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151 Ns 169/11; criminal matter of defendant Dr K

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151 Ns 169/11; criminal matter of defendant Dr K

Landgericht Koeln / Regional Court of Cologne, criminal branch

151 Ns 169/11

7 May 2012

Instruments Cited:
Article 4 (1), 6 (2), German Basic Law (Grundgesetz/GG; parents’ fundamental rights)
Article 2 (1) and (2), German Basic Law (fundamental right to physical integrity and self-determination)
Article 140 German Basic Law in conjunction with Article 136 (1) Weimar Constitution (Weimarer Reichsverfassung; citizens’ rights not limited by the exercise of freedom of religion)
Sections 223 (1) and 224 (1) no. 2, 2nd alternative, German Criminal Code
(Strafgesetzbuch/StGB; physical mistreatment of another person and injury of that person’s health by means of a dangerous instrument)
Section 17, sentence 1, German Criminal Code (unavoidable mistake as to the wrongful nature of the act and thus no criminal liability)
1627 sentence 1, German Civil Code (Bürgerliches Gesetzbuch/BGB, parental custody)
Non-Medical Practitioners Act (Heilpraktikergesetz)

Case Summary:

A doctor (“Dr K”) performed circumcision on a four-year-old boy (“J”) in his practice at the wish of J’s Muslim parents, without any medical reason for the procedure. Two days later, J was taken to hospital for treatment for postoperative bleeding. The hospital reported the case to the police, who then launched an investigation. Dr K was charged with physically mistreating another person and injuring that person’s health by means of a dangerous instrument (sections 223 (1), 224 (1) no. 2, second alternative, German Criminal Code). The court of first instance (Amtsgericht Koeln) acquitted Dr K (judgment reference: 528 Ds 30/11), which led to the public prosecutor’s appeal to the regional court.

Issue and resolution:
Male circumcision; legality of harmful traditional practices imposed by parents or guardians on children. The court ruled that circumcising young boys for religious reasons amounts to bodily harm and should be outlawed, and that a child’s right to physical integrity trumps religious and parental rights. However, the court confirmed the acquittal of Dr K on the grounds that he had not broken any law.

Court reasoning:
The court weighed up three articles of the German basic law, the country’s equivalent of a constitution: the rights of parents, the freedom of religious practice and the right of the child to physical integrity, and concluded that the procedure was not in the interests of the child. It rejected the defence that circumcision is considered hygienic in many cultures, such as in the United States. The court concluded that a circumcision, “even when done properly by a doctor with the permission of the parents, should be considered as bodily harm if it is carried out on a boy unable to give his own consent” as the child’s body would be “permanently and irreparably changed”, and that this alteration went “against the interests of a child to decide for himself later on to what religion he wishes to belong”. Still, the court acquitted Dr K because he had acted “subjectively and with a clear conscience” and because carrying out the procedure had not been a punishable offence at the time. The court ruled that, in future, doctors who carried out circumcisions should be punished.

The decision caused outrage among Jewish and Muslim groups in Germany as well as internationally. Representatives of the two religious communities called the ruling insensitive and discriminatory, saying it was an attack on centuries of religious tradition. Religious leaders said the court had stepped into a minefield with its decision, which undermined their religious authority and contravened Germany’s Constitution.

As a result of the debate ignited by this judgment, the German parliament on 12 December 2012 approved a bill to keep male infant circumcision legal. The law, passed by 434 to 100 votes, grants parents the right to authorise circumcision by a trained practitioner. Once the boy reaches six months of age the procedure needs to be performed by a doctor. This legislative move came after a unanimous recommendation by Germany’s ethics council in August 2012 to establish legal standards, including the observation of minimum requirements such as information, medical pain treatment and a professional operating procedure.

In a later decision in August 2013 in family law proceedings in the Higher Regional Court of Hamm, the court held that the parental right established by this law only applies as long as the child cannot make the decision whether he wants to be circumcised himself. Read CRIN’s case summary.

See the following links for press reports on the court’s decision:

Link to Full Judgment:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.