Human Rights Committee

106th session

Summary record of the 2931st meeting

Held at the Palais Wilson, Geneva, on Friday, 19 October 2012, at 10 a.m.

Chairperson:Ms. Majodina

Contents

Consideration of reports submitted by States parties under article 40 of the Covenant (continued)

Sixth periodic report of Germany(continued)

The meeting was called to order at 10 a.m.

Consideration of reports submitted by States parties under article 40 of the Covenant (continued)

Sixth periodic report of Germany (continued) (CCPR/C/DEU/6; CCPR/C/DEU/Q/6 and Add.1)

At the invitation of the Chairperson, the delegation of Germany took places at the Committee table.

Mr. Thelin, referring to paragraph 75 of the State party’s report (CCPR/C/DEU/6), sought assurances that when an “honour” crime had been committed, the offender could not invoke the provisions of section 46 of the Criminal Code in order to plead mitigating circumstances.

Ms. Motoc asked why prostitutes were given the status of “sex workers” and whether that status was of benefit or detriment to their health and working conditions.

Ms. Waterval wished to know what period of time would be covered by the Second Action Plan to Combat Violence against Women and when it would be evaluated.

Mr. Behrens (Germany) said that, since 1 January 2011, courts had been given freedom, when handing down criminal sentences, to reserve the right to impose preventive detention, or detention for reasons of public safety (vorbehaltene Sicherheitsverwahrung). In other words, such detention could be ordered at a later stage, while the offender was still serving his or her sentence. That would not be tantamount to retroactive sentencing, because the original court judgement would already have mentioned that possibility.

At lease one of three conditions had to be met for the court to order post-sentence preventive detention, namely that: (i) the offender had already been sentenced to a total of three terms of imprisonment of at least 1 year for certain very serious crimes; (ii) the last sentence had been a non-suspended sentence of at least 2 years’ imprisonment and (iii) the court had found that the offender was so dangerous that he or she would constitute a danger to society if he or she were released.

A court could also avail itself of the reserved right to impose preventive detention if the offender had refused to cooperate by undergoing treatment while in prison, and the court concluded that he or she still posed a danger to society.

The entire procedure was subject to regular review by the courts in order to ascertain whether the offender was still dangerous, or whether there had been any improvement which would justify the termination of preventive detention. Such a review had to be conducted at least once a year for the first 10 years and at six-monthly intervals thereafter. The individuals concerned could apply for a review of their case at any time before the end of the above-mentioned maximum periods of time.

As far as the requirement of distinct prison regimes (Abstandsgebot) was concerned, persons held in preventive detention enjoyed a number of advantages, including therapeutic treatment. Preventive detention was not automatically ordered in the event of mental illness. The deciding factor was how dangerous a person was and not whether they were mentally ill.

To the best of his knowledge no recent studies had been conducted into the reason for the disproportionate percentage of people in pretrial detention (Untersuchungshaft) who were of migrant origin.

Ms. Hentschel (Germany) said that an in-depth Government survey of violence against women had found that the victims were mainly migrant women of Turkish or Russian origin. The fact that those women were financially dependent and spoke little German, and that their residence status was unclear, made it more difficult for them to break loose from their family, with the result that they remained exposed to violence more frequently than was the case for women who had more social resources and better access to assistance. In Berlin, a women’s refuge had been specially equipped to cater for the needs of migrant women. A hotline had been set up to provide advice for women in 50 languages. Ways were also being sought to inculcate respect for women in the Turkish community by offering imams further training in women’s rights.

The federal structure of the country meant that the intervention centres (Interventionszentralen), which had been set up in response to the findings of the First Action Plan to Combat Violence against Women, had different functions. Some did provide counselling for women who were victims of violence and coordinated assistance to them, while others only coordinated the action of the relevant services (police, public prosecutor’s office, youth welfare office, etc.). The intervention centre in Berlin produced an annual report containing comprehensive data on the number of complaints of domestic violence which had been lodged, how many judicial proceedings had followed, how many cases had been abandoned, how many women had sought assistance, how many were being sheltered in women’s refuges and how many had availed themselves of telephone counselling. Those data were then assessed in order to identify areas where further action was needed.

Ms. Bender (Germany) said that a study of battered women’s refuges, counselling centres and other forms of support for victims of violence and their children, published in August 2012, had provided a comprehensive overview of the assistance available in Germany. The report pinpointed gaps in provision and outreach to victims in certain target groups, but it showed that women who were victims of violence could normally obtain immediate protection and professional help. There was nothing to suggest that such services were in short supply.

Funds came from a wide variety of sources. Women’s refuges were financed primarily by the Länder, since the Federal Government paid only for the network of associations of refuges and counselling centres. The funds from the Länder either took the form of overall allocations from the budgets of the Land and local authorities, or were calculated on the basis of daily rates. As the study had identified some shortcomings, the Federal Government would investigate what further measures were needed. Some shortcomings could be resolved by the progressive development of existing law at the federal and Land level and by the use of non-legislative instruments. That meant that there was no need to finance women’s refuges in a uniform manner at federal level. Weak points could be overcome through the ongoing commitment of all the actors concerned. The study had, however, shown that some victims, above all migrant women and women with disabilities, were not being reached. That was why a multilingual national hotline was to be established at the beginning of 2013 to combat violence against women. The hotline would have the same number nationwide so as to ensure seamless access to assistance.

The Act on combating forced marriages had brought some distinct improvements in that area, as had amendments to the law on asylum and residence. An Internet forum had been set up by the Government for women migrants’ organizations and their networks. The Government had also commissioned a study on forced marriage in Germany, and cooperation was continuing between Länder to prevent forced marriages. Some Länder were still sponsoring a model project on online counselling for migrant women who were victims of forced marriage and domestic violence. Migrant women’s interests were furthered through other projects such as “Girls Day” or health awareness schemes.

All forms of stalking constituted a criminal offence. The German Government was currently considering ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. In the absence of official statistics, cautious estimates put the number of women resident in Germany who had undergone female genital mutilation in their country of origin at some 20,000. There were no official statistics showing how often that operation was performed in Germany.

Ms. Chanet asked how an offender’s degree of dangerousness to society was assessed. Was there any limit to the length of time a person could be held in preventive detention (Sicherheitsverwahrung)? Could someone be confined on those grounds for life? She was also curious to know how many people were being held in custody under that regime.

Sir Nigel Rod l ey drew attention to the ambiguity of the term “preventive detention” which in some countries meant “pretrial detention” rather than preventive detention in the context of criminality. He would have liked to know what the old system of preventive detention had been. Were there any other forms of preventive detention other than the two described by the delegation?

Mr. Salvioli asked what was the difference between a normal criminal sentence and preventive detention.

Mr. Behrens (Germany) explained that immediate preventive detention (unmittelbar angeordnete Sicherheitsverwahrung) could be ordered by the courts if, when passing sentence, they were firmly convinced, on the basis of a psychiatric report, that the offender would still constitute a danger to society even after he or she had served his or her sentence. If the courts considered that the offender might still be dangerous on leaving prison and might constitute a threat to society, but were not completely convinced that that was the case, they could reserve the right to impose subsequent preventive detention (vorbehaltene Sicherheitsverwahrung). The offender would undergo assessment during imprisonment in order to determine how dangerous he or she was, and a decision on further detention for reasons of public safety would be taken just before the release date. That was a sort of threat hanging over offenders during their term of imprisonment.

When the offender’s case came up for review, his or her dangerousness was evaluated by experienced forensic psychiatrists. There was no maximum length of time a person could be held in preventive detention. Under the earlier system, there had been a limit, but it had been abolished. As a result, preventive detention could be extended indefinitely. In accordance with the requirement that a distinct regime must be maintained (Abstandsgebot), preventive detention was not regarded as a punishment but as a measure to protect society. It entailed deprivation of liberty, but living conditions and the psychiatric treatment available must be distinctly better than those under the normal prison regime.

There had been a misunderstanding with regard to the statistics on criminal offences committed by police officers. The tables in the replies to the list of issues referred to the number of investigations, not the number of convictions. The number of police officers convicted of violent acts was not high. While quite a large number of complaints had been lodged, most of them had not been pursued in the criminal courts, either because they had lacked substance, or because they had concerned minor offences which could be punished by a fine. No clear statistical trend was discernible from those tables. A more detailed analysis would be made in the future, in accordance with the Committee’s suggestion. It was the responsibility of the Länder to punish assault by prison officers. Data on the subject had been assembled in annex 5 to the replies to the list of issues.

Although the German Act on Compensation for Victims of Violent Offences (Opferentschädigungsgesetz) was difficult to understand, it did work in practice. It contained rules on a pension equivalent to that which could be obtained under the Act on Compensation for War Victims (Kriegsopferentschädigungsgesetz). German criminal law on stalking and torture met international standards. German courts had ruled that “honour” crimes should be deemed to be murder for base motives.

Ms. Bender (Germany), responding to a question raised by Mr. Sarsembayev, said that all police officers were obliged to identify themselves if asked to do so, either by stating their name or number or showing their police identity card. The identification of police officers was also possible by means of their tactical unit symbol, video analysis, or asking the head of the operation or witnesses. There were no known cases where it had not been possible to identify a federal police officer. Various Länder had introduced the compulsory or voluntary use of name badges, as a measure to strengthen acceptance of and trust in the police, while others had considered introducing business cards for police officers to hand out.

On the question of complaints, she said that if the behaviour in question was criminal, a criminal charge could be brought against the police officer. In addition, a disciplinary complaint could be filed with the competent authority. An online complaint form was now available on the website of the federal police. The management of complaints was a clearly regulated, standardized procedure dealt with independently at management level. Complaints were confirmed in writing within three days of submission and processed within four weeks, with the complainant to be informed in writing if there was any delay. A decision on the complaint was notified to the parties concerned, and included a comment on the accusations and information on any measures that would be taken. The case in which it was alleged that a police officer had been involved in an investigation into a complaint made against him was one dating from 2007, and was the only known case of that kind. An investigation by the Petitions Committee of the Bundestag had revealed the allegation to be untrue, however.

Mr. Kälin, referring to the notion of torture as enshrined in section 343 of the Criminal Code, pointed out that, other than forcing a confession, none of the motives for torture mentioned in the Convention against Torture were covered. He therefore asked the delegation to comment on whether that section could be considered sufficient to implement the international definition of torture in domestic law.

Mr. Behrens (Germany) said that article 343 of the Criminal Code had been used simply to illustrate the provisions on forcing someone to make a statement, and in the interests of brevity all of the other provisions on that subject had not been listed. Further information could be provided to the Committee in writing, if necessary, but article 343 was considered the basic standard. The Covenant and the Convention against Torture were part of German law and therefore applicable in the courts.

Mr. Sarsembayev requested clarification of the figures cited for murders committed by police officers. He pointed out that the Committee had requested information on the number of law enforcement officials who had been convicted or disciplined, but that the State party had provided figures on accusations.

Regarding identification of police officers, he commended the adoption by certain Länder of a rule requiring name badges to be worn at all times. However, he was of the view that such matters should not be left entirely to the Länder to decide. He suggested that the Federal Government should intervene to ensure that badges were worn by police officers all over the country.

Mr. Giesler (Germany) said that it appeared that there had been a misunderstanding with regard to the police statistics presented. Regarding homicide, the statistics referred to intentional homicide but not to murder, and it was for the courts to decide whether a murder had been committed. The homicide figures referred simply to investigations in cases where a person had died and there was the possibility that a police officer had been involved in some way. It should be noted that the figures showed that the public prosecutor’s office had proceeded with a prosecution in only a small number of those cases, none of which had resulted in a conviction.

On the question of police identification, he said that the clear division of responsibilities between the Federal Government and the Länder could not be circumvented. The Länder were responsible for the Länder police, and neither the Federal Government nor the Bundestag could impose the obligation to wear name badges.

Mr. Tetzlaff (Germany), responding to questions on the asylum process, said that under the Asylum Procedure Act, provisional legal protection was excluded for transfers to States participating in the Dublin Regulation. Information would be provided in writing on specific rulings requiring provisional legal protection to be provided for such transfers if there were concrete indications that degrading or inhuman treatment or punishment was threatened in the State concerned and that there were systemic deficiencies in the asylum procedure. With that in mind, in January 2011 the Government had suspended all Dublin Regulation transfers to Greece. A decision on a possible extension would be taken in early December 2012, taking account of the fact that the asylum system in Greece was still problematic.

He acknowledged that the case law of the German courts was inconsistent on the admissibility of Dublin Regulation transfers. A number of administrative court rulings had held that Dublin Regulation transfers to Italy and Hungary were inadmissible because of systemic deficiencies in the asylum procedures of those countries. However, the Government did not consider the deficiencies in question to be comparable to those in Greece or sufficient to justify a suspension of transfers to those countries. That was also the view of the other European Union member States. A new version of the Dublin Regulation was currently being drafted, and if necessary German asylum law would be adapted accordingly.

The airport asylum procedure was a fast-track procedure for asylum seekers from safe countries of origin or those without a passport. Rejection of the application was possible only if the asylum authorities could establish within two days that the asylum application was manifestly ill-founded. Otherwise, the asylum seeker was allowed to enter Germany and use the normal asylum procedure. In 2011, of a total of more than 800 asylum applications, only 60 had been processed under the airport procedure. If an application was rejected under the airport procedure, the asylum seeker had a further three days in which to apply to an administrative court for provisional legal protection, including immediate free access to legal counsel and an interpreter. The court then had to decide on the application within 14 days, failing which the asylum seeker would be allowed to enter the country to follow the normal asylum procedure.

With regard to the asylum procedure for conscientious objectors, he said that it depended on the individual circumstances of each case and the asylum seeker’s country of origin, but that the risk of punishment for refusing to render military service was generally not sufficient reason for granting asylum, unless further conditions were met, such as if the punishment was targeted at specific persons refusing to render military service and was intended to serve the purpose of political discipline or intimidation of political opponents. If the threatened punishment was unreasonably severe or cruel, a deportation ban might be considered. At European level, there was also a stipulation that asylum could be granted for conscientious objectors if it could be assumed that they would be forced to commit war crimes. However, no statistics were available on the number of cases in which those criteria had been applied.

On the question of diplomatic assurances, he said that the Government reserved the right to use diplomatic assurances as the basis for extradition and deportation, but that they were used only in very exceptional cases. To date, there had only been two cases in which diplomatic assurances had been used in the context of deportation, and there were currently no further cases in which such use was envisaged. The use of diplomatic assurances for extradition was more common, usually in relation to the applicable sentence, such as the exclusion of the death penalty. In each instance, the Federal Foreign Office reviewed the content and the period of time covered by the diplomatic assurances and drew up a risk prognosis and analysis. If the prognosis was positive, the Government demanded advance written confirmation that compliance with the diplomatic assurances could be verified once extradition had taken place.

Various mechanisms could be used for such verification, including prison visits to extradited persons by members of the German mission abroad, the presence of a consular official at the main hearing, a guarantee that the extradited person would be detained only in facilities meeting European standards, or the designation of an independent NGO to have access to the extradited person.

Mr. Kälin asked whether there had been any cases in which diplomatic assurances had not been respected and the Federal Foreign Office had had to intervene.

Mr. Behrens (Germany) said that there had been no experience of diplomatic assurances not being respected and in which intervention had been required, and it had always been possible to resolve any difficulties that had arisen.

The Chairperson invited the Committee members to put questions to the delegation on paragraphs 16–22 of the list of issues.

Mr. Flinterman, noting that, in its replies to the list of issues, the State party had stated that it could not be presumed that an increase had taken place in trafficking in women for purposes of sexual exploitation or to exploit their labour, asked what was the basis for that presumption, especially given that the Committee against Torture had recently concluded that there was a wide gap between the figures on trafficking provided by NGOs and by the State party.

Bearing in mind that the State party acknowledged that NGOs often criticized the fact that the fight against human trafficking was primarily understood by the State to mean fighting crime and controlling migration, he requested more precise information on concrete steps planned by the Government to realize its intention to optimize protection for victims of human trafficking.

Mr. Kälin, referring to the issue raised in paragraph 17 of the list of issues, regarding allegations of forced evictions in Uganda to make way for a coffee plantation owned by a subsidiary of Neumann Kaffee Gruppe Hamburg, said that he welcomed the fact that complaint proceedings had taken place before the German National Contact Point within the meaning of the Organization for Economic Cooperation and Development’s Guidelines for Multinational Enterprises, in line with the Guiding Principles on Business and Human Rights. However, given that one of the NGOS involved in the proceedings had made criticisms to the effect that the focus of the proceedings had been too narrow and that they should have constituted the starting point of a dialogue, he asked whether the proceedings could be considered a sufficient remedy, and whether the State party envisaged strengthening remedies for similar cases in the future, on the basis of that experience.

Mr. Sarsembayev, noting that there had been some fluctuation in the incidence of religious crimes in recent years, stressed that action was needed to resolve that problem. One approach might be to look at the figures on racist and religiously motivated crimes from the 1980s and 1990s in order to gain a clearer picture of the trends. He requested further information on the results achieved and the future work planned by the Expert Meeting on Right Wing Extremism and the Federal Agency for Civic Education, which were referred to in the response to the issues raised in paragraph 19 of the list of issues. He commended the “school without racism” project and suggested that its scope could be widened to include religious conflict and that universities could also be involved. He asked whether there had been any public debates in the press or on television on contentious religious issues. The approach to tackling religious crime should focus more on ideology and thematic activities and less on punishment.

Given that article 86 of the Criminal Code prohibited the dissemination of propaganda for unconstitutional organizations, he failed to understand why the State party’s legislation on political parties did not define the circumstances in which a party was considered to have broken the law. He suggested that the State party should encourage all political parties to participate in the fight against racism and xenophobia, particularly by taking an active role in civic education. It would be useful to know whether racist propaganda and other racially motivated acts were specifically prohibited in the Criminal Code. He welcomed the State party’s efforts to combat racism on the Internet and requested additional information on the bodies that were taking part in that initiative. He would appreciate details of the grounds for the acquittals in criminal proceedings that had been brought in 2010 under articles 86 and 130 of the Criminal Code, as indicated in table 10 in the written replies. It would also be interesting to learn which entity had been responsible for the other terminations listed in the table, on what grounds, and why the proceedings had initially been brought in those cases. The Committee would welcome comparable data from the previous 10 years.

He requested information on the measures to disseminate information on the Covenant in the State party, and on the involvement of representatives of ethnic and minority groups in that process. The Committee would welcome any data available on the provision of human rights education in schools and higher education institutions.

Mr. Neuman regretted the fact that the State party did not gather data in a form that enabled it to ascertain whether the Sinti and Roma communities enjoyed equal rights in practice. He suggested that there might be ways to collect such data, such as by self-identification, which would better inform policy decisions. A 2009 report commissioned by the European Union Agency for Fundamental Rights had indicated that, while the State party had been successful in providing public housing for Sinti and Roma citizens, there was significant discrimination against those communities in the private housing market. It would therefore appear that there was a real need for data disaggregated by ethnic origin.

About half of the Roma, Ashkali and Egyptians who were returning to Kosovo were children who spoke only German. They were returning to a country with significant ethnic tensions where they faced hostility and lacked skills for economic survival. Under those circumstances, choosing not to return them would not constitute discrimination, but could be described as an appropriate response to their specific situation, particularly as they did not benefit from the same reintegration assistance as majority groups in Kosovo. He urged the State party to consider that option.

Ms. Motoc asked whether the Government differentiated between the Roma and Sinti communities that traditionally lived in the State party and those that came from Eastern Europe. It would be useful to have a more detailed explanation for the State party’s unwillingness to collect data that identified the Sinti and the Roma as ethnic minorities.

Ms. Bender (Germany) said that it was unclear what sources had been used to arrive at the estimate of 15,000 victims of human trafficking in Germany. Tables 4 and 5 in the written replies provided data on criminal proceedings linked to human trafficking for the purpose of sexual exploitation and labour exploitation, respectively. The Government produced annual data in that regard, which included trafficking for both purposes.

Ms. Behr (Germany) said that the Länder and the Federal Government provided a range of assistance for victims of human trafficking, including counselling and protection. Several studies were being undertaken in order to further improve the assistance provided to victims, as explained in paragraph 75 of the written replies. Protection was extended to witnesses of human trafficking. In cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR), the Government had established a project to identify asylum seekers who were potential victims of human trafficking.

Mr. Behrens (Germany), replying to the question concerning the Neumann Kaffee Gruppe Hamburg, said that the proceedings had taken place within the framework of the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development (OECD). He had no information on whether the remedies had been sufficient, but the NGO concerned had not been satisfied. The issue would be discussed at both federal and European Union level.

While the Government would do its utmost to submit the data that had been requested within the 48-hour deadline, he pointed out that data on criminal proceedings concerning racially motivated acts from the 1980s and 1990s would not be comparable with those from the previous 10 years, since new indicators had been introduced in 2001. The Government was committed to tackling racism and religious discrimination at the grass-roots level. The German Institute for Human Rights provided a multitude of human rights education teaching materials on its website for schools and teachers, and further information was available from the Federal Agency for Civic Education. Under article 46 of the Criminal Code, racism was considered an aggravating circumstance.

Regarding the dissemination of information on the Covenant, he said that the Federal Agency for Civic Education published a German-language compendium of all the human rights instruments to which Germany was a party, which was available free of charge. It also published a summary of the treaty bodies’ concluding observations on its website, where easily accessible advice was available on how individuals could bring complaints before the Committee. The provisions of the Covenant were also taught in seminars at the German Judicial Academy.

Ms. Bender (Germany) said that many associations had been banned. The Constitution set high standards for political parties, which also had to adhere to the European Convention on Human Rights. The legislative provisions under which political parties could be banned did not include explicit reference to racist or xenophobic opinions. Parties could be banned for endangering the democratic principles of the State; one such ban was currently under consideration.

As indicated in paragraph 94 of the written replies, the Federal Government and specialist agencies were taking steps to tackle racism, particularly right-wing extremism, on the Internet. The Government provided funding to civil society organizations that worked to identify such content.

Mr. Tetzlaff (Germany) said that the 70,000 Roma who were German citizens were represented by the Central Council of Sinti and Roma, which considered them to be well integrated in society. The Council rejected special policies for those communities. The Government did not gather data disaggregated by ethnic or national origin because of the country’s experience with National Socialism. Members of the Roma and Sinti communities who did not have German citizenship received the same treatment as other foreign immigrants and were required to undertake integration courses if they wished to remain in the country.

As indicated in paragraph 106 of the written replies, the Government and the Länder funded the “URA 2” project, under which children from the Roma, Ashkali and Egyptian minorities who returned to Kosovo were provided with language courses and free school equipment. While some individuals might experience difficulties of integration, the German authorities had taken significant steps to facilitate the integration process.

Mr. Giesler (Germany) thanked the Committee for its constructive questions and comments. His delegation had striven to provide a comprehensive picture of the implementation of the provisions of the Covenant in Germany, despite the complexities of some issues such as preventive detention. The Government was aware that more remained to be done in several areas, some of which the Committee had highlighted. The Government would examine the Committee’s concerns and recommendations in detail.

The Chairperson said that the Committee appreciated the interactive dialogue with the State party’s delegation. She particularly welcomed the fact that the Committee’s concluding observations were discussed in both chambers of the Federal Parliament and that the sixth periodic report had been prepared in accordance with the Committee’s revised reporting guidelines (CCPR/C/2009/1).

The Committee remained concerned on several counts: for example, the wording of the State party’s reservation to article 26 of the Covenant was problematic and its validity unclear. While welcoming the progress the State party had made with regard to gender equality in the public sector, the consistently low participation of women in the private sector was disturbing, especially in view of the many initiatives that had been undertaken in that regard. The Committee would welcome information on the impact of the Second Action Plan to Combat Violence against Women. The Committee was alarmed that discrimination on the grounds of racial or ethnic origin was not prohibited in the field of rented housing. The issue of preventive detention remained a concern, particularly since the lack of a maximum period of such detention could result in a person being detained for life, which was surely a violation of article 10, paragraph 3, of the Covenant. It was unclear whether asylum seekers who went though the fast-track procedure had an effective right of appeal. The Committee appreciated the information that had been provided on the plight of minorities in the State party. While commending the German authorities on their efforts to facilitate the return of Roma, Ashkali and Egyptian children to Kosovo, the Committee was concerned that returning children nonetheless faced discrimination and difficulties of integration.

The meeting rose at 1.05 p.m.