The “flower ban” by the District of Düren on the German military cemeteries in Hürtgen Forest before the State Constitutional Court of Northrhine-Westfalia (Published on 30/04/2025)
As is known, since the adoption of new cemetery rules (“Friedhofsordnung”, “FO”) in September 2022 the District of Düren under District Administrator Wolfgang Spelthahn (CDU) has prohibited visitors to the German military cemeteries in Hürtgen and Vossenack from laying there “wreaths or flowers, vases or other signs of mourning” unless they have been granted an exceptional permit (cf. sec. 4 cipher 4. a) FO); violations of this prohibition constitute an administrative offense (cf. sec. 7 FO).
The preliminary legal protection against this so-called “flower ban” initiated here at the beginning of 2023 was unsuccessful before the Administrative Court Aachen (“VG Aachen”) and the Higher Administrative Court NRW (“OVG NRW”).
In July 2023, a constitutional complaint (excerpt) was filed from here with the State Constitutional Court of Northrhine-Westfalia (“VerfGH NRW”) against sec. 4 cipher 4. a) FO and the rejection of the corresponding urgent appeal by the OVG NRW, subsequently accompanied by a corresponding application for a temporary injunction.
The VerfGH NRW has rejected both.
1. The constitutional court jurisdiction of the Federal states
It is often unknown that, in addition to the Grundgesetz (“GG”) as the German Federal constitution, the individual German Federal states also have their own constitutions, the so-called state constitutions, which in particular grant their citizens independent fundamental rights – although in some cases only by reference to the provisions of the Grundgesetz. The task of monitoring compliance with these state constitutions is the responsibility of a State Constitutional Court.
If a citizen feels that a fundamental right under the state constitution has been violated by an act of public authority of the respective Federal state, they can – subject to the respective state legal requirements – appeal to the State Constitutional Court by way of a constitutional complaint.
2. The “flower ban” before the State Constitutional Court NRW
Both the cemetery rules imposing the “flower ban”, a municipal statute of the District of Düren, as well as the relevant decisions of the VG Aachen and the OVG NRW are acts of public authority of the state of NRW and can as such be appealed to the VerfGH NRW (cf. sec. 53(1) VerfGHG NRW). The fundamental rights from Art. 4 GG (freedom of belief and conscience), Art. 14(1) GG (property), Art. 5(1)1 GG (freedom of opinion), Art. 2(1) GG (general freedom of action), Art. 19(4) GG (effective legal protection), Art. 3(1) GG (equal treatment) and – with regard to the decision of the OVG NRW – Art. 103(1) GG (right to be heard) which have been asserted at the aforementioned courts, have also been adopted, by means of a reference, as directly applicable guarantees of fundamental rights under state law by the legislature of the state of North Rhine-Westphalia (cf. Art. 4(1) of the NRW State Constitution).
Accordingly, a constitutional complaint was lodged with the VerfGH NRW alleging a violation of these fundamental rights by sec. 4 cipher 4. a) FO and by the decision of the OVG NRW; in addition, an application for a temporary injunction was made to prohibit the District of Düren from removing “signs of mourning” from the aforementioned two military cemeteries until a decision on the merits has been reached.
a) Rejection of the application for a temporary injunction
The VerfGH NRW rejected a temporary injunction in a unanimous decision dated 16/11/2023 by judges Prof. Dauner-Lieb, Prof. Grzeszick and Dr Nedden-Boeger.
The court claimed that due to the “usually far-reaching consequences of a constitutional court decision”, a strict standard had to be applied, in particular disregarding, in principle, the reasons put forward for the unconstitutionality of the challenged act of state as long as the protection of fundamental rights is not thwarted with a high degree of probability by waiting until the constitutional complaint proceedings have been concluded (ibid., p. 5).
They argued that it had not been clear from the grounds for the application what specific serious disadvantages within the meaning of sec. 27(1) VerfGHG NRW the applicant is threatened with if he is referred to having to apply for approval of an exception to the prohibition in sec. 4 cipher 4. a) FO based on sec. 4(5) FO in order to be allowed to lay “signs of mourning” at the military cemeteries in Hürtgen and Vossenack until a decision is made on his constitutional complaint. A reference to the rights under the State Constitution asserted in the proceedings on the merits was considered not to be sufficient, if only because it cannot be readily assumed that this constitutional complaint is admissible and obviously well-founded (ibid., p. 6).
Furthermore, although the situation deemed unconstitutional by the applicant was maintained until a decision on the merits, it, however, would not be “irreversibly solidified” for the future. Rather, in the meantime, he would have “at least the possibility” of applying for an exception to the ban (ibid., p. 7, first para.). He had not demonstrated having applied for such an exception in vain; but had apparently refrained from doing so “because he also considers the reservation of permission to be unconstitutional”. However, that such an application for an exception would be unreasonable and futile from the outset until a decision on the constitutional complaint has been made had neither been stated nor was it otherwise apparent. Thus, it already was not certain whether the applicant was prohibited from placing “signs of mourning” in the two cemeteries “for a considerable period of time” (ibid.).
The court stated (ibid., p. 7, second para., all citations translated for German language):
“The applicant does not explain why the purpose of the Graves Act, which he cites as authoritative from sec. 1(1) GräbG, namely to commemorate the victims of war and tyranny in a special way and to keep alive the memory of the terrible consequences of war and tyranny for future generations, should be guaranteed urgently and precisely by placing at the high crosses, memorial stones or the sarcophagus on the war gravesites in Hürtgen and Vossenack wreaths or flowers, vases or other signs of mourning at the high crosses without prior approval by the cemetery administration, notwithstanding the exception in sec. 4(5) FO 2022. The applicant also does not explain in detail how this could be judged differently, at least against the background of current global political events and with a view to the National Remembrance Day on 19 November 2023.”
b) The rejection of the constitutional complaint
In an unanimous decision dated 20/02/2024, by its judges Prof. Dauner-Lieb, Prof. Grzeszick and Dr Nedden-Boeger, the VerfGH NRW also rejected the constitutional complaint. It was considered to be “largely inadmissible and in any case manifestly unfounded” (ibid., p. 4, first para.).
Insofar as it directly objected to sec. 4 cipher 4. a) FO, it was held to be inadmissible for a lack of exhaustion of legal remedies. In the present case, the complainant had been able to file both a judicial review proceeding before the OVG NRW relating to the norms in question as well as a preventive action for injunctive relief (ibid., p. 4). Such exhaustion of legal recourse could presently not be waived by way of exception, as the necessary general significance of the constitutional complaint or the threat of a serious and unavoidable disadvantage if the complainant was referred to legal recourse did not exist (ibid., p. 5/6).
Insofar as the constitutional complaint was directed against the decisions of the OVG NRW, it was considered “already partially inadmissible and in any case manifestly unfounded” (ibid., p. 6, second para.). With regard to the violations of fundamental rights complained of, it “does not sufficiently deal with the grounds of the challenged urgent appeal decision of the Higher Administrative Court of 23 June 2023” and therefore would not meet the statutory substantiation requirements (ibid., p. 6/7). The constitutional complaint had not sufficiently addressed the statements of the OVG NRW, in particular it had not shown why waiting for a decision on the merits of the case was unreasonable and therefore the requirements for making a prima facie case for an injunction were met (ibid., p. 8). Rather, the complainant “already now” had the possibility “to achieve the desired laying down of signs of mourning at the military cemeteries in Hürtgen and Vossenack by applying for an exceptional permit.”
The constitutional complaint was also inadmissible insofar as the complainant objected to a violation of his right to be heard for lack of sufficient substantiation. In particular, the OVG NRW had explained why the possibility of applying for a special permit was not insignificant. The complainant’s detailed arguments regarding the unlawfulness of sec. 4 cipher 4. a) FO were therefore no longer relevant (ibid., pp. 8-10).
The complaint of a violation of the fundamental right to effective legal protection was held to be “in any case manifestly unfounded” (ibid., p. 11). The complainant would
“…not be threatened with a significant violation of his rights, which can no longer be remedied by the decision on the merits, if he is referred to applying for an exception to the prohibition of sec. 4 cipher 4. a) FO based on sec. 4 (5) FO, at least for the time being, in order to be allowed to place signs of mourning on the war cemeteries in Hürtgen and Vossenack.” (ibid., p. 11/12)
The complainant had not stated that he had unsuccessfully applied for such an exception; he had “possibly (…) refrained from doing so because he also considers the reservation of approval in sec. 4(5) FO to be unlawful”. The view of the OVG NRW that this circumstance would not lead to the unreasonableness of such an application, would not violate the right to effective legal protection,
“…because the constitutional complaint neither comprehensibly explains nor is it otherwise apparent why it should be unreasonable and hopeless from the outset to apply for such a special permit until a decision on the merits has been reached, even if the mere existence of the reservation of approval should affect the complainant’s fundamental rights – as he asserts in general terms.” (ibid., p. 12)
It was therefore not certain that the
“…serious encroachments on fundamental rights asserted by the complainant – irrespective of the question of their actual intensity beyond marginal areas – would occur at all, i.e. that he would not be able to place signs of mourning on the war cemeteries in question for a considerable period of time.” (ibid.)
3. Assessment
The decisions of the VerfGH NRW are not convincing. They fit seamlessly into the worrying recent practice of a number of administrative and constitutional courts of surrendering the fundamental rights of citizens, which they are responsible for monitoring, even to the most questionable measures of the executive.
a) The State Constitutional Court NRW
First of all – as always – it is worth taking a closer look at the court and the judges who made the decisions in question.
It is noticeable that some State Constitutional Courts already look more like an annex of the respective Higher Administrative Courts (“OVG”) as the highest administrative courts of the single Federal state. They are located in the same place and often in close proximity to the OVG, and in many cases there are overlaps in terms of personnel. One example is the State Constitutional Court of Rhineland-Palatinate (“VerfGH RP”), which is located in the same building as the OVG RP and whose President, Prof. Lars Brocker, is also the President of the VerfGH RP. Such “optical” questions, which are also questions of perceived judicial independence and impartiality, indicate the importance attached to the State Constitutional Courts.
Although personnel overlaps are not as pronounced at the VerfGH NRW, its seat is also located in the immediate vicinity of the OVG NRW, virtually “on the other side of the road”. In terms of personnel, it is noticeable that only one of the three judges involved in the present case – Dr Nedden-Boeger – is a full-time judge. However, he works in civil law and deals, in particular, with family law and commercial tenancy law in the XII. Civil Senate of the Federal Supreme Court, whereas the present case concerns public law and thus a completely different area of law. The other two judges have always – Prof. Prof. Grzeszick – or for several decades – Prof. Dauner-Lieb – been full-time university professors, only the former in public law. This means that two out of three of the judges involved in the present proceedings already lack the relevant specialist background. The one judge who does have it had never worked as a judge before his appointment to the VerfGH NRW in June 2021.
Such a panel of judges raises certain questions from the outset.
It is not without reason that there are separate court branches for the different legal areas of civil law and public law, including criminal law, and within these there are in turn specialized panels for individual legal areas. All of this serves the purpose of professional specialization and thus ensuring the quality of judicial decisions. The abolition of this specialization at the level of the constitutional courts, which is superior to all specialist courts, where – as in the present case –, inter alia, a judge specializing in family law and commercial tenancy law, alongside a professor with a generalist civil law orientation, decides on the constitutionality of a municipal statute and a related administrative court decision, does not necessarily benefit the quality of the corresponding decision.
b) The alleged violation of the so-called “statutory substantiation requirements”
The content of the two decisions of the VerfGH NRW is also not convincing.
In accordance with a now widespread practice, many constitutional complaints fail due to an alleged violation of the so-called “statutory substantiation requirements”. The responsibility for the decision and its content is thus primarily assigned to the complainant (and his lawyer), as he has not explained (“substantiated”) the alleged constitutional violation in as much detail as he should have done in the opinion of the court.
However, it should be noted that there are already no legal requirements as regards the exact content and scope of the presentation of a constitutional violation. Rather, the law – both at Federal and State level – regularly only stipulates in general terms that the constitutional complaint must be substantiated and that the right that is alleged to have been violated and the act or omission of the authority by which the complainant feels violated must be specified (cf. for the present case sec.s 18(1)2, 55(1) and (4) VerfGHG NRW; at the Federal level sec.s 23(1), 92 BVerfGG). All requirements that go beyond this, in particular with regard to the scope of the explanations to be provided in individual cases, originate from the respective constitutional court and can be handled differently from case to case. In this respect, these are by no means “statutory substantiation requirements”, but rather a judicial extension of them, giving the court carte blanche to not even having to deal with the content of a constitutional complaint. If, in the opinion of the court, the relevant explanations are “insufficient”, this already renders the constitutional complaint inadmissible and all substantive issues no longer need to be discussed. In addition, due to the lack of (mandatory) publication of the relevant pleadings, it is not possible for an outsider to verify what was submitted in the constitutional complaint and in what detail. In this way, a constitutional court can easily dispose of any constitutional complaint by referring to an allegedly insufficient substantiation.
Of course, the importance of the so-called “statutory substantiation requirements” is well known here, which is why particular attention is regularly paid to the substantiation of the constitutional violations complained of in all constitutional complaints filed from here. However, the present case shows once again in an exemplary manner that this is not important, as any constitutional complaint, no matter how detailed and extensively substantiated, can still be “unsubstantiated” in the eyes of the court without it having to justify this in more detail and without this being verifiable for outsiders. In the present case, the written submissions in the constitutional complaint proceedings alone comprise 77 pages altogether; in addition, a further 120 pages of further submissions to the lower courts were made the subject of these proceedings. In the opinion of the VerfGH NRW, these submissions, comprising a total of almost 200 pages and containing even repeatedly several of the substantiations allegedly missing according to the court, do not meet the “statutory substantiation requirements”.
The judicially determined “substantiation requirements” are a predetermined “breaking point” for any constitutional complaint, the constitutional admissibility of which already seems highly questionable in itself because the “statutory substantiation requirements” referred to are thereby exaggerated to become an arbitrarily applicable and insurmountable obstacle which the law does not provide for.
c) The rejection of the asserted violations of fundamental rights
With regard to the alleged violations of fundamental rights, it is striking that the VerfGH NRW has already silently ignored the asserted violation of the principle of equal treatment; nowhere are there any comments on this. This speaks for itself.
There is also no discussion of the invoked essentiality doctrine (“Wesentlichkeitslehre”) of the BVerfG and of the so-called “interference limits” („Schranken-Schranken“) that any interference with fundamental rights must observe to be lawful, in particular the principles of proportionality and certainty. Instead, it is emphasized in an almost mantra-like manner that the complainant could have filed an application for an “exceptional permit” (!) to place signs of mourning at the military cemeteries, at least until the decision on the constitutional complaint. The court was not bothered by the fact that the protection of the fundamental rights is not subject to an application and therefore the requirement to request permission alone was objected as a violation of fundamental rights. According to the court, even if the complainant considered such an application to be unconstitutional, it was still “not unreasonable” (!).
Equally peculiar is the accusation of an alleged lack of exhaustion of legal remedies, in particular the omission of a judicial review proceeding relating to the norms in question. In every procedure involving an encroachment on fundamental rights, the court has the obligation to review the constitutionality of the encroachment and of the underlying norm, which includes in particular compliance with the aforementioned “interference limits”. This is the daily practice of the administrative courts. For instance, during the “coronavirus pandemic”, the VG Aachen granted applications for preliminary measures against a “dwelling ban” imposed by the city and District of Düren in three cases because it considered the corresponding decrees – three subsequent versions of them! – to be presumably unlawful. Since the present constitutional complaint was, in addition to sec. 4 cipher 4. a) FO, also directed against the refusal of interim legal protection by the the OVG NRW, the VerfGH NRW could and should have overturned that decision without further ado.
As a result, the decisions of the VerfGH NRW refrain from dealing with the content of the constitutional problems raised for formal reasons and only generally confirm the dubious theses of the OVG NRW, which have been objected as unconstitutional; this has little to do with a constitutional court review.
The rejection of the constitutional complaint by the VerfGH NRW is subject to a constitutional complaint to the BVerfG, this was lodged in due time.
(Head picture: Military cemetery Vossenack, August 2022)
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