Topic: interim relief order lifting an absolute ban of religious ceremonies during COVID pandemic
The claimant – a registered Islamic association – challenged before the administrative tribunal an order of the Lower Saxony Land forbidding any religious gatherings in Churches, Mosques and Synagogues.
The claimant highlighted that the Land order inflicted a serious harm to religious freedom, preventing its believers to perform collective acts of worship during the Ramadan period. The measure was considered disproportionate given that it did not admit any derogation and it treated differently shop centres which were allowed to stay open to the public provided that some precautionary requirements were met.
While the administrative tribunal rejected the claim, the Constitutional Tribunal granted an interim relief, suspending the order and allowing the performing of religious services.
At the core of the Constitutional Tribunal decision lays the proportionality principle. According to the Constitutional Tribunal, the Land order inflicted a serious violation of the religious freedom. The Tribunal admitted that performing religious services did present more risk for collective health than entrance to shops, given in the former case the length of the gathering and the making of highly dangerous activities for the spread of the pandemic such as singing.
However, an absolute ban on religious services is in breach of the proportionality principle and constitutes a breach of the religious freedom of the claimant.
The Land order should have provided for a general clause, allowing authorities to take into account the specific circumstances of the case and the possibility to have a different balancing of the values at stake. In particular, the Constitutional Tribunal emphasizes the wide dimension of the worship’s venue; that the claimant was able to provide for a limited number of visitors entry and that the claimant agreed to avoid during the religious services some admittedly dangerous activities, such as singing.
Case reported by Davide Strazzari, University of Trento