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  • 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.

  • 10 October 2012 : New law guarantees right to perform circumcision

On 10 October 2012, the Federal Cabinet approved a draft bill aimed at removing the legal uncertainty surrounding circumcision that had been created by a judgment by the District Court of Cologne on 7 May 2012 (See the debate of 7 May 2012 below).

The law adopted on 20 December 2012 inserts a new article into the Civil Code - § 1631d, which recognizes parents’ right to have a non-medically necessary circumcision (eine nicht erforderliche Beschneidung medizinisch) performed in accordance with medical standards on a male child who does not have the ability to discern and make a judgment (nicht einsichts- und urteilsfahiges mannliches Kind), except in cases where the operation might put him in danger. The circumcision may be performed during the first six months of the child’s life by a person designated by the religious community who has been specifically trained and is equipped with skills comparable to that of a doctor.

For further information, consult the text of the law (in German).

  • 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).

D 30 juillet 2015    ASylvie Toscer-Angot

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