a mere economic interest in generating turnover or merely an entertainment and recreation interest of event organizers, artists or potential visitors. In fact, due to the special significance of the freedom of assembly as an essential component of democratic openness, it rather concerns participation in the process of shaping public opinion and thus a fundamental rights guarantee which in itself is of great significance for the community. The same applies with regard to events that are subject to the protection of the freedom of religion and freedom of faith, in particular also in shape of freedom of belief. Carrying out such events does not equally challenge the general protection of rest and silence on Good Fridays and has a different weight so that the special protection of the silent days can only prevail over the affected fundamental rights if this is mandated by a balancing of interests in the individual case. If such events are covered by the prohibitive rules set out in the FTG, the legislature must provide for statutory exceptions according to which it is possible to grant exemptions from the prohibitions. The freedom of faith and belief of Christian parts of the population does not exclude the possibility to provide for exemptions for events in case of such conflicting fundamental rights. This freedom does not entail a constitutional position that would justify the strict exclusion of exemptions. In particular, it does not provide protection against manifestations of a faith or belief by others which are not shared.

4. The challenged decisions of the authorities and the courts – except for the ruling of the Federal Administrative Court (Bundesverwaltungsgericht) – do not meet the constitutional requirements and, given the legal situation, were not able to satisfy these requirements. They violate the complainant’s freedom of belief and freedom of assembly. The prohibited part of the event is encompassed by the protective scope of freedom of faith in its specification as freedom of belief and must be held to constitute a way to practice one’s freedom of belief. Furthermore, the complainant is also able to invoke protection under the freedom of assembly for the prohibited event. An overall assessment of the circumstances, which are subject to constitutional review by the Federal Constitutional Court due to their immediate relevance for the exercise of fundamental rights, leads to the conclusion that the prohibited part of the event is also covered by the protective scope of the freedom of assembly.

In accordance with these standards and considering that the complainant’s event was covered by the protection provided by the freedom of belief and the freedom of assembly, it was not permissible to give absolute priority to the protection of public holidays. Rather it would have been necessary to carry out a balancing of interests under the individual circumstances of the case. The result of such a balancing would have been that an exemption within the meaning of Art. 5 FTG should have been granted. Here, the weight of the complainant’s fundamental rights and the relatively minor impact of the particular case on the special protection of rest on Good Friday result in the finding that, based on an interpretation in conformity with the Constitution, it would have been appropriate to assume that there are important reasons for an exemption. The event took place in a closed venue with a manageable number of participants and also its second part was meant to take place there. In this particular venue, the event had comparatively little impact on the public atmosphere of rest and silence of the day. Considering also its thematic link to Good Friday it was also of crucial importance to carry out the event precisely on that day. Finally, there would have been the opportunity to take sufficient account of the protection of rest and silence by approving the event subject to certain conditions; such specifications would have ensured that the event’s impacts on the silent atmosphere and the atmosphere’s importance for the generally perceivable overall character of the day can be limited even further if necessary.