Administrative Law: District of Düren prohibits the laying of flowers and candles at military cemeteries in the Hürtgen Forest, Higher Administrative Court of the State of Northrhine-Westfalia denies preliminary protection of rights (Published on 15/02/2023, latest update on 28/08/2023)

More than 5,300 dead rest in the military cemeteries in Hürtgen and Vossenack in the District of Düren; mostly casualties from the so-called “Battle of Hürtgen Forest”, one of the longest and most costly battles of the Second World War, which raged in the region near Aachen between September 1944 and February 1945. Among these dead are also several civilians and foreign nationals, including presumably forced laborers.

The graves located in these cemeteries are so-called “graves of victims of war and tyranny” pursuant to sec. 1(2) of the German Graves Act (“GräberG”). According to sec. 1(1) GräberG, such victims “are to be specifically commemorated and the memory of the terrible consequences of war and tyranny be kept alive for future generations.”

For the District of Düren under District Administrator (“Landrat”) Wolfgang Spelthahn (CDU – Conservative Party), this apparently no longer seems appropriate. They recently enacted new “cemetery rules” for the two military cemeteries in Hürtgen and Vossenack, which prohibit laying down there “wreaths or flowers, vases or other signs of mourning” (cf. sec. 4 no. 4. a) of the rules); violations constitute administrative offenses (cf. sec. 7 of the rules). The legal obligation to commemorate victims from sec. 1(1) GräberG, which had been particularly emphasized in the previous version of the “cemetery rules”, has now been deleted. Flowers, candles and wreaths that were placed in the cemeteries nonetheless were repeatedly removed and destroyed, e.g. on the German Remembrance Day (“Volkstrauertag”) in last November.

A detailed report on the topic can be found here.

As a regular visitor to said military cemeteries, I have initiated legal action against the ban.

First addendum
(Published on 23/03/2023):

With decision of 22/03/2023 the 9th chamber of the Administrative Court Aachen chaired by the vice-president of the court, Markus Lehmler, rejected the grant of a preliminary order requested from here on 09/02/2023 (excerpt from the application here) against the so-called “flower ban” imposed by the District of Düren (docket no. 9 L 99/23).

In a decision which is as strange as it is remarkable, the court rejected the applicant’s submissions of more than 40 pages in total, in which, among other things, an impending violation of several fundamental rights, e.g. the freedom of belief and confession (Art. 4 GG) or the general freedom of action (Art. 2(1) GG), a lack of a legal basis for the corresponding cemetery rules of 13/09/2022 as well as their lack of certainty and proportionality were claimed, with the following three sentences (translation from German language):

“In view of the possibility existing in sec. 4(5) of the cemetery rules for the war gravesites Hürtgen and Vossenack of 13 September 2022, to apply for an exceptional permit for the laying down of signs of mourning, which is prohibited in principle according to sec. 4(4) lit. a, there is no need for legal protection for the application. This applies particularly against the background that the requested preliminary order would be a matter of preventive legal protection, which is fundamentally alien to administrative court proceedings. In addition, the chamber is unable to identify any particular urgency and thus a reason for the applicant’s preliminary request.”

The very statement that preventive legal protection was “fundamentally alien to administrative court proceedings” is astonishing, since, of course, German Administrative Courts grant such interim legal protection hundreds of times each day. It is equally amazing that the imminent violation of fundamental rights, in particular by legally highly questionable statute law, is considered to not give rise to a particular urgency in this case. Downright grotesque, however, is the court’s reference to the possibility to apply for an exceptional permit for being allowed to lay flowers or candles in the said cemeteries is and its view that there was no “need for legal protection” for seeking being allowed to such conduct without a corresponding permit.

In the proceedings, the applicant has commented on this aspect as follows (translation from German language):

“Likewise, there is no question for the request of an ‘exceptional permit’. As presented in detail and unobjected here, the deposition of ‘signs of mourning’ intended by the applicant in the said military cemeteries is the exercise of a behavior protected by several fundamental rights, which – of course, for that very reason – is not subject to any approval. Conversely, it is the restriction of these fundamental rights, constituted by, for instance, demanding an application for an ‘exceptional permit’ for the performance of such conduct, which the respondent has to justify constitutionally – and which he consistently fails to achieve.”

This applies unchanged. Thus, when the Administrative Court Aachen refers the applicant to apply for the exceptional (!) right to lay flowers and candles in a cemetery, it places a behavior protected by several fundamental rights under a blanket reservation of state approval. An Administrative Court that makes such a decision, in particular without any consideration of the above-quoted submission, should be aware of the striking implications.

The decision of the Administrative Court Aachen means that it is currently forbidden and an administrative offence to lay down, e. g., flowers or candles, at the military cemeteries in Hürtgen and Vossenack without an exceptional permit from the District of Düren. This applies to relatives of the dead buried there as well as to third parties who wish to commemorate in this way, for instance, the children or forced laborers buried there. The question arises as to how far this consequence is compatible with the fundamental demands of a democratic constitutional state, in particular with the respect for human dignity as its highest directive.

The decision is not legally binding yet. It can be appealed to the Higher Administrative Court of the State of North Rhine-Westphalia, this will have to be considered.

Second addendum
(Published on 21/04/2023):

An appeal was lodged against the decision of the Administrative Court Aachen of 22/03/2023 to dismiss the case, which is now to be decided by the Higher Administrative Court of the State of North Rhine-Westphalia.

Third addendum
(Published on 03/07/2023):

By decision of 23/06/2023 (German language, an English office translation is available here), the 19th Senate of the Higher Administrative Court of the State of North Rhine-Westphalia (“OVG NRW”) under Deputy Presiding Judge Dr Mareike Weber dismissed the appeal against the decision of the Administrative Court Aachen, which had rejected the application to issue a temporary injunction against the ban imposed by the District of Düren on the placement of “signs of mourning” at the military cemeteries in Hürtgen and Vossenack.

1. Content of the OVG NRW decision

Like the Administrative Court Aachen, the OVG NRW avoided any substantive discussion of the legality of the cemetery rules and based its decision solely on the assumption that the applicant had not established that without the grant of the requested temporary injunction he would be threatened with “unacceptable disadvantages” (so-called “Anordnungsgrund” [“grounds for the order”], cf. decision, p. 3, second para.).

In the court’s opinion, this could be seen neither in the removal and destruction of the deposited “signs of mourning” nor in the impending sanctions for this conduct under the law on administrative offenses (cf. decision, p. 3, third para.). The applicant had not named any concrete circumstances why the placement of flowers or candles in the said cemeteries was “of such outstanding importance” for him that he could not wait for main proceedings in this regard. The fact that such proceedings would take several years was considered irrelevant (loc. cit.).

According to the court, the applicant lacks a “special individual connection” to the military cemeteries in question, because a “kinship or other individual connection to the deceased buried there” was not apparent. Rather, he could commemorate his deceased family members unchanged at their graves, “this type of commemoration” was “in no way restricted” (cf. decision, p. 4, first para.).

Furthermore, the applicant could also legitimately be referred to proceedings on the merits since he could have applied to the District of Düren for an exceptional permit to display “signs of mourning”. The fact that he considered this permit requirement to be unlawful in itself would not render it unreasonable and was irrelevant for the existence of the “grounds for the order” (cf. decision, p. 4, second para.).

The infringements of fundamental rights asserted by the applicant were also considered irrelevant by the court. Insofar as the asserted fundamental rights were affected at all, there was said to be only “a low intensity of encroachment that could be tolerated for the duration of the main proceedings” (cf. decision, p. 5).

2. Assessment

The decision of the OVG NRW is a sad and typical piece of contemporary legal history. It is a prime example of unworldly judicial action and vividly shows how far parts of the judiciary have meanwhile departed not only from their constitutional duties, but also from the reality of life and the sense of decency of many people. The decision fits in seamlessly with numerous recent judicial decisions, in which the administrative courts in particular have regularly refused – often on flimsy grounds and with a blatant ideological undertone – to fulfill their task of affording the fundamental rights of the citizens an effective protection. The decision of the OVG NRW is just another example of the mechanisms used by courts to circumvent having to deal with in substance with cases that may be perceived as politically sensitive and to avoid getting in the way of the executive branch as much as possible.

As is already sufficiently known from the context of the “corona protection” measures, the lever regularly used for this purpose in summary proceedings is the assertion of the alleged lack of “grounds for the order”, which is why the requested legal protection could be granted in summary proceedings, but instead main proceedings – which currently regularly take several years already at first instance – would need to be initiated. Thereby, the court bypasses having to address the legal issues raised, while the person seeking legal protection has to litigate against the objected situation for several years, having to put up with it during that time.

First of all, the persuasiveness of the present decision suffers from various deficiencies in the judicial assessment of the facts. Just as weird as it is false is, for example, is the court’s assertion that the applicant had claimed that he “only became aware of one of the military cemeteries in question while coming to terms with his family’s history and its links to the Second World War”. Where this is supposed to have been brought forward remains the secret of the court. In any case, on the part of the applicant a “coming to terms with his family’s history” is – fortunately – not necessary. However, there are four dead and one seriously wounded family member to mourn here, who lost their lives or health in  World War II in Normandy, the Southern Eifel, in Poland, Austria and Russia. Apart from that: Can the manner of commemoration in a military cemetery and the authority to place flowers or candles there really depend on when one became aware of its existence? Does this commemoration become more “urgent” the longer one knows about the cemetery? Hard to imagine, but for the OVG NRW this seems to play a role.

It is striking that the court completely avoided any substantive discussion of the various objections against the cemetery rules of the District of Düren. Already in the first instance, the applicant had argued in detail that and why these cemetery rules, in particular the provision in its sec. 4 (4) lit. a), violate a whole series of fundamental rights for lack of a suitable legal basis, due to a lack of certainty and proportionality and are therefore unlawful. In particular, reference was made to the fundamental right under Art. 19(4) of the German Grundgesetz (“GG”), the right to effective legal protection, and an immediate judicial intervention requested on this basis.

The OVG NRW was interested in none of this.

Instead, it first considers it important to point out that the applicant can still commemorate his own family members at their graves, because “a kinship or other individual connection” to the dead in said military cemeteries was not recognizable. The message seems to be: What do you care about other people’s dead? From a higher court such as the OVG NRW, the highest administrative court of the federal state of North Rhine-Westphalia, one should be allowed to expect that it is familiar with the special legal status of the graves of victims of war and tyranny as determined in sec. 1(1) of the German Graves Act (“GräberG”), which are found in particular in military cemeteries, especially since this protection was also repeatedly emphasized in the proceedings. According to this, these victims are to be commemorated by law in a special way and the memory of the terrible consequences of war and tyranny is to be kept alive for future generations. In the opinion of the OVG NRW, however, this special commemoration does not appear to include the right to lay flowers or a candle in a corresponding military cemetery – at least if no own relative is buried there. A remarkable thesis. So is there a right to commemorate by laying flowers or a candle only at the grave of one’s own family members? What then do those do whose relatives, for example, died abroad and were buried there? Do they have to travel abroad in order to commemorate their dead relatives by laying a candle? The OVG NRW seems to be of this opinion.

Furthermore, for the OVG NRW it also speaks against the requested granting of interim legal protection that the applicant can apply to the District of Düren for an exceptional permit to place flowers and candles in said military cemeteries. Again, the court does not consider it necessary to deal with the content of the detailed reasons why the request for such an exemption is in the present case unlawful in itself. It states succinctly that this was neither contrary to the reasonableness of such an application, nor would it be relevant for the grounds for the order. Should probably mean: Even an unlawful application requirement must be complied with. In a constitutional state, this is a remarkable position.

With regard to the claimed violations of fundamental rights, the court succinctly regards them as being only of a “low intensity of encroachment that could be tolerated for the duration of the main proceedings”. They hold that a violation of the fundamental right to freedom of belief and confession (Art. 4 (1) and (2) GG) was not demonstrated; the fact that the placing of flowers and candles on a grave is a universal custom of commemoration of the dead in all world religions was not regarded sufficient. Possible encroachments on the fundamental rights of freedom of opinion (Art. 5 (1)1 GG), property (Art. 14(1) GG) and general freedom of action (Art. 2(1) GG) were considered justified in any case, in addition to the “at best low intensity” – which is only stated in general terms, but not substantiated. According to the usual standards of the rule of law, such a finding would require, in particular, to first deal with the content of the applicant’s complaints, according to which the cemetery rules themselves lack a suitable legal basis and the provision of sec. 4(4) a), which is relevant in this case, lacks sufficient clarity and proportionality. Only when these objections have been found to be unfounded and the reasons for this have been explained can it be stated that the encroachments on said fundamental rights are justified. A sweeping statement such as that of the OVG NRW on such a central question without further justification lacks any persuasive power.

The decision and the at best superficial judicial review it expresses prove once again that the effective protection of citizens’ fundamental rights is increasingly up for grabs. Some courts apparently only guarantee the use of constitutionally protected rights that they personally consider politically and ideologically opportune and legitimate, which is incompatible with the fundamental requirements of the rule of law. A realization that is as painful as it is important. The public’s trust in the reliability of the rule of law, already severely strained during the period of the state’s “corona protection” measures, is being further undermined, with the result that parts of the judiciary are sawing off the branch on which they are sitting.

The decision of the OVG NRW cannot be appealed, but a constitutional complaint can be lodged against it.


Fourth addendum
(Published on 28/08/2023):

By means of an internal service directive, the District of Düren has meanwhile also prohibited the deposition of photos of the fallen in uniform at the two military cemeteries in Hürtgen Forest; a report on this is available here.

(Head picture: Military cemetery Hürtgen, November 2022)

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