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Allemagne

  • March 2015 : the German Constitutional Court revises its 2003 judgment on Muslim women teachers wearing headscarves

The German Constitutional Court has just revised its 2003 judgment on the wearing of headscarves by Muslim women teachers in state schools. The 2003 decision by the Karlsruhe judges stipulated that a ban was only possible on a legislative basis, thereby opening the way for bans in law at a Länder-based level. Since 2004, half of the Länder had banned headscarf wearing by Muslim women teachers. In Berlin, all signs of religious affiliation without exception had been prohibited in schools and the public sector since 2005.

However, in its judgment of 13 March 2015, the Constitutional Court sides with two Muslim ladies teaching in Rhineland North-Westphalia who had been waiting nearly five years for the judges in Karlsruhe to issue their decision on wearing headscarves in schools. The latter considered that a total ban on headscarves for Muslim women teachers constitutes an attack on the principle of religious freedom enshrined in the Constitution. A ban does, however, remain an option if wearing the headscarf disturbs the peace in schools in a concrete way or if it threatens the neutrality of the State. The Central Council of Muslims in Germany, in the words of its Secretary-General Nurhan Soykan, welcomed the judgment by the Constitutional Court in Karlsruhe, seeing it as “a positive signal”.

If this judgment does not constitute a general authorisation to wear the headscarf, a wave of appeals before the courts will surely ensue. Several Länder will therefore have to re-examine or adapt their legislation.

For further information : Die Zeit, Mediendienst-integration and Der Spiegel.

  • April 2014 :

Following a complaint made by a Muslim pupil, the administrative court of appeal in Bavaria stipulated in its judgment of 22 April 2014 that the existing school authority ban on wearing the niqab cannot be regarded as a violation of religious freedom, due to the fact that the niqab hampers non-verbal communication between teacher and pupil.

For further information : Süddeutsche.

  • January 2013 : The debate on circumcision in Germany

A law setting out the legal framework for ritual circumcision was adopted on 20 December 2012. It was created in order to put an end to several months’ controversy and legal uncertainty created by the ban on this practice for religious purposes pronounced by the Cologne High Court in June 2012. The case dated back to 2010, brought about by a circumcision performed on a young four year-old Tunisian who had to be sent to A&E due to complications that arose two days after his operation. Prosecutors then filed a complaint against the doctor with the Cologne District Court. The latter ruled that the operation respected the “welfare of the child”. The prosecutor then appealed to the High Court, which acquitted the doctor due to the lack of a clear legal situation, while stating at the same time that circumcision represented “a wound to the body liable to give rise to criminal proceedings” and an infringement of “a child’s right to respect for his/her physical integrity”. The case provoked strong outcry in Germany among Muslims and Jews, who considered that there had been a violation of freedom of conscience.

For information, see the article in Die Zeit and Die Süddeutsche Zeitung.

  • 13 November 2012 : Hamburg signs two agreements with Muslim and Alevi associations

After several years of discussion, the City State of Hamburg has signed two agreements, one with three Muslim organisations (DITIB Regional Association, Hamburg ; SHURA - the Council of Islamic Communities in Hamburg ; VIKZ – the Association of Islamic Cultural Centres), the other with the Alevi community (the Alevi Community of Gerrmany). These agreements were signed on 13 November 2012 by the city state’s senate and will still have to be approved by its parliament (Bürgerschaft), before they can come into force.

The two agreements - of almost identical content - confirm the key constitutional rights and obligations already guaranteed. The main innovation concerns legal recognition of certain Muslim or Alevi holidays that have acquired the status of religious holidays.

The agreements reaffirm freedom of religion for Muslim or Alevi believers and the right for their communities to organise themselves freely within the limits of the law (Art. 1). They recall that the parties are attached to the common fundamental values of the constitutional legal order, in particular the guarantee of fundamental rights and tolerance towards other cultures. The parties also condemn violence and discrimination based on ethnic origin, gender, sexual orientation, convictions or religious and political beliefs (Art. 2 §1).

In particular, they undertake to guarantee gender equality and the full participation of women and girls in society and in political, school and professional spheres. They cannot, for example, have their professional opportunities unjustifiably restricted, because they wear clothing related to their religious convictions (Art. 2 §2).

Three holidays are recognized as religious holidays in accordance with the law on public holidays in Hamburg (Feiertagsgesetz) : the Feast of the Sacrifice, Ramadan and Ashura for Muslims ; Ashura, Nevruz (21 March) and Hizir-Lokmasi (16 February) for the Alevis (Art. 3).

Moreover, the agreements reaffirm the right for these communities to create their own educational establishments (Art. 4) and to participate in courses of religious instruction in state schools ; a working group was formed in order to reflect on curriculum content and on the organization of the teaching (Art. 4 - Muslims, Art. 5 - Alevi).

The City State of Hamburg will also promote creation of a training centre for Muslim theology and religious education at the University of Hamburg, designed to train teachers of religion (Art. 5 - Muslims, Art. 6 - Alevi).

The other provisions of the agreements relate to : spiritual assistance in specialized establishments (Art. 7) ; participation in audio-visual media (Art. 8) ; guaranteeing rights to own, construct and operate places of worship and other establishments (Art. 9) ; cemeteries and burials (Art. 10).

Hamburg’s Mayor, Olaf Scholz, has welcomed the signing of these agreements as contributing to the success of integration policy and as a sign of a strong desire to cooperate. For their part, Muslim and Alevi organizations have stated that these agreements are of historic significance in that they mark explicit recognition of Muslims in Hamburg as citizens in their own right, as an integral part of society and as institutional partners of the state.

For further information, see :
- Contract between the Free and Hanseatic City of Hamburg, the DITIB Regional Association in Hamburg, SCHURA – the Council of Islamic Communities in Hamburg and the Association of Islamic Cultural Centres
- Contract between the Free and Hanseatic City of Hamburg and the Association for the Alevi Community in Germany

  • 20 September 2012 : People leaving the Church, a Catholic bishops decree and a Federal Administrative Court’s ruling

*In Germany, the Catholic Church and Protestant churches receive a religious tax payable by income tax payers, which amounts to 8%-10% of income tax depending on the Länder. The constitutional principle of freedom of religion allows every citizen to make a declaration at the local court to withdraw from the church, in order to decline any religious affiliation and not pay the tax.

The number of people deciding to leave the Catholic Church has been relatively high in recent years, in particular as a reaction to cases of paedophilia. 126,488 people left the Church in 2011, according to figures provided by the Episcopal Conference.

In response to this phenomenon, the German Episcopal Conference issued a decree on 20 September 2012 on withdrawing from the Church (Kirchenaustritt) ; it takes the view that the withdrawal process constitutes a deliberate and wilful step away from the Church and a serious offence to the ecclesial community. The bishops considered that it was not possible to separate the spiritual church community from the institution of the church. Withdrawing from the Church cannot therefore be partial and is accompanied by the following legal consequences for individuals concerned :

- They cannot receive the sacraments of confession, the Eucharist and anointing of the sick - except where there is risk of death ;
- They cannot occupy any office or ecclesiastical responsibility in the Church ;
- They cannot become a godmother or godfather ;
- They cannot be a member of parish or diocesan councils ;
- They lose their active and passive voting rights in the Church ;
- They cannot be member of a public religious organization ;
- They must apply for authorization to the local ordinary if wishing to marry in church ;
- They may be denied a religious funeral.

The decree provides that the relevant minister of religion must take up contact with each person that has announced their exit from the Church, via a pastoral letter and possibly an interview, to inform them of the consequences of this withdrawal, but also to encourage them to rejoin the church community with full exercise of their rights and duties.

The texts of the decree and the pastoral letter are on the website of the German Episcopal Conference.

* The Federal Administrative Court (Bundesverwaltungsgericht) also ruled, in a judgment of 26 September 2012 (BVerwG 6 C 7.12), that a person making a declaration withdrawing from the Catholic Church cannot simply withdraw from the associative structure and remain within the faith community. Belonging to a religious community with public status, such as the Roman Catholic Church, has consequences in religious terms as well as in state law - linked, for example, to church tax. The decision to leave may not have solely legal repercussions.

Press release by the German Federal Administrative Court.

  • 7 May 2012 : Judgment of a German court condemns circumcision for religious reasons

In a decision of 7 May 2012, the High Court in Cologne judged that circumcising a child violated its fundamental right to physical integrity.

In the case, a doctor had performed a circumcision on a Muslim child for religious reasons, at his parents’ request. A few days after the operation, the child had to be admitted to another hospital for bleeding, which was treated without longer term consequences.

The doctor was then prosecuted by the hospital and acquitted by the local court (Amtsgericht Köln). The public prosecutor (Staatsanwaltschaft Köln) subsequently appealed and the acquittal was upheld by the county court (Landgericht Köln), on the grounds of ’mistake of law’ (’unvermeidbarer Verbotsirrtum’, Article 17 of the German Penal Code) : the question of the legality of boys’ circumcision based on parental consent is not clearly defined in German law, so the doctor cannot be held responsible.

The court however drew attention to a constitutional limit on the religious rights of the parents, and that this limit had been attained in this matter. The tribunal paid particular attention to the fact that circumcision had permanently and irreparably changed (“dauerhaft und irreparabel verändert”) the child’s body and considered that this also affected his ability to decide subsequently on his religious affiliation.

The German courts are not bound by the judgment of a county court, but the law having thus been clarified, the decision could form jurisprudence and doctors could in the future be condemned for having performed circumcisions.

This judgment has triggered lively debate in Germany and further afield in Europe. The German Government maintained its desire to guarantee freedom of religious activities and parliamentarians are requesting a law to be passed aimed at protecting traditional religious rituals. For their part, European rabbis, assembled for a conference in Berlin on 12 July 2012, denounced this judgment and called for the circumcision of children in Germany to continue.

For further information, see the decision by the Landgericht Köln (in German).