COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Forty-third session
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION
Concluding observations of the Committee on the
Elimination of Racial Discrimination
Germany
The Committee considered the eleventh and twelfth periodic reports
of Germany, submitted in a single document (CERD/C/226/Add.7), at
its 999th and 1000th meetings held on 11 August 1993 (see CERD/C/SR.999
and 1000).
The
reports were introduced by the representative of the State
party who pointed out that, following the reunification of
Germany
in 1990, the reports now applied to Germany as a whole. He also
stated that the recent increase in xenophobic violence, which
had
made the question of combating racism particularly relevant in
the past two years, was a source of concern for his Government.
In that
connection, he provided information on manifestations of violence
that had occurred in Germany after the submission of the report
in July 1992 and said that the total number of xenophobically
motivated
crimes had shown a roughly twofold increase over 1992 and the
brutality of the attacks had also increased. Most of the crimes
were spontaneous,
often imitative and perpetrated by juveniles and young adults.
The causes of the violence had been described in the report. Such violent
acts were denounced by the German authorities, by broad movements
of protest and by the mass media and they did not reflect the
attitude
of the population as a whole, as shown by recent surveys. State
bodies were making every effort to prevent further violent
acts
and to bring the full force of the law to bear against those
who took part in xenophobic violence. Rapid investigation of
such attacks,
prompt sentencing and measures taken by the Federal Ministry
of the Interior at the end of 1992 had served as a deterrent
to potential
offenders. Three right-wing extremist associations had been banned,
some right-wing extremists had been prosecuted and the Federal
Länder
(States) were empowered to prohibit extremist associations in
their territory.
The
representative further stated that German criminal law focused
on the educating of young principal offenders, the aim being
to
prevent commission of further offences. In general, there were
indications that the measures already taken by the authorities
against right-wing
extremists were having effect. The police also had a special
role to play in combating xenophobic activities. With regard
to the accusation
that police in the new Länder had not been present, or had arrived
too late, to protect foreigners affected by violence, as had
been
the case in Rostock and Eberswalde, public prosecution offices
had already begun preliminary investigations. Education was
of special
importance in the fight against xenophobia, since xenophobia
was due not only to social problems, but also to lack of knowledge
and
inability to cope with democracy and to make compromises. Various
educational measures had been taken by the German authorities
in that respect and a Committee of State Secretaries had been
established
to coordinate an offensive against violence and xenophobia. The
fight against racism was a special duty which the Government
of
Germany was endeavouring to fulfil.
The Committee commended the State party on the high quality of
its report, drawn up in accordance with the Committee's guidelines
for the presentation of State party reports (CERD/C/70/Rev.3) and
particularly welcomed the frank and informative introductory statement
made by the representative of Germany.
Members
of the Committee noted from the report that Germany held the
view that it had no legal obligation under the Convention to
report on legislation concerning foreigners even though it
had provided
such information, and they recalled that such an obligation was
clearly stated in the Committee's General Recommendation XI,
adopted
in March 1993. They also asked why the report provided information
on protection of minorities and other groups under article
2 of
the Convention and dealt with issues concerning foreigners under
article 5 of the Convention, thus giving the impression that
only
that article, and not the Convention as a whole, was relevant.
In addition, they were surprised that Germany had not yet made
the
declaration under article 14, paragraph 1, of the Convention,
particularly in view of its repeated pleas in international forums that human
rights mechanisms should be strengthened. Members of the Committee
further asked how the Federal Government of Germany was fulfilling
its responsibility of ensuring that the Convention was implemented
in all Länder.
With
reference to article 2 of the Convention, members of the Committee
wished to receive clarification as to the implementation
of the repatriation and reintegration scheme for Sinti and Romany
asylum-seekers whose applications had been rejected, as well
as
information on the treaties concluded between Germany and Romania
and between Germany and Bulgaria in 1992 to speed up the deportation
of persons, many of them gypsies, whose asylum applications
had
been rejected. They also wished to know whether Sinti and Romany
living in Germany who had been persecuted during the Second
World
War actually received adequate information about how to obtain
compensation. In addition, members of the Committee noted from
the report that
the Sinti, the Romany gypsies and the Jews had been recognized
as "racially persecuted groups" and asked why other groups
living in Germany, such as Turks, Poles, Czechs or persons from
the former Yugoslavia, were not featured as ethnic groups or
minorities;
whether political parties with an ethnic basis were allowed in
Germany; and what the status was of the Foundation for the
Sorbian People.
Members of the Committee observed that the report appeared to
imply that Germany provided different levels of protection
for different
minority groups and asked for clarification with regard to the
political representation of Sorbs and gypsies in elective bodies,
the cultural
protection of the Sinti and the legal protection of gypsies without
nationality. They also wished to know to what extent the 6
million
foreigners, many of whom had been resident in Germany for a long
time, had been integrated.
Turning
to article 4 of the Convention, members of the Committee took
note with satisfaction of legal and other measures taken in
Germany to implement the provisions of that article. They observed,
however, that in view of the serious nature of manifestations
of
racism and racial discrimination which were not always effectively
dealt with, Germany should consider enacting a comprehensive
anti-discrimination
law, including penal provisions for discriminatory acts directed
against foreigners in the private sector, and adopting a more
comprehensive
policy to combat racism and racial discrimination. In addition,
members of the Committee wished to receive more information
on the
substantive changes envisaged in German criminal law and procedure
in order to combat extremist and xenophobic activities more
effectively;
on the reasons why racist groups were developing in the country
and why police action was said to be less effective in the eastern
than in the western part of Germany. More information was also
requested
on the powers granted to the Committee of State Secretaries.
With
reference to article 5 of the Convention, members of the Committee
wished to know what was being done by the German authorities
to strengthen the preventive and protective role of the police,
particularly in parts of the country with a high proportion
of foreigners
and asylum-seekers; to facilitate complaints procedures; and
to provide adequate training in the field of human rights for
law enforcement
officials. They also wondered whether a more generous policy
regarding the granting to foreigners of dual nationality and
the right to
vote and to stand for election at local level would not assist
the German authorities in their efforts to promote integration
of foreigners
in the country. In addition, more information was requested about
the asylum law adopted in July 1993, which appeared to be more
restrictive
than the one previously in force, and on the treatment of young
persons of foreign nationality with a criminal record under the
new Aliens Act. It was further asked to what extent the cultural
identity of foreign workers of Kurdish origin was taken into
account
in the integration process; what measures the Government of Germany
intended to adopt to eliminate discrimination and provide equal
opportunities for all employees regardless of race and national
background; what was being done to protect the employment of
Turkish
workers resident in the country; what the conditions were for
the naturalization of foreigners; and what the precise content
was of
the laws facilitating the process of naturalization. In addition,
questions were raised with regard to measures taken by the German
authorities to prohibit and punish extremist violence and racial discrimination in the armed forces, as well as to guarantee, without
distinction, the right of everyone to freedom of religion, to
housing, health and education.
With regard to article 6 of the Convention, information was requested
on a new law which had been recently enacted to provide compensation
for foreigners who had been victims of racist practices, and on
whether plans existed in Germany to strengthen the position and
functions of the Ombudsmen for foreigners. It was also asked whether
the Ombudsmen were competent to receive individual communications
or complaints, or, if not, whether such a measure was envisaged;
how many offences committed against foreigners, which had been brought
to the attention of the Committee, were racially motivated; what
penalties other than prison sentences were envisaged for young offenders
committing racist acts and what remedies were available, in particular,
to victims of racial discrimination in housing and in employment
in the private sector.
In connection with article 7 of the Convention, members of the
Committee wished to know whether any effort was made to re-educate
young adults or adolescents imprisoned for having committed racist
acts and, in particular, acts of an anti-semitic nature, and whether
their behaviour was monitored after they had been released. It was
also asked what initiatives had been taken in the field of education
to combat effectively xenophobia and what the Government of Germany
was doing to create a greater awareness of the Convention and, in
general, to adopt measures to implement article 7 of the Convention.
In his reply, the representative of Germany, referring to the
general questions raised by members of the Committee, said that
the German authorities were open to dialogue in regard to the obligation
to report on legislation concerning foreigners and acceptance of
the provisions of article 14 of the Convention. He further stated
that all public bodies in Germany, whether at the Federal or Länder
level, were bound by the provisions of the Convention and cooperated
in their implementation. With regard to the separate treatment of
the questions concerning certain minorities in the report, that
was a matter of presentation of information without any implications
for substantive issues.
With
regard to article 2 of the Convention, the representative gave
details of the schemes for repatriating Romany gypsies to countries
neighbouring on Germany and explained that educational and
training
institutions had been established in the countries of repatriation
in order to enable those concerned better to integrate in economic
life. He also stated that gypsies were entitled to compensation
for the racial persecution which they, like the Jews, had suffered
under the Hitler regime but that the gypsies had been slow
in claiming
compensation because of a lack of adequate organization. The
groups concerned could obtain legal advice. The representative
also indicated
that Turks residing in Germany had either acquired German nationality
and benefited from the same rights as other German citizens
or were
still foreigners but did not constitute a national minority.
With
regard to article 4 of the Convention, the representative stated
that the German authorities were in the process of considering
whether amendments were needed to domestic legislation or whether
other measures should be taken in order to combat racial discrimination
effectively. As for the offence of xenophobia, the authorities
considered
that the existing system was adequate to combat that problem
and that it was a matter of implementing the legislation in
force. The
body composed of State secretaries of the various departments
concerned ensured coordination of activities and considered
the action that
should be taken. The representative went on to say that a ban
on far-right organizations could only be envisaged in each
particular
case and when all the conditions for such prohibition were met,
freedom of association being protected by the German Constitution.
A ban on extremist parties could only be imposed by the Constitutional
Court.
With
regard to article 5 of the Convention, the representative,
referring to the role of the police in guaranteeing the right
to
security of person and to the protection of the State, observed
that some difficulties concerning police training in the new
Länder
had been experienced following the reunification of Germany,
but that a series of measures had been taken to improve the
situation.
In general, the German police gave additional protection to asylum-seekers
and groups suspected of engaging in violence against them came
under
stricter surveillance. At the political level, the Parliament
of each Land had established a special committee to investigate
incidents
linked to xenophobia. As for the integration of foreigners, the
representative referred to a whole series of measures ranging
from
schooling to vocational training programmes and special language
courses for young foreigners. He explained that the aim of integration
was not total assimilation, but a cultural exchange and a process
of enrichment for all, and that since the 1980s Germany had refrained
from the enforced repatriation of foreigners. The representative
also stated that German law now facilitated the acquisition of
German
nationality by young people who had grown up in Germany and persons
who had been resident in the country for more than 10 years,
but
it seemed that the possibility of naturalization had not been
exercised to any great extent. The question of dual nationality
was currently
the subject of a lively debate in Germany. The representative
outlined the new German legislation concerning asylum-seekers
and the difficulties
experienced in applying it; he stated that expulsion or enforced
repatriation of persons born in Germany was extremely rare and
that the proportion of asylum requests accepted was currently
very low.
He then informed the Committee about the provisions of labour
law affording protection against discrimination in the recruitment
of
foreign workers; the Council of Workers and Employers had to
act in unison on that matter. With regard to rented accommodation,
on
the other hand, a property owner could refuse to sign a lease
with a particular person. As for acts of xenophobia perpetrated
by members
of the armed forces, a report published in October 1992 had assessed
the scope of that problem. In addition, any act of xenophobia
was
punishable by disciplinary measures or under the Penal Code.
With regard to article 6 of the Convention, the representative
stated that, following recent xenophobic attacks in Germany, provision
for compensation to victims of violence had been extended to asylum-seekers
and tourists. As for the Ombudsmen for foreigners, it was important
that they should be completely independent, far removed from any
political ties that might restrict their freedom of manoeuvre. They
participated in all discussions concerning legislation and regulations,
expressing the view of the foreign population.
Concerning article 7 of the Convention, the representative stated
that there were many measures in Germany to provide education and
training for young detainees. Such measures could be imposed by
the court when passing sentence.
Concluding observations
At its 1009th meeting, held on 18 August 1993, the Committee adopted
the following concluding observations.
(a) Introduction
The Committee commended the State party on the high quality of
its report, drawn up in accordance with the Committee's guidelines
for the preparation of State party reports (CERD/C/70/Rev.3). The
comprehensive information provided in the report, the frank and
constructive approach taken by the representatives of the reporting
State in their dialogue with the Committee and the additional information
they provided with regard to recent developments relating to the
implementation of the Convention in Germany showed the seriousness
of the Government of Germany in cooperating with the Committee and
its commitment to the international obligations it has assumed under
the Convention.
(b) Positive aspects
The Committee welcomed the efforts of the German authorities to
fight against xenophobia and racial discrimination, in compliance
with its obligations under the Convention. In that connection, the
Committee welcomed legal and other measures taken by the German
authorities to give effect to the provisions of article 4 of the
Convention. The Committee noted that the Government had the necessary
will to cope with the problem of racial hatred. The Committee also
noted with appreciation that in many German cities large popular
demonstrations had been held against recent expressions of racist
violence and xenophobia.
(c) Principal subjects of concern
The Committee expressed serious concern at the manifestations
of xenophobia, anti-semitism, racial discrimination and racial violence
that had recently occurred in Germany. In spite of the Government's
efforts to counteract and to prevent them, it appeared that those
manifestations were increasing and that the German police system
had in many instances failed to provide effective protection to
victims and potential victims of xenophobia and racial discrimination,
as required by the Convention. The Committee particularly held that
all those who carried out functions in public and political life
should in no way encourage sentiments of racism and xenophobia.
(d) Suggestions and recommendations
In view of the serious nature of the manifestations of xenophobia,
racism and racial discrimination in Germany, the Committee recommended
that practical measures should be strengthened with a view to preventing
such manifestations, particularly acts of violence on an ethnic
basis, and to punishing those who committed them. Measures should
be taken, in that regard, against the organizations and groups involved.
At the same time, taking into account that practices of racial
discrimination in such areas as access to employment, housing and
other rights referred to in article 5 (f) of the Convention are
not always effectively dealt with, the German authorities should
give serious consideration to the enactment of a comprehensive anti-discrimination
law. Such a law would constitute a clear reaffirmation by the Germany
authorities that racial discrimination was absolutely unacceptable,
detrimental to human rights and human dignity. Other preventive
measures, such as information campaigns, educational programmes
and training programmes addressed particularly to law enforcement
officials, in accordance with article 7 of the Convention and General
Recommendation XIII of the Committee, would strengthen the effectiveness
of legal provisions.
The Committee was also of the view that the Government should
guarantee equal protection to all minority groups living in Germany.
In addition, the Government should consider reviewing certain restrictive
provisions recently adopted with regard to asylum-seekers, to ensure
that they did not result in any discrimination in effect on grounds
of ethnic origin.
While commending the Government of Germany for taking measures
to prohibit extremist organizations disseminating ideas based on
racial superiority or hatred, the Committee was of the view that
appropriate measures should also be strictly applied against such
organizations and especially against persons and groups who were
implicated in racially motivated crimes.
In accordance with its General Recommendation XI, the Committee
appealed to the Government of Germany to continue reporting fully
upon legislation on foreigners and its implementation.
The Committee further invited Germany, taking into account statements
to that effect by the World Conference on Human Rights, to make
the declaration under article 14 of the Convention recognizing the
competence of the Committee to receive and consider communications
from individuals or groups of individuals within its jurisdiction
claiming to be victims of a violation of any of the rights set forth
in the Convention.
The Committee was of the view that the situation in Germany should
be kept under close scrutiny and expected Germany, in its thirteenth
periodic report, to inform the Committee on further measures taken
in compliance with the Convention and pursuant to recommendations
and suggestions put forward in connection with the examination of
the eleventh and twelfth reports.