Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Contracts Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Federal Constitutional Court of Germany upheld an administrative prohibition on the wearing of headscarves by legal trainees during certain parts of their traineeship to ensure religious neutrality of the judiciary. In 2017, the complainant, Dr. E, challenged a Ministerial Order which prescribed legal trainees from wearing religiously motivated clothing when performing any activity in which he or she is perceived or could be perceived as a representative of the state or judiciary by citizens. The Court considered the duty of neutral conduct imposed on legal trainees to be constitutional in line with the second instance Higher Administrative Court’s ruling. It went on to say that the duty was a violation of the legal trainee’s freedom of religion under Art. 4 (1) and (2) German Basic Law but that the violation could be justified on constitutional grounds such as the principle of the state’s ideological and religious neutrality, the principle of the proper functioning of the justice system and the negative freedom of religion of others. The Court stated that none of these conflicting legal interests outweighed the others to such an extent that it would be absolutely necessary under constitutional law to either prohibit or allow the wearing of religious symbols by the complainant in the courtroom. Therefore, it ruled that the complainant had to respect the legislator’s decision in the Civil Service Act to prescribe a duty of neutral conduct for legal trainees with regard to religious and ideological affiliations.
The complainant Dr. E had been a legal trainee in the federal state of Hesse since January 2, 2017 and wore a Muslim headscarf publicly. Before her traineeship commenced, she was instructed by the Higher Regional Court of Hesse according to a Ministerial Order of the federal state of Hesse. This Order was based on the duty to neutrality of legal trainees in the Hesse Civil Service Act with regard to political, ideologic and religious conduct. The Ministerial Order prescribed that if a legal trainee intends to wear a headscarf during the traineeship, he or she is barred from performing any activity in which he or she is perceived or could be perceived as a representative of the state or judiciary by citizens (e.g. observe court hearings from the Judge Bench; preside over certain types of hearing, including evidentiary hearings and those at administrative authorities; represent the public prosecution office in trial hearings). The complainant was aware of the Ministerial Order before she accepted the offered traineeship in December 2016.
On January 9th, 2017, the complainant objected unsuccessfully to the administrative instructions based on the Ministerial Order. On February 10th, the complainant lodged an application for preliminary legal protection before the Administrative Court Frankfurt/Main. This application was successful. The court ruled that the complainant could participate in the traineeship without restrictions and wear a headscarf. The court held that the prohibition to wear a headscarf during essential parts of the traineeship would infringe on her freedom of religion under Art. 4 and the occupational freedom under Art. 12 (1) German Basic Law. A justification of the headscarf ban would lack a sufficient statutory basis.
On May 23rd, the Hesse Higher Administrative Court granted the federal state Hesse’s appeal. In its reasoning, it stated that the complainant’s freedom of religion would be guaranteed only within the limits imposed by the conflicting basic rights of third persons and other constitutional values. In this case, the freedom of religion of Dr. E would be limited by the negative freedom of religion of others protected by basic rights and the state’s duty of neutrality as a fundamental constitutional value. The court concluded that these conflicting constitutional values outweighed the complainant’s freedom of religion and the Civil Service Act must therefore be interpreted in conformity with the constitution. Consequently, the prohibition to wear a headscarf during certain stages of the traineeship would be constitutional. Besides, it ruled that the Ministerial Order had a sufficiently precise legal basis.
On June 14th, Dr. E filed her constitutional complaint before the Federal Constitutional Court on the ground that her freedom of religion under Art. 4 (1) and (2), her freedom of training under Art. 12 (1), her general right of personality under Art. 2 (1) and Art. 1 (1), and the guarantee of the right to equality under Art. 3 (1) and (3) of the German Basic Law had been infringed. She complained directly against the order of the Higher Administrative Court and indirectly against the Hesse Civil Service Act’s regulation on the duty to neutrality and the Ministerial Order.
The central issue for the Second Senate of the Federal Constitutional Court was to determine whether the principle of the state’s ideological and religious neutrality, the principle of the proper functioning of the justice system and the negative freedom of religion of others are sufficient constitutional values to justify a duty of neutral conduct for legal trainees with regard to religious dress code that infringes on the complainant’s freedom of religion in Art. 4 (1) and (2) German Basis Law.
Art. 4 (1) and (2) German Basis Law reads:
(1) Freedom of faith and of conscience and freedom to profess a religious or philosophical creed shall be inviolable.
(2) The undisturbed practice of religion shall be guaranteed.
In assessing the scope of the freedom of religion, the Court first established in accordance with consistent case-law that the freedom of religion is a comprehensive basic right, protecting the inner freedom to believe or not to believe as well as the outer freedom to express, act according to and promote one’s faith. Dr. E wore a headscarf sufficiently plausible for religious grounds and therefore fell within the scope of the freedom of religion. Her role as a legal trainee under a public training relationship did not impede the entitlement to this basic right. The Court found that the obligation of legal trainees not to observe a religious dress code infringes on the complainant’s freedom of religion as it compelled “the complainant to choose between either performing the required tasks or adhering to a religious clothing requirement that she considers imperative.” [para. 77]
As Art. 4 German Basic Law is not subject to an explicit limitation clause, the Court had to assess whether there were conflicting basic rights of third persons and other constitutional values in order to find a constitutional justification for the infringement of the freedom of religion. First, the Court determined whether the principle of the state’s ideological and religious neutrality as a constitutional value conflicted with the complainant’s basic rights. For this purpose, it found that the “state’s duty of neutrality necessarily also entails a duty of neutrality for public officials […] since the state can only act through individuals.” [para. 89] This does not mean that every exercise of private basic rights by public officials has to be attributed to the state, when they fulfill public duties. However, in court, the state exerts considerable influence on the visible appearance of official acts by establishing procedural rules for oral proceedings (e.g. judge’s robes) and creates a formalized situation of judicial independence and restraint. Thus, differing conduct of individual public officials such as wearing a religious headscarf is attributable to the state as an impairment of the state’s ideological and religious neutrality. By the way of comparison, the Court referred to a prior Federal Constitutional Court’s decision [link: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2015/01/rs20150127_1bvr047110en.html] in 2015, where it concluded that the freedom of religion under Art. 4 (1) and (2) German Basic Law affords educational staff at interdenominational state schools the freedom to wear a religious headscarf. In this case a federal state’s Educational Act prohibited the expression of religious affiliation by outer appearance for educational staff. The Court held that the freedom to wear a religious headscarf could only be limited when there are specific and concrete dangers to conflicting constitutional values, such as the pupils’, parents’ and educational staff’s negative freedom of religion. It considered “the mere abstract potential to endanger the peace at school or the neutrality of the state” [Headnote 2] as disproportionate to justify the Educational Act’s prohibition. In contrast to this finding, the Court in the case at hand held that the circumstances and legal evaluation has to be different: firstly, the religious expression by a single teacher wearing a headscarf is not a genuine state or state-attributed expression unlike public officials performing public duties in the judiciary. Secondly, the Court considered that the formalized situation in front of a court attributes a role of independence and restraint to the individual public official contrary to the educational field in a state school, which aims at openness and plurality. It concluded, that the state’s ideological and religious neutrality conflicted with Dr. E’s freedom to religion.
The Court determined that the principle of the proper functioning of the justice system was another constitutional value, conflicting with the complainant’s freedom of religion. It held that this principle was a basic requirement of a state under the rule of law and required society’s trust in the individual judge and the judiciary as such. For this purpose, the state has a discretion to take measures aiming to improve the trust and which are appropriate to emphasize the neutrality of the judiciary from the viewpoint of objective third parties. While a singular expression of an individual public official’s religion does not imply an incorrect exercise of duties, it is capable of affecting the image of the judiciary as a whole. In order to preserve the image of a neutral judiciary, the state may enact a duty of neutral conduct for public officials in the judiciary.
Moreover, the Court argued with the negative freedom of religion of others protected by basic rights, in particular the parties to a dispute. Art. 4 (1) and (2) German Basic Law does not only provide for the right to attend or practice worship, but it also provides for the right and freedom to refrain from attending to acts of worship. This freedom also applies to symbols, which reflect faith or religion. While the negative freedom of religion does not include the right of an individual to be spared from any confessions of faith, acts of worship or religious symbols of others, the Federal Constitutional Court distinguished the situation in court, where the individual is exposed to the faith and religious actions of public officials in a state context. Against the backdrop of the situation in interdenominational state schools with which the Court was faced in its 2015 decision, it stated that the judicial environment does not aim at reflecting a religiously-pluralistic society contrary to the educational environment. It reasoned, that “public authority exercised in the justice system gives rise to more serious impairments, as the state exercises public authority vis-à-vis the individual in the classic hierarchical sense” [para. 95]. There the exposure to religious symbols and conduct is unavoidable for an individual and thus can amount to an interference with constitutional rights, regardless of whether the religious exposure rests upon a private decision of the acting public official. The Court concluded that only the state has the opportunity to prevent a confrontation of third persons with the public official’s religious expression. For this purpose, the protection of third persons’ negative freedom of religion would speak in favor of the ban on wearing a headscarf.
The Court found that no justification emanates from the requirement of judicial impartiality. The religious expression of wearing a headscarf while performing judicial duties as such does not give rise to reasonable doubts as to the judge’s objectivity, because the procedural laws enable the parties to ensure the judge’s impartiality and independence in the individual case and the judges passed through a selection process and traineeship that proved the judge’s capability of trying a case impartially. By the same token, it refused to accept the aim of ensuring an ideologically and religiously peaceful environment under the principle of a state’s ideological and religious neutrality as a sufficient justification, as “a general entitlement, which is independent of state actions, to the protection of religious peace in society in the sense of a duty to guarantee this peace in all aspects of life cannot be derived from the duty of neutrality.” [para. 100]
In order to justify the infringement of the complainant’s freedom of religion, the Court assessed and balanced it with the constitutional limits arising out of the principle of ideological and religious neutrality, the principle of the proper functioning of the justice system and the conflict with the negative freedom of religion of others protected by fundamental rights. In support of the complainant’s position, it held that Dr. E wore her headscarf to comply with religious rules she considered imperative and to complete her traineeship she had no equivalent alternative but to follow the prohibition. On the other hand, the Court established that the ban of headscarves only applied to a limited number of tasks in the traineeship, where the trainee can be perceived as a public official, and that it had no effect on the trainee’s grading. Based on these considerations, none of the conflicting constitutional rights and values “outweigh the others to such an extent that it would be absolutely necessary under constitutional law to either prohibit or allow the wearing of religious symbols by the complainant in the courtroom.” [Headnote 8] Therefore, the Federal Constitutional Court found that the legislator’s decision to implement a duty to neutral conduct in the Hesse Civil Service Act had to be respected and the infringement of the complainant’s freedom of religion under Art. 4 (1) and (2) of the German Basic Law was justified.
With regard to the complained infringements of further basic rights, the Court concluded that the infringements of the complainant’s freedom of training, her general right of personality and the guarantee of the right of equality rights are justified by the above mentioned conflicting constitutional rights and values. Therefore, the Federal Constitutional Court of Germany rejected the constitutional complaint of Dr. E with a 7:1 vote.
Separate Opinion of Justice Maidowski:
Justice Maidowski dissented in his Senate’s reasoning and conclusion of the case and held that the order of the Hesse Higher Administrative Court violated the complainant’s basic rights under Art. 4 (1) and (2) and Art. 12 (1) German Basic Law without justification. Main strands of argument were that the ban’s statutory basis was not necessarily limited to public expressions of religion in the courtroom only, the complainant’s freedom of religion had to be given significantly stronger weight – especially in light of the ban’s impact on the complainant’s traineeship – and that legal trainees are not accorded judicial independence or the powers of a prosecutor as they apparently exert authority for training purposes only.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
According to the German Federal Constitutional Court’s ruling, it is constitutional to limit the exercise of visible religious dress code, especially wearing a headscarf, when the expression of individual religious belief takes place in the context of the public exercise of official functions in the judiciary, including official functions within a legal traineeship.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.