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Case:
Bundesverfassungsgericht First Senate 1 BvR 670/91
Date:
26 June 2002
Translated by:
Tony Weir
Copyright:
Sir Basil Markesinis

2. In pursuance of its duty to govern the government is entitled to procure and purvey any information which could assist it in performing any state function for which it is responsible.

3. No special statutory power over and above the duty imposed on it to govern is needed even when its informational activities lead indirectly to situations where basic rights are affected.

II.

[11] The complainants are meditation groups of the so-called Shree Rajneesh-Bhagwan or Osho movement …

[12] 1. The complaint arises out of answers given by the government to three questions put to it in the Bundestag, a report by the government to the Bundestag’s Committee on Petitions and a speech delivered by the then Minister for Youth, Family and Health to a meeting of the Youth Union of Bavaria and a “Parents Movement for Help in Dealing with Psychological Dependency and Religious Extremism”. …

[18] 2. The complainants seek a judgment requiring the state to desist from making several of the remarks made in these speeches….

[The administrative court granted the complaint as regards the use by officials of the phrases “juvenile religion”, “juvenile sects“ and “psychosects” and their description of the group’s activities as “destructive” or “pseudoreligious”. The Oberverwaltungsgericht allowed the appeal of the defendants and dismissed the complaint in its entirety, and the Bundesverwaltungsgericht dismissed the appeal.]

III.

[31] The constitutional complaint criticises these judicial decisions, in particular as being a breach of Art. 4(1) and Art. 103(1) of the Constitution….

B.

[48] The complaint is justified in part. The government’s use of the words “sects”. “juvenile religion” “juvenile sects” or “psychosects” in the information they issued about the Osho-movement and its associated groups is constitutionally unobjectionable, but in so far as the judgment of the Oberverwaltungsgericht saw no constitutional objection to the use of the adjective “destructive” and “pseudoreligious” or the imputation that the members of the groups were being manipulated, it cannot be upheld.

I.

[49] To this extent the judgment infringes Art. 4(1) and (2) of the Constitution.

[52] 2. The basic right of freedom of religion and ideology extends beyond the freedom of the individual to entertain and profess his religion or world-view and includes the freedom to consort with others who share those beliefs or views… Also protected is the freedom to plead for one’s belief or faith and the right to convert others from theirs.

[53] The significance and scope of these guarantees is expressed in the fact that under Art. 4(1) of the Constitution and also Art 3(3)(1), Art. 33 (3) and Art. 140 read with Art. 136(1) and (4) and Art. 137(1) of the Weimar Constitution the state is bound to behave neutrally in questions of religion and belief. … While Art 4(1) thus affords protection against defamatory, discriminatory or misleading representations with regard to any religious community, this does not mean that the state and its organs can have nothing to do with such questions: the state’s neutrality does not bar it from having an opinion about the way a religious or ideological group or its adherents actually behave or judging their behaviour by secular standards, even when it is motivated by religious persuasion.

[54] Nor are the responsible state authorities barred from giving Parliament, the public or interested citizens information about religious and similar groups and the way they behave. Art. 4 (1) and (2) of the Constitution does not prevent state organs engaging publicly, even critically, with persons exercising basic rights: it is simply that the state must not seek to regulate genuine questions of religious or secular belief or interfere in a partisan manner with the creeds or activities of religious or similar groups or the way individual members present themselves.

[56] a) aa) We agree with the courts below that the descriptions of the Osho-movement and its associated groups as “sects”, “juvenile religion”, “juvenile sects” and “psychosects” are constitutionally unobjectionable. Such expressions do not trespass into the protected area of the basic freedom of religion and belief and contain no defamatory or misleading representations: they fall within the scope of providing objective information about the communities in question…

[60] (2) the same applies to the use of the concepts of “juvenile religion” and “juvenile sects”..

[62] (3) Finally, even the use of the word “psychosect” is consistent with the neutrality of the state in matters of religion and belief, for as the Oberverwaltungsgericht explained, the Osho-movement offers many therapeutic courses in meditation and is presented in its own teachings as a synthesis of Eastern wisdom and Western psychology.

[64] bb) However, the epithets “destructive” and “pseudoreligious” as applied to the Osho-movement are not neutral in the constitutional sense, nor is the reproach that its members are furtively manipulated out of their previous community.

[68] b) The complainants have a right, guaranteed by Art. 4(1) and (2) of the Constitution to be treated in a neutral and restrained manner in matters of religion and belief, and this right is impaired, though not in the traditional manner, by the use of the adjectives “destructive” and “pseudoreligious” and the imputation that these communities are manipulative of their members. Normally the invasion of a basic right takes the form of some legal act, some rule or prohibition emanating from the state calling, if necessary, for implementation, thus something imperative, which directly and intentionally leads to a restriction of a basic freedom. Those features are absent here.

[69] No legal act of any kind was involved in the description of the Osho-movement as “destructive” and “pseudoreligious” or the statement that these communities manipulated their members behind a veil of secrecy: they were merely uttered in answers in Parliament, and not even in the course of a Parliamentary debate or discussion. Furthermore, they were not addressed to the organisers of the Osho-movement or its members, but were intended to inform Parliament and the public about the groups, their aims and their activities. These statements were not designed to cause any harm to these communities or their members. … There might, admittedly, be side-effects on the community, but any such side-effects occurred not through the mandatory implementation of any order or prohibition by the state but only because the information provided might lead the odd individual to leave the group or not join it, or influence relatives or others and perhaps induce them to withdraw or deny financial support to the group.

[70] This does not mean that we should not test such statements against Art. 4(1) and (2) of the Constitution, for it is not only against invasions by acts-in-law that the Constitution affords protection to basic rights. Here the statements in question did have an adverse effect on the complainants, indirect but actual, and such adverse effects on a basic right may be constitutionally objectionable unless they can be sufficiently justified on constitutional grounds.

[71] c) That is the case here. It is true that in issuing the statements objected to the government was within its powers of dealing with information (aa), but the adverse effect on the complainants’ basic rights under Art. 4(1) and (2) of the Constitution was disproportionately severe.

[72] aa) The federal government was entitled to inform Parliament and the public about the Osho-movement and its associated communities as well as their aims and activities. For this purpose it needed no statutory power in addition to its task of governing conferred directly by the Constitution.

[73] (1) (a) The task of governing involves dealing with current problems of significant concern to the public and therefore includes the power day-to-day to issue information not just to Parliament but also to interested members of the public and the citizens affected thereby.

[74] The role of government in publishing information has altered fundamentally in recent years. The increased role of the media, the development of modern techniques of acquiring and disseminating information and the growth of information services have affected the way the government is to perform its task. .. It is part of the task of the government in a democracy to inform the public of matters of importance even if they have little to do with its specific policies. In states where it is largely up to the citizens themselves to solve social problems the government should provide the information they need if they are to participate responsibly in the resolution of those problems. …

[75] In performing this task it falls to the government not only to publish up-to-date information with the aim of assuaging conflicts in state and society, but also to engage with emergent, even short-lived, challenges and to react to the concerns of the citizenry swiftly, appropriately and helpfully. … Many citizens would regard it as an abdication if the government failed to react in such a situation.

[76] b) The task of governing entrusted by the Constitution to the government extends to the publication of information of significance to the citizen and conducive to the proper cooperation of state and society, and this is true even when such publication indirectly has adverse effects on the basic rights of the citizen, as is the case here as regards the statements about the Osho-movement and its associated groupings. The power to govern includes the use of information techniques in pursuance of that power even if in fact it indirectly results in prejudice to right-holders. Although statutory justification is generally required for the invasion of rights, no specific legislative authority is needed here, unless the aim and effect of any steps taken can be seen as a substitute for a governmental measure such as might constitute an invasion of a basic right in the usual way: the need for statutory authority cannot be evaded by adopting a functional alternative.

[77] aa) Our Constitution prohibits not only invasions of the traditional kind but also those resulting indirectly at the level of fact. The law here is reacting to altered circumstances, as it does in extending the cases where statutory authority is required, and does so both to strengthen the protection of individual rights and to reinforce the responsibility of Parliament and thus uphold the democratic legitimation of state action.

[78] But the reasons for the extension of protection of rights against factual and indirect adverse effects on the one hand and of the requirement for statutory authority on the other are rather different, so there need not always be perfect coincidence between the former and the latter. One reason for the requirement of statutory authority is that it conduces to the realisation of the principles of the Rechtsstaat and democracy in which the requirement is rooted. But this can only apply in situations which can be regulated by the state, where the legislator can recognise the need for action and take it.

[79] Given its power to prescribe what the state may do, the legislator can clearly regulate the cases where the invasion of a right is intentional and direct, but this is generally not the case where it is at the level of fact and indirectly that the right is restricted. Here the prejudice to the right-holder arises not from the conduct which the state has officially required of the addressee of the norm but from the way third parties react to what the state has done. The prejudice arises out of a complex series of occurrences connected only indirectly with the measures taken or the aim pursued. Such effects are typically insusceptible of regulation.

[80] (bb) This is the case when a basic right is infringed in fact by the conduct of third parties reacting to information issued by the government. One cannot sensibly lay down a rule to deal with this case.

[82] Although statutory authorisation, whose function in the democratic Rechtsstaat is to protect basic rights and guarantee their protection by law, is normally required, the government here requires no statutory power, over and above the conferment on it of the task of governing. The subject-matter of information and the way it is communicated are so various that they cannot be contained in general formulae, and the legislator cannot know or predict everything, so the citizen cannot expect state activity in this area to be measurable or accountable in detail, at any rate in a manner consistent with the exigencies of the government’s role in providing information. The same is true when it is left, consistently with democratic legitimation, to the Parliamentary legislator to decide on the principles relating to the respect for basic rights.

[83] (c) The fact that the government, being entrusted with the task of governing, requires no further special statutory authority when it is purveying information certainly does not mean that there are no constitutional restraints in this area. Even here the rules as to the separation of functions must be observed. At the level of the federation it is Art. 65 of the Constitution which determines the competence of the Chancellor, the federal ministers and the government as such. In addition one must take account of the division of competences between the federation and the Länder. The competence of the government as such therefore depends on whether the informational task is one for the federation or the Länder, or both.

[84] … The Constitution contains no explicit provision regarding the competence of the government as such… It proceeds implicitly on the basis of relevant attributes, for example in the rules on the formation and tasks of the government (Art. 62ff.) or the duty of the government to keep the Bundestag and its committees informed; the same is true of the duty of the government and its members to answer questions put to them in the Bundestag and inform its members so that they may do their job. The government is entitled to deal with information whenever it has a responsibility which the information can help to advance. To determine whether such a responsibility exists one looks to other provisions regarding competence, such as those on legislative powers, disregarding specific legislative proposals. Such a responsibility clearly exists when a situation has foreign or supraregional features such that it can only be dealt with effectively by the provision of information on a federal level. …

[85] The federal government’s power to issue information runs into the role of the Länder as provided by Art. 30 of the Constitution, but Art. 83ff. do not restrict the competence of the government, since governmental activity is not “administration” in the sense of those articles.

[86] The federal government’s informational role is not restricted by the fact that a particular topic calls for activity on the part of other organs of state with different powers, such as the governments of the Länder in performance of their own governmental roles or that of the administration in securing the state from danger… For the federal government to issue information on a problem, even if it trenches on the competence of other organs of the state, is unobjectionable as regards the allocation of powers within the state, since the provision of such information neither precludes activity by the governments of the Länder in exercise of their attributes nor prevents the administrative authorities performing their own tasks.

[87] (2) In the light of these standards, it cannot be said that the government lacked competence to issue the statements in question. …

[91] bb) The description of the Osho-movement and its associated groups as “destructive” and “pseudoreligious” and the imputation that they manipulated their members, largely behind closed doors, are nevertheless constitutionally objectionable for they are inconsistent with the requisite neutrality of the government. They are objectionable as being in breach of the principle of proportionality.

[92] If statements evaluating the aims and practices of religious or confessional groups have an adverse effect on the rights protected by Art. 4(1) and (2) of the Constitution they must be proportionate to the situation which triggered them and to the gravity of the consequences which the persons affected could properly put into the balance. …