Baha'i resolution
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Decision announced February 5, 1991 |
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| Communities are only bearers of religious freedom if it is actually a religion and religious community in terms of its intellectual content and external appearance. Religious freedom of association is part of religious freedom. It does not exempt from the requirements of private association law. With regard to the church's right to self-determination, however, a constitutional interpretation may be necessary. | ||||
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| Art. 4 Basic Law |
The Baha'i ruling of the German Federal Constitutional Court (Second Senate) deals with the conditions under which communities are to be recognized as religious communities , with religious freedom of association and its impact on private association law . Its name, which is commonly used in jurisprudence, comes from the fact that the complainant was the “spiritual council” of the Baha'i community.
case
The Baha'i religious community is hierarchically structured. In larger countries, an elected “ National Spiritual Council ” has been set up, the governing bodies of the local congregations are the “ Local Spiritual Councils ”. When the “Spiritual Council of the Baha'i in Tübingen, based in Tübingen” was to be registered for entry in the register of associations , the Tübingen District Court rejected the entry by decision. The court argued that the “Spiritual Council”, as evidenced by the association's statutes, is not autonomous, but rather depends on the local community and the National Spiritual Council. In addition, the protection of minorities is insufficient. Appeals were unsuccessful. On the other hand, board members and the unregistered association filed a constitutional complaint: the hierarchical structure of their religious community "is based on a divine act of foundation and cannot be changed by them".
decision
First, the court deals with the question of whether the “Spiritual Council of the Baha'i in Tübingen” is a religious community that can invoke religious freedom , Art. 4 GG. That cannot be judged solely on the basis of its self-image, but it must be “actually, according to its intellectual content and external appearance, a religion and religious community.” To examine this in the event of a dispute and to decide, it is up to the state courts as an act of jurisdiction . The character of the Baha'i faith as a religion and the Baha'i community as a religious community is, however, obvious, and the complainant is therefore the bearer of the fundamental right under Article 4, Paragraphs 1 and 2 of the Basic Law.
This gives rise to the follow-up question of whether freedom of religion also includes freedom of religious association, i.e. the right to found religious communities. The court answered this question in the affirmative. The constitutional body wanted to protect religious freedom comprehensively and, contrary to the original plans, did not expressly name freedom of association only to avoid duplication with Article 137 (2) and (4) WRV incorporated via Article 140 of the Basic Law .
Art. 137 para. 4 WRV enables religious “societies” to acquire legal capacity “in accordance with the general provisions of civil law”. As a result, religious freedom of association does not entitle to a specific legal form , but presupposes that the respective prerequisites of simple law are also present in the religious community. The religious freedom of association, however, requires special consideration to be given to the self-understanding of the religious society when interpreting and handling the relevant law, here the association law of the civil code. Incompatible with the religious freedom of association is "a result that completely excludes a religious society with regard to its internal organization from participation in general legal transactions or only enables this with unreasonable difficulties". The BVerfG leaves it open whether, if the prerequisites for obtaining the status of a corporation under public law (“ corporation status ”) are present, a community should be referred to this or whether it is entitled to freedom of choice.
The regulations complained about relate solely to the internal organization of the association. A constitutionally compliant interpretation in favor of the complainant would therefore not be contradicted by the wording, but only by the principle of association autonomy. The peculiarity of religious associations that organize themselves as part of a religious community suggests that, in view of the faith-based hierarchical internal organization of religious societies, integration into this hierarchy should not be seen as submission to outside regulation. Rather, it is precisely here that self-determination is also realized. However, the limit is when there is only a mere administrative office or a mere special fund.
Accordingly, the Federal Constitutional Court overturned the decisions of the lower courts and referred the matter back to the Tübingen District Court.
evaluation
The resolution deals with several controversial questions of German state church law .
First of all, the court clearly restricts its broad case law on the question of when there is practice or religion. While in the rag collectors case the focus was mainly on the self-image of the respective community, the objective criteria "actually, according to intellectual content and external appearance" now come into play. However, the specific case gave no reason for these statements.
Next, the court decides, based on the historical interpretation , the issue of where the religious freedom of association is protected: as part of the freedom of association , Art. 9 Abs. 1, 2 GG, or as part of the religious freedom , Art. 4 GG in connection with the still applicable Art. 137 para. 2, 4 of the Weimar Constitution:
“(2) The freedom of association to form religious societies is guaranteed. The association of religious societies within the Reich territory is not subject to any restrictions.
(4) Religious societies acquire legal capacity according to the general provisions of civil law. "
The decision in favor of religious freedom is important insofar as it can only be restricted under very narrow conditions. This must be observed, for example, even after the religious privilege in Section 2 (2) No. 3 of the Association Act has ceased to exist if a religious community is to be banned.
When it comes to the question of the scope of religious freedom of association, there are two possibilities: the right to a certain legal form, regardless of whether the necessary requirements are met, or only a right to the legal form whose requirements are actually met. With reference to the wording ("general provisions of civil law", Art. 137 para. 4 WRV), the court decides in favor of the second option. This is also in line with the history of the origin of the regulation. It was only intended to remedy the situation that religious communities could only obtain legal capacity with state approval despite the fulfillment of all civil law requirements (“concession system”). So it was only intended to reduce discrimination, not to improve one's position.
As with every restriction of fundamental rights, however, the principle of proportionality must also be observed in this respect, in particular simple law is to be interpreted in accordance with the constitution. Because the association's autonomy is not stipulated in the BGB, the wording does not contradict seeing the autonomy in the voluntary subordination to a higher management level of the religious community. The church's right to self-determination is then also realized in this.
