Tobacco Order
| Tobacco Order | ||||
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proclaimed November 8, 1960 |
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| statement | ||||
| Freedom of belief also includes the promotion of one's own belief, such as the enticement of someone else's belief. However, the basic right only protects those activities that have developed among today's civilized peoples on the basis of certain consistent basic moral views in the course of historical development. | ||||
| Judge | ||||
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| Applied Law | ||||
| Art. 4 Basic Law |
Under the name Tobacco decision is in law a decision of the Federal Constitutional Court to the scope of freedom of religion , art. 4 GG, known. In doing so, the court introduced a “occidental cultural reservation”, which it no longer referred to in later decisions.
facts
The complainant, an art historian and graphic artist, was a supporter of the Association for God Knowledge ( Mathilde Ludendorff ) e. V. During the Nazi era he was a member of the SS because of its "anti-Christian character"; after the war he was placed under a false name with the Association of Victims of the Nazi Regime (VVN). The complainant was sentenced by the Federal Court of Justice to four years in prison for attempted treason for espionage for the GDR intelligence services .
There he campaigned among his fellow prisoners for leaving the church . He promised some of them tobacco in return, from which the Tobacco Decree derives its name. When the complainant asked for conditional release, the Federal Court of Justice refused by order of December 28, 1955. As a justification, the court referred to the incidents in criminal detention; in it "such a degree of common disposition and moral baseness emerges that it cannot be expected that he will lead a lawful and orderly life in the future" (6th Criminal Senate of the Federal Court of Justice - StE 22/52 (AK 115/55)) . The complainant then complained about the violation of his religious freedom.
decision
The Federal Constitutional Court rejected the constitutional complaint as unfounded . It is true that the religious freedom guaranteed in Art. 4 GG encompasses the enticement of the faith even if it is not accompanied by an advertisement for another faith. The court left the relationship to the fundamental right to freedom of expression open .
In the present case, however, the court did not consider the area of protection of religious freedom to be open. In addition, it stated that the Basic Law was not intended to protect any free activity of any kind, but only that which has developed among today's civilized peoples on the basis of certain common basic moral views in the course of historical development (so-called " Culture adequacy formula " ).
Even if a demarcation was difficult because the ideologically neutral state was not allowed to define the content of religious freedom in more detail, in the case of the complainant there was an abuse which the state had to prevent. From the structure of the fundamental right order of values, in particular the dignity of the person, it emerges that abuse occurs in particular when the dignity of another person is violated. This is because of the unfair methods or morally reprehensible means by exploiting the special conditions of the prison system; the complainant therefore does not enjoy the protection of Article 4 of the Basic Law. Consequently, the complainant was not violated in fundamental rights.
evaluation
The tobacco decision is an early decision on the question, which is still controversial today, which behavior protects the fundamental right of religious freedom (so-called objective protection area ). A broad understanding of religious freedom is already emerging, in that solicitation without advertising for another belief should also be protected. This tendency continued in particular in the later decision on the Rumpelkammer action ("rag collectors case").
However, the area of protection is limited by the “culture adequacy formula”, which has met with strong criticism in literature. Sometimes it is viewed as a violation of the ideological neutrality of the state, and sometimes it is rejected because of its indefiniteness (“certain coherent basic moral views”). The restriction to “today's civilized peoples” is also criticized. The Federal Constitutional Court itself did not expressly distance itself from the formula, but has not used it since the tobacco ruling. From this it is generally concluded that the court has distanced itself from it.
