The Court of First Instance – Landgericht – Cologne, in a judgment dated 7 May 2012 which has already given rise to a great deal of criticism, held that the circumcision (Beschneidung) of a child on religious grounds constitutes a ” A bodily injury punishable by conviction.
According to the World Health Organization, 661 million men over the age of 15 were circumcised in 2009, or about 30% of the world’s male population. Although widely practiced, the practice of circumcision responds in a variable way to a principle of necessity. Sometimes indispensable for medical reasons, it is not so when it intervenes on religious grounds, as is quite common among families of Jewish faith, who claim it as the obligatory sign of the alliance of man With God (Genesis 17: 9-14), or Muslims, in which it traditionally belongs to religious habits.
It is precisely this last case that has caused much ink to flow in Germany for several weeks. The circumcision (Beschneidung) of a child for religious reasons constitutes a bodily injury liable to condemnation. This is the view taken by the Landgericht (District Court), Cologne, in a judgment rendered on 7 May last. Ambitioning to fill a legal vacuum which had hitherto permitted this practice to be used for non-medical purposes, the German court had provoked very strong reactions throughout the country, not only on the part of the religious organizations but also of the German government. The opportunity for some to invoke religious freedom – Muslims in particular – the time for others to defend the interests and interests of the child; The whole on a background of debate related to the modalities of integration of foreign nationals, mostly Turkish. A very sensitive question, in which religions, medicine and the rights of the child confront each other.
The case at the origin of the controversy dates back to November 2010. At the time, in Cologne, a doctor circumcised a boy of 4 years, son of parents of Turkish nationality and Muslim faith. The child, suffering from heavy bleeding, is hospitalized in another establishment, then duly treated. The hospital in which the wounds of the young child are cauterized then turns against the doctor who has performed the procedure. The practitioner is then accused of having infringed the physical integrity of the young child by means of a dangerous tool, in this case a scalpel (see Article 223 (1) and Article 224 1 No. 2 of the German Criminal Code). Relaxed first by the District Court (Amtsgericht) in Cologne on 21 September 2011, the doctor then sees his case examined on appeal, at the request of the Public Prosecutor’s Office. According to the trial judge, the Landgericht in Cologne considers that the doctor complained of did not commit any medical fault or infringe the law, and for that reason: there is no law in Germany specifically prohibiting this act.
But far from stopping there, the judges developed an extremely critical argument with regard to ritual circumcisions (ritual Beschneidungen). Their point of departure is stated in very clear terms: there is no need in Europe to circumcise preventively, that is, for reasons other than medical reasons. The reasoning of the judges is then expounded with the utmost clarity: the natural right of parents to raise and educate their children as they see fit, including according to religious precepts, is certainly guaranteed by Article 6 para. 2 of the Basic Law. It does not, however, enjoy absolute priority over the rights of the child, whether it concerns the right to the free flowering of one’s personality (“Grundrecht auf Selbstbestimmung”, Article 2 (1) FR) or Of the right to the preservation of his physical integrity (“Grundrecht auf körperliche Unversehrtheit”, article 2, paragraph 2, LF).
Right of parents versus rights of the child. Whatever the solution resulting from a balancing of the two interests involved, a principle of proportionality must here be strictly respected, emphasize the judges of Cologne. As regards ritual circumcision, infringement of the physical integrity of the young child, even if it proves to be necessary, proves to be “disproportionate” (“unangemessen”) in the light of the objective pursued by the parents. This is apparent not only from the aforementioned constitutional provisions but also from Article 1631 para. 2 ph. 1 of the German Civil Code, under which “children have the right to education that excludes violence”. Indeed, the irreversible attack on the physical integrity of the young boy permanently prevents him from deciding subsequently, and at the same time autonomously and willingly, of the religious conviction he wishes to make his own. Conversely, there is no “unreasonable interference” with the right of parents to the education of their children, when they are simply asked to postpone their decision until their child has acquired the necessary maturity .
In order to arrive at such a conclusion, the German judges take up the concept of “social adequacy” (“Sozialadäquanz”), developed in the criminal field by Thomas Exner (see below). According to this author, certain facts may be criminally reprehensible, while being “socially adequate”, that is, “socially accepted” – remains to be seen whether they are “socially acceptable” … Are “socially discrete, commonly approved and historically usual” (“sozial unauffällig, allgemein gebilligt und geschichtlich üblich”). Punishable, these behaviors deserve to be tolerated, on the sole ground that they are strongly anchored in a given society. The judges of Cologne reiterate what their role is: it is not a matter of approving with closed eyes what is “accepted” by society, even for millennia, but to say what is or is not To the law, taking the risk, precisely, that it displeases the said company. Consequently, while recognizing that this is an uncertain legal issue and, above all, very differently appreciated in the doctrine, the court defends a very decided solution: the interest of the child takes priority over the free choice of parents , And this prevents an irremediable corporeal mutilation from being practiced on his young body.
Surprising, this decision is nonetheless surrounded by a halo of uncertainties. Its scope is still very ambiguous. The other courts of the country can not be bound by a judgment given by a Court of First Instance. Therefore, only a decision of the Federal Administrative Court or the Constitutional Court could allow a definitive decision on the merits of the case, thus clarifying the legal landscape surrounding circumcision. For the time being, the Cologne judgment has created a degree of legal uncertainty. Several organizations, such as the Federation of Surgeons for Children, the German Medical Chamber or the German Society for Child Surgery Their willingness to discourage this operation from their members. It continues mostly to sink a lot of ink on the Rhine. Described by the Zentralrat der Juden in Deutschland as a “dramatic and unprecedented intrusion into the right of self-determination of religious communities”, this decision triggered the ire of religious organizations, Both Muslim and Jewish. The latter have in fact revolted against a decision which, according to the Coordinating Council of Muslims in Germany (Koordinierungsrat der Muslime in Deutschland, KRM), “criminalizes” ancient Islamic and Jewish customs. Ultimately, at a time when the expression “Kulturkampf” (“clash of cultures”) is flourishing in the German media, Foreign Minister Guido Westerwelle acknowledged that the Cologne judges had provoked ” Recalling on 28 June that Germany remains “an open and tolerant country in which religious freedom is deeply rooted and where traditions such as circumcision are seen as an expression of religious pluralism “.
What is the situation in French law? As in Germany, the practice of circumcision is characterized by a tolerance that is both permissive and ambiguous. Prosecutions could certainly be considered on the basis of several provisions. Article 222-1 of the Criminal Code punishes acts of violence, including mutilation. It is on this foundation that the practice of excision, for example, is repressed. Article 16 (1) of the Civil Code, concerning the unavailability of the human body, in particular where the person concerned can not give his consent, could also be invoked. Finally, Article 24 of the Convention on the Rights of the Child prohibits medical interventions devoid of therapeutic aims. Practiced in the absence of medical reasons, circumcision may therefore appear suspicious under these three provisions. However, it enjoys a form of tolerance of a customary nature, which is probably explained, at least in part, by the fear of provoking reactions denouncing a form of anti-Semitism or Islamophobia. However, as a criminal offense, circumcision could very well be regarded as a breach of public order: it should be considered in the light of the limits which it is able to impose on religious practices in Application of Article 1 of the Law of 9 December 1905.
But a more general question remains: why is circumcision so tolerated? Without attempting to compare this practice with that of excision, the effects of which in the young girl and the future woman are not commensurate with those produced by male circumcision, one observation may surprise: the latter generally seems to be accepted, both in Germany In France or in the United States, where it is still practiced relatively frequently on a preventive basis, including on non-religious grounds. This is evidenced on the French side by the report of the Council of State published in 2004. It can be read in this document that ritual circumcision constitutes a religious practice which is certainly devoid of any legal basis but nevertheless “accepted” (Reflexions sur la Secularism, The French Doc, 2004, p.331). In 1997, in accordance with the Bianchi case-law (ECA, 9 April 1993), the Council of State adopted a very broad conception of the act of care, The public authority following an anesthesia accident which occurred during an ablation of the ritual foreskin (CE, Nov. 3, 1997, Hôpital Joseph-Imbert d’Arles, No. 153686). For the rest, on the civil side, the question of circumcision reveals a real taboo. Most often confined to the family sphere, it reaches the civil judge only in case of disagreement between the parents about the education of their children. On the basis of the distinction between the usual acts and the serious acts (see Article 372-2 of the Civil Code), the judge initially defended a very permissive approach, qualifying any circumcision, whether of a medical nature Or ritual, of a usual act, requiring only the consent of one of the two parents (see TGI Paris, 6 Nov. 1973, Gaz, Pal., 1974, RDSS, 1975, pp. 116, P. Raynaud, Court Cass., C. Civ., 1st Ch., 26 Jan. 1994, D. 1995. 226, note C. Choain). He then sought to defend a more sophisticated position: since 2001, medical circumcision has been recognized as a usual act requiring the consent of a single holder of parental authority when ritual circumcision, A serious act, imposes the joint consent of the holders of parental authority (Paris Court of Appeal, 1st Ch., 29 Sep. 2000, No. XP290900X, note C. Duvert, D. 2001, p.1585, RTD Civ 2001: 126). There remains the delicate question of the consent of the minor, article 371-1 para. 3 of the Civil Code providing for the association of the child according to age and degree of maturity with the decisions concerning him (see, v. Lyon Court of Appeal, 2nd Civil Division, 25 July 2007, JCP 2007.IV.1028, RTD Civ., 2008, 99, note J. Hauser).
Ultimately, in French law as in German law, the question of circumcision is approached with the utmost caution. A double justification is then generally advanced. It is linked, on the one hand, to the sanitary and medical interest deemed to attach to this practice (V. Pécresse, Government Commissioner, described in 1997 the circumcision of a “benign surgical procedure” Reason for public hygiene “, v. Its conclusions in Hôpital Joseph-Imbert d’Arles, RFDA, 1998, pp. 90 ff.) – an argument which is nevertheless seriously discussed by a part of the scientific community. It refers, on the other hand, to the widespread acceptance of this practice within two of the great monotheisms – enough to undermine, nevertheless, the principle of secularism. Tolerance, but not explicit acceptance. A far cry, indeed, refund, even partially, by the Health Insurance Fund, the circumcision of young boys practiced for religious reasons, as requested by Ms Valérie Boyer, MP for Bouches-du-Rhône, By means of a written question asked in 2008. However, this eventuality was very quickly dismissed by Mrs. Roselyne Bachelot, then Minister of Health. Remains that a “comprehensive” surgeon can always bypass the obstacle by prescribing an operation for phimosis, an act reimbursed by the Health Insurance Funds …
In fine, fought by St. Paul, who advocated circumcision in the heart rather than in the flesh (Epistle to Romans 2:29), male circumcision invites reflection. Why such tolerance of an operation with irreversible consequences on the body of a young child whose consent has not been obtained? Products effects can not certainly be assimilated to consequences caused by circumcision performed on the body of the girls – there is also no question here of entering the field of comparison between the two practices. The fact remains that circumcision is an irreversible harm to the physical integrity of young children, and a move that is far to guide him in his choice or in its quest for religion, as is required l Article 14 para. 2 of the Convention on the Rights of the Child. A solution appears: the prohibition, the risk that the transition to underground do not incur young children even greater risk … For the moment, a number of religious organizations require the German Parliament to legislate Guarantee the legality of circumcision. The debates multiply: the future will show us the way chosen on the other side of the Rhine to confront or, on the contrary, to circumvent this thorny question.
Court of First Instance (Landgericht), Köln, 7 May 2012, Wa. 151 Ns 169/11 (in German)
Some references :
– Thomas Exner, Sozialadäquanz im Strafrecht. Zur Knabenbeschneidung, Dunckler und Humblot, Schriften zum Strafrecht, vol. 216, 2011.
– Bertrand Mazabraud, “Excision and Criminal Law”, Prison and Criminal Law Review, 2008, pp. 575-593.
– Holm Putzke, “Die strafrechtliche Relevanz der Beschneidung von Knaben. Zugleich ein Beitrag über die Grenzen der Einwilligung in Fällen der Personensorge “, in: Festschrift für Rolf Dietrich Herzberg siebzigsten zum Geburtstag am 14. Februar, Tübingen, 2008, pp. 669-709.
– Sami A. Aldeeb Abu-Sahlieh, Linda Weil-Curiel, Male Circumcision Male Female Circumcision: Religious Social and Legal Medical Debate, The Harmattan, Coll. Human Sexuality, 2003.
To cite this document:
Céline Fercot, “Circumcision on religious grounds: the foreskin of discord” [PDF], in CREDOF News letter, 13 July 2012