JNow the cultural scene in this country could come to a standstill – with legal means. The German Orchestra Association (DOV) publishes a finding in its latest press release that has it all. Apparently, all sixteen state ordinances on infection protection violate the new version of the Infection Protection Act passed by the German Bundestag on November 18, 2020.
In paragraph 28, this not only lists the “prohibition or restriction of cultural events or the operation of cultural institutions” as a separate point and thus eliminates – initially only in terms of formulation – the dishonorable equation with brothels and casinos; The law is also given a reason, which is now becoming a bit explosive. This sets out the fundamental rights relevance of a prohibition and restriction of cultural events in accordance with Article 5 Paragraph 3 for the protection of artistic freedom in the Basic Law. Furthermore, it says literally: “In the case of prohibitions or restrictions in the field of culture, the importance of artistic freedom must be sufficiently taken into account.”
Gerald Mertens, managing director of the DOV and an accomplished lawyer, now points out that fundamental rights are not weighed up in the state infection protection ordinances. The sixteen ordinances are all content with listing the closings of theaters, opera houses and concert halls as a separate area. According to the argument of Mertens, who has consulted other lawyers, the federal states would be obliged to include a fundamental rights balance in writing in the justification for the regulations.
Hygiene concepts need to be discussed
Such justifications would force the state governments to set and evaluate the basic right to artistic freedom against other basic rights. The hygiene concepts of the individual cultural institutions would then also have to be discussed. So far, only the state ordinance of Saxony-Anhalt contains the following passage: “State Chancellery and Ministry of Culture are authorized to issue deviating regulations in order to guarantee the constitutionally protected sphere of activity of culture, in particular to regulate the organization of the operation of the cultural institutions under pandemic conditions.” this specification of rules has so far not taken place.
On February 5, the DOV had sent a circular to all state and senate chancelleries as well as all health ministries of the federal states to point out that there was a separate need to justify the restriction of artistic freedom. Only five of the 32 written offices felt compelled to reply to this letter.
The DOV does not yet intend to sue, since openings in the cultural sector must of course also be legitimized by a corresponding epidemiological environment. But the findings show that government action at the state level does not show sufficient legal respect for the interests of culture. It is not just the “Stand Up for Art” initiative in Munich that is now giving the signal that the time of the truce between culture and politics is over.
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