Apologies for my prolonged absence from these digital shores.
Parts of Germany and Europe are currently all abuzz due to a judgment of the Regional Court (Landgericht) of Cologne, under which the circumcision of young boys incapable of giving consent constitutes an offence of causing actual bodily harm. The defendant, a Muslim doctor, was acquitted only because he had been in an unavoidable error of law. Adam Wagner at the UK Human Rights Blog has a useful summary and a good English translation of the judgment.
This post is intended not so much to give my opinion on the merits of the case. To be brief, I rather doubt that the Regional Court has given sufficient weight to the freedom of religion. The fact that the procedure alters the body of the boy forever is clearly a valid point in balancing the rights of freedom of religion and of the physical integrity of the boy, but I don’t think it’s decisive as such. Parents influence their children in many ways, many of which are ultimately irrevocable. Nonetheless we accept the right of the parents to take such decisions with effect for their children. Moreover, there is a technical legal point: Certainly under the German Basic Law, and in some respects also under the ECHR, freedom of religion receives greater protection than physical integrity. This should be considered in striking the balance, although it obviously does not provide a complete answer.
The main question for this post is one that Adam Wagner briefly alludes to at the UKHRB: The Regional Court is at the lowest level of German courts bar one. Its judgments therefore do not carry a great deal of authority. Other courts will not be deterred from taking a different view, as they might be if the judgment had been one of a superior or supreme court. The question therefore arises, with a view to the development of the law, whether the case from Cologne can now move up the hierarchy of courts.
If the defendant – an appellant before the second-instance Regional Court – had been convicted and sentenced, clearly he would have been entitled to bring a further appeal to the Regional Court of Appeal (Oberlandesgericht) at Cologne. But he was not convicted, because he could not have been expected to appreciate the state of the law. The judgment was therefore ultimately in his favour and did not affect his rights. He cannot appeal. Only the prosecution can, and probably will. But that will take the case only to the Oberlandesgericht, not to a federal supreme court.
However, the defendant will be very far from happy with the judgment of the Regional Court. He has been acquitted on the basis of his excusable ignorance of the law, but at the same time the court has clarified the law for him in no uncertain terms. The court has thereby let him off the hook, but told him not to do it ever again. While the effective outcome of the case therefore does not affect the defendant’s rights, the grounds of the judgment do. Under German criminal law, this is not sufficient to give rise to a right of appeal. However, this just might be enough to take the case to the Federal Constitutional Court, on a constitutional complaint.
Even though the grounds of the judgment from Cologne do not have any immediate effect, they still should be regarded as interfering with the defendant’s right to exercise his profession (Article 12 of the Basic Law) and probably with his freedom of religion as well (Article 4 of the Basic Law). Under the modern concept of an interference (moderner Eingriffsbegriff), interferences with constitutional rights can arise not only from measures with immediate legal effect but also from merely factual and indirect impairments (see BVerfGE 105, 279, 303 (para 77)). An acquittal imposing practical obligations for the future may well meet this test.
Other judicial remedies will also have been exhausted by the defendant because he cannot appeal the judgment. A constitutional complaint to the Federal Constitutional Court should therefore be a distinct possibility. If such a complaint is brought, I predict the debate will really take off.