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Decisions in “headscarf proceedings” will be rendered without the involvement of Vice-President Prof. Dr. Ferdinand Kirchhof
Press Release No. 22/2014 of 13 March 2014
Order of 26 February 2014
1 BvR 471/10
The First Senate of the Federal Constitutional Court decided that, due to an apprehension of bias, two constitutional complaints regarding the so-called ban on headscarves in North Rhine-Westphalian schools have to be decided without the involvement of Vice-President Prof. Dr. Ferdinand Kirchhof. The standard for the apprehension of bias is not whether a Justice is in fact "partisan" or "biased", but whether a party to the proceedings, reasonably taking into account all circumstances, has grounds for doubting the Justice's impartiality. Such a set of circumstances exists in the present case since, based on an overall consideration, Vice-President Prof. Dr. Ferdinand Kirchhof can, in a way, be regarded as author of the legal concept to be considered. Pursuant to the relevant legal provisions, lots will be drawn to select a Justice from the Second Senate as a substitute.
Key Considerations of the Senate:
1. The constitutional complaints relate to a number of Labour Court decisions on warnings and a termination which the Land (federal state) of North Rhine-Westphalia issued in its capacity as employer. The complainants, employees at state schools, had refused to remove their headscarves, which they wore for religious reasons, or a woolen hat worn as a replacement for it while at work. At the same time, the constitutional complaints indirectly challenge the constitutionality of Land law on whether and to what extent persons employed in the education system may express their religious views.
The complainants consider Vice-President Kirchhof to be excluded from participation due to prior involvement, and have challenged him on grounds of possible bias. The Justice himself has also asked for a decision on this question.
2. Vice-President Kirchhof is not debarred by law from exercising his duties in the present proceedings. Pursuant to § 18 sec. 1 no. 2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG), a Justice of the Federal Constitutional Court shall be debarred from exercising his or her duties if the Justice has already been involved in the same case due to the Justice's office or profession. The constituent element "the same case" must be understood in a strictly procedural sense. Therefore, usually only involvement in the Constitutional Court procedure itself or in a procedure immediately preceding it and factually related to it can lead to the Justice being debarred. Pursuant to § 18 sec. 3 no. 1 and no. 2 BVerfGG, participating in the legislative process and expressing a scholarly opinion on a point of law that may be relevant to the case are not to be considered as involvement "in the same case".
Vice-President Kirchhof was not involved in the two initial Labour Court proceedings - neither as a representative nor otherwise. According to the legislature's intention, the involvement of Vice-President Kirchhof in his capacity as a professor in the legislative process of several Laender concerning the same subject matter, as in Baden-Wuerttemberg, Hesse and North Rhine-Westphalia, is explicitly excluded from the debarment effect.
3. However, the circumstances reported by Vice-President Kirchhof and communicated by the complainants understandably give the complainants grounds to doubt the impartiality of the Justice (§ 19 BVerfGG).
Challenging a Justice of the Federal Constitutional Court pursuant to § 19 BVerfGG requires reasons which justify doubting his or her impartiality. Consequently, the decisive factor is not whether the Justice is in fact "partisan" or "biased", or whether the Justice considers him- or herself to be biased. The only decisive factor is whether a party to the proceedings, reasonably taking into account all circumstances, has grounds for doubting the Justice's impartiality. However, the grounds for doubting the Justice's impartiality cannot merely follow from the general reasons which, pursuant to the express provisions of § 18 sec. 2 and sec. 3 BVerfGG, do not justify debarring a Justice from exercising his or her duties. Therefore, in order to have sufficient reasons for doubting the impartiality of the Justice, additional circumstances must exist which go beyond the mere participation in the legislative process and the expression of a scholarly opinion.
The present unusual case is characterised by such additional circumstances. They result from the summative effect, which extends beyond mere participation in the legislative process. Ultimately, it resulted in Vice-President Kirchhof guaranteeing in a special and significant way the constitutionality of the legislative regulation, in particular with respect to the issues challenged in the present case.
Thus, following his representation of the Land Baden-Wuerttemberg before the Federal Constitutional Court in the so-called "headscarf proceedings" in 2003 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts - BVerfGE 108, 282), Justice Kirchhof drafted a legal provision for the Land government as the initiator of certain legislation. This legislation clearly aimed at providing special treatment for the representation of Christian and western educational and cultural values. In his role as professor, he supported and advised on the bill throughout the legislative process. The regulations which Baden-Wuerttemberg thus created clearly served as a model for the legislature of North Rhine-Westphalia. Moreover, in his scholarly opinion for the government of the Land parliament of North Rhine-Westphalia, Vice-President Kirchhof explicitly found this regulation, too, constitutional. He stated these fundamental views in various parliamentary hearings and called for looking at the symbols and values of the various religions in different ways. This is precisely the issue which, according to the complainants, leads to the incompatibility of the regulation with the principle of equality. Furthermore, Justice Kirchhof strongly defended this regulatory approach in judicial proceedings. Consequently, he has, in a way, acquired a kind of authorship of the legal concept to be considered, which goes beyond the usual participation in legislative processes and the expression of a scholarly opinion on a point of law. In the eyes of the complainants, he is therefore in a special and significant way the representative of the regulation which the constitutional complaints challenge, and of its application in practice.
4. The decision was taken unanimously.