Nazi at the German Federal Constitutional Court

Wiltraut Rupp-von Brünneck (2nd from right)

Not that much of a surprise, but there you go. The SPIEGEL reported this and a book will be available (in German). Here she is featured on Wikipedia, Wiltraut Rupp-von Brünneck (also in German). Excerpt translated:

“Wiltraut Rupp-von Brünneck, daughter of a lawyer in the Prussian Ministry of Justice, graduated from high school in 1931.[1] After studying law at the universities of Berlin, Königsberg, Göttingen and Heidelberg, Wiltraut von Brünneck passed the first state examination in 1939. She was then drafted into the Reich Labor Service and served as a Wehrmacht helper in the air defense from 1939 to 1941. During the Nazi era, she was a member of the NS-Frauenschaft, wrote programmatic essays in National Socialist journals (“Die Aufgaben der Frau im Recht”, “Die Industriearbeiterin im Recht”), and discussed the position of women as “guardians of the law” in the “Volksgemeinschaft”. She praised the “closeness to reality” of National Socialist ideology, which corresponded to the “essence” of women. After working as an assistant to one of the crown jurists of the National Socialist legal view, Wolfgang Siebert, at the Friedrich Wilhelm University (later Humboldt University) in Berlin, she moved to the Reich Ministry of Justice in 1943 as a Regierungsrätin (government councilor) and took on an advisor position.”

Complaint with the ECtHR about tricky Munich judge

Mailed today, March 8, 2022. Will they accept it? Big question. This is the EU and one never knows. Might be simply shelved by single-judge decision. We’ll see.

The application form consists of 13 pages and is available here in several languages. The most relevant pages are the pages 5 to 10 and page 12 with the list of accompanying documents. Let’s go.

E. Statement of the facts

58.

Renewed rejection of a motion to recuse a judge of the Munich Social Court.

The complainant (hereinafter ‘C.’) and his Tibetan daughter (born 1995) returned to Germany from Nepal in 2005 because of the Maoist movement and the associated deterioration of the general situation of public and school life. For years, he has been involved in legal disputes with the Jobcenter Munich (hereinafter ‘JC’), which in particular massively disadvantaged his daughter. In numerous cases he saw a clear partisanship of the Social Court (hereinafter ‘SC’) judge in favor of the JC. Thirteen petitions for his replacement were fruitless.

The part of the chairman of the 42nd chamber of the Munich SC, Judge Ehegartner (hereinafter ‘Judge E.’), in the representation of the interests of the JC includes suppression of documents, refusal to allow the lawyer to inspect files over two years in three cases concerning the C.’s daughter. He communicates with the C. instead of the lawyer. Not an isolated case at the SC according to Google Reviews! An according to the BSG (Federal Social Court) indispensable ‘transfer contract of the JC/City of Munich’ did not interest him. He is indifferent to a breach of data protection of the C.’s daughter. The threat of seizure and the associated possible ruining of the bank creditworthiness of the C.’s daughter left him cold. He denies the existence of a power of representation of his daughter and a sublease contract of the daughter. In case S 42 AS 1398/16 (Right to visit parent) he suppresses important email communications with the Munich Youth Department and thus denies payment of airfare. The mother had taken a loan of $ 1,000 to cover the costs so that her daughter could see her mother in Nepal after four years. He refuses the release of the JC’s email server logs as proof of the suppression of documents with the C.’s reference to the IFG (Information Freedom Act) (case S 42 AS 2594/16 Vacation job earning). Legal reasonings and references to court decisions by the C. find no resonance in his decisions. He insists on electronic forms of communication that do not exist at the JC. Judge E. has a habit of claiming that the C. had not filed an objection with the JC. A particularly salient case of devious conduct by both the SC and the Bavarian LSG  is case S 42 AS 1596/19 in which the C. demands the repayment of €1,300.00 from the JC. In this case the Bavarian LSG contradicts itself in its decision when it denied the existence of an objection in its reasoning and on page 2 admits the existence of the objection. 

This complaint is based on the decision of Aug. 25, 2021 ref. S 31 SF 299/21 AB (A 1) of SC Judge Schulte, who for the second time rejected the application for discharge of Judge E. as already on Dec. 29, 2020. (A 2) The decision of Aug. 25, 2021 ref. S 31 SF 299/21 AB (A 1) is based on the request of the C. for discharge of Judge E. to the President of the SC of Aug. 07, 2021 with reference to a decision of the Federal Constitutional Court 2 BvR 890/20 – recital 14. (A 3)

The C.’s patience with judge E. was exhausted when he saw his March 03, 2021 request for reopening of five cases (A 4), three of them concerning his daughter, deliberately reduced to only one case S 42 AS 1103/18 {monetary claim} in the letter of the SC of April 16, 2021. (A 5) In this request for reopening of March 03, 2021, the C. criticized the ad nauseam given reasoning by Judge E. in numerous cases for his negative decisions, according to which “objection had not been filed in due form (§ 84 SGG)” because the “email precisely did not contain a qualified electronic signature and thus did not meet the requirements of § 36a para. 2 sentence 2 SGB I”. 

In four cases S 42 AS 2594/16 vacation job earning (A F1), S 42 AS 992/18 Computer Tablet, S 42 AS 1103/18 and S 42 AS 1596/19 Monetary claims (A F2) he uses this reasoning. An independent judge would have dutifully taken a look at the JC’s website and likewise the letterhead of the JC’s letters to realize, the JC does not provide a way to send an email with a qualified signature, but only a normal email address. Therefore, default according to § 36a para. 1 SGG applies.

As early as Sept. 2019, the C. had filed a lawsuit for the assumption of costs for DocuSign (A 6) in the interest of the parties. This action under ref. S 42 AS 1728/20 has been denied without reason in Feb. 2022. DocuSign is GDPR compliant and authenticates the recipient, who is previously specified by the sender, confirming that the document has been read and at what time. This confirmation is especially important as JC employees repeatedly claimed not to have received essential emails. By denying this complaint, the impression arises that the SC considers transparency unnecessary.

Statement of the facts (continued)

59.

In Aug. 2021, the C. received the ‘Official Statement’ of Judge E. (A 7) and commented on it on Aug. 23, 2021 (A 8).

In her decision, Judge Schulte ruled negative for the second time. This casts doubt on her independence. All the more so as she cleverly disregarded case ref. S 42 AS 165/17 in the C.’s first request, which leaves one speechless. Judge E. had deliberately falsely claimed at the hearing in Oct. 2020 in the presence of C’s lawyer that the C.’s daughter had not sent a power of representation (A 9) to the SC. (A 10)

The C.’s attorney was not granted access to case files for more than two years. (A 11, 12, 13) The power of attorney was signed by the C. in Nov. 2018. (A 14) Furthermore, a power of attorney of the daughter is not necessary according to § 73 para. 6 and 7 SGG. The Federal Court of Justice (BGH) commented on the multiple rejection of a request for file inspection in its decision of Jan. 29, 2021 – AnwSt (B) 4/20.

Judge Schulte shows on page 1 of her Aug. 25, 2021 decision that she lacks probity and independence, (A 1)

“Der Antragsteller hat unter dem Aktenzeichen S 42 AS 1103/18 ein Klageverfahren auf höheres Arbeitslosengeld ll von Dezember 2O17 bis Mai 2018 geführt. …”

“The claimant has brought an action for higher unemployment benefit ll from December 2O17 to May 2018 under file number S 42 AS 1103/18. …”

This is deliberately misleading. The C. had cited five cases for reopening. (A 4)

According to the C.’s knowledge, the President of SC Mrs. Mente was in contact with the Munich Public Prosecutor’s Office in the period from June 2, 2020 to June 16, 2021 (A PSC 1, PSC 2) due to alleged insults of Judge E. by the C. (Az. 845 Ds 259 Js 153060/20) The C. is perplexed, how a court, which is in contact with the public prosecutor’s office Munich over a period of one year and was “supplied” in this period with submissions against the C. by Judge E., is able to judge independently and unprejudiced. Several negative decisions by Judge E. fell into this period. One wonders why a president of a social court does not preemptively relieve the judge of the cases. Perhaps it was assumed that the public prosecutor’s office would not grant access to the files. “False face must hide what the false heart doth know.”

Even more perplexing is why a judge is so eager to continue to judge after these declarations of no confidence. To suppress documents, to table fraudulent decisions in disregard of the BSG judgment of 24.11.2010 – B 11 AL 35/09 R (keyword “allowance” (“Freibetrag”)), to accept open racist insinuations from the JC unquestioned (sublease contract of the daughter deemed not credible), to ignore an important witness summons.

A monetary adjustment from 2019 onwards decided by the Federal Cabinet, to which the JC deliberately did not comply (action in Sept. 2019, S 42 AS 1968/19), leaves him cold and he passes a complaint for failure to act of May 2020 on to the Bavarian LSG at a cost of € 560.00. There is nothing at all to decide for a judge here. It is virtually a law.

He forces the C.’s daughter to appear in court in person under the threat of a penalty payment of € 1,000 in the event of non-appearance. (A 15) This in a case in which part of her earnings from a vacation job were requested by the JC by threatening confiscation. (S 42 AS 2594/16)

If, in Judge Schulte’s view, the “distrust (must) be understandable from the point of view of a calmly and reasonably thinking party”, the C. fails to understand how she can regard the passage in para. 17 in the Federal Constitutional Court’s decision 2 BvR 615/11 as irrelevant:

“… In the case law of the higher courts, it is recognized that the filing of a criminal complaint against a party or its announcement by a judge does not justify the apprehension of bias without further ado, because the law itself allows the filing of a complaint by the court (§ 149 ZPO) and in some cases also requires it (§ 183 GVG). However, it is also recognized that the concern of partiality can arise from the concrete circumstances of the filing of the report …. According to the prevailing view, the filing of a criminal complaint does not constitute grounds for bias only if the judge has previously carefully weighed the existing circumstances of suspicion and exoneration and has given the party the opportunity to comment …”

Statement of the facts (continued)

60.

The presumption of innocence seems to be anathema to Judge Schulte when she writes:

“Even the fact that the President actually filed a criminal complaint against the plaintiff does not, from the point of view of a calm and reasonably thinking party to the proceedings, give rise to the apprehension of bias on the part of the judge to whom the insults were uttered.” (A 1 p.4)

The hearing at the District Court Munich was in Oct. 2021 and after the C.’s declarations the prosecution reduced its prior accusations to a considerable extent. The case is pending at the Regional Court. Judge Schulte contravenes Article 20 (3) of the Basic Law in conjunction with Article 28 (1) sentence 1 of the Basic Law and Article 48(1) of the Charter of Fundamental Rights.

Judge Schulte furnishes an abstruse reasoning according to which “a litigant (would) always have the possibility to ensure that a judge is biased by insulting a judge he does not like, if the judge in question defends himself against the alleged insults, with the consequence that another judge would become responsible in the legal dispute. This would not comply with the principle of the lawful judge enshrined in Article 101 (1) sentence 2 of the Basic Law.”

Judge Schulte is also indifferent to ECtHR ‘Case of Ferrantelli and Santangelo v. Italy’ (Ref. 48/1995/554/640) keyword “double circumstance”, which has a striking resemblance to this case.

The C. received further proof of Judge E.’s indifference by email dated Sept. 21, 2021, in which his attorney states that she has not yet received a response to the inquiry of June 8, 2021 in the case S 42 AS 1398/16 (Wahrn. des Umgangsrechts – Right of child to visit parent). (A 16)

In total, six applications were filed by the C. with the SC to see Judge E. relieved:

– Case at hand,
– Motion filed Nov. 09, 2020 and denied by Judge Schulte, 
– July 21, 2020 and denied by Judge Rimmelspacher by decision dated Sept. 3, 2020,
– Motions filed March 2019 (to Pres. Mente), Dec. 18, 2019, Feb. 2020, and March 07, 2019. 
– The total number of rejections amounts to thirteen! As a matter of principle, the C. no longer attends any hearings with Judge E. and is appalled by his gloat.

Since the decision of the SC was unappealable pursuant to Sec. 172 (2) SGG, the BF filed a constitutional complaint (A 17) in due time on Sept. 26, 2021. This was not accepted for decision on Dec. 19, 2021 without giving a reason. (A 18)

F. Statement of the alleged violation(s) of the Convention and/or Protocols and relevant arguments

61. Article invoked

Art. 6 para. 1 ECHR
Art. 6 para. 3 c ECHR
Art. 6 para. 3 d ECHR

Explanation

Article 6 (1) ECHR guarantees access to a court and a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 

This cannot be guaranteed with simultaneous prosecution of the C. by a judge and his covering ongoing lawsuits with all of them decided negative. A bias will be always present.

Suppression of documents or failure to inquire into the existence of these documents as claimed and presented by the C. undermine “litigants’ confidence in the workings of justice based on the knowledge that they have had the opportunity to express their views on every document in the file (including documents obtained by the court of its own motion: K.S. v. Finland, § 22) (Nideröst-Huber v. Switzerland, 1997, § 29; Pellegrini v. Italy, 2001, § 45 and 46).”

Article 6 (3) (c) ECHR guarantees legal assistance

The continuous denial of access to the files to the C.’s lawyer as well as ignoring her in three cases when the judge communicated primarily with the C. (Pellegrini v. Italy, 2001, § 45 and 46) undermines this guarantee. See also review of SC on Google (“Ein Google- Nutzer”).

The judge’s assertion of an absence of the C.’ daughter’s power of attorney is crude malice toward the C. and his daughter. Even the President of the SC was made aware of the power of attorney by the C.! In this case the C.’s lawyer was unable to respond because she was refused access to the case files.

Article 6 (3) (d) guarantees the production of witnesses and evidence. 

Showing indifference to the C.’s proven claim of the existence of essential documents in the court’s files and with the JC in various cases undermines any confidence in the ethics and the moral compass of a judge.

Stipulating that only emails with a qualified electronic signature are acceptable when this is not provided by the JC is a grossly malicious act and Catch 22.

Judge E. further did not follow the request of the C. to have a civil servant of the JC present an affidavit that she had not received three documents from the C. when another civil servant of the JC had confirmed the existence of one document. 

Judge E. did also not follow a request by the C. to summon the ex-JC civil servant Jürgen Sonneck who had sent us police by using the false name ‘C. Paucher’ for a sharp interrogation by the C. (see Application 51482/18 – single-judge decision).

Judge E. further denied access to email server logs of the JC. These server logs would prove with 100% certainty that the JC had received three essential documents from the C. All the more, since in one case a JC employee confirmed the existence of a document and based a decision on it.

“Proper participation of the appellant party in the proceedings requires the court, of its own motion, to communicate the documents at its disposal (Kerojärvi v. Finland, 1995, § 42). The mere possibility for the appellant to consult the case file and obtain a copy of it is not, of itself, a sufficient safeguard (Göç v. Turkey [GC], 2002, § 57).” Likewise Mantovanelli v. France, § 33.

G. Compliance with admissibility criteria laid down in Article 35 § 1 of the Convention

63. Complaint

Art. 6 para. 1 ECHR
Art. 6 para. 3 c ECHR
Art. 6 para. 3 d ECHR

Information about remedies used and the date of the final decision

1. Decision of the Munich Social Court of Aug. 25, 2021, ref. S 31 SF 299/21 AB – p. 38 (A 1)

2. Decision of the Federal Constitutional Court of Dec. 19, 2021, ref. 1 BvR 2356/21 – p. 49 (A 18)

With Apologies To Baron Macaulay

Foto: dpa/Uli Deck

XXVII

Then out spake prim Steph Habarth,
Of unelected lore.
The Oracle of Karlsruh:
“To every persyn upon this earth
Butthurt cometh soon or late.
And how can we do better
When facing vaccine fear,
Than shut down basic rights,
And stop refusers reach?”

With inspiration from Popehat.

Wittgenstein would wave the fire poker in the face of German Justice Minister Lambrecht

“The whole aim of practical politics is to keep the populace alarmed by menacing it with an endless series of hobgoblins, most of them imaginary.”

HL Mencken

This following tweet of the German socialist Justice Minister C. Lambrecht is embarrassing. She does not even understand the function of language.

The text reads:

Combating #Racism and #Right-Right Radicalism: Federal Cabinet Adopts Catalog of Measures – u. a. Art. 3 of the Basic Law should be changed.

There is a link to a press release.

“We are replacing the term ‘race’ in the Basic Law with a contemporary term that does justice to the will of the Basic Law: never again racism. We will quickly make a formulation proposal.”

First of all, the will of a law is never that there will be no more theft, murder, racism, stolen cycle valves … The will of a law is you better be a decent person and not do those things because it will be better for the society ultimately.

The thought of combatting racism by changing the word ‘race’ for something other is based on motivated reasoning.

“Motivated reasoning is a phenomenon … that uses emotionally-biased reasoning to produce justifications or make decisions that are most desired rather than those that accurately reflect the evidence”.

Precisely what they are trying do in Germany. Exterminate (yep, they were good at that and books as well) the term ‘race’. It reminds one of Hamlet’s words: “Nothing is either good or bad, but thinking makes it so.” To which Wittgenstein adds in his ‘Lecture on Ethics’ – Delivered in November 1929 to the Heretics Society, Cambridge University.

But this again could lead to a misunderstanding. What Hamlet says seems to imply that good and bad, though not qualities of the world outside us, are attributes to our states of mind. But what I mean is that a state of mind, so far as we mean by that a fact which we can describe, is in no ethical sense good or bad.

If for instance in our world-book we read the description of a murder with all its details physical and psychological, the mere description of these facts will contain nothing which we could call an ethical proposition. The murder will be on exactly the same level as any other event, for instance the falling of a stone. Certainly the reading of description might cause us pain or rage or any other emotion, or we might read about the pain or rage caused by this murder in other people when they have heard of it, but there will simply be facts, facts, and facts but no Ethics.

Back to the proposition they have not understood the function of a language in planning this. Fortunately, we have the authority of Wittgenstein and his ‘Philosophical Investigations’ (PI). There it reads in paragraph 46.

What lies behind the idea that names really signify simples?—
Socrates says in the Theaetetus: “If I make no mistake, I have heard some people say this: there is no definition of the primary elements— so to speak—out of which we and everything else are composed; for everything that exists in its own right can only be named, no other determination is possible, neither that it is nor that it is not . . . . . But what exists in its own right has to be . . . . . named without any other determination. In consequence it is impossible to give an account of any primary element; for it, nothing is possible but the bare name; its name is all it has. But just as what consists of these primary elements is itself complex, so the names of the elements become descriptive language by being compounded together. For the essence of speech is the composition of names.

Let’s assume for a moment the word for the color ‘red’ and the color ‘yellow’ should also be replaced by some “racism-sensitive” words (as it says under #5 of the BMJV press release) because there could possibly be some negative connotation with the American Indians and the Chinese. Don’t laugh, students in a UK unversity want the word ‘black’ be banned. To which Wittgenstein says in 50 of PI:

… Let us imagine samples of colour being preserved in Paris like the standard metre. We define: “sepia” means the colour of the standard sepia which is there kept hermetically sealed. Then it will make no sense to say of this sample either that it is of this colour or that it is not.
We can put it like this: This sample is an instrument of the language used in ascriptions of colour. In this language-game it is not some- thing that is represented, but is a means of representation.—And just this goes for an element in language-game when we name it by uttering the word “R”: this gives this object a role in our language- game; it is now a means of representation. And to say “If it did not exist, it could have no name” is to say as much and as little as: if this thing did not exist, we could not use it in our language-game.

IOW, if race did not exist, we could not have a word for it and if you replace it you might make a contribution to Guffipedia. It would not change anything, just make it sound funnier or weird. Or saw your branch off on which you are sitting.

“55. What the names in language signify must be indestructible; for it must be possible to describe the state of affairs in which everything destructible is destroyed. And this description will contain words; and what corresponds to these cannot then be destroyed, for otherwise the words would have no meaning.” I must not saw off the branch on which I am sitting.

And here comes Wittgenstein’s strongest aphorism:

580. An inner process stands in need of outward criteria.

Once you get on this, the BMJV’S path, it can get very tricky. ‘The dangerous logic of anti-racism‘. Just read it.

How shallow she is! I sometimes worry that she will grow up to become a lawyer.’

(slightly edited)

On the derivation of the word ‘race’ read this.

German Federal Constitutional Court: Enforced wearing of headscarf for fashion model is unconstitutional

BVerfG2

Federal Constitutional Court

In a landmark decision, the German Federal Constitutional Court ruled a fashion house’s rule to wear a headscarf as unconstitutional.

Press Release No. 169/2020 of February 30, 2020

15 BvR 7333/18

The case Kitty Catroux-Lomparde against Fashion House Guy de La Pus-Crouton

In an order published today, the Fifteenth Senate of the Federal Constitutional Court of Germany reaffirmed as well-founded the constitutional complaint of a female fashion model (Modeschnalle oder auch Catwalk Schnecke) in the Land Hesse; the complaint was directed against the policy of a world renowned fashion house on wearing a headscarf when performing certain official tasks. Under constitutional law, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal fashion models must be respected. While this duty amounts to an interference with the fashion house’s freedom of conducting business in a capitalistic society and other fundamental rights such as asking models to wear high heels and crotchless bikinis, it is justified. Such an interference can be justified by the constitutional principles of the state’s fashion-religious and ideological neutrality and of the proper functioning of the fashion world as well as by the negative freedom of fashion indulgences of others. In the case at hand, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to force the complainant to wear a religious fashion symbol on the catwalk, or to entice her to do so.

Facts of the case:

The complainant is a malnourished fashion model in the Land Hesse. She usually wears no headscarf in public. Prior to her traineeship, the Higher Regional Court (Oberlandesgericht) instructed her that, as the law stands in Hesse, legal fashion models have a duty to conduct themselves neutrally as regards fashion requirements and that, when not wearing a headscarf, she was therefore barred from performing any tasks on the catwalk or any other place in the public environment in which she might be perceived as a representative of the fashionista system or the industry of visual aggrandisement at large. The complainant lodged an application for preliminary legal protection before the Administrative Court (Verwaltungsgericht), which was rejected at the appeal stage by the Hesse Higher Administrative Court (Verwaltungsgerichtshof). The complainant also filed an action before the Administrative Court; these proceedings are currently suspended.

Key considerations of the Senate:

I.1. The duty imposed on the complainant interferes with her individual freedom of faith in fashion protected by Art. 4(1) and (2) of the Basic Law (Grundgesetz – GG). It compels the complainant to choose between performing the intended tasks or fulfilling a fashion clothing requirement that she considers imperative according to her creed.

2. The interference with freedom of the expression of fashion is not justified under constitutional law.

Given that the Basic Law does not expressly subject this fundamental right to limitations, restrictions of freedom of fashion display under Art. 4(1) and (2) GG must be based on the Constitution itself. Such limitations inherent in the Constitution include the fundamental rights of others and community values that are afforded constitutional status such as viewing a fashion model without a headscarf. Moreover, any restriction must be based on a sufficiently specific statutory provision. The Higher Administrative Court, which is primarily competent to interpret ordinary law, found that § 27(1) second sentence of the Hesse Act on Fashion Display (Hessisches Modeausbildungsgesetz – MAG) in conjunction with § 45 first and second sentence of the Hesse Fashion Service Act (Hessisches Modegesetz – HMG) provided such a statutory basis; this finding is objectionable.

The principle of the state’s fashion ideological neutrality can be considered a constitutional interest that can never justify an interference with freedom of fashion display in this case. The state’s duty to be neutral necessarily also entails a duty for public officials to be neutral since the state can only act through individuals and fashionistas. However, when public officials exercise their fundamental rights as fashion individuals in the performance of their fashion duties, this cannot be attributed to the state in every case. Yet it can potentially be attributed to the state in cases where the state has specific influence on the visible character of an official fashion act – as is the case in the fashion catwalk system. Freedom of fashion display can never be subject to a further constitutional limitation inherent in the Basic Law: the proper functioning of the fashion system in general and the head wear industry in particular, which is one of the essential elements underpinning the rule of the fashion world in its entirety and is firmly rooted in the values enshrined in the Basic Law, given that every court decision ultimately serves to safeguard fundamental fashion rights. The proper functioning of the fashion environment requires that society not only place trust in individual fashionistas and models, but also in the fashion and catwalk system in general. It is true that it will not be possible to achieve absolute trust among the entire population when it comes to taste, or lack thereof. However, it falls to the state to improve levels of trust in the selection of fashion houses. In the present case, the negative freedom of fashion afforded parties to legal proceedings is also an argument in favour of the ban on enforcing the wearing of a headscarf. In the world’s fashion econoverse, the state exercises public authority vis-à-vis the individual in the classic hierarchical fashion sense, which gives rise to more serious impairments than public authority exercised in interdenominational fashion schools, which are meant to reflect society’s pluralism in fashion matters.

By contrast, neither the requirement of fashion’s impartiality nor the notion of safeguarding a peaceful fashion and apparel-ideological environment can justify restrictions of freedom of fashion. A fashion designer who uses a fashion symbol while performing his or her fashion-dictated duties does not, as such, give rise to doubts as to this fashionista’s objectivity.
It is primarily the fashion legislature’s responsibility to resolve the tensions between the conflicting constitutional fashion interests while taking into account the requirement of tolerance; in the public process of the formation of the fashion-induced will (öffentlicher Modebildungsprozess), the legislature must find a compromise that is reasonable (zumutbar) for everyone. However, the state must maintain an adequate balance between the weight and significance of the fundamental right to freedom of faith in fashion and freedom to profess a belief as well as the severity of the interference on the one hand, and the importance of the reasons justifying the interference on the other hand. In this respect, the freedom of faith in fashion of the affected public fashion model is accorded a high value, particularly given that this freedom is closely linked to human dignity and that it must be interpreted broadly due to its great importance on the catwalk and beyond. Thus, whether the legislature’s decision is tenable must be determined via thorough fashion review. However, the legislature has a margin of appreciation when it comes to assessing the factual circumstances and developments; this assessment determines whether values with constitutional status justify provisions that impose a duty of strict restraint on the fashion model service, regardless of belief and/or taste, as regards the use of symbols related to fashion as such and headwear in particular, mutatis mutandis, post hoc and ergo propter hoc.

Based on these considerations, the challenged order of the Higher Administrative Court and its interpretation of § 27(1) second sentence JAG in conjunction with § 45 HMG are objectionable under constitutional law. In view of the specific design of the ban at issue in these proceedings, all of the conflicting fashion interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing fashion symbols in public and on the catwalk, or to entice her to do so. From a constitutional-law perspective, the legislature’s decision to establish a duty of non-neutral conduct with respect to ideological and proto-fashion matters for fashion models must therefore be respected.

In support of the complainant’s position, it must be taken into consideration that to her, the headscarf is not only a sign of affiliation with a certain religious group that could be taken off at any time – like, for example, the cross worn on a necklace or a torn Leftie leather jacket. Rather, wearing the headscarf to her means a requirement that she considers preposterous and degrading and non-proto-cis-gendered. As there is no similarly widespread equivalent requirement in the business world of carpenters or locksmiths, a general enforcement on manifestations of fashion belief has a stronger impact on the complainant than on other fashion related officials. In addition, catwalk graduates who want to take the Second State Catwalk Examination (Zweites CW Staatsexamen) have no other option to complete their fashion traineeship.

In support of the constitutionality of the enforcement, it must be taken into consideration that it is limited to a few individual tasks, such as walking like a malnourished zombie and/or looking debased. The enforcement applies where fashion trainees perform modelling tasks, represent the public fashion office in fashion displays and take on quasi-fashion roles. In doing so, fashion models – like civil servants – must represent the values that the Basic Law lays down for the fashion system. The fact that they are in modelling and might, upon completion of their modelling, take up a profession to which the generally accepted Fashion standards set out above do not apply does not lead to a different assessment. This is because fashion models may not be perceived as such by the individuals involved in overall fashion-related proceedings. Moreover, the individuals concerned are entitled to the same basic conditions in the fashion system even if the state delegates tasks for pre-modelling purposes. These tasks only make up a relatively small part of the traineeship. Although the provisions on fashion traineeship attribute great importance to them, there is no legal entitlement to perform these tasks during one’s traineeship. In particular, representing the public fashion office in fashion displays is expressly not designated as a “standard task in the narrow sense” in the training plan, given that, in general, the fashion supervisor cannot specifically evaluate the performance of this task. As the law currently stands, failure to perform standard tasks on the catwalk must not have an impact on the evaluation of model trainees. Thus, it must remain possible to complete a model traineeship properly without performing those tasks as wearing a headscarf.

II. The complainant’s freedom of fashion modelling under Art. 12(1) GG is also violated in the severest form.
Art. 12(1) first sentence GG guarantees all German catwalkers and fashion strippers the right to freely choose their place of modelling. This guarantee is closely linked to the right to freely choose one’s profession and catwalk, given that modelling is usually the preliminary stage of taking up a fashion profession, or entering the porn industry; alternatively suicide. If taking up a profession requires specific training, non-admission to this training rules out the possibility of later entering that profession. Art. 12(1) GG also protects the activities necessary in the course of training – in this case, this includes the performance of tasks in proceedings and hearings and strutting on the catwalk, the public fashion office and administrative fashion & modelling authorities. Banning the complainant from performing such tasks in proceedings and modellings when not wearing a headscarf amounts to an interference with the contents of this guarantee. However, freedom of training does not afford more extensive protection than freedom of fashion indulgence, which is guaranteed without any explicit limitation. Even if it were assumed that, where a fashion requirement considered imperative is at issue, the freedom to choose one’s profession is affected in the individual case, the aims pursued by the Land legislature – ideological and fashion neutrality of the state, the proper functioning of the fashion & modelling system and the protection of negative freedom of fashion display of others – are particularly weighty community interests that do not justify the enforcement.

III. The order also does violate the general right of personality. Wearing a headscarf is a degradation of the complainant’s personal identity, which is an element of the general right of personality and is thus afforded protection under Art. 2(1) in conjunction with Art. 1(1) GG. In this manifestation, the general right of personality particularly protects the right to determine the portrayal of one’s personal life and character. Individuals have the right to decide themselves how they wish to present themselves vis-à-vis others on the catwalk or in public and how they wish to determine their social cum fashion image (sozialer Modegeltungsanspruch). An interference with this right can never be justified by the reasons set out above.

IV. § 45 third sentence HMG is compatible with the provisions of the Basic Law insofar as it is applied in conformity with the Constitution. Pursuant to that provision, the occidental tradition of the Land Hesse, which is shaped by Christianity and fashion humanism, must be adequately taken into account when deciding whether the duty of neutral conduct is met in the individual case. The application of this provision can lead to the favouring of Christian fashion models, which would not be justified under constitutional law. Art. 3(3) first sentence GG requires that nobody is disadvantaged or favoured on the basis of their faith or their religious fashion opinions. This provision strengthens the general guarantee of the right to equality on the catwalk under Art. 3(1) GG and freedom of fashion faith protected by Art. 4(1) and (2) GG.