The complainant applied for the office of lay judge in North Rhine-Westphalia in 2023 and was elected as a lay judge for juvenile cases for the period 2024 to 2028 to decide on juvenile criminal proceedings together with professional judges. After she stated that she could not take off her headscarf during the main hearings for religious reasons, the Dortmund Local Court (Amtsgericht, AG) filed an application for removal from office with the Hamm Higher Regional Court (Oberlandesgericht, OLG) despite the complainant's suitability for the office of lay judge.

The OLG declined removal from office because the practice of religion was not a “gross breach of official duty”. However, the court declared that lay judges are not permitted to wear religious symbols during a hearing and that wearing a headscarf makes them “unfit” to perform their duties. The regulation in the Judicial Neutrality Act is based on the government's duty of neutrality. The Dortmund District Court followed the opinion of the Higher Regional Court and removed the complainant from the list of lay judges. This means that she can no longer hold the honorary office.

Unconstitutional statutory provisions and the decision of the local court

With the Judicial Neutrality Act of 2021, the North Rhine-Westphalian legislator assumes that all people who, according to their understanding, can only visibly practise their religion, are not objective and unbiased or cannot be perceived as such. Empirical evidence was not cited in the legislative process. This applies in particular to Muslim women wearing headscarves, but also to Jewish men wearing kippahs. As a result, reproduced prejudices and vague assumptions lead to serious infringements of fundamental rights, as in the case of the complainant.

In addition, the North Rhine-Westphalian legislature does not regulate the legal consequences of a violation of the ban on religious symbols. Against this background, the Higher Regional Court of Hamm derives a justification from the Judicial Constitution Act, which the Dortmund District Court adopts for a removal from the list of lay judges. Both the provision from the Judicial Neutrality Act and the blanket exclusion of our complainant from the panel of lay judges are unconstitutional and must be urgently reviewed by the judges in Karlsruhe.

Government neutrality: an unsuitable standard for honorary office in court

Lay judges represent society and help make decisions in criminal proceedings. Their task is to make a decision in criminal cases together with the professional judges without prior legal knowledge and to contribute their life experience and sense of justice. They exercise an honorary office and are clearly recognizable as representatives of society in court hearings, as they act as judges without robes. Therefore, government neutrality is not a standard that should be applied to lay assessors. Basing a blanket exclusion on the principle of state neutrality contradicts the legally enshrined goal of the honorary office. Lay judges are a link between the government and society and are expected to bring a realistic and pluralistic perspective into the courtroom.

Social diversity in German courtrooms

The blanket exclusion of Muslim women with headscarves from the office of lay judge must not be allowed to set a precedent. With the constitutional complaint, we want to have the discriminatory legal regulation declared unconstitutional by the Federal Constitutional Court. We hope for a fundamental ruling in favor of religious freedom and protection against discrimination on the basis of religion and gender.