In Dialogue with Germany, Human Rights Committee Commends Solidarity in Receiving Refugees, and Asks about COVID-19 Pandemic Response
The Committee on Human Rights today completed its review of the seventh periodic report of Germany on measures taken to implement the International Covenant on Civil and Political Rights, inquiring about the country’s response to the COVID-19 pandemic, rules around preventive detention, and action Germany had taken against discrimination facing various groups.
Committee Experts requested details on how civil and political rights had remained protected in the face of extraordinary pressures. They also inquired about rules around solitary confinement and disciplinary detention, as well as asking about the rights pertaining to people in other forms of detention. The solidarity shown to refugees by Germany’s Government and citizens was commended, with Committee Experts also asking for details about family reunification procedures and the situation of unaccompanied minor refugees. How Germany’s new Federal Intelligence Service Act would comply with the provisions of the Covenant as regards the right to privacy and other relevant rights was also a topic of the dialogue.
Katharina Stasch, Permanent Representative of Germany to the United Nations Office at Geneva and head of the delegation, introducing the delegation, thanked the Committee for its flexibility in allowing Germany to present a hybrid delegation, with some participants dialing in from Berlin.
Sigrid Jacoby, Representative for matters relating to human rights of the Federal Ministry of Justice and consumer protection of Germany, introducing the report,
addressed new developments which had taken place since 2019. Germany had been hit hard by the COVID-19 pandemic; most, but not all mitigation measures taken in response had been accepted by Germany’s courts, which showed a functioning system of checks and balances, she said.
The delegation of Germany was comprised of representatives of the Federal Ministry of the Interior, Building and Community; the Federal Ministry of Justice and Consumer Protection; the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth; the Federal Foreign Office; the Federal Ministry of Health; and the Permanent Mission of Germany to the United Nations Office at Geneva.
The Committee will issue its concluding observations and recommendations on the report of Germany at the end of its one hundred and thirty-third session, which concludes on 5 November. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.
The Committee will next meet in public on Thursday, 14 October at 3 p.m. to consider the third periodic report of Armenia (CCPR/C/ARM/3).
The Committee has before it the seventh periodic report of Germany (CCPR/C/DEU/7)
Presentation of the Report
KATHARINA STASCH, Permanent Representative of Germany to the United Nations Office at Geneva and head of the delegation, introducing the delegation, thanked the Committee for its flexibility in allowing Germany to present a hybrid delegation, with some participants dialling in from Berlin. The human rights obligations stipulated by the International Covenant on Civil and Political rights were the fundamental pillars of governance in Germany, and of the dialogue ahead in Geneva.
SIGRID JACOBY, Representative for Matters Relating to Human Rights of the Federal Ministry of Justice and Consumer Protection of Germany, introducing the report, said that her opening remarks would address new developments which had taken place since 2019. Like other countries, Germany had been hit hard by the COVID-19 pandemic. Restrictions on some civil rights and liberties--which would have been unthinkable before--had had to be accepted, yet had sparked heated public discussion. Most, but not all measures taken by Germany’s Government had been accepted by its Courts, which showed a functioning system of checks and balances. The pandemic had pushed digitalisation to the top of the agenda, and human rights must follow life into the digital environment.
Climate change had an impact on human rights, and the Federal Constitutional Court had recognised Germany’s obligation to protect against the consequences of climate change both nationally and internationally.
Turning to recent developments, she noted that the Federal Government in March 2020 had created a special Cabinet Committee to fight against right-wing extremism and racism, a priority issue for Germany. In the area of asylum and migration policy, new projects focused on detecting vulnerable persons during assessments, facilitating access for families to established national welfare systems for children and juveniles, and preventing violence in refugee accommodations. There were also developments in Germany as regards gender equality. The law on protection against violence and stalking had been extended to include any kind of attack against sexual self-determination, even if non-violent. The phenomenon of “cyberstalking” had also been criminalised.
In keeping with recommendations made by international monitoring bodies, the rights of suspects in the investigation stage of criminal proceedings had been further developed. In May 2021, the law on guardianship had been reformed. The new law focused on the self-determination of the person under guardianship, and the guardian had to support the person’s own “decision-making” as far as possible. Decision-making on behalf of the person under guardianship was only permissible as a measure of last resort, where necessary, for the protection of the person concerned. The delegation looked forward to the opportunity for an open dialogue with the Committee and was ready to receive questions from Committee Experts.
Questions by the Committee Experts
On the subject of the implementation of the Committee’s concluding observations and views, a Committee Expert asked which department of Germany’s Federal Government was entrusted with following up on their implementation? Noting that there were not many individual complaints to the Committee concerning Germany, the Expert asked if the Covenant was well-disseminated among judges, prosecutors and members of the legal profession? Did judges and prosecutors receive, at the outset and during their careers, specific training on international law and international human rights law? Was the Covenant currently accessible in German, and was there a wider dissemination of the Covenant among interested people?
The Expert noted that the Committee in April 2020 had issued a statement on derogations from the Covenant in connection with the COVID-19 pandemic. Had Germany notified other State parties to the Covenant about the provisions derogated from and the reasons? What impact had the pandemic had on the general human rights situation in the country and on civil space and liberties?
Turning to the matter of counterterrorism and security measures, the Expert noted that Germany’s “Länder”, or federated states, had competence in issues regarding police matters, prison law and the administration of justice. Could the delegation comment on powers to restrict the liberty of people who posed a security threat? Had measures to impose a ban on social contacts and communication been applied? According to information, there were now expanded options for preventive detention, which could also be applied to “extremist criminals.” Could the delegation provide details on those measures?
In previous concluding observations, the Committee had expressed concerns that most complaints of ill-treatment by police officers were dismissed; according to statistics provided by the delegation, the situation had not changed. Could the delegation comment on that?
Another Committee Expert focused on Germany’s constitutional and legal framework. Why did Germany consider its reservation to the Optional Protocol (regarding communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant) to be necessary? The delegation was also asked to provide information on measures taken to improve victims’ access to effective remedy for human rights abuses caused by German companies abroad throughout their value and supply chain.
As for the issues of non-discrimination and prohibition of advocacy of national, racial or religious hatred, a Committee Expert asked the delegation to explain how it intended, in law and practice, to explicitly and adequately protect individuals against discrimination on the grounds of language and nationality, effectively address the problem of discrimination on multiple grounds, and eliminate discrimination by public authorities, for example, through broadening the scope of the General Equal Treatment Act? How did Germany intend to fill the legal loopholes related to discrimination in the housing market?
Regarding violence against women, including sexual and domestic violence, the State party should be commended for taking various steps, including through adopting legislation so that not only violence but also attacks on sexual self-determination in a more general sense triggered corresponding legal consequences. To what extent did recent legislative changes address concerns arising out of reports indicating a significant gap between legislation and practice? How did Germany ensure that judges and prosecutors were properly trained to effectively address violence against women? As regards trafficking of women and girls, reports indicated a lack of a coherent national action plan. Could the delegation explain how Germany intended to address that issue, e.g. through setting up a result-oriented, evidence-led, gender-responsive, rights-based and victim-centred comprehensive anti-trafficking national plan of action?
On the subject of children with variations of sex characteristics, it was noteworthy that a recent government-commissioned study had reported that there were around 1,900 “masculinising” and “feminising” surgeries every year on intersex children up to nine years old, although there had been legal progress banning the performance of targeted sex-adaption procedures on intersex children. How did Germany intend to further protect, in law and practice, intersex children against non-emergency, invasive and irreversible surgical or other medical treatment without their fully informed, prior and free consent? Which guidelines for medical professionals on treating intersex children were in place, and did they take into full account children’s rights under the Covenant?
On the right to life, prohibition of torture and other cruel, inhuman or degrading treatment or punishment, liberty and security of persons deprived of their liberty, the Committee Expert further inquired about the United States armed drone program, which drew on technical facilities at Ramstein Air Base and personnel stationed there. How did Germany ensure that activities taking place within its territory, having a direct, significant and foreseeable impact on the right to life of individuals outside its territory, were consistent with the Covenant and that Germany was not complicit in any occurrences of arbitrary deprivation of life?
On the matter of non-discrimination and prohibition of advocacy of national, racial or religious hatred, a Committee Expert asked the delegation to provide statistics on the claims brought under the General Equal Treatment Act, including the number of complaints made, and a summary of their outcome. Could the delegation also provide statistics on the number of discrimination complainants who were granted legal aid during the reporting period? Were there any plans for the powers of the Federal Anti-Discrimination Agency to be expanded, in line with the previous recommendations of the Committee?
Another Committee Expert asked what steps Germany had taken to respond to reports of hate speech in other media (besides online) and in politics, noting that several reports had expressed concern over negative stereotypes of people of African descent remaining commonplace, institutional racism against Muslims, the increasing number of criminal offences against refugees, asylum-seekers, and their shelters, and racist attacks on persons with Asian backgrounds in relation to the COVID-19 pandemic. What steps had been taken to respond to such racist and xenophobic acts, and racially motivated crimes? Furthermore, what steps were being taken to respond to reports of manifestations of anti-Semitism, including physical and verbal attacks at public demonstrations, sporting and social events, in schools, in the street, in media outlets, and online?
Turning to the issue of voluntary termination of pregnancy, the Committee asked the delegation to explain the basis of section 218a of Germany’s Criminal Code, according to which a pregnant woman deciding to terminate her pregnancy needed to demonstrate that she had obtained counselling at least three days prior to the procedure. According to reports, religious fundamentalists were not allowed to harass women heading towards approved counselling centres or medical practices and clinics offering abortion services. Those groups could exercise their freedom of speech in any other place but those facilities. How were those decisions enforced?
Replies by the Delegation
The delegation noted that due to recent elections, there would be a new government soon, so answers to questions relating to the future should be noted with that proviso. In response to questions about why so few communications, or individual complaints, came to the Committee from Germany, the delegation explained that one reason was that a Constitutional Court settled those complaints. Another reason was that a decision from the European Court of Human Rights was directly binding on the Federal Government of Germany, making it more appealing for applicants to go to Strasbourg.
Regarding the consequences of the COVID-19 pandemic, the judiciary had experienced some delays, but the overall functioning of the courts had been upheld. Some municipalities had been over-cautious in banning assemblies, and had then had to permit demonstrations, with requirements.
In response to questions regarding anti-terrorism measures, the delegation noted the centrality of the fundamental principle of proportionality in German police law. The police only ordered custody until the end of the day. Any custody longer than that was subject to judicial review. People deprived of liberty were always provided with an opportunity for legal counselling.
As for questions on business and human rights, Germany indeed had a national action plan with a list of measures, but after an evaluation, was not satisfied with businesses’ level of compliance. Last year, the Federal Government had initiated its Supply Chain Act to monitor the legal framework of that field, which would come into force in 2023. Under the Act, responsibility for immediate suppliers very close to the business had higher requirements than indirect suppliers, a feature which had been a source of lively discussions with non-governmental organizations. Foreign plaintiffs could access courts in Germany; those without funds could access legal aid. Germany believed that the level of protection was sufficient within the new Act.
Training and further education of police officers was constantly under improvement, the delegation said, adding that civil society organizations were involved in the training. Germany deemed a training programme successful when there were very low numbers of complaints. As for training of public officials who dealt with victims of violence, specific expertise with regard to victim protection was necessary. Victims of human trafficking had at least three months to decide whether they wanted to become involved in proceedings and make a statement. Numerous counselling centres for victims of human trafficking provided information in different languages, and there was no lack of information due to language barriers. Women who had been subject to forced marriage could also receive residence.
On the issue of intersex children, the delegation noted the successful adoption in May 2021 of legislation on intersex children, following lengthy consultation processes. An evaluation would be carried out to see if there was still room for improvement. In order to have a surgical procedure on a minor who could not consent, a judicial review was needed. There were no guidelines yet, however, an explanatory film for parents was available, which referred to special counselling centres. Germany would be following how the issue developed in practice.
Germany had spent efforts and resources in fighting discrimination, the delegation said, noting that a lot of work needed to be done within society to ensure peaceful coexistence. Civil society was crucial to those efforts. The establishment last year of the Cabinet Committee against Racism was a reaction to several events and attacks in Germany. The Cabinet Committee had presented a report on the implementation of measures it had suggested. In its work, it was trying to raise more awareness of racism as a general problem in society. Structures were needed to fight racism, such as schools and democratic education.
Follow-up Questions by the Committee Experts
A Committee Expert asked about the situation of Black people in Germany. Did they ever get to work in government jobs, or just in football, where they did very well? How were their issues articulated and represented? Regarding vaccination, there was information that it was given only to people with digital documentation. What measures were being undertaken to ensure that vaccination was provided to all without discrimination?
Another Committee Expert asked again about which measures or monitoring activities were in place to ensure that intelligence-sharing by Germany and activities conducted by foreign armed forces from Ramstein Air Base did not result in arbitrary deprivation of life, especially in areas outside of combat zones?
In a follow-up to questions about the protection of children with variants of sex development, a Committee Expert asked if there was any discussion on doing away with the statute of limitation? It was very problematic in practice, because those procedures were conducted at a very young age, and the children could not at a later stage in their life initiate any proceedings when they were affected by procedures that could have violated their rights as per the Covenant.
A Committee Expert noted that there were thousands of complaints about police misconduct, but very few reached court trials. It appeared that this was because the criminal prosecution did not press charges. Regarding security measures such as preventive detention and extended periods of detention, could the delegation provide examples to clarify the practical application of the legal framework?
Replies from the Delegation
In response to questions about Black people’s lives in Germany, the delegation said that German authorities had conducted recruitment campaigns to get more people with diverse backgrounds to work for the Federal Government. Germany had a National Action Plan against Racism which represented the overall strategy against racism.
In response to questions about preventive detention, the delegation explained that the police were obliged to justify their measures before judges. As for questions on climate change, Germany had actively participated in discussions on the recent resolution on human rights and climate change at the Human Rights Council, supported the new Special Rapporteur, and would continue to ensure that the topic remained on the agenda in the Council.
A Committee Expert had asked about anti-Semitism. The German Institute for Human Rights had parliamentary financing, which ensured its independence. The situation of Roma people in Germany was a very important political matter. Germany had set up an expert board in 2019 which would shortly submit a report with recommendations; the Roma Institute for Arts and Culture would settle in Berlin with support from Germany and the Council of Europe.
Questions from the Committee Experts
A Committee Expert asked about the use of mechanical restraint in police custody. Could the delegation provide updated data confirming whether its use was actually decreasing? According to information, measures including restriction of liberty were in use in residential care facilities; could the delegation provide figures on its use? On involuntary hospitalisation and forced committals, the Committee Expert asked the delegation to provide information if there was any independent mechanism which might receive and examine a request by persons involuntarily hospitalised to be released from the hospital.
Turning to the issue of protection of unaccompanied child asylum seekers, refugees and migrants, and the birth registration of children, the Expert noted that more than 2,600 unaccompanied minors had applied for asylum in Germany in 2016. Which measures were taken to provide them with appropriate care and support?
As for issues pertaining to the right to life and prohibition of torture and other cruel and degrading treatment, a Committee Expert asked whether detained persons had a right to counsel before their first police examination? Was it correct that the presence of defence counsel in juvenile cases was not mandatory, except in some cases? As for the right to privacy, Germany’s 2016 intelligence reform had codified important new rules about data collection by Germany’s Federal Intelligence Agency. How could individuals complain about possible violations of their rights on data protection and what remedies were available to them? What type of parliamentary control was the Federal Intelligence Agency subject to? Some of the world’s largest Internet exchange points were situated in Germany, thus making the country a central hub for significant portions of the world’s Internet traffic. That traffic could now be surveyed, the Expert noted. Did the new law comply with principles of legality, proportionality and legality?
Turning to questions on the treatment of aliens, including refugees and asylum seekers, a Committee Expert commended Germany for the “impressive solidarity” shown by the Government and its citizens in receiving refugees throughout the past six years, as well as the continued whole-society approach to refugee protection and integration, the humanitarian leadership in global refugee protection, and the provision of very significant funding. Germany was also to be commended for steps taken to address shortcomings in its asylum procedures, including by introducing structural change at the Federal Office for Migration and Refugees.
What measures were in place to ensure that the specific needs of vulnerable groups of refugees and asylum seekers were effectively identified at the earliest stage possible and taken into consideration during their reception, asylum procedures and local integration processes? Noting that Germany had instituted a quota on family reunification for beneficiaries of subsidiary protection, the delegation was asked whether that quota would be lifted, whether a broader scope of the term “family” would be introduced, and whether procedures for family reunification would be speeded up? As for foreign victims of human trafficking, could the delegation clarify how and when it provided them with residence rights? What about those who were not willing to participate in criminal proceedings against the trafficker due to fear of retaliation? How did Germany ensure that all asylum seekers had access to individualised procedures that could offer them protection against refoulement?
Another Committee Expert addressed questions on the topics of freedom of religion and freedom of expression. Could the delegation provide information on federated state-level statues prohibiting the wearing of religiously motivated dress by teachers? What was the impact of the 2017 Network Enforcement Act on freedom of expression? That Act allowed social networks to refer content to review to a self-regulation body. What were the criteria for authorising such a body to determine what might be illegal content on social media, and could the delegation provide information about the process institutions must follow to determine if the content was unlawful? Noting that the United Nations Educational, Scientific and Cultural Organization had called for Germany to decriminalise defamation and incorporate it into the Civil Code in accordance with international standards, had there been any development as to whether defamation committed in public or via written publications should carry a higher penalty?
A Committee Expert asked the delegation to clarify the difference between solitary confinement and disciplinary detention? Which infractions justified such practice? Was allowing for disciplinary detention for up to four weeks for adults and two weeks for children compatible with the provisions of the Covenant? As for the system of preventive detention, how were the conditions of preventive detention distinguished from punitive detention? Could the delegation provide more detailed information on the way Germany assessed that preventive detention was used only as a last resort, for compelling reasons?
The delegation referenced yesterday that the COVID-19 pandemic had impacted the right of assembly. Could the delegation provide additional information about the material scope of any derogations from articles 21 and 22, and discuss how it was ensured that the measures were strictly required by--and proportional to--the exigencies of the situation and limited in duration, geographical coverage and material scope? The need for that had been outlined by the Committee in its 2020 statement on derogations from the Covenant in connection with the COVID-19 pandemic.
As for the right to participate in public life, was it correct that legal changes had fully removed all legal impediments to those with disabilities and with diminished criminal responsibility from taking up their right to vote? As for third-country nationals, who constituted a significant proportion of the population, the Committee had received reports that significant numbers were excluded from voting and broader political participation. Could the delegation provide information about the legal provisions in place to clearly define citizenship in the context of the rights protected by article 25?
Replies by the Delegation
In response to questions about the use of mechanical restraints, the delegation said the use was decreasing and figures were very low on use in police custody. Complaint mechanisms against that practice did not include the National Mechanism for the Prevention of Torture, which could not receive individual complaints, but could conduct ad-hoc visits to care homes and institutions. Measures to limit liberty included belts and putting side rails on beds so people could not get out of them. Care homes had unfortunately been terribly impacted by the COVID-19 pandemic, which had hindered further reviews of the use of mechanical restraints. In response to questions about the requirements for forced commitment to psychiatric care, a concrete risk of harm had to exist, to oneself or another person. It was a measure of last resort.
Turning to the situation of unaccompanied refugee minors and their reported risk of human trafficking, the delegation noted that a distinction must be made between social laws on the protection of children and minors, and refugee regulations. An unaccompanied refugee minor would be taken into care, transferred to regular care if no further family members appeared, and offered support in all regards. If a minor had travelled to Germany, it was important to establish their identity. Human trafficking was a crime in Germany, and human trafficking of minors was an aggravating circumstance triggering higher punishments.
A person who had been arrested must immediately be brought before a judge, at the latest the day after arrest. Family members could be notified by the arrested person, who must be given the opportunity to do so. Exceptions were very narrowly defined. In response to questions about the presence of defence counsel in hearings, the delegation noted that through a new procedure, accused persons were informed that they had the right to consult a lawyer.
As for questions regarding reforms to Germany’s Federal Intelligence Service, the delegation explained that the Chancellor’s Office had the right of oversight over it. The Federal Constitutional Court had made it clear that the German Constitution applied and provided protection for foreigners abroad. The new Federal Intelligence Service Act would come into full force on 1 January 2022. The new Act brought an entirely new regulation for telecommunications surveillance, and focused on foreigners abroad, European Union citizens, and provided a solid legal basis. Germany had focused on the protection of confidential relationships, such as those of lawyers and journalists. A major part of the new reform was the Independent Oversight Council, which was currently being developed, and would take up its functions when the new Act was fully in force. The Oversight Council could be described as a supreme federal body; it was independent, under the Executive, and not subject to Parliamentary oversight. The Oversight Council members were elected by the Parliamentary Oversight Body.
In response to questions about the rights of refugees and asylum seekers, the delegation said Germany had set up a group on quality measurement, which was intended to regularly check decisions and draw up measures such as special training for employees of the Migration Office. At least two people checked every decision. As for measures in place to identify vulnerable people, Germany had acceptance guidelines for the federated states. Family reunification quotas of 1,000 persons per month had been introduced as part of the new law on migration. Due to the COVID-19 pandemic, the numbers were lower. Minors who had been granted protection could be reunified with their parents and siblings. As for extending the definition of the family, today it included siblings above the age of 18 under certain conditions. In order to conduct family reunification, an application must be made at an embassy abroad. Family relationships needed to be documented. In response to questions about residence rights for victims of human trafficking who did not want to cooperate with a criminal investigation, the delegation said residence status was always decided on an individual basis.
In response to questions about disciplinary detention and solitary confinement, the delegation explained that those concepts were difficult to translate accurately between English and German. In German, solitary confinement referred to a measure an imprisoned person could be subjected to if they represented a danger to others, to avert someone being hurt. It was a measure of last resort but could be applied as long as the danger existed. Disciplinary detention was a punishment for a specific way a person had acted, and was a last resort if other measures had not worked, such as not being allowed to participate in sports, or go outside to do their shopping. The most recent figures, from November 2020, showed 595 persons in preventive detention. The conditions had improved drastically. Every year, a review had to be conducted to decide whether preventive detention was still warranted.
Follow-up Questions by Committee Experts
A Committee Expert asked about the practical implementation of Germany’s anti-discrimination mechanisms. With reference to information the Committee had received about asylum seekers suffering refoulement, another Committee Expert asked what Germany was doing to adopt administrative practices at the border to ensure all asylum seekers received individualised treatment. A Committee Expert noted that a joint declaration between Namibia and Germany had been presented to the German Parliament in June 2021. The declaration was in regard to Germany’s responsibility for the genocide of the Ovaherero and Nama in the years 1904-1908. Were there any plans to include the affected communities of those indigenous people in the follow-up process to the declaration?
Replies by the Delegation
In response to questions about the practical implementation of Germany’s anti-discrimination systems, the delegation explained that the experience of people of colour was not being separately documented. It was a gap Germany was trying to close. Germany’s political programmes worked closely with communities and civil society, to close the gap between the political plan or idea, and the practical implementation.
Solitary confinement was a measure of last resort and did not mean a person was completely isolated. Visits from family members, religious services and the like were still possible, but it depended on how much of a risk a person presented to others.
Sigrid Jacoby, Representative for Matters Relating to Human Rights of the Federal Ministry of Justice and Consumer Protection of Germany, thanked the Committee for the interesting and critical discussion. For Germany, it was important that the Committee held up a mirror, allowing Germany to see risks of violations of human rights, and showing a perspective other than the German perspective. The issues which had been raised by the Committee were the main societal challenges facing Germany today. Defending civil liberties against monitoring and surveillance, and how the human rights standards could be brought into the new digital era were among questions Germany was still searching for answers to.
PHOTINI PAZARTZIS, Committee Chair, said the object and purpose of the dialogue was to be constructive, and to hear from the delegations of States parties themselves about what was happening in their countries. The implementation of the Covenant was very dear to the Committee as regards the information it wanted from States; that helped show how situations were evolving, and how the Committee could make recommendations for things to improve, or commend improvements which had taken place. The Committee was interested to hear that Germany was considering perhaps reviewing its reservation under the Covenant. In future dialogues with other States parties, the effects of the COVID-19 pandemic would also become a topic, she noted.