III. Germany's Human Rights Obligations

Germany is a state party to the International Covenant on Civil and Political Rights (ICCPR),[24] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[25] the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),[26]  and the International Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).[27] It is also a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter, European Convention on Human Rights).[28]

The European Convention and its protocols have been incorporated into German law by the federal legislature, giving them the status of federal German statutes (Gesetzesrang).[29] German courts must observe and apply the Convention in interpreting national law.

As a member of the European Union, Germany is required to implement all EU law, as, essentially, part of domestic law.

To eliminate all forms of discrimination against women, as CEDAW requires, Germany needs to address instances where women suffer from multiple and intersectional discrimination (such as suffering discrimination both on grounds of gender and of religion). It is important to note that gender-neutral laws and policies can perpetuate gender inequality if they disproportionally affect women in practice.

Gender Equality

Under international human rights law, Germany is required to respect the human rights of women, including their right to privacy and self expression, and to ensure that they are treated equally and without discrimination.

Through its ratification of CEDAW in 1985, Germany assumed the obligation to take action to end discrimination against women in all its forms. The treaty commits States to eradicate "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women..., of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."[30]

The treaty obliges Germany "to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation [and]… to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women,"and to eliminate discrimination against women in public life.[31]

The UN Human Rights Committee (which oversees state compliance with the ICCPR) has stressed that states are responsible to ensure to men and women equally the enjoyment of all rights provided for in the ICCPR without discrimination, by taking all necessary steps, including the removal of obstacles to the equal enjoyment and the adjustment of domestic legislation.[32]

The Human Rights Committee has also emphasized "that any specific regulation of clothing to be worn by women in public may involve a violation of a number of rights guaranteed by the [ICCPR], such as: article 26, on non-discrimination; … articles 18 and 19, when women are subjected to clothing requirements that are not in keeping with their religion or their right of self-expression; and, lastly, article 27, when the clothing requirements conflict with the culture to which the woman can lay a claim."[33]

The ICCPR also provides for protection against the effect of any laws and practices that may interfere with women's right to enjoy privacy and other rights under article 17 on the basis of equality with men.[34] The right to a private life is also well established in the European Convention on Human Rights.[35] The right to freedom of expression is set out in the ICCPR and ECHR.[36]

In Germany, equality before the law and the protection of all individuals from discrimination is a human right that is enshrined in article 3 of its Basic Law, which states that "[n]o person shall be favored or discriminated because of sex, parentage, race, language, national or social background, faith, or religious or political opinions."[37]

Nondiscrimination in Employment

Discrimination in employment on the grounds of gender or religion is widely prohibited under human rights treaties, including CEDAW, the ICCPR, and the European Convention on Human Rights[38]

The ICCPR requires Germany to provide equal access to public service for women and men, and the Human Rights Committee has affirmed that the obligation includes the need for effective and positive measures to promote and ensure women's participation in high-ranking civil service positions and the judiciary.[39]  Practices that discriminate against women with regard to access to better paid employment also violate article 26 of the ICCPR.

Under CEDAW, Germany must take all appropriate measures to eliminate employment discrimination against women in order to ensure the right to the same employment opportunities, including the right to free choice of profession and employment.

Germany has further obligations in this area through its membership of the International Labour Organization (ILO) and as a party to the ILO Convention dealing with discrimination in employment.[40] The ILO's Committee of Experts has expressed concern about governments' restrictions on employment based on religious practice.[41]

EU Directive 2000/78/EC (the "Employment Directive") sets out a framework for the elimination of direct and indirect discrimination on grounds including religion and belief, in employment and occupation. It required member states to implement the provisions in national laws and regulations by 2003. As with discrimination on the grounds of sex, EU law does not allow for any justification for directly treating someone less favorably on the ground of religion (which is direct discrimination). Apparently neutral provisions which nevertheless would put persons of a particular religion under a disadvantage are also prohibited, as indirect discrimination, unless they can be shown to be carried out for a legitimate aim and be a proportionate means of meeting that aim.

The long-standing EU law prohibiting discrimination on the grounds of sex in employment was recently consolidated in Directive 2006/54/EC. Germany, like all EU states, was required to implement the provisions of this Directive in its domestic law by 15 August 2008.[42]  The Directive includes a requirement that the law prohibit all direct or indirect discrimination on the grounds of sex, in the public or private sectors in employment or working conditions.[43]

The German General Act on Equal Treatment (Allgemeine Gleichbehandlungsgesetz, AGG) transposing the EU Directives on Equal Treatment came into force on August 18, 2006.

Germany's Basic Law guarantees the right to free choice of occupation.[44]

Freedom of Religion

Human rights law requires Germany to ensure religious freedom for all its inhabitants. Universal and regional human rights instruments, including the ICCPR and the European Convention on Human Rights, refer to a person's freedom "to manifest his religion or belief in worship, observance, practice and teaching." [45]

Article 18 of the ICCPR upholds individuals' rights to hold and to manifest their religious beliefs. According to the UN Human Rights Committee, "The concept of worship extends to […] the display of symbols … The observance and practice of religion or belief may include not only ceremonial acts but also such customs as … the wearing of distinctive clothing or head coverings."[46]

Article 2(1) of the ICCPR affords basic rights to all individuals without distinction or discrimination on any grounds including religion. In addition, article 26 places an obligation on states to ensure that "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as… religion."

The Human Rights Committee has called on states to address the disproportionate impact of religious discrimination on women and emphasized "states parties must take measures to ensure that freedom of thought, conscience and religion … -including the freedom … to express one's religion or belief-will be guaranteed and protected in law and in practice for both men and women, on the same terms and without discrimination."[47]

Freedom of religion is strongly formulated in the German Basic Law.[48] It recognizes the importance of equality, repeatedly emphasizing the right to the equal protection and enjoyment of rights and privileges, including the right to freedom of religion.[49] Unequal treatment of different religious groups violates the Basic Law.

Limitations on religious freedom

Religious freedom is a qualified right under human rights law.[50] Broadly speaking, limitations on the religious freedoms of individuals are permissible only where they are prescribed or determined by law and are deemed necessary in a democratic society to protect public safety, public order, health, or morals, or the fundamental rights and freedoms of others.

By contrast, the German Basic Law contains no statutory reservation on freedom of religion. As a consequence, restrictions on religious freedom will only be deemed compatible with the law if they serve to protect directly other fundamental rights or similarly important objects of legal protection.[51]

In its General Comment on religious freedom, the UN Human Rights Committee has clarified,  "Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner."[52] Limitations are therefore not permissible if they violate the right of women to equality. The committee also observed that since the concept of morality derives from many social, philosophical, and religious traditions, any limitations on religious freedom justified for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.[53]

Article 9(2) of the European Convention on Human Rights justifies limitations on freedoms of thought, conscience or religion, and expression only on the grounds of necessity. The European Court of Human Rights has clarified in the context of limitations on free expression that necessity implies the existence of a "pressing social need."[54] While States Parties have a certain margin of appreciation in assessing whether such a need exists, the restriction must be construed strictly, in the form of law, and the need for any restrictions must be established convincingly.

The UN special rapporteur on freedom of religion or belief has developed a set of general criteria in order to evaluate-from a human rights law perspective-restrictions and prohibitions on wearing religious symbols. According to her analysis, the following factors show "legislative and administrative actions which typically are incompatible with international human rights law":

• The limitation amounts to the nullification of the individual's freedom to manifest his or her religion or belief;
• The restriction is intended to or leads to either overt discrimination or camouflaged differentiation depending on the religion or belief involved;
• Limitations on the freedom to manifest a religion or belief for the purpose of protecting morals are based on principles deriving exclusively from a single tradition;
• Exceptions to the prohibition of wearing religious symbols are, either expressly or tacitly, tailored to the predominant or incumbent religion or belief;
• In practice, State agencies apply an imposed restriction in a discriminatory manner or with a discriminatory purpose, e.g. by arbitrarily targeting certain communities or groups, such as women;
• No due account is taken of specific features of religions or beliefs, e.g. a religion which prescribes wearing religious dress seems to be more deeply affected by a wholesale ban than a different religion or belief which places no particular emphasis on this issue;
• Use of coercive methods and sanctions applied to individuals who do not wish to wear religious dress or a specific symbol seen as sanctioned by religion. This would include legal provisions or State policies allowing individuals, including parents, to use undue pressure, threats or violence to abide by such rules;[55]

According to the special rapporteur, a prohibition on wearing religious symbols that is based on mere speculation or presumption rather than on demonstrable facts is regarded as a violation of the individual's religious freedom.[56]

Right to a Private Life

The right to a private life is protected both by the ECHR and the ICCPR.[57] As with the right to religion, a state can only restrict this right if such a restriction is carried out for a legitimate aim, is nondiscriminatory, and the extent and impact of the restriction is strictly proportionate to meeting the aim. It is for the authority to justify its restriction.[58]

Minority Rights

Under article 27 of the ICCPR, in states where religious (and other) minorities exists, members of those minorities shall not be denied the right, in community with the other members of their group, to profess and practice their own religion.

The UN General Assembly Minorities' Declaration adds to this by stating, in article 1, that States "shall protect the existence and … religious … identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity."[59]

Germany is also party to the Council of Europe's Framework Convention on National

Minorities, which requires states to respect the religious rights of minorities. Article 6 of the Convention obliges states to encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and cooperation among all persons living on their territory, irrespective of those persons' ethnic, cultural, linguistic, or religious identity, in particular in the fields of education, culture, and the media.

However Germany has, unilaterally, stated it will only apply this Convention to only four groups it considers "historic" minorities: Danes, Sorbs, Roma/Sinti, and Frisians.[60]

The European Court of Human Rights and the Headscarf

The bulk of international law that could apply to this issue, in particularly that deriving from the UN human rights treaties and the EU anti-discrimination laws, requires Germany to positively protect the rights of members of its Muslim religious minority to publicly express their religion, and strictly prohibits discrimination on the grounds of religion or gender.

Unfortunately, the European Court of Human Rights has adopted an approach to restrictions on the wearing of headscarves (and recently turbans) that Human Rights Watch believes allows states to violate the rights of members of non-Christian religions who wish to wear specific clothing in public for religious reasons. The approach of the European Court over a series of cases has failed to give proper weight to the need for states to have strong justifications for such restrictions; the impact these restrictions have on the lives of the people concerned; and the discriminatory impact of bans that predominately apply to women and girls wearing headscarves.

In the 2001 case of Dahlab v. Switzerland, the court dismissed as inadmissible an application by a pre-school teacher in the canton of Geneva, Lucia Dahlab, who had converted to Islam and who had been prohibited from wearing a headscarf, after years in the performance of her professional duties.[61] The court upheld the government's right to require the Muslim teacher to remove her headscarf on the grounds that "the ordinance did not target the plaintiff's religious beliefs, but rather it aimed to protect others' freedom and security of public order" given that the young children in Lucia Dahlab's classes (ages between 4 and 8) were "more easily influenced" by such a "powerful external symbol" than older children.

The court concurred with the view of the Swiss Federal Court that the prohibition on wearing a headscarf in the context of the applicant's activities as a teacher was "justified by the potential interference with the religious beliefs of her pupils, other pupils at the school and the pupils' parents, and by the breach of the principle of denominational neutrality in schools."[62]

The court returned to the issue in the case of LeylaŞahin v. Turkey, which concerned the refusal of admission to lectures and examinations in higher education institutions for students whose heads were covered. The court gave a wide margin of appreciation to the Turkish authorities and concluded that there had been no violation of article 9 of the European Convention.

According to the court, preventing adult students who wear the headscarf from attending university primarily pursued the legitimate aims of protecting the rights and freedoms of others and the protection of public order, and the interference was based on the principles of secularism and equality. Secularism in Turkey was consistent with the values underpinning the convention, it concluded. In the view of the court, "[T]here had to be borne in mind the impact which wearing such a symbol, which was presented or perceived as a compulsory religious duty, may have on those who chose not to wear it."[63]

In a dissenting opinion, however, Judge Françoise Tulkens was of the opinion that article 9 of the ECHR was violated: she disagreed with the manner in which the principles of secularism and equality were applied by the majority of the Grand Chamber, that is, the general and abstract appeal to secularism, and she doubted that the ban was proportionate.[64] Tulkens sharply dismissed the assumption that the headscarf intrinsically conflicts with principles of equality.

In November and December 2008, the European Court dealt with further cases concerning restrictions of religious freedoms for non-Christians, continuing the line of its previous jurisprudence. In Dogru v. France [65] and Kevanci v. France,[66] two 12-year-old girls were expelled from their school in 1999 for refusal to remove their headscarves during physical education class.[67] Their parents proposed that they wear hats but this was rejected by their school.[68] The European Court found no violation of the right to religion saying the girls had made an "ostentatious" display, and upholding French secularism, even though the issue was actually whether a headscarf or hat is incompatible with physical education class. The court found the expulsions not disproportionate because the girls could continue their education by correspondence course, and did not even consider arguments that their right to education was violated.

In Mann Singh v. France, a Sikh who had held driving licenses for 20 years with his picture showing him wearing a turban was told in 2004 he could not get a new license unless he had a picture without a turban, which he believed would be a fundamental violation of his religion.[69] He won a case in France that this decision had no basis in French law, but then the French government issued a circular saying that in all identity photos the subject had to be bareheaded. The European Court rejected the case outright on admissibility, without a hearing. Essentially the court took on board the government's argument that bareheaded photos were necessary for identification purposes, not even considering why the authorities were accepting photos with persons wearing turbans up until 2005.

Human Rights Watch regards the Court's decision in these cases concerning non-Christian religious clothing (predominately headscarves) as deeply problematic. Our starting point in this regard is that the European Court has repeatedly accepted that the wearing of the headscarf is a manifestation of religion and therefore enjoys in principle the protection of freedom of religion under Article 9 ECHR.[70]

In Dahlab and Şahin though, the court gave significant weight to the alleged "danger" that the wearing of the headscarf posed for the rights of others, but this is a danger the respective governments produced very little evidence to justify. As Judge Tulkens underlines, only "indisputable facts and reasons whose legitimacy is beyond doubt" are capable of justifying interference with a right guaranteed by the convention.[71]

Human Rights Watch's critique of the Şahin judgment at the time criticized the court for its willingness to readily accept the Turkish government's arguments and the limited weight it gave to the impact of the severe restrictions of rights for Leyla Şahin and women like her.[72]

In the Şahin judgment, the European Court effectively watered down the protection of article 9, paying excessive respect, and indeed apparently seeing itself as the defender of,  the secular constitutional traditions of a particular state, although the Convention should be applied in a way that is consistent across all member states. In its Şahin judgment the Court failed to demonstrate what disadvantages or violence women who do not wear Islamic headscarves would concretely face in Turkey, if Islamic headscarves were permitted in universities.[73]

Furthermore, one of the arguments used against headscarves in the Şahin case concerns the presumed link between the practice of wearing Islamic headscarves and political extremism. While there are certainly extremist political movements in Turkey, Human Rights Watch has noted in past reports that the campaign for the right to wear a headscarf has been entirely nonviolent for more than a quarter of a century.[74] And as Judge Tulkens noted, the right to freedom of religion and to manifest religion by an external symbol cannot be wholly overturned by the public interest in fighting extremism. That fight need not involve prohibiting the wearing of headscarves by individual women "who engage in this practice not to support extremism, but for other reasons".[75]

And the lack of understanding of the impact shown by the European Court to those affected by the bans on headscarves and on turbans is in marked contrast to its approach on cases concerning a need to protect the Christian religion. This is shown by the famous Otto Preminger-Institute case in which the Court upheld the seizure by Austrian authorities of a film, as it could have upset members of the Christian religion. The Court read into article 9 the need to protect the "respect for the religious feelings of believers". [76] However when it comes to Muslim or Sikh manifestation of belief through particular clothes, the Court has been prepared to accept the denial of education to girls and women, or the denial of essential documents such as driving licenses.