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A judicial decision may be based only on facts and results of evidence to which the parties were able to respond. Article 33.2 of the Basic Law grants every German, in accordance with his or her aptitude, qualifications and professional achievement, equal access to every public office.The right in Article 33.2 of the Basic Law, which is equivalent to a fundamental right, guarantees the degree of free choice of one’s occupation or profession (Article 12.1 of the Basic Law) that is possible in view of the number of positions in the civil service, which is, and is permitted to be, restricted by the public corporation responsible in each case (cf. In the oral hearing, the expert witness Professor Dr. Bliesener stated on this point that the conduct of the teacher encourages the pupils to imitate it: this happens because the pupils at a primary school often have a close emotional relationship, and the teacher is also expect to aim for this, for pedagogical reasons, and because the attention of children is clearly directed at the teacher and the teacher’s authority is also perceived in the context of the school.The complainant’s statement that if there were questions about the headscarf she would answer these untruthfully and in contradiction to her religious conviction, saying it was only a fashion accessory, is not appropriate to avoid a conflict of fundamental rights. In addition, when the employer assessed aptitude, the employer had to take the applicant’s fundamental rights into account. But wearing a headscarf in class, as the complainant intended, would infringe the requirement of neutrality that the state had to observe at schools and the fundamental rights of the students and their parents and thus the official duty of the complainant as a representative of the state to carry out her duties impartially and in the service of the public interest.The duty of neutrality in ideology and religion imposed on the state by the Basic Law was not a distancing and rejecting neutrality of the nature of laicist non-identification with religions and ideologies, but a respectful neutrality, taking precautions for the future, which imposed on the state a duty to safeguard a sphere of activity both for the individual and for religious and ideological communities. Consequently, neither the parents nor the state can reasonably be expected to wait and see how conflicts develop in the individual case when a future conflict situation becomes evident during the job interview. The decisions challenged violate Article 33.2 of the Basic Law in conjunction with Article 4.1 and 4.2 of the Basic Law and with Article 33.3 of the Basic Law.In the context to be assessed here, wearing a headscarf makes it clear that the complainant belongs to the Islamic religion and identifies herself as a muslima. For children and their parents, therefore, taking part in school lessons is for all intents and purposes unavoidable. A provision to this effect in the Education Acts may then give rise to concrete definitions of teachers’ general duties under civil-service law, including duties with regard to their appearance, to the extent that the latter shows their affiliation to particular religious convictions or ideologies. For this reason too, when the civil servant first joins the civil service he or she must, constitutionally, already offer a personal guarantee of neutral conduct that neither provokes nor challenges in carrying out his or her future duties (Article 33.5 of the Basic Law).4. BVerfGE 39, 334 (354)). In the case of conflict in particular, they state, it must also be expected that there will be onerous effects on younger pupils.
Nilüfer Göle, It is therefore not important whether such an opinion is the only valid opinion within Islamic society or merely the predominant opinion, or whether the opinion submitted by the complainant in the proceedings, that the headscarf is, instead, a sign of the growing self-confidence and emancipation of women of Islamic faith, is held by a large number of persons. BVerfGE 7, 155 (162); 11, 203 (216-217)). The constitutionally legitimate means for this is the consideration and decision of whether the applicant has the necessary aptitude for the office applied for. As a result, the 4. It is not possible to make any statements that are representative of all Muslim women living in Germany on the basis of the interviews conducted and evaluated by the expert witness, but the results of the research show that in view of the variety of motive, the interpretation of the headscarf may not be reduced to a symbol of the social repression of women. All Rights Reserved.date: 22 August 2020Whether a decision to deny a person a position as teacher at a state-run school because of a stated intention to wear an Islamic headscarf was compatible with the rights to religious freedom and to equal access to public office. Granting a fair hearing in a way that satisfies the constitutional right requires that the party, using the care to be expected of him or her, is capable of recognising the aspects on which the decision may depend. The court held that in the discretionary decision as to whether to appoint an applicant, an assessment was made on the aptitude of the applicant; here, a prediction had to be made, and this was only to a limited extent subject to judicial review.