HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF GERMANY
19 October 2012
The Human Rights Committee this morning concluded its consideration of the sixth periodic report of Germany on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Volkmar Giesler, Chief of the General Direction for Constitutional and Administrative Law and European and International Law at the Federal Ministry of Justice of Germany, introduced the report and said that the instrument of preventive detention was an issue that caused complaints by the European Court of Human Rights and the Federal Constitutional Court, although the European Court of Human Rights had accepted this instrument for individuals who committed the gravest of crimes on several counts. The bill that was now before the Bundestag would further tighten up the requirements for placement in preventive detention. Significant efforts were made to combat discrimination and ensure universal access to housing, with more than half a billion Euro spent each year to stimulate the building of social housing. Progress was visible in ensuring gender equality in working life but there was room for improvement in executive positions, particularly in the private sector.
The Committee Experts commended Germany for strengthening the inclusive character of human rights and the adoption of General Treatment Act in 2006, but expressed concern about several issues, including the pervasive nature of discrimination in housing, violence against women which disproportionately affected women from Turkish and former Soviet Union countries backgrounds, and the system of preventive detention which allowed for indeterminate detention of individuals even after they had served their sentence. The goal of substantive gender equality had not yet been reached in Germany, despite all the positive developments and the Committee wondered why. Other issues taken up during the interactive dialogue included asylum procedures, airport asylum procedures and use of instrument of diplomatic assurances; trafficking in persons and human beings; hate crimes and racist propaganda; and the situation of minorities, especially Roma and Sinti.
In his closing remarks, Mr. Giesler recognized there was room for improvement and said that Germany would carefully examine how it could implement the suggestions made by the Committee.
Zonke Zanele Majodina, Committee Chairperson, in preliminary closing observations, welcomed the commitment of Germany to continuously improve the human rights situation in the country and comply with its international human rights obligations. The Committee expressed its concern about several issues, especially in relation to preventive detention and the lack of a time limit which meant that a person could be detained indeterminately.
The delegation of Germany included representatives of the Federal Ministry of the Interior; Land Berlin, Senator for Integration, Labour and Women’s Issues; Federal Ministry of Justice; Federal Ministry for Family Affairs, Senior Citizens, Women and Youth; Federal Ministry of Food, Agriculture and Consumer Protection; and the Permanent Mission of Germany to the United Nations Office at Geneva.
The next public meeting of the Human Rights Committee will be at 4 p.m. this afternoon, when it will discuss its methods of work.
The sixth periodic report of Germany can be read here: (CCPR/C/DEU/6).
Presentation of the Report
VOLKMAR GIESLER, Chief of the General Direction for Constitutional and Administrative Law and European and International Law at the Federal Ministry of Justice of Germany, reiterated the paramount importance of dialogue with the Committee Experts and said that the court ruling that circumcision of male children should be punishable under criminal law as a form of bodily harm had caused a stir in Germany. The instrument of preventive detention was an issue that caused complaints by the European Court of Human Rights and the Federal Constitutional Court, although the European Court of Human Rights had accepted this instrument for individuals who committed the gravest of crimes on several counts. The bill that was now before the Bundestag would further tighten up the requirements for placement in preventive detention. Turning to the replies to the list of issues provided by the Committee, Mr. Giesler said that international stipulations were becoming more and more important in the domestic legal system. Significant efforts were made to combat discrimination in housing and ensure universal access to housing: more than half a billion Euro were spent every year on stimulating the building of social housing and over a billion Euro were spent annually on housing benefits for low-income families.
Mr. Giesler strongly objected to the accusations by the Open Society Justice Initiative of discriminatory practices in Berlin, which had a particularly high percentage of school children from ethnic minority backgrounds and was making extraordinary efforts to integrate them. A lot was being done to ensure gender equality in working life and about 40 per cent of parliamentarians were women. There was however room for improvement in executive positions, particularly in the private sector; a number of voluntary initiatives had been launched, including via the Government-sponsored Dax-30 initiative that had led the majority of large companies to set standards for increasing the percentage of women in executive positions. Concerning deportations and extraditions of persons to other States, Germany adhered to the stipulations of the European Convention on Human Rights and had decided in 2011, without being asked by the European Court for Human Rights to do so, to suspend deportations to Greece based on Dublin II regulations.
Another member of the delegation said that the Government was concerned about the deprivation of liberty for people in residential homes and added that further preventative efforts must be made to reduce the incidence of restriction of freedom. The number of unknown cases of human trafficking remained uncertain, but nothing indicated an increase in the number of cases. It was regrettable that there were repeated occurrences of anti-Semitic and racially motivated crimes; the latest incidents in Berlin where individuals recognizable as Jews had been attacked on the street were a cause of concern. Anti-Semitic tendencies and stereotypes existed not only among right wing extremists but were also to be found in immigrant circles and the mainstream society and this was where combating the phenomenon must take place. The Common Defence Centre against Right Wing Extremism, set up in December 2011, would strengthen cooperation between police and intelligence on the Federal and Laender level; a coordinated assessment of right-wing internet activism was currently taking place.
Questions by Experts
WALTER KALIN, Committee Rapporteur for the report of Germany, welcomed the 2005 declaration of Germany on the extraterritorial applicability of the International Covenant on Civil and Political Rights and the training provided to soldiers serving abroad. Was there any procedure in place that would ensure the follow-up to observations and recommendations by this and other Committees? Were the provisions of the Covenant just mentioned as a reference in court decisions and deliberations, or were there decisions based on those provisions?
The delegation was also asked to provide clarification on the follow-up procedure and mechanism to the views and observations of Committees and to comment on the reasons for refusing to withdraw the reservations of Germany to the Covenant.
Another Expert commended Germany for submitting the report using the new guidelines and for the progress made in Germany for strengthening the inclusive character of human rights and especially the adoption in 2006 of the General Treatment Act. Could the delegation provide more information on this law, its scope, institutions and power? The goal of substantive gender equality had not yet been reached in Germany, despite all the positive developments and progress; what were the reasons and could temporary special measures accelerate the achievement of this substantive equality? How was parental leave regulated and what measures were taken to ensure adequate child care? Discrimination in housing continued to be a pervasive issue in Germany and the Special Rapporteur on adequate housing had recommended a thorough revision of the law.
There was a disproportion in the number of women in positions of power, not only in political but other spheres of life, which in the context of the European Union was a worrying situation; what was being done to address it?
Response by Delegation
In terms of the follow-up to the concluding observations and communications by this and other Committees, Germany first provided an official translation to both chambers of the Parliament and all Federal Ministries and competent Ministries and the Laender level. Courts dealt substantively with the provisions of the Covenant, rather than just mentioning them briefly. Germany was prepared to take a critical look at the reservation it had entered on the Optional Protocol.
The Federal Anti-discrimination Agency worked closely with agencies in various federal states in the areas of several laws, and not only race, sex or ethnicity. The Anti-discrimination Law included religion, race, disability and sexual orientation and no one should be excluded from public life. The Federal Anti-discrimination Agency was in charge of the implementation of the law; it supported victims of discrimination, organized learning and awareness raising events and maintained various statistics on discrimination and relevant legal rulings in discrimination matters.
The Federal Equality Act set forth special temporary measures to increase gender equality in work, and allowed for preferential treatment of women in recruitment. In 2007, about 16 per cent of university professors in Germany were women; the Federal Government had put in place two measures to address this situation: it had concluded contracts with Laender administrations and universities agreeing on targets for the number of women professors, and had agreed to fill in positions in advance for female professors soon to retire.
Integration of people with immigrant background was a very sensitive issue which affected education and housing, and did not exist in a vacuum. Local regulations set forth the provisions for allocation of housing with the aim of avoiding the creation of problem areas in certain parts of cities.
Follow-up Questions and Answers
In a series of follow-up questions, Committee Experts asked about the interpretation of socially stable structures and how the decisions on housing for people of immigrant background were interpreted by courts; examples of special temporary measures to achieve substantive gender equality in many fields, which had not yet been achieved in all spheres in Germany; and about whether reservations to Article 15(1) had been applied in practice and in which cases they were used.
There were no court cases related to housing and any would be reported to the Federal Anti-discrimination Agency, said the delegation. In terms of gender equality, temporary special measures could exist with regard to the legal framework and the General Equal Treatment Act. Germany was open to learning how other States had entered their reservations to Article 15 and 26 of the Covenant.
Questions by Experts
In the second series of comments and questions, the Committee Experts took up the issue of violence against women and inquired about the reasons for which women of Turkish and Russian origin suffered more violence than women of other backgrounds in Germany. They requested additional information about training seminars and plans to increase the number of shelters and places in women’s shelters, and about agencies in the country specialized in combating violence against women and their activities.
Further, Experts asked if Germany was a party to the Convention on the Rights of Migrant Workers and Their Families and the International Covenant on Economic, Social and Cultural Rights and if not, why; and whether the concept of torture was enshrined in the Constitution and Criminal Code of Germany. Reports indicated that there were still about 500 people in preliminary or pretrial detention, some of them for more than 20 years; could the delegation explain how this had come to pass? How could police brutality and violence be explained in a country like Germany?
The Committee welcomed the suspension of transfers of asylum seekers to Greece under the Dublin II procedures and asked for evaluation of this decision and if it would be extended beyond January 2013. The provisions of the Asylum Procedures Act were interpreted differently by different courts, which put at risk the protection of asylum seekers; could the delegation comment on this issue? Were fast track asylum determination procedures at airports sufficient and in line with the provisions of the Covenant? In terms of extradition, the Committee was concerned about the protection from torture upon return and asked the delegation to provide a list of States from which diplomatic assurances had been received and extradition had taken place.
The Committee wondered about the causes of higher detention and incarceration rates for persons of foreign origin, which might also indicate higher rates of criminal behaviour, in particular among the youth; had any studies been conducted in this regard. The Committee welcomed the attention paid by Germany to the issue of the protection of people in nursing homes and asked what was being done to ensure higher adherence to the law, which had not been respected in some 10 per cent of the cases.
Response by Delegation
The delegation took the floor to clarify the erroneous figures quoted in the Committee’s questions, namely the 500 persons in pretrial detention. Germany said that it was difficult to differentiate between previous and subsequent preventive detention, but there were no major differences in how those two systems worked.
In a series of follow-up questions and comments, Committee Experts said that even though all States were equal, higher standards of compliance with human rights were expected of some; Germany was one such State and the Committee asked for reassurances that the so-called honour crimes were treated like all other crimes and that cultural, religious or any other considerations would not be used as mitigating circumstances. Experts asked for additional information concerning the Action Plan to Combat Violence against Women, its duration and planned activities.
Response by Delegation
Preventive detention, which included two different forms of detention, was a very complicated question. New elements introduced into the legislation in 2011 gave the option to courts to reserve the right to impose preventive detention and to order preventive detention for persons already serving their sentence. The preventive detention following the serving of the sentence could be ordered in cases when the perpetrator had already been sentenced at least three times for violent crimes, for the duration of at least 12 months, and when the person was assumed to be a danger to society. Courts conducted regular checks and judicial reviews to establish if danger still existed and whether the preventive detention could be lifted. Mental disease was not a pre-requisite for preventive detention.
The national survey had indicated that women from Turkey and countries from former Soviet Union countries were more likely to suffer domestic violence but the reasons behind this phenomenon were not clear; some explanations could be linked to their financial dependence, situation with residence permits, language issues, and lack of social resources. The Government had established a telephone help line and was constructing a relationship with Turkish communities to raise awareness about violence against women through joint activities with imams. There were a number of institutions addressing the issue which served as coordination centres, counselling centres for women, training programmes for judges and law enforcement officers and they also maintained various kinds of statistics. Stalking was a crime in Germany. There were no statistics on female genital mutilation but based on the origin of immigrant women, it was estimated that 20,000 might be affected and in this sense the mutilation had happened in their countries of origin.
Following up on the issue of preventive detention, Experts further asked about the process of determining whether danger still existed; the system of preventive detention as a whole and not only the new elements introduced in 2011; and the category of non-reserved detention and who could order it and how. Experts noted that the concept of dangerousness in law was always a very sensitive issue and that post-sentence preventive detention was in fact akin to open sentence.
Responding, the delegation said that directly imposed preventive detention was ordered based on a psychiatric report by recognized forensic psychiatrists, while a reserved preventive detention order was issued by a judge when there might be a danger to society. This was not a criminal sentence, but was a measure to protect society; detainees had the right to better conditions than sentenced offenders. German courts had ruled that reasons for the so-called honour killings were base motives which turned charges of manslaughter to murder.
A Committee Expert noted that motives to torture were very different and extracting a conviction was only one of them; all those motives as contained in the international definition of torture were not covered in the domestic legislation and the Committee wished to know why.
In response, the delegation said Article 343 of the German Criminal Code was the main section in the legislation which had also considered the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Asylum Procedure Act called for a full respect of the European legislation and case law, which included judgements of the European Court for Human Rights and the European Court of Justice. According to the case law, there had to be systemic deficiencies in asylum systems of countries of return to suspend transfers. Since January 2011 Germany had fully suspended transfers to Greece until January 2013; extension of this decision would be made at political levels but it was considered that the asylum system in Greece was still considered to be extremely problematic. The Dublin II was currently being re-worked at the European level and Germany would include its changes into domestic legislation.
The airport asylum procedure was an expedited simplified asylum procedure for asylum seekers from safe countries of origin and for refugees without passports. It was conducted by professional authorities at the airport who within two days would decide whether the application was founded; if so, the applicant was allowed into the country to initiate regular asylum procedures. Asylum was granted to conscientious objectors who fled military service for fear of being forced to commit war crimes. The Federal Government reserved the right to use diplomatic rights as a basis for deportations and extradition, but only in very specific and exceptional cases. So far, they had only been used in two deportation cases and there were no further plans to use this instrument. The instrument was used more often for extraditions when it usually pertained to questions of application of penal norms, for example the death penalty or execution of the sentence. The assurances must ensure that the international obligations of Germany would be adhered to.
Questions by Experts
The Committee noted that Germany had been called upon to strengthen measures to combat trafficking in persons and human beings, especially women, and that some sources noted a figure of 15,000 persons, including children trafficked annually for various purposes. Experts asked how Germany ensured the integration of human rights standards and norms in the measures taken; about the basis for claims that there was no increase in the number of cases of trafficking in persons; and concrete steps and measures to optimize the protection of persons trafficked not only for labour but other purposes, including sexual exploitation.
Referring to the case of forced evictions in Uganda by Neumann Kaffe Gruppe, the Committee inquired about the position of Germany concerning the adequacy of the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development to provide remedies, and how Germany intended to strengthen remedies in the future, especially with a view to the non-binding United Nations Guiding Principles on Businesses and Human Rights.
Concerning hate crimes and racist propaganda, Experts noted that the Criminal Code needed some amendments and asked whether it specifically defined hate crimes and racist propaganda and whether the definition of incitement to hatred should be expanded to include all other crimes. Also, who had been involved in the intellectual struggle against racism and xenophobia on the Internet? The Committee raised the issue of protection of minority groups, especially the Sinti and Roma, and suggested a different way of collecting statistics, based on the principle of self-identification.
Response by Delegation
The delegation did not have any other figure about human trafficking other than the one referring to 15,000 persons trafficked annually and it was hard to say whether there was any increase in the number of victims. In terms of actions taken to combat the phenomenon and provide support to victims, there was a Federal Working Group for Trafficking in Women; local Council services played a crucial role in providing services to victims; and comprehensive legal protection was available in the law, complemented by witness protection programmes. There were a number of programmes available and a positive example was the Berlin Alliance for combating trafficking in persons for labour exploitation.
The Guidelines for Multinationals of the Organization for Economic Cooperation and Development provided for a good procedure and reaffirmed its interest in the United Nations Guiding Principles on businesses and human rights.
Based on the provisions of the Criminal Code, crimes committed as hate crimes and racist propaganda presented aggravating circumstances. A number of associations had been banned in Germany; banning of political parties was a much more complex process. Laws did not provide specifically for banning political parties on the grounds of racist or xenophobic tendencies, but those political parties endangering democratic order could be banned. The Joint Centre to Combat Right Wing Extremism had been established, and the online content was now being examined and all authorities had come together to evaluate the situation.
Germany had recognized Roma as the national minority; 70,000 Roma were German citizens and the Central Council for Sinti and Roma enabled their effective political representation and participation.
VOLKMAR GIESLER, Chief of the General Direction for Constitutional and Administrative Law and European and International Law at the Federal Ministry of Justice of Germany, in closing remarks said that the delegation had made a great effort to give the best possible picture of the situation in the country; sometimes this was not always possible to achieve in such a diverse group, as was the case with preventive detention. There were areas where Germany recognized there was room for improvement and Germany would deal with a number of suggestions made by the Experts and examine what it could do very carefully.
ZONKE ZANELE MAJODINA, Committee Chairperson, in her preliminary concluding observations, welcomed the information provided by Germany during the interactive dialogue and the compliance with the harmonized guidelines for the presentation of the sixth periodic report. The Committee expressed its concern about several issues, including on reservations on Article 26 which was worded in a problematic manner, gender equality especially in relation to the private sector, national minorities and the return of minority children to Kosovo where they suffered discrimination, the high level of violence against women of Turkish and Russian origin and the impact of the Action Plan. The Committee was worried about preventive detention and the lack of a time limit which meant that a person could be detained indeterminately. The Committee welcomed the commitment of Germany to continuously improve the human rights situation in the country and comply with its international human rights obligations.
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