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.