E/CN.4/1998/6/Add.2
page 4
8.
This freedom comprises both the individual right of each person to
believe in what he wants and the right not to have a belief. It also embodies
the right to behave in accordance with one's belief. In addition, article 4,
paragraph 3, of the Constitution recognizes the right of conscientious
objection to military service.
9.
Article 4 of the Constitution does not expressly impose restrictions on
these rights and freedoms as regards their manifestations, but obviously they
do not apply without limits. These limits originate from the implications of
the Constitution, notably concerning the protection of the fundamental rights
of others (cf. protection of human dignity, Constitution, art. 1, and right to
life and physical integrity Constitution, art. 2, para. 2) or relating to
guarantees for common property specially protected by the Constitution. These
limits must not be disproportionate to the goals pursued.
B.
Constitutional guarantees specific to relations
between the State, religion and belief
10.
The constitutional guarantee of religious freedom is supplemented and
spelled out by article 140 of the Constitution, which incorporates
articles 136, 137, 138 and 141 of the Weimar Constitution of 11 August 1919
and regulates relations between the State, the Churches and religious
communities. 1/ Article 7, paragraphs 2 and 3, of the Constitution guarantees
religious instruction in State schools.
11.
As reflected in the constitutional provisions since the Weimar
Constitution, a separation between religions and the State has been
introduced. However, these provisions do not establish the principle of an
absolute separation excluding all possibility of cooperation between religion
and State. A substantial degree of cooperation has been maintained and
manifests itself in various ways: granting of the status of a legal person in
public law, protection of church property intended for religious purposes,
guarantees to religious entities recognized as public-law communities of the
right to levy taxes, practice of worship in the army, hospitals, prisons and
other public institutions, and religious instruction in State schools. The
rights and advantages arising from this cooperation and benefiting religions
with the status of a legal person in public law, including the Catholic and
Protestant Churches, are sometimes perceived, notably by authorities in the
Länder of the former German Democratic Republic (GDR) and by minority groups
and communities in the field of religion and belief, as privileges accorded by
the State to the major Churches (such as the levying of tax by the public
authorities for the benefit of the major Churches, which are sometimes called
“the churches of officialdom”). However, as stated below in section C, these
advantages are not related to the religious character of the Church, but to
recognition of the fact that it is in the public interest. Other religions
recognized as being in the public interest, including that of the Jewish
community, also enjoy these rights. In addition, in the specific case of the
Protestant and Catholic Churches (the latter formerly having had their assets
confiscated without payment of the prescribed indemnity), the benefits granted
tend to be regarded as compensation.
12.
The principle of neutrality of the State remains, in spite of what has
been said above, particularly important in Germany. The State does not, in