FEDERAL CONSTITUTIONAL COURT

- 1 BvR 471/10 -

- 1 BvR 1181/10 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

- 1 BvR 471/10 -,

- 1 BvR 1181/10 -

the First Senate of the Federal Constitutional Court with the participation of Justices

Gaier,

Eichberger,

Schluckebier,

Masing,

Paulus,

Baer,

Britz

held on 26 February 2014:

1. Vice-President Kirchhof is not debarred by law from exercising his judicial duties.

2. The facts, as reported by Vice-President Kirchhof in his statement of 27 March 2013 and by the complainants in their challenges of his participation give rise to concern that he might be biased.

R e a s o n s :

I.

The constitutional complaints relate to a number of labour court decisions on written warnings issued to the complainants and the termination of complainant II that the Land of North Rhine-Westphalia issued in its capacity as their employer. The complainants, employees at state schools, had refused to remove their headscarves, which they wore for religious reasons, or a woollen hat worn as replacement while at work.

Both complainants are Muslim women. Complainant I is employed as a social educator, while complainant II used to be employed as a teacher. The constitutional complaints also indirectly challenge the constitutionality of North Rhine-Westphalian Land law on whether and to what extent persons employed in the education system may express their religious beliefs. The provisions in question were adopted in the aftermath of the so-called Headscarf-Decision by the Second Senate of the Federal Constitutional Court of 24 September 2003 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 108, 282). They constitute the basis for the sanctions under labour law that were challenged in the initial proceedings. The complainants’ actions before the labour courts and their appeals to the Federal Labour Court against the warnings and the termination were unsuccessful. Both the labour courts and the Federal Labour Court considered § 57 sec. 4 of the North Rhine-Westphalian Education Act (Schulgesetz für das Land Nordrhein-Westfalen – SchulG NW), which was referenced in both cases, to be constitutional. Pursuant to the first sentence of the provision while at school, teachers may not publicly express views of a political, religious, ideological or similar nature which are likely to endanger, or interfere with, the neutrality of the Land with regard to pupils and parents, or to endanger or disturb the political, religious and ideological peace at school. However, pursuant to the third sentence of the provision, the rules of behaviour in sentence 1 are not violated by exercising the State’s educational mandate under Art. 7 and Art. 12 sec. 6 of the Constitution of the Land of North Rhine-Westphalia, and by presenting (Darstellung ) Christian and occidental educational and cultural values or traditions. These rules also apply to other educational and socio-educational staff employed by the Land who contribute to the educational mission (§ 58 SchulG NW).

The complainants believe that the judgments by the labour courts and, indirectly, the underlying statutory provisions violate their fundamental rights. They claim, inter alia , a violation of their freedom of religion and their freedom of occupation. They consider the reservation in favour of Christian and occidental educational and cultural values to be an unconstitutional unequal treatment on the grounds of religion.

The complainants question the participation of Vice-President Kirchhof due to prior involvement in the dispute and consider him to be barred by law (§ 18 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG). Complainant I further states that “the applicability of § 19 BVerfGG should [also] be considered”, i.e. the provision on a challenge on grounds of possible bias. Complainant II asserts that Vice-President Kirchhof’s previous involvement with the subject-matter has shown the existence of “determinedness”, justifying the application “of § 19 BVerfGG”. Against this backdrop, she claims, Justice Kirchhof must “be excluded from deciding on the constitutional complaint”.

Vice-President Kirchhof also requested the Court to render a decision pursuant to § 19 BVerfGG.

II.

1. With regard to the participation of Vice-President Kirchhof, the two complainants essentially assert the same further issues:

In his function as a university professor, and prior to his appointment to the Federal Constitutional Court, Vice-President Kirchhof had repeatedly advocated a blanket ban on headscarves for teaching staff. He already represented the Land of Baden-Wuerttemberg in the first of the so-called Headscarf-Proceedings before the Federal Constitutional Court (BVerfGE 108, 282). In administrative court proceedings involving a teacher from Baden-Wuerttemberg who was a civil servant and who had worn a headscarf while at work, Vice-President Kirchhof wrote the application for leave to appeal. In this application he defended the ban on headscarves, and in particular the different treatment of Islamic headscarves and the habit of Christian orders. In this context, complainant I further asserts that in the initial proceedings commenced by her before the Düsseldorf Labour Court, the Land of North Rhine-Westphalia in its answer word for word adopted large parts of the above-mentioned application for leave to appeal. She claims that as a result, the statement Vice-President Kirchhof made earlier also became part of the files of the initial proceedings in her case. According to her, it was safe to assume that these passages were not adopted without his consent. She believes that this constitutes a case in which a Justice is debarred by law pursuant to § 18 sec. 1 no. 2 BVerfGG. Should the Court reject this argument, it would have to look at the applicability of § 19 BVerfGG.

The two complainants further assert that Vice-President Kirchhof could be considered the intellectual father of the Baden-Wuerttemberg ban on religious expressions by school staff (§ 38 sec. 2 of the Baden-Wuerttemberg Education Act, Schulgesetz für Baden-Württemberg – SchG BW), the content of which corresponds to the subsequently adopted § 57 sec. 4 SchulG NW, which is at issue here. According to the complainants, it was he who drafted the Baden-Wuerttemberg regulations for the Land government after the Federal Constitutional Court had issued its Headscarf-Decision on 24 September 2003 (BVerfGE 108, 282), which called for regulations by the Laender . The complainants claim that Vice-President Kirchhof had also argued in favour of the constitutionality of a blanket ban on headscarves in hearings before the parliamentary committees of other Laender , namely Hesse and North Rhine-Westphalia, while advocating the preferential treatment of Christian and Jewish symbols. They further assert that he advocated a blanket ban on headscarves in kindergartens, which, according to them, also seems to have had an influence on the adoption of the corresponding Baden-Wuerttemberg provisions. The complainants further allege that in a written statement to the Land parliament of North Rhine-Westphalia, Vice-President Kirchhof held that the planned provision of § 57 sec. 4 SchulG NW was constitutional both with regard to the blanket prohibition of religious expressions, and with regard to the preferential treatment of Christian and occidental educational and cultural values pursuant to § 57 sec. 4 sentence 3 SchulG NW (reference to Statement Before the Land Parliament, LT -Stellungnahme , 14/150).

Complainant II claims that accordingly, Vice-President Kirchhof has been repeatedly involved in matters that, pursuant to object and purpose of §§ 18, 19 BVerfGG, exclude him from any involvement in the case. According to her, one could assume that he had already made up his mind on the subject, which “would in any case justify the application of § 19 BVerfGG”.

2. In a statement of 27 March 2013, Vice-President Kirchhof declared, inter alia :

“I have represented the Land of Baden-Wuerttemberg in two proceedings before the administrative courts that concerned people employed by a school wearing headscarves at work, and in the constitutional complaint proceedings BVerfGE 108, 282 before the Federal Constitutional Court. Following the Federal Constitutional Court’s decision on the headscarf ban, I drafted the Baden-Wuerttemberg law required by this decision for the Land government and provided them with advice in the course of the legislative process. I have provided statements to the Land parliaments of Hesse and North Rhine-Westphalia in which I commented on the respective bills, which were based on the text of the Baden-Wuerttemberg provisions.

In the initial proceedings of constitutional complaint 1 BvR 471/10, in a brief of 30 April 2007 to the Düsseldorf Labour Court, the legal representatives of the defendant Land , in order to advance their own arguments, made verbatim use of passages from a complaint I wrote to the Administrative Court of Baden-Wuerttemberg (baden-württembergischer Verwaltungsgerichtshof ) against a denial of leave to appeal. Following a request, I had granted the competent Baden-Wuerttemberg ministry a general – not case-specific – permission to use my previous statements.

Neither by providing advice nor by drafting the text have I been involved in the initial proceedings at issue here.

Due to this previous involvement of mine concerning the ban on headscarves I request that the Court render a decision pursuant to § 19 BVerfGG.”

3. Commenting on the statement by Vice-President Kirchhof, complainant I stated, inter alia , that even if his participation in the legislative process did not in itself constitute legal grounds for exclusion pursuant to § 18 sec. 3 no. 1 BVerfGG, one must still, when reasonably taking into account all circumstances, doubt the Justice’s impartiality due to his wide-ranging consulting services in connection with the introduction of Land bans on headscarves for teachers.

The parties entitled to submit statements in the proceedings on the constitutional complaints had the opportunity to do so.

B.

Vice-President Kirchhof is not debarred by law from exercising his duties in the two constitutional complaints at issue (§ 18 BVerfGG). However, reasonably taking into account all circumstances from the point of view of the complainants, which is the relevant perspective in this case, there are reasons to doubt the Justice’s impartiality and objectivity (§ 19 BVerfGG).

I.

Vice-President Kirchhof is not debarred by law from exercising his duties in the present proceedings (§ 18 BVerfGG).

1. Pursuant to § 18 sec. 1 no. 2 BVerfGG, a Justice of the Federal Constitutional Court is 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.

This exclusionary rule was drafted to constitute an exception and must thus be interpreted in restrictive way. In accordance with the exclusionary provisions in the procedural rules of other regular courts, the constituent element “the same case” in § 18 sec. 1 no. 2 BVerfGG must always be understood in a sense that is strictly related to specific proceedings. Therefore, Justices can usually only be debarred if they were involved in the Constitutional Court proceedings themselves, or in proceedings immediately preceding and factually related to them (cf. BVerfGE 47, 105 <108>; 72, 278 <288>; 78, 331 <336>; 82, 30 <35 and 36>; 109, 130 <131>; BVerfG, Order of the First Senate of 19 March 2013 - 1 BvR 2635/12 -, Neue Juristische Wochenschrift – NJW – 2013, p. 1587 <1588>).

Pursuant to § 18 sec. 3 no. 1 BVerfGG, participating in the legislative process is not to be considered an activity that falls under § 18 sec. 1 no. 2. Moreover, pursuant to § 18 sec. 3 no. 2 BVerfGG, expressing a scholarly opinion on a point of law that may be relevant to the case does not constitute involvement “in the same case” (cf. BVerfGE 82, 30 <35 et seq.> with further references).

2. According to these standards, Vice-President Kirchhof was not, because of his profession, involved “in the same case” within the meaning of § 18 sec. 1 no. 2 BVerfGG before he assumed his office as Justice of the Federal Constitutional Court. Neither as a representative nor otherwise was he involved in the two initial labour court proceedings that preceded the constitutional complaints. As a minimum, such involvement would require that he had somehow, both knowingly and willingly, acted in a way that had consequences for the specific proceedings at hand. This is not the case. In the initial proceedings of complainant I before the Labour Court, the legal representative of the Land of North Rhine-Westphalia extensively and verbatim quoted from Vice-President Kirchhof’s submission, which he had written as representative of the Land of Baden-Wuerttemberg in administrative court proceedings. This use, however, does not constitute “involvement in the same case” within the meaning of § 18 sec. 1 no. 2 BVerfGG. As follows from his explanation of the matter, Vice-President Kirchhof had not explicitly approved the quote with a view to the specific proceedings, but had granted permission to use his submission for other purposes in general. It does not constitute involvement in the same case if someone is merely cited in the initial proceedings, but did not actively and specifically participate in drafting the brief.

According to the legislature’s intention, the fact that Vice-President Kirchhof, in his capacity as professor, was involved 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 debarring effect of being involved in the same case (§ 18 Abs. 3 BVerfGG). Firstly, this applies to the hearings in the Land parliamentary committees, including the written statement concerning § 57 sec. 4, § 58 SchulG NW, which was at that time in the process of being enacted, and which has indirectly been challenged in the case before the Court. While Vice-President Kirchhof’s statement explicitly attested to the constitutionality of the bill, (Statement Before the Land Parliament – LT-Stellungnahme – 14/150), the fact remains that such hearings of experts and requests for statements constitute a formalised participation in the legislative process (cf. on this issue § 57 of the Rules of Procedure of the North Rhine-Westphalian Land Parliament – Geschäftsordnung LT NW – in conjunction with Art. 38 sec. 1 sentence 2 of the North Rhine-Westphalian Constitution – Verf NW).

Drafting a regulation on the prohibition of religious expressions that has the same content as the challenged provision for the Land government of Baden-Wuerttemberg in order to prepare a legislative initiative, and providing advice in the course of the legislative process, also count as participating in the legislative process. The scope of § 18 sec. 3 no. 1 BVerfGG is not limited to the participation of members of the legislative organs. The fact that Vice-President Kirchhof, then a professor at a German university, was commissioned by a legislative organ to draft the bill for the legislative process is an argument in favour of him having participated in this process. In any event, even if one did not find that the participation of university professors on behalf of state organs that (as warranted by the Constitution) are directly involved in the legislative process falls under § 18 sec. 3 no. 1 BVerfGG, such activities would constitute an expression of a scholarly opinion on points of law that are also relevant to the cases now before the Court. Even under this point of view, his participation in these activities would thus not be subject to exclusion for prior involvement in the same case (§ 18 sec. 3 no. 2 BVerfGG; holding the same view: BVerfGE 82, 30 <37>).

II.

However, the circumstances reported by Vice-President Kirchhof and communicated by the complainants understandably give the complainants reason to doubt the impartiality of the Justice (§ 19 BVerfGG).

1. The challenge of the Justice’s participation by complainant II, the submission by complainant I, which, appropriately understood, also constitutes a challenge of the Justice, as well as the request of Vice-President Kirchhof himself, to bring about a decision pursuant to § 19 BVerfGG (cf. BVerfGE 95, 189 <191>), demand that the Court also consider the question of whether the Justice might be perceived as biased.

2. Challenging a Justice of the Federal Constitutional Court pursuant to § 19 BVerfGG requires reasons that 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 reasons to doubt the Justice’s impartiality (cf. BVerfGE 73, 330 <335>; 82, 30 <37 and 38>).

However, the reasons for doubting the Justice’s impartiality within the meaning of § 19 BVerfGG cannot be derived from the general considerations that, 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. It would be contradictory to the concept of the provisions if a challenge for possible bias could be used to exclude a Justice for the same reasons. Therefore, sufficient reasons for doubting the Justice’s impartiality require additional circumstances that go beyond the fact of merely having participated in the legislative process or having expressed a scholarly opinion on a point of law that is relevant to the case (cf. BVerfGE 82, 30 <38 and 39> with further references).

3. The present unusual case is characterised by such additional circumstances that exist in addition to those activities by Vice-President Kirchhof that do not lead to his debarment. They result from the summative effect that extends far beyond mere participation in the legislative process and ultimately resulted in Vice-President Kirchhof guaranteeing in a special and significant way for the constitutionality of the legislation – particularly with respect to the issues challenged in the present case.

One cannot ignore that the circumstances to be assessed in the present case go beyond merely participating in legislative proceedings and expressing scholarly opinions. An overall assessment from the point of view of the complainants, which is the relevant perspective in this case, can reasonably cast doubt on the Justice’s impartiality. Thus, following his representation of the Land of Baden-Wuerttemberg before the Federal Constitutional Court in the so-called “Headscarf-Proceedings”, Justice Kirchhof drafted a legal provision for the Land government that initiated certain legislation. This legislation clearly aimed at providing special treatment for the representation of Christian and occidental educational and cultural values. It is self-evident that the request by the Land government of Baden-Wuerttemberg for a draft of the statutory provisions prompted by the Second Senate’s judgment of 24 September 2003 (BVerfGE 108, 282) implied the expectation that that draft be constitutional (cf. on this aspect BVerfGE 82, 30 <39>). Against this backdrop, and in his role as professor, Vice-President Kirchhof at that time supported and advised on the bill throughout the legislative process. The regulations that the Land of Baden-Wuerttemberg thus created clearly served as a model for the legislature of the Land of North Rhine-Westphalia (cf. Land Parliament Printed Papers – LT Drucks 14/569 p. 7). The provisions of the North Rhine-Westphalian Education Act that are to be assessed in the case at hand correspond largely to the ones drafted by Vice-President Kirchhof for the Land of Baden-Wuerttemberg. Moreover, in his expert opinion for the Land parliament of North Rhine-Westphalia, Vice-President Kirchhof explicitly found this regulation to be constitutional as well (LT-Stellungnahme 14/150). He expressed these fundamental views in various parliamentary hearings and called for a differentiating regard at the symbols and values of the various religions. This is precisely the issue which, according to the complainants, leads to the regulation being incompatible with the principle of equality (cf. Land Parliament of Baden-Wuerttemberg, Protocol of the Expert Hearing of 12 March 2004, pp. 2, 12 and 13, 80, 81 and 82, 83; see also for the Land of Hesse: Land Parliament Committee Submission – LT-Ausschussvorlage – KPA 16/14, pp. 358 et seq.). Furthermore, Justice Kirchhof strongly defended this regulatory approach in judicial proceedings. The answer in the initial proceedings of complainant I, and the citations it contains of statements made by Vice-President Kirchhof in administrative court proceedings, emphasise this point. Consequently, he has, in a way, acquired a kind of authorship of the legal concept to be considered that goes beyond the usual participation in legislative processes and beyond expressing 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 their constitutional complaints challenge, and of its application in practice.

Under these circumstances it is understandable that the complainants are concerned that the Justice might not be fully able to openly and independently assess the legal issues to be decided in this case (also cf. on this issue BVerfGE 95, 189 <192>).

III.

The decision was taken unanimously.