1. Introduction
1. Germany (officially the Federal
Republic of Germany,
Bundesrepublik Deutschland)
is a federal republican State and a parliamentary democracy. With
around 81 770 900 inhabitants,
Germany has the largest population
in the European Union and the second largest among the Council of
Europe member States.
2. The current Constitution – the Basic Law (
Grundgesetz) of the Federal Republic
of Germany – was adopted by the Parliamentary Council on 8 May 1949
and entered into force on 26 May 1949 on the territory of Western
Germany (formerly zones controlled by the United States, the United
Kingdom and France). In October 1949, the establishment of the German
Democratic Republic (Eastern Germany) was announced. The separation
into two German States – considered as temporary – lasted until
the reunification of the country in 1990.
Following the reunification,
both the territory and the population of Germany expanded substantially. The
capital of the Federal Republic of Germany was transferred from
Bonn to Berlin.
3. The Federal Republic of Germany joined the Council of Europe
on 13 July 1950, becoming the 14th member State of this Organisation.
One of the founding members of the European Coal and Steel Community (since
1951), in 1957
it was among the States that established
the European Economic Community which was later transformed into
the European Union. On 1 January 1999, Germany became a member of
the Eurozone. In 1955, the Federal Republic of Germany joined the
North Atlantic Treaty Association (NATO). Germany is also a founding
member of the Organisation for Economic Co-operation and Development
(OECD) and of the Organization for Security and Co-Operation in
Europe (OSCE) which it chairs in 2016.
4. Germany is composed of 16 Länder (States).
Legislative power in the country is held by the Federal Parliament
(Bundestag) and the Landtage (State parliaments). The Länder also participate in the policy
making and legislation at the federal level through the Federal
Council (Bundesrat), composed
of members of governments of the Länder (69
full members). As a general rule, the Länder have
the legislative power unless the Basic Law confers the competence
at the federal level. The Länder are
in charge of the implementation of both Land-level
and federal legislation.
5. Members of the
Bundestag are
elected in general and direct elections for a four-year term. The
current 18th German
Bundestag has
630 members (the number of members is subject to variations resulting
from the electoral system). Five political parties are represented:
the Christian Democratic Union (
Christlich Demokratische
Union Deutschlands, CDU), the Social Democratic Party
(
Sozialdemokratische Partei Deutschlands,
SPD), the Left (
Die Linke),
Alliance 90/The Greens (
Bündnis 90/Die
Grünen) and the
Christian Social
Union of Bavaria (
Christlich-Soziale
Union in Bayern, CSU). The largest parliamentary group
is the one formed by the members of the long-standing alliance between
the CDU and the CSU with 310 seats.
6. Among other powers, including federal law-making, the
Bundestag conducts parliamentary
scrutiny of the work of the Federal Government and elects
the Federal Chancellor (
Bundeskanzler/Bundeskanzlerin), head
of government and chief of the executive power who chairs the Federal
Cabinet (
Bundeskabinett) and proposes
candidates for ministerial office to the Federal President
.
7. The current Federal Government, led by Chancellor Angela Merkel
of the CDU, was formed in 2013 by the “grand coalition” between
the CDU/CSU and the SPD.
Coalition
governments are an established political practice in the Federal
Republic of Germany – every government since 1949 has been the result
of party coalitions. This system based on the coalition culture
has proven to be very stable; there has been only one early election,
in 2005, called by the government itself.
8. The latest elections took place on 13 March 2016 to the Landtage of Baden-Württemberg, Rhineland-Palatinate
and Saxony-Anhalt and received extensive international media coverage,
mostly due to the results achieved by the far-right Alternative
for Germany party (Alternative für Deutschland,
AfD). Fifteen of the 16 German Länder are
currently governed by coalitions. Bavaria, where the local CSU holds
the absolute majority in the Landtag, is
the only exception.
9. The head of State of Germany is the Federal President (Bundespräsident) elected for five
years by the Federal Convention (the Members of the Bundestag and an equal number of
members elected by the Landtage);
re-election for a consecutive term is allowed only once. The role
of the Federal President is mostly ceremonial; he/she represents
the Federal Republic of Germany both at home and abroad. Currently,
the post of Federal President is held by Joachim Gauck.
10. The German political system was designed after the Second
World War to avoid the monopolisation and abuse of power by one
political force and to make impossible the establishment of a dictatorship.
Strong parliamentarianism and federalism are its contemporary distinctive
features. The Federal Constitutional Court, established in 1951
in the city of Karlsruhe, plays an important role in safeguarding
and improving this system, including in the field of protection
of human rights.
11. More than 25 years after the reunification, the economic and
social gap between the former eastern and western
Länder still constitutes a subject
for debate. Berlin and the “new”
Länder are
economically supported by the rest of the country through the “Solidarity
pact”.
In 2012, a report of the Congress
of Local and Regional Authorities of the Council of Europe spoke
about a “huge regional discrepancy between the new
Länder of former East Germany and
those of the previous
Bundesrepublik.
… it has been an important goal for each federal government to reduce
the differences in the level of income and living standards between
East and West. The integration costs of the Eastern
Länder have been almost inestimable
in the last two decades. Nonetheless, even if it has not yet ended,
this long process has not proved to be unsuccessful”.
This economic discrepancy is related
to socio-political specificities. It has been noted that far-right
movements had greater support in the East: for example, in its 2013
report, the European Commission against Racism and Intolerance (ECRI)
considered that “extreme right-wing organisations have a strong
foothold” in the eastern
Länder (and
it is also there that the “civic commitment against racism is particularly
important”).
The rise of the so-called PEGIDA
movement in Dresden in 2014-2015 partly confirmed these observations.
12. Since 2014, the political debate in the country has been galvanised
by two main subjects. First, the massive arrival of migrants, refugees
and asylum seekers in Europe. In 2015 alone, 1 091 894 asylum-seeker arrivals
were recorded in the online system for the initial distribution
of asylum seekers to Germany’s Länder (EASY
system). This provoked heated debates about realistic and humanistic
policy to adopt, about European solidarity and integration of migrants,
refugees and asylum seekers. Second, the rise of xenophobic political movements
and extremist statements and attacks revealed that the Willkommenskultur advocated by Chancellor
Merkel and President Gauck was not shared by all the Germans, and
that the country’s history was not an antidote to hatred. These
subjects are both addressed in this report.
13. In the international arena, including in European affairs,
Germany continues to play an active and respected role, promoting
dialogue and co-operation whilst remaining faithful to the values
of human rights and the rule of law. Germany has been particularly
active in the efforts to achieve peace in Ukraine and in Syria, find
solutions to the Greek debt crisis and come up with a common European
approach to the massive arrival of migrants.
14. The active role that Germany has played in the international
institutions for the protection and promotion of human rights has
been widely praised. In 2015, Germany chaired the United Nations
Human Rights Council for the first time and was re-elected to sit
on the Council for a new term (2016-2018). On 1 January 2016, the country
assumed the Chairmanship of the OSCE under the motto “Renewing dialogue,
rebuilding trust, restoring security”. While the top priorities
are rebuilding trust among participating States and maintaining efforts
to achieve a political solution to the conflict in Ukraine, Federal
Minister for Foreign Affairs Frank-Walter Steinmeier announced that
Germany would also “pay particular attention to safeguarding commitments
[in the field of human rights] within the OSCE area and to improving
their implementation”.
15. This active international involvement is also made possible
by the sound economic results of Germany with real gross domestic
product (GDP) growth of 1.7% in 2015, general government debt of
74.9% of GDP in 2014 and a 4.6% unemployment rate in the first quarter
of 2016.
In 2015, the official development
assistance from Germany totalled USD 17.78 billion, 0.52% of the
gross national income (GNI) (which still falls short of the United
Nations target of 0.7%), representing an increase of 25.9% compared
to 2014, mostly due to in-donor refugee costs.
While generally particularly prudent
as to the participation in military operations abroad, on 26 November
2015, immediately after the terrorist attacks in Paris, the German
Federal Government decided to provide cover and logistic support
to French air strikes in Syria (with six reconnaissance planes,
a satellite radar and a frigate). On 5 December 2015, the
Bundestag authorised this operation
with a renewable one-year-mandate. It involves about 1 200 members
of the German armed forces, in addition to 650 soldiers deployed to
Mali to support the United Nations peacekeeping mission.
2. Background
16. This periodic report was drafted
in line with
Resolution
2018 (2014) and the explanatory memorandum approved by the committee
on 17 March 2015. This report is based,
inter
alia, on the most recent findings of the Council of Europe
monitoring mechanisms, the reports of the Parliamentary Assembly
and the Commissioner for Human Rights, and, when relevant, reports
prepared by other international organisations and civil society.
The rapporteur would also like to thank the German delegation to
the Parliamentary Assembly and the German authorities for their
comments
on the preliminary
draft report, which have been taken into consideration in the preparation
of this report.
17. In order to allow for a clear and systematic presentation,
this report is organised in three parts making reference to the
three pillars of the Council of Europe’s work: democracy, human
rights and the rule of law. The rapporteur believes, however, that
these three dimensions of common European values and standards are necessarily
interconnected and indivisible. For example, while clearly representing
a threat to democracy, extremism, racism and intolerance also pose
a challenge to the rule of law and endanger the respect of human rights;
the situation of media freedom is crucial for the realisation of
the right to freedom of expression, but is also an important factor
for the functioning of democracy; oversight of intelligence and
security services is related to the three pillars of the Council
of Europe’s work, etc.
18. While stressing again the overall commitment of the German
people to democracy and human rights, a large part of this report
addresses the issues of xenophobia, racism and intolerance which
represent a particularly dangerous threat to our common values.
Drawing on the conclusions of many international monitoring bodies,
the rapporteur believes that this area constitutes one of the most
important and urgent challenges Germany, as well as many other European
States, has to face. However, this and other issues touched upon
in the report should not be taken out of the context of the very
positive record in terms of democracy, human rights and the rule
of law for which Germany can be rightfully congratulated.
3. Democracy
3.1. German federalism and local democracy
19. The sixteen Länder that compose the Federal
Republic of Germany are legally equal, enjoy the same constitutional
status and possess their own Constitution and internal political
structure – with a government, a unicameral parliament (Landtag), judicial system, etc.
The city-States of Berlin, Bremen and Hamburg have a double status
as Länder and municipalities,
and their deliberative body is the legislative organ of the Land and of the municipal authority.
20. The Basic Law defines the relations between the Federal Government
and the
Länder, and the Federal Constitutional
Court is responsible for the arbitration of conflicts between them,
playing a leading role in interpreting the concrete implementation
of the German federalism. Article 79 section 3 of the Basic Law protects
the federal structure of Germany from constitutional amendments.
As mentioned above, the
Länder have
the legislative power unless the Basic Law states otherwise; they
are also responsible for the implementation of federal legislation.
The governments of the
Länder have
an institutionalised representation and legislative power on the
federal level through the
Bundesrat,
which holds the right of veto on certain federal bills
and is consulted on the others.
21. Recently, two constitutional amendments reformed the federal
structure of Germany. In 2006, the Föderalismusreform I clarified and modified the power-sharing
and reduced the number of federal laws requiring the consent of
the Bundesrat while providing
more legislative autonomy to the Länder (e.g.
exclusive legislative competence in the field of education, including
universities). In 2009, following a 2006 decision by the Federal
Constitutional Court, the Föderalismusreform
II focused on the financial relationship between the Länder and the Federation and on
the public debt management at federal and State level.
22. As far as the local authorities are concerned, the Basic Law
guarantees the right of municipalities and associations of municipalities
(Gemeindeverbände) to self-government
(Article 28). Matters of local government fall within the competence
of the Länder. The constitutional
amendment of 2006 withdrew the right of the Federal Government to
directly confer mandatory functions on local authorities. In principle,
the local authorities are responsible for the matters not conferred
expressly on federal or Land authorities,
but the Länder can transfer
additional responsibilities to them. The local councils are elected
by general direct elections and, except in the city-States, the
mayors are usually elected directly.
23. Germany signed the European Charter of Local Self-Government
(ETS No. 122) in 1985 and ratified it in 1988.
In
2012, following a monitoring visit by a delegation focusing on the
situation of the local authorities and their relations with the
Land governments, the Congress of
Local and Regional Authorities produced a detailed report and adopted
a recommendation on “Local democracy in Germany”.
In the
recommendation, the Congress expressed satisfaction,
inter alia, that the right to self-government
of municipalities was recognised in the Federal and
Länder Constitutions, that the German
authorities had made progress in the area of local government finances
and that the mode of consultation with local government associations
was formally recognised in the procedural rules of the Federal Government.
24. While recognising that Germany complied with the requirements
of the European Charter of Local Self-Government, the Congress made
several recommendations concerning the guarantees for local finances
and institutionalisation of the participatory rights of associations
of local authorities. It is to be noted that the rules of procedure
of the federal ministries and of the German
Bundestag provide
for the participation of the local authorities. Similar participatory
arrangements are also enshrined in the
Länder.
It also recommended that Germany sign the
Additional Protocol to the European Charter of Local Self-Government
on the right to participate in the affairs of a local authority
(CETS No. 207) – recommendation that remains unimplemented due to
the fact that not all
Länder have
given their consent to the signature of the Additional Protocol.
3.2. General elections
25. According to Articles 38 and
39 of the Basic Law, the members of the
Bundestag are
elected in general, direct, free, equal and secret elections for
a four-year term. The electoral system combines the principle of proportional
representation with the elements of the single member system.
The
Bundestag is
composed of 598 seats, a number which is subject to variations due
to the electoral system: 299 members are elected in single-seat
electoral districts (under the first-past-the-post system), the
rest of the members are elected on the closed party lists in each
of the 16
Länder (“Land lists”).
The voters therefore cast two votes: the first goes to a candidate
in the single-seat electoral district, and the second to a
Land list. The electoral threshold
for the parties to participate in the distribution of proportional
seats is 5% of the second votes at the federal level, but a party
can still participate in the allocation of such seats if it wins
in at least three single-seat electoral districts. Following the
proportional seat allocation, the number of the single-seat electoral
districts won in each
Land is deducted
from the number of seats that the parties received on the proportional
basis in that
Land; the remaining
mandates are fulfilled according to the order of candidates on the
lists. Until the 2013 parliamentary elections, if a party had received
more single-seat mandates than its proportion of the second votes,
it retained these excess “overhang” mandates (
Überhangmandate),
which resulted in an increase of the overall number of seats in
the
Bundestag. Following the
amendment of the Federal Electoral Act (
22.
Gesetz zur Änderung des Bundeswahlgesetzes) of 3 May
2013, seats are not allocated to the parties on the basis of
Land allotments, but rather for
the electoral area as a whole. The parties then internally sub-allocate
them to their
Land lists:
the number of seats is increased until no party has more direct
mandates than the number of seats to which it is entitled based
on its proportion of the second vote.
26. The last general elections took place on 22 September 2013.
Thirty parties participated in these elections. No new parties entered
the
Bundestag, and the liberal-democrat
FDP (which had been a member of coalition governments during 52
of the 64 years between 1949 and 2013) was voted out for the first
time in the German post-war history. With a turnout of 71.5%, the
following parties passed the electoral threshold: CDU (34.1% of
second votes), SPD (25.7%),
Die Linke (8.6%),
Bündnis 90/Die Grünen (8.4%) and
CSU (7.4%).
These elections resulted in the
allocation of 33 “extra mandates” due to the additional stage of
seat distribution, bringing the total number of seats in the
Bundestag to 630. 230 members (36.5%)
of the current
Bundestag are
women.
27. Following an invitation from the German authorities to observe
the 2013 federal vote, the OSCE/ODIHR deployed an Election Expert
Team to assess the electoral legal framework, as well as the legislation
and practice concerning political party and campaign finance. The
mission concluded
that
“the legal framework provided a solid basis to conduct genuine elections”.
The mission also assessed the amendments to the electoral legislation
introduced prior to the elections – some of them addressed previous
OSCE/ODIHR recommendations. The most significant amendment, adopted
in May 2013, concerned the seat allocation method following the
2008 and 2012 judgments by the Federal Constitutional Court on the
unconstitutionality of the electoral system;
an additional stage
of seat distribution was introduced to improve the proportionality. Whilst
these amendments enjoyed political consensus, the OSCE/ODIHR mission
noted that they “were adopted less than a year before the elections,
which is contrary to good electoral practice”, referring to the recommendations
of the European Commission for Democracy through Law (Venice Commission).
The OSCE/ODIHR also noted that a
few previous recommendations remained unaddressed, in particular concerning
“legal provisions allowing significant difference in the number
of registered voters in each electoral district and the absence
of explicit legal provisions on election observation”. The mission
also proposed several recommendations as to party and campaign financing
legislation (including three priority recommendations
) and the
mechanism of submitting complaints prior to election day.
28. The German authorities provided detailed comments on the recommendations
made by the OSCE/ODIHR in relation to the late amendment of the
election legislation (prompted, as mentioned earlier, by the 2012
decision of the Constitutional Court).
They argued
that the difference in the number of registered voters in each electoral
district has no influence on the political outcome of the election
in the German electoral system, as the
Bundestag’s
political composition depends on the relative proportions of second
votes received nationwide, not the number of constituencies won.
As regards election observation, in the view of the authorities,
observation of the election process is open to everyone, which renders
additional provisions unnecessary.
29. As far as party funding is concerned, the authorities stated
that non-submission of statements of accounts are penalised by a
loss of entitlement to funds from public funding for political parties
and, since the 2015 amendment of the Act on Political Parties, the
loss of legal status as a political party after six years and the
imposition of penalty payments. The law also requires disclosing
operating expenditure on election campaigns, in particular timely
publication of donations when their total exceeds €10 000, and of
single donations exceeding €50 000. The upgraded legal framework
also allows decisions taken by County or
Land Electoral
Committees to be challenged at the
Land or
the Federal Electoral Committees, and, since 2012, at the Federal
Constitutional Court regarding decisions by the Federal Electoral
Committee on the non-admission of lists to the
Bundestag election.
3.3. Migration in the political debate
30. The massive arrival of migrants
and asylum seekers to Germany and to Europe and the welcoming, humanitarian
stance of the Federal Government towards refugees – notably represented
by Chancellor Merkel’s “open arms” approach persistently refusing
to set a limit for the influx of refugees – provoked heated debates
and political conflicts. Three observations may illustrate the political
unease that polarises German society, placing migration at the centre
of the public debate.
31. First, the Chancellor’s position was on numerous occasions
contested by some CDU and CSU members. As it became increasingly
hard for the local authorities to cope with the arrival of refugees
in Germany, since autumn 2015, the debate on how to handle the situation
has intensified.
The head of the CSU and Minister-President
of Bavaria Horst Seehofer became a particularly outspoken critic
of the federal refugee policy. In October 2015, he declared that
should the situation not improve, he was considering sending refugees
back to Austria,
de facto violating
the federal law. In February 2016, he accused the Federal Chancellor
of pursuing the “rule of injustice” (
Herrschaft
des Unrechts).
32. In spite of these criticisms, at the CDU Congress in Karlsruhe
on 14 December 2015, Chancellor Merkel succeeded in persuading the
overwhelming majority of the delegates to support her refugee policy:
the declaration adopted by the Congress called for a reduction of
the flow of migrants and refugees but did not propose a limit to
the number of asylum seekers.
33. On 13 April 2016, in an interview with
Die
Welt newspaper, the CSU Secretary General Andreas Scheuer called
for a stronger and more critical approach to political Islam and
proposed to adopt an Islam Law (which seems to be similar to the
Austrian 2015 law). According to him, certain political currents
of Islam “prevent people from integrating”. Two measures were suggested:
prohibition of foreign funding of mosques and Muslim institutions
and compulsory training in Germany and in the German language for
all Imams who intend to work in the country.
This proposal is clearly related
to the debate on the integration and acceptance of immigrants and
refugees.
34. Second, the elections to
Landtage of
Baden-Württemberg, Rhineland-Palatinate and Saxony-Anhalt held on
13 March 2016 – the first major poll since the massive arrival of
migrants and asylum seekers – was expected to become a test of the
popular support for Chancellor Markel’s policy. The electoral performance
of the populist AfD party, founded in 2013, was particularly discussed
in the media. In July 2015, the AfD elected a proponent of anti-immigration
policy, Frauke Petry, as its new leader, replacing the more moderate Eurosceptic
Bernd Lucke. This leadership change was seen as a far-right turn
for the party. Together with a group of other members, Bernd Lucke
left the AfD, accusing the party of growing islamophobic and xenophobic views
(he subsequently established a new Eurosceptic party, the Alliance
for Progress and Renewal (
Allianz für
Fortschritt und Aufbruch, ALFA). A month after the March
Landtag elections, the AfD leadership
called for a ban on minarets, burqas and muezzin prayer calls and
stated that Islam was incompatible with the German Constitution.
Secretary General of the Council
of Europe Thorbjørn Jagland strongly protested against these statements
as going against the European values.
On 1 May 2016, the AfD congress
in Stuttgart adopted a party manifesto containing the same Islamophobic
points. The major political parties immediately condemned this move.
35. As a result of the 13 March 2016 elections, the AfD entered
into the three
Landtage with
15.1% of votes in Baden-Württemberg, 12.6% in Rhineland-Palatinate
and 24.2% in Saxony-Anhalt.
Nevertheless,
the overwhelming majority of the voters backed the parties and candidates
taking a “pro-asylum” stance: the Greens came first in Baden-Württemberg,
the SPD in Rhineland-Palatinate and the CDU in Saxony-Anhalt. Moreover,
the CDU suffered the biggest losses in the
Länder where
the heads of lists distanced themselves from Chancellor Merkel’s
refugee policy the most (Julia Klöckner in Rhineland-Palatinate
and Guido Wolf in Baden-Württemberg). In the aftermath of the elections,
Chancellor Merkel refused to change her refugee policies.
36. It is worth noting that the major parties declared they would
not imitate the AfD populist stance following the elections.
In Saxony-Anhalt, where the AfD
received the biggest number of votes, the CDU, Greens and SPD decided
to join forces to keep the populist party out of the government.
37. The third indicator of the intensity of the debates over migration
policies in Germany is the emergence of Islamophobic and anti-refugee
protest movements, most notably the so-called “Patriotic Europeans
against the Islamisation of the West”, or PEGIDA. Having emerged
in October 2014 in Dresden, this movement found support in other
German big cities, including Leipzig, Munich and Hanover.
38. PEGIDA – called LEGIDA in Leipzig – mostly acts through protest
rallies which often become a stage for xenophobic statements and
hate speech and sometimes for violence, as on 11 January 2016 in
Leipzig, when far-right hooligans attacked shops and bystanders
(211 people were arrested) on the margins of a LEGIDA rally. In
October 2015, the founder of PEGIDA, Lutz Bachmann, was charged
with inciting hatred against migrants in his comments posted on
Facebook in September 2014, while he was still on probation following
convictions for burglary, drug dealing and assault.
On 3 May 2016, a district court
in Dresden found him guilty and sentenced him to a fine of €9 600.
Senior German politicians, including
Chancellor Merkel, have condemned PEGIDA. In many cities, with the
exception of Dresden, thousands of counter-demonstrators, who had
taken to the streets peacefully in support of a more outward-looking
Germany, confronted PEGIDA demonstrators.
39. The rapporteur believes that critical debate on policies chosen
by the government is an indispensible element of democracy, that
such debates make democracy work. There should be no forbidden topics
for rational and respectful discussion. Nevertheless, political
debates should not become a generator of hatred, xenophobia and
disdain for others. As Secretary General Jagland pointed out, “It
is right and necessary to have a debate about important issues like
integration and education, but to depict Islam as a threat to our
society is wrong and hurtful to millions of European Muslims. We
need to strengthen the respect for common values in Europe, not
to create new divisions”.
At the end of her visit
to Germany on 11 and 12 January 2016, then Parliamentary Assembly
President Anne Brasseur rightly stated: “We must stop the populists
who surf on fear of migrants. … We must put party politics aside
and unite in order to create a democratic alliance that can stand firm
against those who spread hate.”
In this respect, the rapporteur
welcomes the tolerant position of the Federal Government and major
political parties who continue to resist the temptation of populism.
40. At the same time, and in this context, it is important to
acknowledge the efforts by the German authorities and civil society
organisations to host, accommodate and assist the refugees, such
as “The People Support People” programme, which enables members
of the public to “adopt” young refugees or a refugee family. In another
example, the “Federal Voluntary Service” now provides the possibility
for up to 10 000 volunteers a year living in Germany to support
refugees in the framework of this programme. The “Living Democracy!” federal
programme provides support to many initiatives, associations and
individuals working for a diverse, peaceful and democratic community,
in particular to prevent extremism, with a total budget amounting
to €50.5 million in 2016, which is expected to rise to €104.5 million
in 2017.
3.4. Racism and intolerance
41. Several international bodies
noticed that racism and intolerance had been on the rise in Germany
for several years: e.g., the Advisory Committee on the Framework
Convention for the Protection of National Minorities (Framework
Convention) observed in 2015 “worrying developments as regards public manifestations
of racism and xenophobia”;
the United Nations Committee on
the Elimination of Racial Discrimination (CERD) expressed concerns
over “the proliferation and dissemination of racist ideas by certain political
parties and movements and about the lack of efficient measures taken
to strongly sanction and deter such discourses and behaviours”.
The authorities have refuted the
view that no effective measures have been taken in this respect.
They have provided the rapporteur with detailed information about
measures taken (including criminal sanctions and intensified efforts
to step up and consolidate further training in the judicial sphere
on this subject).
At the federal level, the Ministry
of the Interior and the Federal Ministry of Family, Senior Citizens,
Women and Youth presented their common Strategy on prevention of
extremism and promotion of democracy.
At State and local levels, several
programmes, strategies and initiatives have been in force for decades
in addition to the democratic forces in society, which are constantly
active against racism and extremism.
42. At the same time, the international monitoring bodies note
the strong popular demonstrations and statements by the authorities
in support of diversity and mutual respect.
Inter
alia, CERD welcomed the intention of the authorities
to revise the National Plan of Action against Racism “to reflect
the adoption of a more strategic approach”.
In
its 2016 Resolution on the implementation of the Framework Convention
by Germany, the Committee of Ministers of the Council of Europe
recommended that the German authorities pursue efforts “to combat
racism and intolerance and prevent right-wing extremism”
.
3.4.1. Legal framework
43. Several concerns have been
voiced regarding the legal framework prohibiting hate speech and
hate crime. In particular, Section 130 of the German Criminal Code
prohibits public incitement to violence, hatred or any arbitrary
measure, and public insults and defamation, but such acts must be
“liable to disturb public order” (or public peace). CERD and ECRI
recommended that this proviso relating to disturbance of public
order be removed from Section 130. According to ECRI, this causal
link may be difficult to prove and this restriction could constitute
an impunity gap.
In
the reply to the report of the Council of Europe Commissioner for
Human Rights, the German authorities explained that this proviso
represented a “corrective element in order to eliminate cases which
are not severe enough to merit criminal sanctions” to achieve a
balance between combating racism and guaranteeing free speech in
a democratic society.
The authorities further explained that
Section 130.2 of the Criminal Code, which criminalises the dissemination
of written material with such content and the act of making such
content accessible to the public via radio, media services or telecommunication
services,
does not contain
this disputed requirement.
44. In 2011, Germany ratified the Additional Protocol to the Convention
on Cybercrime, concerning the criminalisation of acts of a racist
and xenophobic nature committed through computer systems (ETS No.
189).
45. With regard to hate crimes, on 8 May 2015, an amendment to
Section 46 of the Criminal Code defining the racist motivation of
an ordinary offence as an aggravating circumstance fulfilled (after
two failed attempts) a long-standing recommendation of many monitoring
bodies, including ECRI. The Commissioner for Human Rights
and CERD
have
already welcomed this amendment. At the same time, the Commissioner
noted that reservations were expressed by several organisations
about the fact that Section 46 did not expressly refer to motivations
other than racist ones, for example homophobic and transphobic motives.
In their comments, the authorities disagreed with this point of
view, and considered that “other motivations showing contempt for human
dignity” encompasses all recognised aspects of discrimination, in
particular motives directed against the victim’s sexual orientation,
and thus includes homophobic and transphobic motives.
46. Another area recurrently described as presenting important
shortcomings is the data collection on hate crimes. Hate crimes
are recorded under the category of “politically motivated crimes”
(
Politisch motivierte Kriminalität),
including four categories: right-wing politically motivated crimes,
left-wing politically motivated crimes, politically motivated crimes
committed by foreigners, and other politically motivated crimes.
Many international human rights organisations and non-governmental
organisations (NGOs), including the Commissioner for Human Rights,
ECRI and Amnesty International,
suggested a reform to take into
account all hate crimes, and not only those committed by extremist
groups with political motivation (since many racist and homophobic
offences are not based on any political motivation). ECRI noted
in 2013 that the title “politically motivated crimes” could itself
be misleading for police officers recording offences. The German
authorities explained that all criminal acts “motivated by intolerance
are automatically and simultaneously classified as ‘politically
motivated’” and that new police instructions required that “the
possibility of a racist, xenophobic, inhuman or otherwise political
motivation be considered as a matter of principle in cases of violent
crime”.
47. In addition, according to the international monitors, the
lack of data on the ethnic origin of victims of offences (the authorities
seem quite reluctant to gather such data) limits the ability to
act against racism and discrimination. The use of the generic term
“persons with a migrant background” to identify victims of racial
hate crimes and discrimination was criticised by CERD. The Commissioner
for Human Rights, ECRI and CERD recommended collecting comprehensive
data broken down by grounds such as ethnic origin in a manner that is
voluntary and based on self-identification and anonymity. In their
comments, the authorities reiterated their position that collecting
official statistics about the migrant background of persons only
results in limited conclusions (i.e. about the size of ethnic groups)
and is not relevant in cases of xenophobic/racist hate crimes: for
such crimes, the authorities would inquire about the motivation
of the perpetrators, while the victims of hate crimes – also for
historical reasons – are not required to disclose their ethnic origin
(only their nationality). Collecting such data would raise legal
and practical problems.
3.4.2. Organised right-wing extremism
48. The German authorities continue
to combat organised right-wing extremism. The number of extreme right-wing
sympathisers was estimated to be around 21 000 in 2014 (21 700 in
2013), including 5 600 neo-Nazis.
Twenty such extremist organisations
were prohibited between March 2005 and September 2012.
Anti-democratic associations can be
simply banned by the Ministry of the Interior, as opposed to political parties
that can only be outlawed by the Federal Constitutional Court. The
last parties to be banned were the far-right Socialist Reich Party
in 1952 and the Communist Party of Germany in 1956. Hence, according
to the Federal Ministry of the Interior, the neo-Nazi circles increasingly
use “the political party as a model of organisation to make it more
difficult to ban. Possible entitlement to State funding provides
further incentive”.
The 2014 report
on the Protection of the Constitution quotes two relatively new
parties that are used by neo-Nazis as platforms for activities:
DIE RECHTE (The Right) and
Der III. Weg (The Third Way).
49. In this context, it is worth noting that on 1 March 2016,
the Federal Constitutional Court started the hearings on the possible
ban of the far-right ultranationalist National Democratic Party
of Germany (
Nationaldemokratische Partei
Deutschlands, NPD), following the 2012 decision of the
Bundesrat to file an application
claiming the party espouses racist views and is a threat to the
democratic order. The NPD is represented in the
Landtag of the north-eastern
Land of Mecklenburg-Western Pomerania
and
since 2014 in the European Parliament (where one seat is held by
Ugo Voigt, former leader of the party); around 300 municipal councillors
are also NPD members. The membership of the NPD is falling (5 200
in 2014; 5 500 in 2013), but it remains the most influential right-wing
extremist party.
Politicians
and security officials believe it plays a role in anti-immigrant
protests and contributes to the spread of violence through hate
speech.
50. While the Federal Government supported the suit without joining
it formally, some think that it could be counterproductive. Our
former colleague and former Federal Minister of Justice, Sabine
Leutheusser-Schnarrenberger, warned that the case “could backfire
legally and politically, with a ban far from certain and the NPD
unnecessarily gaining publicity in the process”. It must be proven
that the NPD is actively working to overthrow the constitutional
order, and a two-thirds majority of judges is required to ban the
party. The Federal Constitutional Court had attempted to ban the
NPD in 2003, but found that too many NPD members, including its
leaders, were undercover agents of the security forces.
51. In 2013, ECRI recommended that the German authorities introduce
into the law an obligation to discontinue public financing of organisations,
including political parties, which promoted racism (presently public
funding ceases only if the party is banned).
At
the same time, ECRI welcomed the preventive work conducted by the
authorities to make children and young people more aware of the
dangers of right-wing extremism and to encourage them to take part
in combating this evil. In recent years, many civil society initiatives
emerged to stand up against intolerance, like the “Exit project”
providing assistance to members of neo-Nazi organisations wishing
to leave those circles, or
Rechts gegen
Rechts, an organisation launching original campaigns
based on the principle of “unwilling donations” by right-wing extremists
to anti-racist initiatives.
The rapporteur welcomes this commitment
of the civil society and the authorities’ support; German experience
may serve as example for anti-extremist mobilisation in other European
countries.
3.4.3. Extremist violence, hate crime and
hate speech
52. Sadly, extremist violence is
on the rise in Germany. According to the Federal Ministry of the
Interior, in 2014, there were 990 violent crimes motivated by right-wing
extremism, 23.6% more than in 2013 (801); the largest number since
2008.
The number of xenophobically motivated
violent crimes increased from 494 in 2013 to 554 in 2014.
The
latest Report on the Protection of the Constitution published in
June 2016 signals a dramatic rise in the number of violent right-wing
extremist crimes with a xenophobic background
; Right-wing extremist acts
of violence increased by 42.2% compared to 2014 (from 990 to 1408).
At the same time, while not of the same category, there was a considerable
increase in the number of violent left-wing extremist crimes, with
an increase of 61.6% compared to 2014 (i.e. from 995 to 1 608).
53. On 17 October 2015, candidate for the mayorship of Cologne
Henriette Reker was stabbed by a former extreme-right wing activist.
On 15 April 2016, the trial against the alleged perpetrator opened;
according to the prosecutors, the attack was motivated by Ms Reker's
welcoming stance towards refugees.
On 21 August 2015, the Headquarters
of the SPD in Berlin had to be evacuated after a bomb threat apparently
linked to Federal Vice-Chancellor Sigmar Gabriel’s visit to a refugee
shelter in Heidenau, Saxony.
54. In 2014-2015, there was also an upsurge in the number of attacks
against facilities for asylum seekers and refugees. 1 031 such attacks
were registered by the police in 2015,
199 in 2014 and 69 in 2013. In the first
quarter of 2016, 347 crimes linked to refugee accommodation were
registered by the Federal Criminal Police Office (BKA), including
three attempted homicides, 37 arson attacks and 23 injuries.
On 6 May 2015, the police arrested a group
planning to detonate a nail bomb in a home for asylum seekers (four
persons went on trial on 27 April 2016); on 22 October 2015, the
police prevented an attack by an extreme right-wing group that had
apparently planned to blow up a refugee shelter in Bavaria. According
to
Die Zeit, between January and
December 2015, 222 dangerous attacks (mostly arsons) were carried
out against refugee shelters in Germany. Only 12 cases have been
resolved, and only four incidents resulted in the conviction of
a perpetrator.
On 14 May 2016, the head of the
BKA Holger Münch reported that 45 arson attacks against refugee
shelters had been carried out since the beginning of the year. While
German media are openly speaking about established right-wing terrorism,
the head of the BKA also recognised a possible risk of the emergence
of “criminal or even terrorist structures” and assured that German
police took this danger very seriously.
55. With regard to the hate speech and hate crime, the Commissioner
for Human Rights reports that “in 2014, according to civil society
data, there were 292 protests against refugees, and notably against
the establishment of reception facilities for asylum seekers. Eighty-one
attacks against asylum seekers were reported”.
In March 2016, reporters from the project
“
Correctiv” and
Der Spiegel magazine issued an investigative
report on the prosecution of crimes against refugees in 2014 (199
crimes were reported, including incitement to racial hatred, assault,
bodily injury and property damage): in 157 such cases examined by
the journalists, there were only 15 convictions. There was also
one conviction for attempted murder.
56. Among other issues of concern, the Commissioner for Human
Rights particularly noted a rise in the number of attacks against
mosques and Muslim people, negative attitudes to Roma and Sinti
among the general population and antisemitic attitudes.
As recalled in the Assembly report on
“Renewed commitment in the fight against antisemitism in Europe”,
1 596
antisemitic crimes were recorded by the police in 2014 in Germany,
compared to 1 275 in 2013. According to the data on hate crimes
collected by the OSCE/ODIHR, 129 hate crimes motivated by bias against
towards lesbian, gay, bisexual and transgender (LGBT) people were recorded
by the police in 2014; including 35 cases of physical assault (the
real number may be higher than the official data: civil society
reported 118 violent attacks).
ECRI recommended that the Federal
Government and the
Länder which
have not yet adopted an action plan or a comprehensive programme
to promote tolerance towards LGBT people take inspiration from existing
plans and draw up their own measures. The attention of the rapporteur
was also drawn to the threats posed by the potential rise of religiously
motivated anti-Semitism, Islamic fundamentalism and some movements
within political Islam in Germany, which are openly or latently anti-Semitic
or anti-Christian.
The authorities informed
the rapporteur that the Federal Government is currently drawing
up a new “National Action Plan against Racism”, which will cover
the subjects of homophobia and transphobia. It is expected to be
completed – in consultation with civil society – in early 2017.
Other measures were taken to address this issue, such as the setting
up of a Same-Sex Lifestyles and Gender Identity Division and of
an interministerial working group to deal with the special situation
of transsexual and intersex people in 2014.
57. Islamist violence, while less widespread than right-wing extremism,
also represents a potential threat, as in most European countries.
As of early 2015, security forces were aware of more than 600 German
or German-based Islamists who had departed for Syria or Iraq,
more than twice as many as in early
2014. In 2016, their number reached 800.
In April 2016, around 1 100 Islamists
residing in Germany were considered to be highly dangerous.
A bomb blast that injured three
people in a Sikh temple in Essen on 16 April 2016 was qualified
by the authorities as a terrorist act, and the detained suspects
have links with Islamist circles.
On 3 May 2016, the trial of a jihadist
accused of war crimes in Syria started in Frankfurt.
Other recent Islamist-motivated acts
of violence include,
inter alia,
the stabbing of a Federal Police officer in Hanover on 26 February 2016
by a 15-year-old girl – reportedly influenced by propaganda of the
so-called “Islamic State” – and the attacks with an axe and knife
on several people on a regional train near the city of Würzburg
on 18 July 2016 by a 17-year-old Afghan refugee. On 24 July, a 27-year-old
Syrian blew himself up outside a wine cellar in the town of Ansbach,
injuring 15 people. The so-called “Islamic State” later claimed
responsibility for the crime.
58. The German authorities take these threats to the peaceful
and democratic cohesion of German society seriously. In the reply
to the country report by the Commissioner for Human Rights, they
provide detailed information on the measures taken to combat hate
crime and hate speech.
The rapporteur underlines
that everything possible needs to be done to avoid the situation
of impunity for the crimes against refugees, and for hate crimes
in general. Political leaders also need to continue to unequivocally
condemn hate crimes and hate speech, supporting the part of civil
society that represents, quoting President Gauck, “a Germany of
light” opposed to “a Germany of darkness”.
59. Online hate speech has also become a growing matter of concern
for the Federal Government, given the significant rise of xenophobic
and racist posts on social networks and online platforms since the
increase in refugees coming to Germany. The Federal Government considers
that operators of these services should shoulder a degree of responsibility.
A task force established by the Federal Government in 2015 and comprised of
internet companies and civil society organisations led to an outcome
paper “Together Against Hate Speech”, in which the internet companies
undertook: to establish user-friendly mechanisms, to report hate
speech and to review and, if necessary, delete content considered
as hate speech within 24 hours.
Germany is also participating in the Council
of Europe’s “No Hate Speech” initiative with a national campaign,
supported by the Federal Ministry for Family Affairs, Senior Citizens,
Women and Youth (
www.no-hate-speech.de).
3.4.4. Racism in law enforcement
60. Monitoring bodies, including
the Commissioner for Human Rights, the Advisory Committee on the Framework
Convention, CERD, ECRI and the German Institute for Human Rights
expressed concerns as to the racial profiling practices among German
police and called for their prohibition. The Council of Europe Committee
of Ministers joined this call.
There are reports of routine searches
of individuals belonging to ethnic minorities without objective
and reasonable justification “which, in accordance with the case
law of the Strasbourg Court, constitutes discrimination”.
In its submission to the United Nations
Universal Periodic Review of Germany in 2013, the German Institute
for Human Rights stated that the practice of ethnic profiling was
approved by a court of first instance, and called for a legal ban
on ethnic profiling.
This judgment was however annulled
by a higher court, which made it clear that stop-and-search based
exclusively on skin colour violates the principle of equal treatment
in the German Basic Law.
61. More generally, there are worrying reports of racially motivated
conduct by German law-enforcement bodies. Allegations of violence
and insults have been reported,
but also less visible
forms of racism, resulting from structures and procedures in law
enforcement. In particular, it seems that “some police officers
are reluctant to register complaints of offences with a racist or
homo/transphobic motive”. The fear of formalities involved in registering
such complaints may be one explanation; “other information suggests
that racist ideas and sympathy towards extreme right-wing organisations
are widespread in the police”.
62. The authorities argued that there are not a large number of
complaints of racial profiling or court proceedings concerning it,
and that racial profiling is certainly not a general practice in
the German police. Search methods based solely on an individual’s
appearance – without other suspicious facts or situational knowledge
playing a part – are already unlawful as the law stands, and are
neither taught nor generally practised within the federal police.
Consideration of both criteria is essential in policing practice,
especially in connection with entry controls. German courts, too,
have confirmed this legal situation under international law and
the compatibility of the German authorising provisions for searches
by the federal police. Against this background, the Federal Government
sees no need for legislative action; instead, it trusts that indications
of potentially racist or discriminatory conduct by federal police
officers are taken very seriously in the framework of operational
and administrative supervision and are fully investigated in every
single case.
63. The possible existence of structural forms of racism was mentioned
in the 2014 Assembly report on “Tackling racism in Police”
and brought to public attention
with the National Socialist Underground (NSU) case, which is now
on trial. This case showed that the police were unable to identify
racist motivation and a right-wing terror group behind a string
of at least 10 murders and two bombings. A special committee was established
in the
Bundestag to inquire
into the failures in the investigation. This committee produced
a report in 2013, and the second inquiry committee was established
in November 2015, following new information made available during
the trials. According to the Commissioner for Human Rights, but
also to ECRI and CERD, the NSU case is exemplary in the way that
it shows “systemic shortcomings in identifying and addressing the
racial motivation behind [crimes], which may mask institutional
racism”.
Regardless
of numerous reports pointing in this direction, the German authorities
recently stated that they did not share such “descriptions of institutional racism
(‘structural forms of racism’)”
, which they reiterated in their latest
comments.
64. In any case, the German authorities would only benefit from
taking “active steps to build trust between persons belonging to
minorities and the police”.
There
are many concrete recommendations in the reports by ECRI, CERD and
the Commissioner for Human Rights on how it can be done. A paradigm
shift from a narrow view of racism that seems to be prevalent in
Germany (often reduced to right-wing ideology) towards “a broader
understanding of racism that [includes] indirect, structural and
institutional discrimination”
seems highly
advisable. The authorities, however, rely on the concept of “racial
discrimination” as defined in Article 1 of the International Convention
on the Elimination of All Forms of Racial Discrimination,
which
has the status of a federal law in Germany.
3.5. Discrimination
3.5.1. Legal framework
65. Germany has not ratified Protocol
No. 12 to the European Convention on Human Rights (ETS No. 177) prohibiting
discrimination (signed in 2000).
66. Discrimination on the grounds of race or ethnic background,
sex, religion or belief, age, disability and sexual orientation
is prohibited by the General Equal Treatment Act that came into
force in 2006. This law combats discrimination in the field of employment
and in civil law transactions, but it does not cover discrimination
by public authorities. In its submission to the United Nations Universal
Periodic Review, the German Institute for Human Rights called for
the General Equal Treatment Act to provide for class actions. In 2015,
the Advisory Committee on the Framework Convention considered the
anti-discrimination legislation weak;
the Committee of Ministers also recommended
strengthening this legislation.
67. In 2006, a Federal Anti-Discrimination Agency was established
within the Ministry of Family Affairs. This agency assists people
seeking protection from discrimination; it can also seek a friendly
settlement through conciliation. According to international monitoring
bodies, including the Commissioner for Human Rights, CERD, ECRI,
the Advisory Committee on the Framework Convention and the Committee
of Ministers, its mandate needs to be extended (for example to give
the agency wider powers to carry out investigations and provide
legal assistance to victims), its budget strengthened, and its staff
increased. The authorities indicated that the Federal Government
has already increased the budget and staff of the Federal Anti-Discrimination Agency
in recent years and will continue to do so. Four of the 16 Länder have also set up their own
specialised agencies to combat discrimination at Land level, which is further step
towards comprehensive and effective protection from discrimination
at local level.
3.5.2. Sinti, Roma and other national minorities
68. “Persons with a migrant background”,
as well as Sinti and Roma, have, according to ECRI, lower than average
access to employment and education.
The authorities acknowledged that people
with a migrant background, as well as Sinti and Roma, are disproportionately
represented among those with lower levels of school performance
and have therefore lower chances of access to higher education.
They can however have access to all programmes offering pre-school
and school-based language support and other individual support in
the various types of school.
According to the Advisory Committee
on the Framework Convention, Sinti and Roma children are reportedly
still over-represented in special schools. However, in general, representatives
of national minorities consider that the level of protection of
their rights is relatively high. The Federal Ministry of the Interior
holds an annual conference on the implementation of the Framework Convention
and the European Charter on Regional or Minority Languages (ETS
No. 148), bringing together representatives of the Federal Government,
governments of the
Länder and
national minorities. A Consultative Committee on Issues concerning
German Sinti and Roma has been established. The authorities provide substantial
support to the preservation and development of national minority
languages and cultures.
Regarding
the minority languages, in 2014 the Committee of Ministers recommended
that the German authorities strengthen the efforts to promote, including
through an adequate educational offer and the media, the Lower Sorbian,
North Frisian, Sater Frisian, Low German, Danish and Romani languages.
3.5.3. LGBTI people
69. As far as the discrimination
against LGBTI people is concerned, several major improvements in
the legal situation of homosexual and bisexual people are to be
welcomed. The Life Partnership Law adopted in 2001 created a separate
institution of family law for same-sex couples. In 2004, additional
rights were granted to same-sex civil partnerships. The Federal
Constitutional Court further strengthened these rights, on several occasions
declaring unconstitutional different treatment of marriage and same-sex
civil partnerships. According to the European Union Fundamental
Rights Agency (FRA) report, same-sex civil partnerships are legally
equal to marriage in all aspects other than adoption.
70. At the same time, homophobia still exists in German society.
In a 2012 survey quoted by the FRA report, 30.7% of the respondents
stated having experienced harassment at work or during training
due to their lesbian/bisexual orientation and 20% reported disrespectful
treatment by medical staff. These numbers are higher when looking
at trans-persons; one third experienced sexualised violence, half
have experienced discrimination at work and 44% in relation to medical
treatment.
3.6. Media freedom
71. In most international ratings
and monitoring reports, Germany is considered to have a very positive record
in the area of media freedom. It enjoys the status of a “free” country
in the Freedom House reports on “Freedom of the Press”
and “Freedom on the net”.
In the “World Press Freedom Index”
published by Reporters without Borders, Germany fell in 2016 (data
for 2015) from 12th to 16th place in the world – which is still
a very high rank. This relative decline was linked first to the
“harassment, threats and violence against journalists covering radical
right-wing groups, especially the Islamophobic and xenophobic group
PEGIDA” (around 30 attacks according to Freedom House) and second
to the “
Netzpolitik.org” affair.
In the latter case, for the first
time in 30 years and for the fourth time in the history of the Federal
Republic of Germany, the Federal Prosecutor General launched investigations
for treason on journalists – editors of the online-magazine
netzpolitik.org who published confidential
secret service reports on internet surveillance. The investigation
was launched on 13 May 2015 and sparked off popular protests in
Berlin. On 4 August, Federal Minister of Justice Heiko Maas dismissed
Federal Prosecutor General Harald Range who had opened the investigation.
On 10 August, the acting Federal Prosecutor General announced that
the investigation had been halted.
Going beyond the debate on media
freedom, this direct intervention into the investigation by the
Federal Minister via dismissal of the Federal Prosecutor General
may raise questions as to the independence of the prosecution. The
authorities drew attention to the fact that under existing German
law, public prosecutors – including the Federal Public Prosecutor
General – are not, in fact, independent, but rather subject to the
administrative supervision of the Federal Minister of Justice and
Consumer Protection and the justice ministries of the
Länder (Section 147 of the Judiciary
Act (
Gerichtsverfassungsgesetz)).
They are thus bound by instructions. Instructions which are clearly
unlawful are, however, punishable for the person issuing the instruction
and are not binding on the person to whom the instruction is issued.
Obeying such an instruction would expose the latter, too, to the
risk of consequences under criminal law. Providing an extensive
description of the prosecution system, the authorities concluded
that there is no danger of politically motivated influence being
exerted on criminal proceedings in individual cases, and thus also
no need for the creation of a general rule requiring instructions
to be issued in writing.
In the light of the “
Netzpolitik.org” affair, which belies
this position, the rapporteur considers, however, that due consideration
should be given to such a move in order to strengthen the independence
of the public prosecutors.
72. Another factor quoted as having an incidence on the situation
in the area of media freedom is the anti-terrorism law of 2009,
known as the BKA Act, granting the Federal Criminal Police Office
(BKA) the power to act preventatively against crimes related to
international terrorism – previously held exclusively by the intelligence
services. One of the powers vested by this law to the BKA is to
conduct surveillance of telecommunications of “bearers of professional
secrecy” (journalists, lawyers and doctors).
The 2009 BKA Act was ruled partly
unconstitutional by the Federal Constitutional Court on 20 April
2016
– these provisions are expected
to be revised in a new BKA Act.
73. Finally, the decision by the Federal Government to allow the
prosecution of satirist Jan Böhmermann under Section 103 of the
Criminal Code (Defamation of organs and representatives of foreign
States) for having insulted Turkish President Recep Tayyip Erdoğan
relaunched the debate about the freedom of speech in Germany. While
some criticised the satirist for obscene and provocative insults,
others supported him, saying he was exercising his right to freedom
of speech. While on 15 April 2016 Chancellor Merkel gave the approval needed
to prosecute the comedian (following an examination by the Federal
Government, in which the Federal Foreign Office, the Federal Ministry
of Justice, the Federal Ministry of the Interior and the Vice-Chancellor Gabriel
were involved), she also announced that the Federal Government (i.e.
the Minister of Justice) would propose to scrap Section 103 of the
Criminal Code. This rarely used legal norm, also known as “Lese majesté”, foresees a punishment
of up to five years of imprisonment. It has been criticised as outdated,
unfair (since it specifically protects foreign States’ representatives)
and encouraging abuse by foreign authorities.
4. The rule of law
4.1. Judiciary and prosecution
74. The independence of the judiciary
is guaranteed by the Basic Law. The court system is structured federally:
jurisdiction is exercised by federal courts (including the Federal
Constitutional Court) and by the courts of the 16
Länder; the main workload lies with
the
Länder.
75. In her 2015 report on “Threats to the rule of law in the Council
of Europe member States: asserting the Parliamentary Assembly’s
authority”, our colleague Marieluise Beck (Germany, ALDE) underlined
three concerns with regard to the rule of law in her own country.
First, Germany has still not established
a High Judicial Council to introduce a dose of self-administration
into the judiciary. In fact, prosecutors and judges are formally
recruited and promoted by the Ministers of Justice – something which
per se is not seen as problematic for
the independence of the judiciary in Germany due to its federal
system (different political forces are in power in different
Länder), strict recruitment procedures
and a strong
esprit de corps.
In addition, some
Länder introduced
elements of self-administration of justice. At the same time, “a
dose of judicial self-administration, not excluding a reasonable
representation of political representatives, as advocated by the
Venice Commission, would be desirable, also as a matter of setting
the right example”. Second, the report criticised the right of the
ministers of justice to give instructions to prosecutors on individual
cases. In practice, ministers made very cautious use of this right
which also represents a safeguard for parliamentary control over
the prosecution service; instructions opposing the “principle of
legality” (obliging prosecutors to prosecute and investigate) constitute
an obstruction of justice and are therefore illegal. However, the
dismissal and appointment of the prosecutors by the ministers of
justice could also be a tool to unduly influence the prosecution,
as has been alleged in relation to the
Netzpolitik.org affair
mentioned above. Ms Beck suggested that “democratic accountability
of the prosecution could be preserved whilst minimising the danger
of politically motivated abuses by laying down the simple rule that
any individual instructions should be given in writing, and made
public. If a minister can explain to parliament and ultimately to
the voters why he or she gave a specific instruction to a prosecutor,
the chances are that the instruction was legitimate”. Finally, the
salaries of judges and prosecutors in relation to the national average
are the second-lowest in Europe.
76. In 2009, the Assembly had already called on Germany to consider
setting up a system of judicial self-administration, gradually increase
the salaries of judges and prosecutors and abolish the possibility
for ministers of justice to give the prosecution instructions concerning
individual cases.
In
2015, it repeated these calls.
Stating
that the justice system needs to be free from, but also to be seen
as being free from political influence, in its 2014 report the Council
of Europe’s Group of States against Corruption (GRECO) also made
similar recommendations to the German authorities.
77. In their comments, the authorities stressed that independence
of the judiciary is ensured by the fact that judges can take their
decisions individually and independently without influence by third
parties – and in particular without influence by another branch
of the State – and that they are subject only to the law in taking their
decisions. The German system provides for self-administrative elements
(such as councils for judicial appointments, councils of judges
representing judges, bureaux responsible for the allocation of court
business and the composition of the formations of the court, or
committees for the election of judges). The authorities also stressed
that the vast majority of judges (19 923 of the 20 382 judges in
Germany) and public prosecutors (5 132 of the 5 231 public prosecutors
in Germany) are employed at the level of the
Länder.
As part of the “federalism reform”, the Federation’s concurrent
legislative power over the remuneration and pensions of civil servants
and judges was repealed and, with effect from 1 September 2006,
the
Länder were given exclusive legislative
power over the remuneration and pensions of judges and public prosecutors
(Article 74 (1) No. 27 of the Basic Law).
While the rapporteur takes due note of these
elements, he nevertheless invites the German authorities to address
the issues raised by the Assembly and GRECO.
4.2. Fight against corruption
78. According to the Transparency
International Corruption Perception Index, in 2015 Germany had the
10th lowest level of corruption in the world – the 7th best record
among the Council of Europe member States and the 5th best in the
European Union.
According to GRECO, “Germany is
generally considered to be in the top ranks internationally for
fighting corruption and to have provided a good framework for repressing
and preventing it”.
79. The 2014 European Union Anti-corruption report also recognised
that “[w]hen it comes to fighting corruption, Germany is amongst
the best countries of the EU”. However, the European Commission
proposed several recommendations to further improve the situation:
introduce strict penalties for corruption of elected officials;
develop a policy against the “revolving door” phenomenon, where
officials leave office to work for companies they may have recently
helped; increase awareness of the risks of foreign bribery amongst
small and medium-sized enterprises; and address more efficiently
the concerns over the financing of electoral campaigns.
In the meantime, an offence of bribing
delegates entered into force on 1 September 2014. Following an amendment
of the Federal Ministers Act and the Act governing the Legal Status
of Parliamentary State Secretaries, the rule requiring a “cooling-off”
period for members of the Federal Government and Parliamentary State
Secretaries before taking up employment after leaving office came
into force on 25 July 2015.
80. Germany has signed, but not ratified the Civil Law Convention
on Corruption (ETS No. 174, signed in 1999), the Criminal Law Convention
on Corruption (ETS No. 173, signed in 1999) and the Additional Protocol thereto
(ETS No. 191, signed in 2003). In 2016, Germany signed the revised
Council of Europe Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime and on the Financing of
Terrorism (CETS No. 198), but has not ratified it yet. Germany is
not a member of the Committee of Experts on the Evaluation of Anti-Money
Laundering Measures and the Financing of Terrorism (MONEYVAL).
81. The authorities expect to ratify the Criminal Law Convention
on Corruption and the Additional Protocol thereto in the near future.
Germany has already transposed all the provisions of the Criminal
Law Convention on Corruption and the Additional Protocol into national
law after the entry into force of the Anti-Corruption Act (
Gesetz zur Bekämpfung der Korruption)
on 26 November 2015. In accordance with the Basic Law, a draft ratification
law was adopted by the Federal Government on 25 May 2016 and was
passed by the
Bundesrat in July
2016. The
Bundestag was expected
to consider it in September 2016. With regard to the Council of
Europe Civil Law Convention on Corruption, the question of whether
there is a need for action to create a specific provision in German
law to protect whistle-blowers is still being examined. Germany
also intends to ratify the Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism, which was signed on 28 January 2016.
A law for the ratification of the Criminal Law Convention on Corruption,
its Additional Protocol and the Convention on the Financing of Terrorism
was adopted by the
Bundestag on
20 October 2016.
82. While the two first evaluation rounds by GRECO
clearly confirmed Germany’s reputation
as a country complying with Council of Europe anti-corruption standards,
the third evaluation round on incriminations
and transparency
of party funding raised concerns. GRECO had to prepare three interim
reports before it concluded that the level of compliance with the
recommendations was no longer “globally unsatisfactory”. Most problems concerned
the second theme: party funding. In the third interim report, GRECO
still expressed “strong misgivings about the very limited attention
paid to several recommendations on issues of prime importance”, including
the “introduction of a system for the timely publication of election
campaign accounts, enhancing the transparency of direct donations
to parliamentarians and election candidates who are members of political parties,
and further increasing the resources available to the president
of the
Bundestag for supervising
party funding”.
In this regard, it should
be noted that the foundations close to political parties (
Stiftung) traditionally play a very
important role in German party politics. The authorities recalled
the new rules governing donations to parliamentarians exceeding
in total €10 000 a year, or single donations exceeding €50 000,
which must be reported respectively to the party’s executive committee
member in charge of finances, and to the President of the German
Bundestag.
83. In its second compliance report under the third evaluation
round, which was published in June 2016,
GRECO concluded that Germany had
implemented satisfactorily or dealt with in a satisfactory manner
eight of the 20 recommendations contained in the third round evaluation
report. Ten recommendations have been partly implemented and two
have not been implemented to date. It would appear that “the recent
amendments to the Political Parties Act adopted on 22 December 2015
(and which entered into force on 1 January 2016) have the potential
to increase the transparency and effective enforcement of the rules
and can thus be considered as steps in the right direction. That
said, GRECO regrets that this reform process has not been used to
implement the outstanding recommendations. It wishes to stress again
that several recommendations are pending on issues of prime importance
– such as the introduction of a system for the timely publication
of election campaign accounts, enhancing the transparency of direct
donations to parliamentarians and election candidates. GRECO thus
once again urged the German authorities to address the outstanding recommendations
as soon as possible.
84. In the evaluation report under the fourth evaluation round
on prevention of corruption in respect of members of parliament,
judges and prosecutors, GRECO addressed to the German authorities
eight recommendations.
Regarding
members of parliament, it recommended: 1) further improving transparency of
the parliamentary process (e.g. by introducing rules on how to interact
with lobbyists); 2) introducing a requirement of ad hoc disclosure
when there is a possibility of a conflict of interest of parliamentarians
and providing MPs with guidance on this requirement; 3) reviewing
the existing regime of declarations of interest to extend the categories
of the disclosed information and extending their scope to include
information on spouses and dependent family members; 4) ensuring
effective supervision and enforcement of the declaration requirements,
rules on conflicts of interest and other rules of conduct for members
of parliament. On the recommendations regarding judges and prosecutors,
see the respective paragraph of this report. No compliance reports
have been published in relation to Germany under the fourth evaluation
round at the time of the preparation of this report.
85. As regards foreign bribery, Germany was one of the first States
to ratify the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions (Anti-Bribery Convention) in
1998; in 2014, it ratified the United Nations Convention against
Corruption. According to Transparency International, Germany is
actively enforcing the OSCE Anti-Bribery Convention; the NGO addressed
several recommendations to the German authorities.
4.3. Intelligence and security services
86. Surveillance and interception
of the communications by German citizens and foreign nationals in Germany
is regulated by the “G-10 Act” (restricting the right to privacy
enshrined in Article 10 of the Basic Law). Measures of intrusive
information collection are overseen
ex
post by the Parliamentary Control Panel (
Parlamentarisches Kontrollgremium)
composed of nine elected members of the
Bundestag.
Any measures falling within the scope of the G-10 Act need to be
authorised by the “G-10 Commission” appointed by the Parliamentary
Control Panel. Other actors of oversight of surveillance by intelligence
services include the Federal Commissioner for Data Protection and
Freedom of Information and the
Bundestag’s
Confidential Committee responsible for the budget of intelligence
and security services. Similar bodies exist at the
Land level.
The activities of
the three German intelligence services as a whole are also subject
to oversight by the Parliamentary Oversight Panel. Only the Federal
Intelligence Service (
Bundesnachrichtendienst)
is empowered to carry out strategic communications surveillance
under Article 5 of the G10 Act.
87. In his 2015 report on Germany, the Commissioner for Human
Rights welcomed the existence of a general framework for the democratic
oversight of the intelligence and security services, but encouraged
the authorities to strengthen the existing legal framework and improve
legal remedies to ensure full protection of human rights against
any abuse. He proposed to improve the capacity of the oversight
bodies (including resource-wise), guarantee their full access to
all information and clarify the question of surveillance by the German
intelligence services over non-German citizens outside Germany.
According to the Commissioner, these measures could provide a remedy
to the shortcomings in the oversight of the surveillance exposed
by the “Snowden revelations”.
These leaks
revealed,
inter alia, close
co-operation between the German Federal Intelligence Service (
Bundesnachrichtendienst, BND) and
the US National Security Agency (NSA) that eluded democratic control.
This co-operation included, for instance, “open sky” surveillance
and transmission of massive amounts of metadata by the BND to the
NSA. In 2015, it was also revealed that the BND conducted surveillance
on other European countries, including on high-level politicians,
for the benefit of the NSA. As a consequence of the Snowden revelations,
on 20 March 2014 the
Bundestag set
up a committee of inquiry into the NSA affair. The revealed shortcomings,
according to the Commissioner, concern the oversight bodies’ lack of
resources and expertise, problems of co-ordination (competition
between different bodies, fragmentation), the scope of the oversight
of telecommunications (it is the Federal Government which decides
whether a measure falls within the scope of the G-10 Act) and the
absence of effective remedies for persons affected by surveillance.
88. In response to the Commissioner’s recommendations, the authorities
informed the rapporteur that two bills were currently in the parliamentary
pipeline: one relates to the oversight activities of the Parliamentary Oversight
Panel, and the other clarifies the legal framework for communications
surveillance of foreign nationals abroad carried out by the Federal
Intelligence Service from within Germany. Beyond this, the Snowden
revelations are the subject of an ongoing investigation by a parliamentary
committee of inquiry, the Federal Government refraining from commenting
on its results before it completes its work.
89. Another issue related to the intelligence and security services
concerns the CIA renditions. In December 2014, the US Senate Select
Committee on Intelligence published a 499-page summary of its investigative report
on the CIA secret rendition, detention and interrogation programme.
This report,
inter alia, addressed the
case of Khaled el-Masri, a German national detained in the “former
Yugoslav Republic of Macedonia” by the CIA agents who illegally
transferred him to a secret site in Afghanistan, where he was tortured
in the course of his five months in CIA custody.
After the publication of these findings,
Amnesty International called on the German Government “to re-open
its own investigation into its role in the CIA counter-terrorism
operations, including in the rendition of Khaled el-Masri, and to
ensure that the German Government complies with its constitutional
duty to co-operate fully with any such investigation”, as well as
to seek “full and effective redress for Khaled el-Masri as a victim
of torture”.
According
to the human rights NGO, in 2007, the Munich District Court issued
13 arrest warrants against CIA officials and agents on charges of
causing grievous bodily harm and deprivation of liberty, but the
German Federal Office of Justice declined to request the extradition
of the CIA employees, probably in order to maintain good relations
with the United States. Immediately after the publication of the
US Senate report, the European Center for Constitutional and Human
Rights (ECCHR) lodged a criminal complaint against former CIA head
George Tenet, former Defence Secretary Donald Rumsfeld and other
members of the George W. Bush administration, accusing them of the
war crime of torture (paragraph 8.1(3) of the German Code of Crimes
against International Law).
In the same vein, Human Rights Watch
proposed that the German Federal Prosecutor General consider opening
a “structural investigation” under “universal jurisdiction” into
abuses committed by US officials after 2001, since German law allows
prosecution of grave international crimes, even those committed
abroad by foreigners, under the jurisdiction of German courts.
The rapporteur was informed by the
authorities that, on 16 December 2014, following the publication
of the CIA torture report on 9 December 2014, the Federal Public
Prosecutor General launched an examination of whether the report
provides grounds for an initial suspicion that offences have been
committed under the German Code of Crimes against International
Law (
Völkerstrafgesetzbuch).
It is not yet known when this examination will be completed.
90. With respect to the el-Masri case, the authorities replied
that the competent investigating authorities have taken all necessary
steps since Mr el-Masri’s return to Germany to clarify the facts
of the matter and identify those responsible for what happened to
him. The Federal Government has repeatedly made it unequivocally
clear to the United States that such a case must not be repeated
in future and that the principles of the rule of law and international
law must be upheld everywhere and at all times. In its decision
of 7 December 2010, the Cologne Administrative Court found that
Mr el-Masri’s rights were not infringed by the Federal Government’s
decision not to submit an extradition request to the United States.
91. Finally, in its 2014 report, the United Nations Committee
on Enforced disappearances praised the co-operation of the German
authorities with civil society and the Committee, as well as the
ratification of major human rights instruments, but it also suggested
numerous measures to bring the legal framework and the way it is
implemented fully into line with the International Convention for
the Protection of All Persons from Enforced Disappearance (ratified
by Germany in 2009). It namely recommended measures in the field
of criminalisation of enforced disappearance, investigation, judicial
co-operation, prevention, reparation and protection of minors against
enforced disappearances.
Following the United Nations recommendations,
the German authorities considered again whether a separate offence
of enforced disappearance should be created. They concluded however
that adding a new offence to the Criminal Code is not necessary
at this time. While it is accepted that, in theory, certain prosecution
gaps are conceivable, the view is nonetheless taken that the existing
German criminal offences and other laws are sufficient in principle
to ensure comprehensive investigation, prosecution and sanctioning.
5. Human rights
5.1. National human rights institution
92. In 2001, in conformity with
the 1993 United Nations Paris Principles and respective 1997 Recommendation
of the Committee of Ministers of the Council of Europe,
Germany established the German Institute
for Human Rights (GIHR), an independent national human rights institution.
The GIHR has a legal status of association (NGO), and in 2015 it
was given the legal basis of a national human rights institution.
The GIHR’s mandate includes the following activities: research,
information and documentation on human rights topics, policy advice,
human rights education, international co-operation with human rights
institutions and promotion of public debate on human rights.
Other bodies for the protection
of human rights exist in the different
Länder.
93. In his 2015 report on Germany, the Commissioner for Human
Rights welcomed “the essential role that the GIHR plays for the
protection and promotion of human rights in Germany and its recent
strengthening through the adoption of a law giving it a solid legal
basis”.
At the same time,
he called on the German authorities to empower the GIHR in order
to increase its efficiency: strengthen its investigation powers,
give it the right to bring complaints before the Federal Constitutional
Court, increase its budget and decrease the role of the
Bundestag in participation into
and nomination of members of the GIHR’s Board of Trustees.
In 2011, the United Nations Committee
on Economic, Social and Cultural Rights expressed concern that the competence
of the GIHR was not extended to consider complaints.
The authorities added that the United Nations
sub-committee responsible for the accreditation of national human
rights institutions had examined the statutory basis, considering
the United Nations Paris Principles, and concluded that, in consideration
of the 2015 law, a (re)classification of the German Institute for
Human Rights in the highest possible category (“A status”) was appropriate.
Against this background, the Federal Government sees no need for
action at present.
5.2. International framework
94. According to Article 25 of
the Basic Law, the general rules of international law are an integral
part of federal law, take precedence over domestic laws and “directly
create rights and duties for the inhabitants of the federal territory”.
Germany has ratified most of the Council of Europe and other international
treaties on human rights. On 18 November 2015, it ratified the Council
of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse (CETS No. 201). On 22 October 2015,
it signed the Additional Protocol to the Council of Europe Convention
on the Prevention of Terrorism (CETS No. 217) and, on 28 January
2016, the Council of Europe Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime and on the Financing
of Terrorism. The latter is in the parliamentary process of being
ratified (see above).
95. Nevertheless, several important treaties still await ratification.
In particular, in its
Resolution
1953 (2013) on the progress of the Assembly’s monitoring procedure
(June 2012-September 2013), the Assembly called on Germany to sign
and ratify the following Council of Europe treaties: Protocol No. 12
to the European Convention on Human Rights concerning the fight
against discrimination
(also recommended by the Commissioner
for Human Rights, ECRI and the GIHR
);
the European Social Charter (revised) (ETS No. 163) and the Additional
Protocol thereto Providing for a System of Collective Complaints
(ETS No. 158) (also recommended by the Commissioner for Human Rights);
the Civil Law Convention on Corruption; the Criminal Law Convention
on Corruption; and the Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism. None of these documents have yet
been ratified by Germany. The rapporteur notes with satisfaction,
however, that the ratification of the three conventions on corruption
and the financing of terrorism is currently under consideration,
according to the latest official information received.
96. Concerning the ratification of Protocol No. 12 to the European
Convention on Human Rights (which was signed on 4 November 2000),
the German authorities explained that they were observing the further
progress of ratification by other countries and the development
of the case law of the European Court of Human Rights (“the Court”)
after the Protocol’s entry into force, to see how ratification of
the Protocol would affect Germany’s internal legal order. As Protocol
No. 12 includes the prohibition of discrimination on grounds of
origin and a broad interpretation of this prohibition could lead
to problems for German legislation relating to civil servants, social
matters, foreign nationals and asylum, the Federal Government intends
to continue to wait for the time being, as the current German legal
order already enshrines a comprehensive prohibition of discrimination,
in particular through Article 3 of the Basic Law, and the General
Equal Treatment Act (
Allgemeines Gleichbehandlungsgesetz)
which entered into force on 18 August 2006 and ensures far-reaching
protection from discrimination in labour and civil law.
97. On 11 May 2011, Germany signed the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic
Violence (CETS No. 210, “Istanbul Convention”). On 7 July 2016,
the Bundestag adopted a bill
to enhance the protection of individual consent in sexual relations
(so-called “No means No” law), which implements the provisions of
Article 36 of the Istanbul Convention. The Bundesrat considered
the bill in September 2016, allowing the law to enter into force
in October 2016. The Federal Government plans to draw up a draft
law expressing parliamentary approval of the Istanbul Convention,
so that the Convention can be ratified before the end of the current
electoral term.
98. As already mentioned above, the German Code of Crimes against
International Law (CCAIL) adopted in 2002 integrates the Rome Statute
of the International Criminal Court (ICC) into German law and allows German
courts to prosecute war crimes and crimes against humanity even
if they are committed abroad by non-German citizens. In 2009, the
German Federal Police and Prosecution Office created a “Central
Unit for the Fight against War Crimes and Further Offenses Pursuant
to the CCAIL”. Several war criminals from the Democratic Republic
of Congo and Rwanda have already been tried and sentenced under
this provision in Germany.
5.3. European Court of Human Rights
99. In 2015, the European Court
of Human Rights dealt with 913 applications concerning Germany,
901 of which were declared inadmissible or struck out. It delivered
11 judgments concerning 12 applications, six of which found at least
one violation of the European Convention on Human Rights. 576 applications
were pending before the Court on 1 January 2016.
100. Recent noteworthy Court judgments concern unjustified extension
or ordering of preventive detention, including retroactive extension,
parental
authority,
freedom of expression
and excessive length of proceedings
before the domestic courts, a recurring problem underlying the most
frequent violations.
The 2016 Information report
on the “Impact of the European Convention on Human Rights in States
Parties: selected examples”
highlights
numerous cases of the positive impact of Court jurisprudence on
German legislation and legal practice. Such improvements include,
among others, redress for excessively long domestic proceedings,
prohibition of retrospective order or extension of preventive detention,
strengthening of the rights of fathers, protection of whistle-blowers,
rejection of evidence obtained as a result of incitement by agent
provocateurs or the fact that police must not threaten suspects
with physical harm during interrogation.
101. In its 2011
Resolution
1823 (2011) “National parliaments: guarantors of human rights in
Europe”, the Assembly mentioned Germany as a positive example alongside
other countries which have set up parliamentary structures to monitor
the implementation of the Court’s judgments.
The background memorandum on “The role
of parliaments in implementing ECHR standards: overview of existing
structures and mechanisms”
prepared by the Assembly secretariat,
describes the system of parliamentary follow-up to the Strasbourg
Court judgements in Germany. Two committees of the
Bundestag deal primarily with human rights
issues: the Committee on Human Rights and Humanitarian Aid and the
Committee on Legal Affairs. Neither committee has an explicit mandate
to consider the implementation of judgments of the Court; their involvement
depends on the particular matter raised by a judgment. However,
in practice, “the German Ministry of Justice has reported on [the
Court] judgments annually since 2004 to both [Committees]. Initially,
the report covered judgments and decisions against Germany. Since
2007, it has covered the implementation of judgments. Since 2010,
a separate annual report has also been produced covering judgments
against other States which have potential implications for Germany”.
5.4. Detention facilities, prevention
of torture and inhuman or degrading treatment or punishment
102. According to the Council of
Europe “Annual Penal Statistics SPACE I – Prison Populations Survey
2014” published on 23 December 2015, Germany has a relatively low
prison population – 81.4 prisoners per 100 000 population (below
the Council of Europe average of 135.8), with a 15.7% decrease in
prison population rates between 2004 and 2014. Prisons are not overcrowded:
the density in German penal institutions is 86.3 inmates per 100
places (below the Council of Europe average of 91.7). The average
length of imprisonment in Germany is 8.5 months. The suicide rate
in 2013 was 7.4 per 100 000 inmates – slightly below the Council
of Europe average (7.6).
103. In 2010, Germany established the National Agency for the Prevention
of Torture, a preventive mechanism under the Optional Protocol to
the United Nations Convention against Torture (OPCAT). However, its
lack of human and financial resources has disappointed human rights
defenders,
including
the Commissioner for Human Rights who qualified the Agency as “rather
a low-profile mechanism”
and the United Nations
Special Rapporteur on Torture who stated that “such an approach
to the implementation of OPCAT is counter-productive since it does
not take the problem of torture and ill-treatment in detention seriously
and sets a bad example for other States”.
The German authorities took due
note of criticism related to the National Agency’s financial and
human resources and subsequently appointed four members to the Commission
of the
Länder in January 2015;
the
Länder and the Federal
State have increased the resources of the Agency.
They
thus deny that the issue of torture and degrading treatment is not
taken seriously in Germany.
104. The Commissioner for Human Rights also regretted the absence
of an independent police complaints mechanism in Germany, regardless
of repeated calls by monitoring bodies, including the CPT. Even
though some progress has been made at the
Land level,
in 2015 the Commissioner considered that investigation of ill-treatment
by police officers at the Federal level remained an outstanding
issue and called on the German authorities “to establish a fully
independent and well-functioning complaints mechanism covering all
law-enforcement officials”. In its 2015/2016 annual report, Amnesty
International stated that “[t]he authorities continued to fail to
effectively investigate allegations of ill-treatment by police and
did not establish any independent complaints mechanism to investigate
those allegations”. In their reply to the Commissioner, the German
authorities agreed that the “establishment of an independent police
complaints mechanism could offer an additional point of contact
for those making complaints”, but disagreed as to the substantial
difference of such a mechanism compared to those already existing
in the Federal Police.
The authorities however stick to the
view that such an independent complaints mechanism is not necessary
or appropriate at the federal level, given the existence of internal
and external complaints mechanisms (including, in some
Länder, independent special commissions
to investigate crime committed by police officers) and the principle
of mandatory prosecution which compels the public prosecution office
to open an investigation if there is a suspicion that an offence
may have been committed.
The rapporteur, however,
continues to believe that the setting up of such independent mechanisms
would reinforce the trust of citizens in their police.
105. The latest, sixth periodic visit of the CPT to Germany took
place from 25 November to 7 December 2015. The delegation visited
15 police establishments, prisons and psychiatric hospitals in different
Länder. Particular attention was
paid to the situation of persons held in solitary confinement for
prolonged periods and to the use of special security measures (including
mechanical restraint –
Fixierung).
The report following this visit
had not been published at the time of the preparation of the present
document.
106. The previous CPT visit to Germany took place from 25 November
to 2 December 2013. The delegation visited five prisons
and two prison hospitals.
The report following
the visit
focused on three subjects: treatment
and conditions of detention of persons held in preventive detention,
imposition of special security measures in prisons, particularly
Fixierung, and surgical castration
of sex offenders. The CPT welcomed the excellent co-operation of
the German authorities and was pleased that its delegation received
no allegations and found no evidence of physical ill-treatment or
verbal abuse in the detention facilities visited. Regarding preventive
detention, the CPT addressed to the authorities several recommendations
and requests for information concerning the conditions and treatment
in detention, disciplinary sanctions
and complaint procedures.
The CPT also encouraged the authorities of all
Länder to abandon the resort to
Fixierung in prisons and called
on all relevant federal and
Länder authorities
to put a definitive end to surgical castration. On this last point,
it should be noted that castration is only permissible under very
strict preconditions, including the consent of the person concerned,
confirmed by an expert.
In addition, surgical castration
is applied only in rare exceptional cases: since 2000, 29 applications
had been submitted, of which only eleven were accepted.
5.5. Violence against women
107. According to a 2004 survey
conducted by the German Federal Ministry for Family Affairs, Senior Citizens,
Women and Youth, 37% of women interviewees have experienced some
form of physical attack or threat of violence since the age of 16.
A survey by European Union Fundamental
Rights Agency, published in 2014, found that 35% of women in Germany
had experienced physical violence or threats since the age of 15.
At the same time, according to the
same survey, only 23% of women had recently seen or heard any campaigns
addressing violence against women.
108. The issue of violence against women recently appeared on the
front pages of the press all around Europe and beyond, following
the attacks in Cologne and other German cities (but also in Austria,
Finland and Switzerland) on New Year’s Eve 2016, when hundreds of
men harassed, insulted and grabbed women – in the context of widely
published allegations that the offenders were persons of migrant
background or refugees. The rapporteur does not want to give a detailed
description of the events, considering that in January 2016 our colleague
Jonas Gunnarsson (Sweden, SOC) prepared an excellent report on “Recent
attacks against women in European cities – the need for a comprehensive
response”
resulting in a resolution
adopted by the Assembly
on the occasion of a debate under urgent debate procedure. Furthermore,
a follow-up report on “Women in public space: putting an end to
sexual violence and street harassment” is under preparation in the Committee
on Equality and Non-Discrimination. The rapporteur would nevertheless
like to underline three ideas already expressed in the report and
the resolution that he finds of particular relevance.
109. First, there should be no impunity for violence against women
– in Germany or elsewhere. Up to the end of March, in Cologne alone
police received 1 527 criminal complaints, with more than 500 victims
alleging sexual crimes. The first person on sexual offence-related
charges was arrested on 18 January 2016, and the first sexual assault
case related to the attacks went to trial on 11 April (this case
was related to the attacks in Düsseldorf). Furthermore, German police
reported 66 complaints of sexual insults or aggression (up from
18 in 2015) during the Cologne carnival from 4 to 10 February 2016.
According to the police, this increase could partly be attributed
to “a change in the attitude of victims and witnesses”, since local
authorities urged the victims to come forward. Eight women also
reported to the police that they were sexually assaulted during
the 13-16 May 2016 Festival of Cultures in Berlin; 12 suspects were
identified, and arrest warrants issued against seven.
The Conference of Interior Ministers
also established a Federation-
Länder Project
Group on the New Year’s Eve events, headed by the Federal Criminal
Police Office, to establish the full facts, carry out a “qualified analysis
of the phenomenon” and develop suitable countermeasures, which are
currently being examined by the Conference of Interior Ministers.
The rapporteur recalls that the Assembly
called on the relevant authorities to conduct an investigation into
the New Year’s Eve events and to publish its results.
110. Second, as the Assembly stressed in its resolution, violence
against women should not be instrumentalised for other purposes.
Shamefully, certain political movements (including PEGIDA) and media used
the attacks as a tool for stigmatisation of refugees and migrants,
affecting public opinion. This sad episode should be a wake-up call
to reconsider and reinforce the policies of combating violence against
women (which is not a new phenomenon in Germany) and not a pretext
for blaming a group of the population. As the Assembly report stated,
“[w]hile the Cologne attacks were allegedly mostly perpetrated by
men from an immigrant background, we should not pay more attention
to the country of origin of perpetrators than to the gravity of
the acts committed”.
111. Finally, this episode should lead to concrete and long-term
policies to combat violence against women. The ratification of the
Istanbul Convention would be a logical step, and the rapporteur
was pleased to learn that the German authorities were preparing
it. One positive step was made with the amendment of the much criticised
sex crime legislation and the adoption of the “No means No” law
in July 2016 (the current definition of rape did not, so far, include
the notion of consent,
and the rape was not prosecuted if
the victim did not fight back).
But utmost attention should also
be paid to awareness-raising activities and education policies, support
to organisations providing assistance and involvement of the media.
The Federal Minister of Justice has recently proposed to ban sexist
advertisements, which could be interpreted as a signal that the
government takes the issue of violence against women seriously and
is looking for new approaches to combat it.
5.6. Trafficking in human beings
112. Germany ratified the Council
of Europe Convention on Action against Trafficking in Human Beings (CETS
No. 197) in 2012. In 2006, it ratified the United Nations Convention
against Transnational Organised Crime and its Protocol to Prevent,
Suppress and Punish Trafficking in Persons, especially Women and Children.
It is also Party to numerous other treaties contributing to the
fight against trafficking in human beings (THB) (including those
specifically protecting children and women). Three Sections of the
German Criminal Code, introduced in 2005, contain provisions criminalising
THB: 232 (Human trafficking for the purpose of sexual exploitation),
233 (Human trafficking for the purpose of work exploitation) and
233a (Assisting in human trafficking).
113. In June 2015, the Group of Experts on Action against Trafficking
in Human Beings (GRETA) published its report on Germany under the
first evaluation round.
According to the report, Germany
is primarily a country of destination for victims of THB. 651 victims
of human trafficking were identified by the BKA as part of police
investigations in 2010 (515 women, 35 men, 95 children), 672 in
2011 (555 women, 24 men, 90 children), 626 in 2012 (510 women, 11
men, 100 children) and 603 in 2013 (478 women, 54 men, 70 children).
Most of them were victims of sexual exploitation (93% of the victims
from 2010 to 2013). The main countries of origin of the victims
in 2010-2013 were Romania (571), Bulgaria (516), Hungary (190),
Poland (112) and Nigeria (102). The number of German citizens identified
as victims of trafficking amounted to 92 in 2013 (122 in 2010, 138
in 2011, 129 in 2012).
114. GRETA welcomed important steps taken by Germany in the fight
against THB, including the action of the Federal Working Group on
THB and co-ordinating structures at the Land level
as well as the establishment of specialised counselling centres
assisting victims of THB for the purpose of sexual exploitation
(even though they often lack adequate long-term funding, and such
facilities for victims of THB for labour exploitation and for trafficked
children are lacking). It also noted several areas for improvement,
including the elaboration of a comprehensive nation-wide action
plan or strategy specifically addressing THB and awareness-raising activities,
consistent data collection and a proactive approach to identification
of victims, increased attention to forms of THB other than for sexual
exploitation, to the vulnerability of children and to the victims
of THB among asylum seekers and irregular migrants in detention
facilities, compensation for the victims and training of judges
and prosecutors.
115. GRETA also urged the German authorities to ensure that victims
of THB are not penalised for offences committed in the course of
or as a consequence of being trafficked. The Committee of the Parties
to the Council of Europe Convention on Action against Trafficking
in Human Beings subsequently put forward a number of recommendations
in these areas.
In this respect the rapporteur welcomes
the draft Act to Improve Action Against Human Trafficking and to
Amend the Federal Central Criminal Register Act and Book VIII of
the Social Code (
Gesetz zur Verbesserung
der Bekämpfung des Menschenhandels und zur Änderung des Bundeszentralregistergesetzes
sowie des Achten Buches Sozialgesetzbuch) adopted by
the German
Bundestag on 7 July
2016. The bill contains a provision on the criminal liability of
clients of sexual services, which criminalises the exploitation
– including the knowing acceptance – of a victim’s predicament to
induce them to engage in sexual acts. In addition, the bill includes
new offences of “labour exploitation” and “exploitation involving
unlawful deprivation of liberty”. The Law to improve action against
trafficking was adopted on 11 October 2016, and entered into force
on 15 October 2016.
116. Special reference should be made to the efforts undertaken
by the German authorities to address the issue of the vulnerability
of children and the victims of THB among asylum seekers and irregular
migrants, in co-operation with the
Länder,
through the drafting of a comprehensive protection strategy including
several programmes addressing in particular the needs of women and
children in refugee accommodation centres. The Federal Government
is also examining, together with the
Länder,
to what extent the protection of women, children and other especially
vulnerable groups in refugee accommodation centres can be improved
through provisions in federal law.
117. The rapporteur also welcomes the preparation of a nationwide
co-operation strategy to improve the protection of victims in the
case of the trafficking of minors to ensure adequate protection
measures and comprehensive support measures for potential and actual
victims of human trafficking who are minors.
118. The rapporteur would like to recall the conclusions of the
Assembly’s 2014 report on “Prostitution, trafficking and modern
slavery in Europe”
prepared by our former colleague
José Mendes Bota (Portugal, EPP/CD). Prostitution is legal in Germany
since 2002, and whilst official sources claimed that it had led
to a decrease in THB (according to the BKA, a third less trafficking
cases were prosecuted in 2011 than 10 years earlier), other actors
thought that lower figures only reflected fewer investigations and
more difficult prosecution, and that in reality THB had increased.
The report also quotes academic research, including into the German
case, concluding that legalising prostitution seems to lead to an
increase in THB and that criminalisation of prostitution reduces
it – which is not confirmed by the Federal Criminal Police Office’s
annual Trafficking in Human Beings Situation Report, even in a comparison
over several years.
In the resolution following
the report, the Assembly called on the member States, in order to
reinforce the fight against THB, to consider criminalising the purchase
of sexual services, to ban their advertising and to criminalise
pimping.
119. The rapporteur was informed that on 7 July 2016 the parliament
adopted the draft Act on Regulating the Business of Prostitution
and Protecting Persons Working in Prostitution (
Prostituiertenschutzgesetz), which
will enter into force on 1 July 2017. The bill provides for the
regulation of the business of prostitution under commercial law
and for binding minimum requirements and obligations, notably to
protect the health and safety of the prostitutes. The bill also
introduces a ban on any form of advertising of prostitution which
is detrimental to legally protected public interests, especially
the protection of minors, as well as a ban on the advertising of unprotected
sex.
The rapporteur notes that the Act
Protecting Persons Working in Prostitution will introduce federal
statistics, which are intended to help ensure that more reliable
statistical information becomes available about the situation of
legal prostitution in Germany. The rapporteur welcomed the announcement
made by the authorities to carry out an evaluation of the Act Protecting
Persons Working in Prostitution on the basis of these statistics
to gain a better understanding of the effects of this legalisation.
5.7. Migrants and asylum seekers
120. On 21 March 2016, the Federal
Statistics Office announced that in 2015 it recorded the highest
net immigration of foreign nationals in the history of the Federal
Republic of Germany: 1.14 million people, almost twice as many as
in 2014 (577 000 people).
The number of registered arrivals
dropped in March 2016 to about 20 000 from 61 000 in February, 92 000
in January and a peak of 206 000 in November 2015. This decrease
may be linked to the introduction, in February 2016, of daily quotas
for the number of migrants by Austria and the sealing off of their
borders by several south-eastern European States. Of this massive
arrival, only 477 000 requests for asylum were officially registered
in Germany in 2015.
In December 2015, 364 664 cases
were still pending. Most of the asylum requests came from people
who originated from Syria (162 510), Albania (54 762), Kosovo*
(37 095), Afghanistan
(31 902) and Iraq (31 379). On 9 May 2016, the head of the Federal
Refugees Agency (BAMF) said the agency expected to process more
than a million applications in 2016, including the 430 000 that
remained pending.
121. As already noted, the Federal Government has continually refused
to cap the number of refugees arriving in Germany; Chancellor Merkel
reiterated on several occasions that the government considered the reception
of refugees a moral and political obligation regardless of their
number. Germany has also persistently defended an approach according
to which European solidarity, primarily at EU level, was indispensable
to finding a sustainable and humane solution to the arrival of asylum
seekers in Europe. Often facing opposition from some European colleagues,
German leaders played
a key role in promoting EU schemes for resettlement and relocation
and advocated for a common EU asylum/refugee policy. Germany also
greatly contributed to securing the EU–Turkey Agreement of 18 March
2016, aimed at putting an end to illegal immigrant smuggling in
the Aegean, to significantly reduce the number of deaths in the
Aegean and the number of illegal border crossings in the Greek islands,
and to allow for returning irregular migrants to Turkey from the Greek
Islands in exchange for resettlement of Syrian refugees from Turkey
in the European Union. This agreement was criticised by human rights
defence NGOs and by our Assembly who considered that it raised “several
serious human rights issues relating to both its substance and its
implementation now and in the future”.
122. On 25 August 2015, Germany
de facto suspended
the application of the Dublin procedure to Syrian nationals, accepting
asylum applications from all Syrian refugees, regardless of which
EU country they first entered. This decision was welcomed
as a first step
towards reforming the Dublin system, increasingly considered as
unfair to asylum seekers and to the countries that find themselves
on the frontline of arrival of refugees to the European Union.
However, on 10 November 2015,
the Federal Ministry of the Interior announced that it had reinstated
the application of the Dublin agreements to Syrian refugees since
21 October (with the exception of the returns to Greece already
prohibited previously).
On 13 September 2015, Germany reintroduced
temporary sporadic checks at its border with Austria in order to
re-establish control over the flow of migrants and refugees. Several
other countries of the Schengen Area did likewise.
123. The massive arrival of asylum seekers and migrants puts pressure
on the German system of administration of asylum procedure and on
the political leaders who have the responsibility of finding sustainable,
practical and humane solutions. The situation is complex and constantly
evolving; numerous reforms have been recently launched in order
to cope with this responsibility. It would therefore be futile to
try to extensively cover the situation in this report. Perhaps our
Committee on Migration, Refugees and Displaced Persons could consider
looking more closely into the situation of refugees and asylum seekers
in Germany, especially considering the scale and political importance
of this subject. The rapporteur will only briefly mention several
areas where concerns have recently been raised.
124. In his 2015 report, the Commissioner for Human Rights welcomed
the progress made by the German authorities in ensuring respect
of the rights of asylum seekers.
At the same time, he made several recommendations.
Concerning reception conditions, he recommended developing nationwide
obligatory minimum standards for the operation of reception facilities
and insisted on the need to increase the staffing of these facilities.
Welcoming the Government’s intention to increase the number of staff
at BAMF, he underlined the need for appropriate training. The Commissioner
urged the authorities to ensure prompt and effective investigation
into all allegations of ill-treatment of asylum seekers. He called
on the Federal Government to better support, including financially,
the
Länder and municipalities
in the implementation of reception. Germany could also improve asylum
seekers’ access to health care and should ensure that refugees and
other beneficiaries of international protection fully enjoy their
right to family reunification (including reducing waiting time for
obtaining a visa). The Commissioner also insisted on the need to
reinforce integration policies, including by strengthening language
classes. He called on the German authorities to continue playing
a leading role in helping Syrian refugees to face the humanitarian
crisis, including by increasing the country’s resettlement quota.
In this respect, the German authorities
pointed out that the legal ways for Syrian refugees to seek asylum
are continuously open in the framework of EU agreements – and for
family reunification: it is estimated that between 200 000 and 300 000
family members from Syria and Iraq could act on an entitlement to
join their families in Germany in the coming months.
A 2016 report on the situation of the refugee
women commissioned by the European Parliament stated that overcrowding
had led to an increase in violence and sexual assaults in reception
centres.
In May
2016, the media brought into the spotlight the issue of violence
in asylum centres, notably following the reports on attacks against
Christians by other refugees
and a fight in a refugee shelter
in the district of Verden in Lower Saxony leaving a 14-year-old Afghan
boy critically injured.
125. The German authorities are taking action in these areas of
concern. For instance, in October 2015, the
Bundestag and
Bundesrat adopted a legislative
package
accelerating asylum procedures,
easing the burden on
Länder,
improving integration measures, replacing support in cash with benefits
in kind as far as possible, speeding up construction of new accommodation
and improving the assistance to minors among refugees (it should
be recalled that almost 6 000 refugee children and minors were reported
missing in Germany in 2015).
On 14 April 2016, the governing
coalition presented the new draft integration law which puts emphasis
on refugees’ participation in the workforce, proposes to provide
easier financial support for new arrivals and to enact penalties
for those who don't participate in integration courses and do not
learn German.
This Law entered into force on 6 August
2016. In May 2016, the head of BAMF announced the plans to further
speed up processing of asylum applications.
Der Spiegel magazine
reported that the Federal Finance Ministry expected federal and
Land authorities to spend €93.6
billion to support refugees in 2015-2020.
126. In 2014 and 2015, Germany twice extended its list of “safe
countries of origin”. Serbia, “the former Yugoslav Republic of Macedonia”
and Bosnia and Herzegovina were deemed safe countries in November 2014
and Albania, Kosovo and Montenegro in October 2015. In January 2016,
Federal Vice-Chancellor Sigmar Gabriel announced that Germany would
place Algeria, Morocco and Tunisia on the list of “safe countries
of origin”, and on 13 May 2016 the
Bundestag approved
this proposal. The
Bundesrat has
yet to take a decision on that proposal. The Commissioner for Human
Rights and Human Rights Watch,
among others, expressed concerns
about the quality of individual examinations following the extensions
of the lists, the Commissioner recalling that he had already criticised
the drawing up of lists of “safe countries of origin”
per se, because “even countries
regarded as safe overall might not be safe for some persons or groups”.
The Commissioner also called on the authorities to refrain from
any forced return, particularly of the Roma people, to Kosovo. The German
authorities assured the Commissioner that even when they come from
the “safe countries”, “vulnerable people … are not left unprotected,
as the legal presumption of freedom from persecution can be rebutted.
Every asylum applicant has the chance to demonstrate that he faces
persecution that deviates from the general situation in the country
of origin.
6. Conclusions
and recommendations
127. The Federal Republic of Germany
is characterised by a federal system, with a well-anchored democracy,
including at local level where the right to self-government of municipalities
is recognised in the Federal and Länder Constitutions.
Overall, the functioning of democratic institutions in Germany complies
with Council of Europe standards. Germany, which globally honours
its membership obligations to the Council of Europe, can be rightfully
congratulated on its very positive record in terms of democracy,
human rights and the rule of law, and its active and respected role
in the international arena, including in European affairs, for promoting
dialogue and co-operation whilst remaining faithful to the values
of human rights and the rule of law.
128. Germany was, in recent months, confronted with a massive arrival
of refugees – more than one million arrived in Germany in 2015 –
which has created major challenges at all levels of the State and
for the people of Germany. The efforts of the vast majority of the
German population, who are willing to accommodate and assist refugees,
have to be commended. In this respect, the Monitoring Committee
welcomes the tolerant position of the Federal Government and major
political parties, despite the recent rise of the far-right Alternative for
Germany party, the upsurge in the number of attacks against facilities
for asylum seekers and refugees in 2014-2015, the rise in the number
of attacks against mosques and Muslim people, negative attitudes
to Roma and Sinti among the general population and anti-Semitic
attitudes. Drawing on the conclusions of many international monitoring
bodies, the committee believes that combating xenophobia, racism
and intolerance constitutes one of the most important and urgent
challenges that Germany – as well as many other European States
– has to face.
129. The committee welcomes, together with ECRI, the preventive
work conducted by the authorities to make children and young people
more aware of the dangers of right-wing extremism, including the
drawing up of a new “National Action Plan against Racism”, which
should also cover homophobia and transphobia. It notes with satisfaction
the increased budget and staff of the Federal Anti-Discrimination
Agency in recent years, and encourages Germany to pursue these efforts.
130. While Germany has an overall positive record, the Monitoring
Committee would like to make some recommendations to address some
remaining issues. The Monitoring Committee in particular:
- welcomes the progress made by
the German authorities in the area of local government finances.
It encourages the federal authorities to pursue their consultations
of all Länder to achieve the
signature and ratification of the Additional Protocol to the European
Charter of Local Self-Government on the right to participate in
the affairs of a local authority, in line with Recommendation 320
(2012) of the Congress of Local and Regional Authorities of the
Council of Europe;
- encourages the authorities to scrap Section 103 of the
Criminal Code (Defamation of organs and representatives of foreign
States) and amend accordingly the 2009 anti-terrorism law (i.e.
the BKA Act) following the decision of the Constitutional Court
of 20 April 2016, with a view to strengthening media freedom;
- welcomes the recent initiatives undertaken by the authorities,
together with the internet operator services and civil society,
to tackle the issue of online hate speech, and applauds the various
projects undertaken, notably through a national campaign launched
in the framework of the Council of Europe’s “No Hate Speech Movement”;
- encourages the German authorities to pursue efforts to
combat racism, hatred and right-wing extremism; welcomes the amendment
to the Criminal Code adopted on 8 May 2015 defining the racist motivation
of an ordinary offence as an aggravating circumstance to hate crimes,
in line with ECRI recommendations, and takes note of the assurances
given by the authorities that “other motivations showing contempt
for human dignity” encompasses all recognised aspects of discrimination,
including and in particular motives directed against the victim’s
sexual orientation, and thus that this includes homophobic and transphobic
motives;
- encourages the authorities to apply a zero-tolerance policy
towards racism and ethnic profiling in the police, and combat, through
training and awareness-raising activities, less visible forms of
racism which may result from structures and procedures in law enforcement;
encourages the establishment of an independent complaints mechanism,
which could be a useful contribution towards tackling this issue
and building trust between police forces and the public;
- praises the substantial support provided by the authorities
to preserve and develop the national minority languages and cultures
and encourages the German authorities to strengthen their efforts
to promote, including through an adequate educational offer and
the media, the Lower Sorbian, Upper Sorbian, North Frisian, Sater
Frisian, Low German, Danish and Romani languages;
- with a view to strengthening the independence of the judiciary,
reiterates the call made by the Parliamentary Assembly in 2009 and
2015 to the authorities, including at the level of the Länder, to consider setting up a
system of judicial self-administration, gradually increase the salaries
of judges and prosecutors and abolish the possibility for Ministers
of Justice to give the prosecution [lawful] instructions concerning
individual cases, thus strengthening the independence of the public
prosecutors;
- with a view to fighting corruption:
- welcomes the adoption of the Anti-Corruption Act on 26
November 2015 and the 2015 amendments to the legislation about cooling-off
periods for members of the Federal Government and Parliamentary
State Secretaries; considers that the amendments to the Political
Parties Act, adopted on 22 December 2015 (and which entered into
force on 1 January 2016), are a step in the right direction towards
increasing the transparency and effective enforcement of the rules,
but fail however to address outstanding recommendations issued by
GRECO, such as the introduction of a system for the timely publication
of election campaign accounts, enhancing the transparency of direct
donations to parliamentarians and election candidates;
- welcomes the move to ratify, in the near future, the Criminal
Law Convention on Corruption, the Additional Protocol thereto and
the Council of Europe Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime and on the Financing
of Terrorism of 16 May 2005;
- encourages Germany to speed up the consideration of the
ratification of the Council of Europe Civil Law Convention on Corruption;
- echoing the recommendations made by the CPT and the Commissioner
for Human Rights, encourages the authorities to establish a fully
independent and well-functioning complaints mechanism covering all law-enforcement
officials;
- welcomes the ratification of the Council of Europe Convention
on the Protection of Children against Sexual Exploitation and Sexual
Abuse on 18 November 2015;
- congratulates the German Parliament for adopting, on 7 July
2016, the “No means No” law which enhances the protection of individual
consent in sexual relations and paves the way for the ratification of
the Istanbul Convention to prevent and combat violence against women
and domestic violence, which Germany is encourage to ratify soon;
- welcomes the draft Act to Improve Action Against Human
Trafficking, adopted by the German Bundestag on
7 July 2016, which includes new offences of “labour exploitation”
and “exploitation involving unlawful deprivation of liberty”;
- welcomes the drafting of a comprehensive protection strategy
to address the issue of the vulnerability of children and the victims
of trafficking in human beings among asylum seekers and irregular
migrants, in co-operation with the Länder,
as well as a nationwide co-operation strategy to improve the protection
of victims in the case of the trafficking of minors;
- calls on the authorities to promptly ratify the European
Social Charter (revised) and its Protocols.