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Home > Public space > Germany > 2006-06-27 - Federal Constitutional Court, n. 2 BvR 677/05

2006-06-27 - Federal Constitutional Court, n. 2 BvR 677/05

Public space · Germany · Dress code · Headscarf

A judge cannot generally forbid wearing a headscarf in the courtroom

Key facts of the case - A Muslim woman wanted to attend a trial. She was the mother of the defendant and wears a headscarf for religious reasons. The judge thought that the proper conduct of the hearing cannot be guaranteed if someone in the audience wears a headgear. He asked her to either take off the headscarf or leave the courtroom. He stated that this is his permanent habit and that he accepts no one with headgear in his courtroom.
She left the courtroom and then filed a constitutional claim. The woman argues that she wears the headscarf for religious reasons and not as a sign of contempt of court. She claims that the judge’s order infringes her constitutionally guaranteed religious freedom (Art. 4 GG) as well as Art. 3 I GG, which contains the prohibition of arbitrariness.

Main reasoning of the court - The Federal Constitutional Court found, that the judge’s order violates Art. 3 I and Art. 4 GG. Generally, it is within the judge’s discretion to take all measures necessary to ensure the proper conduct of the hearing. Yet, the judge has to consider all circumstances in order to find out whether a certain behavior affects the proper conduct of the hearing.
The Court reasoned that it would have been the judge’s obligation to find out for what reasons the woman wear’s the headgear. As long as the headgear is worn for religious reasons and as long as the respective person can still be identified, the judge cannot automatically ban the person from the courtroom. The judge’s undifferentiated way of handling the issue is considered as arbitrariness and therefore infringes Art. 3 GG.
The Court further found that this violation of fundamental rights is particularly grave, since it indicates a general disregard of the fundamental rights by the judge.