Interview of the magazine TICHYS EINBLICK with the lawyer Ralf Höcker:
Question: More and more communities in Germany are allowing the call of the muezzin. In Herford, for example, a 37-year-old responds by making counter-noise with a pot and spoon. What are the chances of defending oneself in court against the call to prayer?
Ralf Höcker: The call to prayer has a direct impact on several basic rights. It is therefore in need of justification. And I have my doubts that such a justification can succeed especially in residential areas.
Q: Which basic rights do you mean exactly?
R.H.: Article 4 of the Basic Law protects not only the religious freedom of Muslims but also the negative religious freedom of non-Muslims. In principle, no one must tolerate being compulsorily harassed with religious statements against his or her will. In any case, the fundamental right under Article 2 of the Basic Law to free development of the personality and, of course, regulations under the law on immission control are also affected. It is clear that these rights are affected if one is forced to listen to the muezzin call in his home. Whether they are also infringed, is once again another question. But I believe that there are very good reasons for this.
Q: Islamic communities argue: the church bells also ring for everyone – even for non-Christians.
R.H.: There is a judgement of the Federal Administrative Court in 1983 on the ringing of bells, i.e. from a time when nobody here thought of a call of a muezzin. The court ruled that such a centuries-old ecclesiastical expression of life is acceptable even in a secularized society if it remains within the bounds of the conventional in terms of time, duration and intensity level. This is still valid today. The ears of average Central Europeans have become accustomed to the sound of church bells over centuries. They do not find it inharmonious and disturbing. Many people feel differently when they hear the muezzin’s call. Secondly, the fact that a church bell is one of the res sacrae speaks against the equal treatment of the muezzin call and church ringing.They are therefore holy objects that directly serve ritual acts and therefore enjoy particularly high protection. In legal literature it is rightly pointed out that the sound system of a mosque, on the other hand, is a mere technical device without any special legal status. Moreover, bells, unlike the muezzin, only make sounds that do not contain any direct message. In the call to prayer: ‘There is no god but Allah, and Mohammed is his prophet’, on the other hand, an assertion is made which can be offensive to a Christian or other religious adherents.Christians will be bothered by the fact that the Trinity of God is denied here, and an atheist can say all the more: I do not want to be bothered five times a day with public claims about the existence of an invisible fantasy being. Moreover, many Muslims also see the muezzin’s call as a dominant gesture that expresses a claim to power. One really cannot assume that this is the case with church bells.
Q: What could someone who does not want to be exposed to it do about it?
R.H.: Every resident could resist and appeal to the administrative court. Then it depends on whether the religious freedom of the respective Muslim religious community or the rights of the residents are given preference.
Q: Assuming you would represent the case: how would you argue?
R.H.: In the event of a conflict of fundamental rights, the principle of exception applies. This means: if an interest protected by fundamental rights can be enforced by a more lenient measure that affects other fundamental rights as little or not at all as possible, then this option must be chosen. And this measure has been in existence for some years now with the so-called muezzin app. With this the congregation reaches precisely only those with its call to prayer for whom it is intended, without the others having to listen to it.In the Immission Control Act, the state of the art plays a decisive role. Technical innovations must be used if they help to avoid conflicts of fundamental rights. In the past there was no possibility of a more moderate solution – one could hardly point the loudspeaker only at Muslims in the vicinity. Thanks to the app, it is now finally possible to address only those who are meant and who actually want to hear the call.
Q: What prospect do you see for such a lawsuit?
R.H.: I think that the lawsuit has a good chance of success if the plaintiff presents the argument of the muezzin app, which, as far as can be seen, has never been presented in court before.
Q: In this case a court would have to make a clear difference between the ringing of church bells and the muezzin call, and give it a higher rank. Courts do not like to make such a distinction because it would probably be considered discriminatory.
R.H.: Unequal treatment is only discriminatory and unconstitutional if there is no justification for it. But there is for the reasons I have just mentioned.