Public Prosecutor v. Basuki Tjahaja Purnama aka “Ahok”
Closed Contracts Expression
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The Federal Administrative Court of Germany held that an obligation to wear a helmet while motorcycling even if it interfered with the Sikh religious commandment to wear a turban was constitutional. After an observant Sikh had unsuccessfully applied to the City of Konstanz for an exemption to the helmet obligation he approached the courts, arguing that his right to freedom of religion had been infringed. The Administrative and Higher Administrative Courts dismissed his application to be granted the exemption. The Federal Administrative Court found that the helmet obligation was a manifestation of the city’s obligation to protect the right to life and physical integrity of the motorcyclist and third parties. It found that the extent of the limitation of the right to freedom of religion was low as an individual merely had to forego riding a motorcycle if they wanted to uphold their religious commitment, and held that the individual’s right to freedom of religion therefore did not outweigh the competing right to life and physical integrity.
In July 2013, an observant Sikh (the claimant), applied to the City of Konstanz in Germany to be granted an exception from the general obligation to wear a helmet when motorcycling. The claimant asserted that the obligation under the Road Traffic Ordinance (Straßenverkehrsordnung, StVO) to wear a protective helmet violated his right to freedom of religion under article 4(1) (Grundgesetz German Basic Law, GC). As a Sikh, he was obliged to wear a turban on religious grounds. The City of Konstanz rejected the application on the grounds that an exception could only be granted for reasons of health.
On December 3, 2014, the claimant applied to Freiburg Administrative Court (Verwaltungsgericht Freiburg) for an exceptional permission to not wear a helmet. On October 29, 2015, that Court dismissed the application and found that the obligation to wear a protective helmet was constitutional. It noted that the obligation applied to only a partial area of road traffic safety and was tempered by the fact that there is a possibility for an exemption. It added that the obligation did not encroach upon the freedom of religion under article 4(1) because it did not mean that the claimant had to give up his religious commandment to cover and to not cut his hair: the claimant to uncover his hair in public as he could cover his hair with a cloth or cap under the helmet. The Court held that even if the obligation was an encroachment on the claimant’s article 4(1) rights it was constitutionally justified because it was necessary and proportionate to protect the health of the motorcyclist and the general public from heavy burdens that can follow from accidents involving severe head injuries. An encroachment of the general personal freedom under article 2(1) GC was justified on the same grounds. In regard to the claimant’s claim that his right under Article 9 of European Convention on Human Rights (ECHR) and Article 10 of the European Charter of Fundamental Rights were violated, the Court found that those rights’ scope did not reach further than Article 4 of the GC. The Court also held that the claimant could not claim unequal treatment on the grounds that members of the Sikh religion were exempt from the helmet obligation in other districts, as that fell under the regulatory scope of another legal entity.
On December 30, 2015, the claimant appealed to the Baden-Wuerttemberg Higher Administrative Court (Verwaltungsgerichtshof Baden-Württemberg) on points of facts and law. That Court found that the City of Konstanz wrongfully exercised its discretion as it had failed to recognize that an exception was also possible on religious grounds. The Court remanded the case back to the City of Konstanz for a new assessment of the claimant’s application. However, the Court noted the claimant was incorrect in arguing that his freedom of religion obliged the authorities to grant him an exemption and agreed with the lower court that the encroachment on the freedom of religion was justified.
The claimant then appealed to the Federal Administrative Court (Bundesverwaltungsgericht) on points of law.
The Third Senate of the Federal Administrative Court delivered a unanimous decision. The central issue for the Court’s determination was whether the statutory obligation to wear a protective helmet when motorcycling violated the claimant’s right to freedom of religion under article 4(1) and whether he could therefore claim an exemption.
The claimant continued to argue that he should be granted the exemption. He submitted that the consequences for third parties caused by an accident were merely hypothetical, but that he would suffer an actual and present infringement upon his rights if the exemption was not granted.
The City argued that the helmet obligation was a regulation to prevent hazards and it expresses the state’s duty to protect life and physical integrity under article 2(2) GC, and so the basic rights to life and physical integrity and freedom of religion conflict even without an actual accident.
The Court elaborated on the encroachment element of the helmet obligation, and established that the “obligation to wear a suitable protective helmet when motorcycling does not lead to a restriction targeted at or directly affecting the scope of protection of the freedom of religion” as it is a “general order that only in rare cases may conflict with the freedom of religion” [para. 9]. Because the “obligation to wear a helmet only concerns the operation of a motorcycle, and practice of religion can thus only be restricted in a narrowly limited situation typically insignificant for freedom of religion”, the Court classified the intensity of the encroachment as low [para. 9]. The Court stressed that the Road Traffic Ordinance allowed for exceptional permissions in exceptional cases of individual undue hardship and therefore the law takes interests protected by basic rights into account. With reference to the Appellate Court the Federal Court held that such a special exceptional case indirectly “impair[ed] him in the practice of his religion”, because if he followed his religion he would have to “forego motorcycling” [para. 13].
The Court then assessed whether the claimant could claim an exemption from the helmet obligation for special individual reasons and stated that a right to an exemption “may exist if it is unreasonable for the person concerned to forego motorcycling for specific individual reasons” [para. 15]. In regard to freedom of religion, it set out that there is no constitutional reservation in articles 4(1) and (2) to restrict this basic right by a statute and therefore only basic rights of third parties and community values of constitutional status can pose limitations on the freedom of religion. The Court characterized the purpose of the helmet obligation as to “help to reduce the impact of motorcycle accidents and to increase traffic safety on public roads” and it “serves primarily to protect motorcyclists and their passengers from serious head injuries” and to protect the general public by preventing dangers from third parties involved in an accident [para. 19]. The Court referred to BVerfG, 1 BvR 1295/80 (01/26/1982), a decision of the Federal Constitutional Court of 1982, which stated that “[a] motorcyclist who rides without a helmet and therefore suffers a serious head injury in an accident is by no means harming only himself. It is obvious that in many cases further damage can be averted if a person involved in the accident remains conscious” and observed that there were extensive consequences for the general public, such as the need for “the deployment of emergency services, medical care, rehabilitation measures, care for the disabled” [paras. 19 and 20].
The Court also referred to the right to life and physical integrity of third parties involved in an accident protected by article 2 (2). It held that with the helmet obligation, motorcyclists will be more likely to be able to assist others after an accident by providing first aid, calling for help, or securing and highlighting the accident site. In contrast to the Appellate Court, the Court held that “the possibility of suffering traumatisation from seeing serious head injuries cannot be dismissed as being purely hypothetical” and that there is the example of this happening to train drivers [para. 22]. With reference to BVerfG, 2 BvL 43/92 (03/09/1994) and 1 BvL 8/15 (07/26/2016), the Court found that article 2(2) creates not only a subjective defensive right, but also establishes protective duties for the state and so in “fulfilling its obligation to protect, the legislature is not denied the right to act to prevent the occurrence of dangerous situations and to minimise risk” [para. 22].
Accordingly, the Court concluded that the claimant’s freedom of religion did not outweigh the conflicting constitutional interests, particularly as the helmet obligation was a low intensity and temporally and locally limited restriction. As the claimant had not alleged that he depended on the use of a motorcycle in particular, the Court did not find that his individual interest in riding a motorcycle overweighed the public interest of an observance of the helmet obligation. Therefore, the Court held that the City of Konstanz lawfully exercised its discretion in balancing the conflicting interests in this individual case.
The Court also had to rule on the question whether European Law – particularly freedom of religion under article 9 of the ECHR – conflicted with the helmet obligation. With reference to the cases of Dogru v. France and Mann Singh v. France, the Court held that the European Court of Human Rights jurisprudence indicated that the helmet obligation was justified under article 9(2), because it was necessary for the protection of health.
Accordingly, the Court found that the claimant had no right to be granted an exemption from the obligation to wear a protective helmet when motorcycling and rejected the claimant’s appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In holding that the intensity of an encroachment on the freedom of religion and the temporal and local mode of action of a restriction and the potential impact on the physical and psychological integrity of third parties by the exercise of freedom of religion are relevant considerations, the Federal Administrative Court’s decision was a significant contraction of the right to expression through the right to freedom of religion.
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