District of Düren prohibits the laying of flowers and candles at the military cemeteries in Hürtgen and Vossenack (Published on 12/02/2023, latest update on 28/08/2023)
I. The military cemeteries in Hürtgen and Vossenack
The activity of Julius Erasmus is closely connected with the military cemetery in Vossenack, but also the one in Hürtgen, which is about 5 km away, where numerous victims of the “Battle of Hürtgen Forest” were buried. According to Volksbund Deutsche Kriegsgräberfürsorge e.V. (the German War Graves Commission), the military cemetery in Hürtgen currently has 3,001 graves, while 2,334 are listed for the one in Vossenack.
Also resting in both cemeteries are numerous foreign nationals, including, with some probability, forced laborers, as well as numerous civilian casualties who died in the fighting, including several children. Also buried there were more than 130 men who lost their lives during local demining operations after World War II.
The graves located in these cemeteries are such of victims of war and tyranny within the meaning of sec. 1 (2) of the German Graves Act (“GräberG”), which are to be specifically commemorated and which serve not least to “keep alive for future generations the memory of the terrible consequences of war and tyranny” (cf. sec. 1 (1) GräberG). The federal states are required to preserve the graves of the victims of war and tyranny located in their territory, and in particular to maintain and repair them (cf. sec. 5 (3) GräberG).
Both cemeteries are under the jurisdiction of the District of Düren under its Administrator (“Landrat”) Wolfgang Spelthahn (CDU), who has been in office since 01/10/1999 – for more than 23 years. Most recently, his Wikipedia profile was subjected to a revision, whereby, significantly, a press citation from 2013 still contained in the previous version with details of his, at that time, 70 (!) memberships in various bodies such as supervisory boards and shareholder assemblies, as well as detailed information on a criminal charge of breach of trust brought against him in 2012, can no longer be found in the updated version, or are shortened.
II. The first “cemetery rules” of the District of Düren for the military cemeteries in Hürtgen and Vossenack from 23/06/2008
In 2008, the District of Düren issued cemetery rules for the said military cemeteries (afterwards “FO 2008”) for the first time. In the associated public submission Drs.Nr. 202/08 they indicated that the motive for this was “to prevent marches and events on the cemeteries of honor that contradict the dignity of the cemeteries as a place of mourning, remembrance of the dead and reflection” (translated from German language).
The proposal was voted on by the District Council at its 19th meeting on 17/06/2008 under item 9 of the agenda and adopted unanimously. The agenda and the persons involved can be found in the minutes of the meeting. All the relevant information is also available in the Düren District Council information system.
In sec. 2 FO 2008 the mentioned legal obligation from sec. 1 (1) GräberG to specifically commemorate the victims of war and tyranny and “to keep alive for future generations the memory of the terrible consequences of war and tyranny” was particularly emphasized.
In sec. 4 cipher 4. a) FO 2008 (“Conduct in the cemeteries”) was determined (translation from German language):
“In the cemeteries it is not allowed in particular: (…) to lay wreaths or similar arrangements at the high crosses, the memorial stones or the sarcophagus in Vossenack,”
Sec. 4 (5) FO 2008 provided (translation from German language) “The cemetery administration may allow exceptions to the extent that they are compatible with the purpose of the cemeteries and the order in them.” A violation of sec. 4 cipher 4. a) FO 2008 constituted an administrative offense, cf. sec. 7 FO 2008.
In particular, the District of Düren did not explain why, in order to prevent the above-mentioned “marches and events” that contradict the commemoration of the dead, every visitor to the cemeteries should be prohibited without distinction from placing “wreaths or similar arrangements” and why this should be inadmissible at the above-mentioned places. That and why, for instance, the placing of a grave light at the high crosses of the cemeteries should contradict their dignity as a place of mourning, remembrance of the dead and reflection, is not to be seen from the outset.
III. The removal of all grave decorations from the military cemeteries in Hürtgen and Vossenack and their destruction by the District of Düren as of summer 2022
In summer of 2022, I received several notices stating that the District of Düren had – for unknown reasons – removed all grave decorations from the military cemeteries in Hürtgen and Vossenack. This was confirmed by the District of Düren in response to a request for information submitted by me in September 2022 in accordance with the Freedom of Information Act of the state of North Rhine-Westphalia (“IFG NRW”), telling me in their notice dated 19/09/2022 (their not very competent remarks on the alleged inapplicability of the IFG NRW shall not be commented on here) (translated from German language):
“Due to sec. 4 cipher 4. a) of the cemetery rules of 23/06/2008 for the war gravesites Hürtgen and Vossenack, adopted by the District Council, all grave decorations were removed and disposed of by the cemetery caretaker after having been deposited on the war gravesites.”
Since said sec. 4 cipher 4. a) FO 2008 does not provide a legal basis for removing any grave decoration from the two cemeteries, already because of its limitation to “wreaths or similar arrangements” and the mentioned localities, at the end of September 2022, based on the IFG NRW, I asked the District of Düren for supplementary information on the following questions (translated from German language):
“1. Were the relatives concerned informed before or after the removal and disposal of their grave decoration?
a) If yes: When and in what form was this done (in each case)?
2. Who examined the legal admissibility of the removal and disposal of the grave decoration and when did this take place?
3. Who has examined whether the grave decoration, which in many cases has been there for years, can in any case remain in its respective place according to the exception of sec. 4 (5) of the cemetery rules, and when has this been done?”
The District of Düren answered with a notice of 26/10/2022:
“Question 1.: (…)
The relatives were informed by the cemetery rules displayed at the war gravesites about the non-permissibility of placing grave decorations and therefore do not have to be additionally informed about the removal.
Question 2: (…)
The legal permissibility is given due to the cemetery rules. The cemetery caretaker was verbally instructed by his employer District of Düren to act according to the cemetery rules.
Question 3: (…)
According to the cemetery rules, the District of Düren can allow exceptions if they are notified or an application is made. There has never been such a notification or application so far.”
According to this, the District of Düren removed the grave decorations from all graves in the military cemeteries in Hürtgen and Vossenack, although the wording of the cemetery rules in force at the time did not permit this. The relatives concerned were not informed in advance. Their property was “removed and disposed of” without notice, i.e. destroyed. The legal admissibility of this procedure has not been examined by the District of Düren at any time, they simply allege this admissibility sweepingly “due to the cemetery rules”.
Without a doubt, behavior in accordance with the rule of law looks different. Anyone who has frequent dealings with the District of Düren is probably not surprised by this. The legal competences there – at least according to the experiences of the author – seem to be rather moderately developed even in the specialist departments. As an illustrative example may serve the circumstance that measures against the Corona virus enacted by the city or District of Düren, namely a prohibition to dwell and an obligation to wear a mask, were found to be unlawful by the competent administrative court in Aachen at least four times (!) (cf. the proceedings with the reference numbers 6 L 82/21, 7 L 147/21, 7 L 160/21, 7 L 180/21 and the corresponding press release of the Administrative Court Aachen) – at least according to the knowledge of this author, this is unique in Germany.
IV. The second “cemetery rules” of the District of Düren for the military cemeteries in Hürtgen and Vossenack from 13/09/2022
Apparently, the District of Düren itself recognized the legal dubiousness of its action and pursued the enactment of new cemetery rules (afterwards “FO 2022”). According to their information provided in the associated public submission Drs.Nr. 294/22, they were (translated from German language)
“developed in cooperation with the Office of Law and Order [Rechts- und Ordnungsamt], the District police authority and the representative for the care of the war grave sites Vossenack and Hürtgen as places of a democratic culture of remembrance and commemoration (‘Beauftragter für die Betreuung der Kriegsgräberstätten Vossenack und Hürtgen als Orten einer demokratischen Erinnerungs- und Gedenkkultur’), Mr Möller.”
The draft came from Karl-Josef Mainz, head of the department of central facility management at the District of Düren. The District Council voted on the proposal in its 11th meeting on 13/09/2022 under item 5 of the agenda and again adopted it unanimously with the votes of all parliamentary groups – CDU, SPD, Greens, AfD, DLP, FDP and UWG. The agenda and the persons involved can be seen in the minutes of the meeting. All relevant information is also available in the Düren District Council information system.
It seems doubtful whether these groups have dealt more closely with the content of the draft prior to their approval, because as a reason for the new version the District Administrator explained succinctly that this serves “in particular” the “contextual revision”; the substantial material changes also made therein remained unmentioned. In particular, the prohibition catalog of sec. 4 cipher 4. a) on the “Conduct in the cemeteries” was seriously expanded and it is now forbidden to the visitors of the cemeteries “in particular” (changes compared to the FO 2008 underlined),
“to lay wreaths or flowers, vases or other signs of mourning at the high crosses, the memorial stones or the sarcophagus in Vossenack.”
According to sec. 4 cipher 5. FO 2022 exceptions are again possible, a violation of sec. 4 cipher 4. a) FO 2022 is still an administrative offense (cf. sec. 7 FO 2022).
Remarkably, sec. 2 was also secretly amended, which had previously emphasized the legal obligation under sec. 1(1) GräberG to specifically commemorate the victims of war and tyranny and to “keep alive for future generations the memory of the terrible consequences of war and tyranny.” The emphasis on the obligation to remember victims was removed from the cemetery rules. Sec. 2 now reads (translated from German language):
“Those buried on the two war graves at Hürtgen and Vossenack have permanent resting rights there. According to the ‘Graves Act’ passed in a revised version by the German Bundestag on1 July 1965, this should serve not least to ‘keep alive for future generations the memory of the terrible consequences of war and tyranny.’”
So there is no longer any mention of commemorating victims in the new cemetery rules. The changes that have been made and the way in which they have been carried out alone are deeply disturbing.
Also under the FO 2022, the District of Düren apparently assumes a comprehensive authority to remove and destroy any “signs of mourning” deposited at the military cemeteries in Hürtgen and Vossenack, although even the wording of the tightened cemetery rules does not provide for this. Accordingly, on the last national day of mourning in November 2022, the District of Düren apparently had all “signs of mourning” deposited in the said military cemeteries removed and destroyed.
V. Assessment
Accordingly, the District of Düren apparently thinks that due to the new cemetery rules every visitor of the military cemeteries in Hürtgen and Vossenack can be forbidden to lay down any “signs of mourning” there at any place. They seem to assume a total prohibition of the laying down of “signs of mourning” at both cemeteries, according to which it would now no longer be permissible to lay down plants, e.g. flowers, or grave candles there; this not even in memory of the civilian victims and of the forced laborers buried at these cemeteries.
Once again, the people at the District of Düren have apparently failed to asked themselves how this should ever be legally permissible, in particular with regard to the numerous fundamental rights concerned.
As mentioned already, also the District of Düren is obligated under sec. 1 (1) GräberG to specifically commemorate the victims of war and tyranny, with which an absolute prohibition on the laying of “signs of mourning” for visitors to such cemetery, which serves precisely this commemoration, is incompatible from the outset. The District of Düren may have deleted this legally imposed obligation from the FO 2022; it goes without saying that it remains valid and binding for them nonetheless.
According to the legal view here, the destruction of the grave decoration from the said military cemeteries as admitted by the District of Düren is likely to be a damage to property, i.e. a criminal offense; in addition, there are also likely to be claims to cease and desist and for damages. It is not known here whether affected relatives have defended themselves against the destruction of their property; it would be highly recommended and desirable. The FO 2022, just like the FO 2008, is a technically amateurish concoction that is likely to be unlawful for a whole series of reasons.
As a regular visitor to the said military cemeteries, who lays down “signs of mourning” on site in memory of the dead resting there and of the victims of war and tyranny in general, I am as well affected by the corresponding ban imposed by the District of Düren and have therefore initiated legal action at the competent administrative court.
Update on 21 and 22/02/2023:
In the meantime, the District of Düren has emphasized its corresponding position in a letter from the District Administrator dated 03/02/2023, which was received here only two weeks later. With reference to their “domiciliary right” (“Hausrecht”), the District of Düren does not consider the laying of “signs of mourning” in said military cemeteries to be permissible without prior authorization, for which they deem necessary an “application for approval of an exception” under the FO 2022.
Whether this position will hold up in court remains to be seen.
Update 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.
News on the topic will be reported on this blog.
(Head picture: Military cemetery Hürtgen, August 2022)
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