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消除种族歧视委员会审议德国的报告（部分翻译）
2015年5月6日
报告
点此阅读德国第十九次至第二十二次合并定期报告：CERD/C/DEU/19-22。
Presentation of the Report
THOMAS FITSCHEN, Permanent Representative of Germany to the United Nations Office at Geneva, said that Germany attached great importance to the provisions of the Convention on the Elimination of All Forms of Racial Discrimination since it had become a State party in 1969. Many areas covered by the Convention fell under concurrent legislation at the Federal and state level, including parts of civil law, criminal law, the law of association and assembly, and the law relating to the foreign nationals.
ALMUT WITTLING VOGEL, Head of the Directorate for Human Rights, European Union Law and International Law, Federal Ministry of Justice and Consumer Protection, introducing the report, said that fighting all forms of racial discrimination was of paramount importance for Germany, whose approach to combatting racism was informed by remembering the crimes of the National Socialist State. Peaceful coexistence with equal opportunity for all was the ultimate goal of the Constitution and protection from all forms of discrimination was the highest value of the society. Germany recognized the inviolability of human rights as the basis of dignity. The instrument of the individual Constitutional complaint ensured that each citizen could seize the Constitutional Court which had far reaching jurisdiction. It was important to constantly take a critical look and seek more effective modes of fighting racial discrimination. Racism was not just a problem of the right-wing political spectrum, but could be found in all parts of the society, and day to day racism, including its non-radical forms, must not be ignored. It was absolutely necessary to pay more attention to prejudices and attitudes which gave rise to racism.
Crimes, including murders, committed by the National Socialist Underground (NSU) had shaken Germany to the core. A Committee had been established to investigate those crimes and to explain how the right-wing elements could have existed for so long without being detected. As a result, racism was now an aggravating circumstance of a crime, and there were efforts to improve investigative procedures to ensure that racist motives were adequately addressed. There were voices which requested the greater use of criminal law instruments in addressing racism; the Government was aware that in some cases, criminal prosecution was the only adequate tool, but in cases of racist utterances, there was an obligation to respect the right to freedom of expression which was embedded in the law. Too heavy prosecution ran the risk of strangling public debate and eroding the grounds of a healthy democracy. The Government clearly condemned racist speech in the strongest possible terms, while an academic report had been commissioned to examine how measures other than criminal could be taken by the local authorities in countering pre-election racist utterances. Germany took in about one third of all refugees and asylum seekers in the European Union; given a dramatic increase in the number of new refugee arrivals, there had been shameful and dangerous reactions among the population, and the growth of movements such as Patriotic Europeans Against the Islamisation of the West was an issue of concern. A number of programmes were in place to assist citizens and organizations to prevent and combat manifestations of extremism and racism, including group-related hatred and homophobia, and so promote greater cohesion in society based on democratic values. It was important not to lose sight of positive developments in Germany, which was a land to which many migrated; refugees did not face only rejection but were also welcomed and appreciated by many.
Questions by the Country Rapporteur
ANASTASIA CRICKLEY, Committee Expert acting as Country Rapporteur, acknowledged Germany’s engagement with the Committee, measures undertaken to combat racism and racial discrimination, and the contribution of non-governmental organizations and the national human rights institution. Germany had a very specific history of racial discrimination and racism in the twentieth century, and, along with other European countries, it had contributed significantly to the development of the European Union and continued to play a leading role in shaping it. One of the fundamental overall concerns in Germany was related to limitations in the definition of racism and racial discrimination, which in article 1 of the Convention covered effect and intent; direct and unambiguous use of the term racial discrimination to describe actions which constituted discrimination was a very important part of eliminating racial discrimination. There was a weak understanding of racial discrimination among individuals and institutions, which led to indirect and institutional racial discrimination and a gap in dealing with racial discrimination in legislation and implementation.
The National Action Plan against Racism was being reconstituted and it was worrisome that the previous plan tended to consist of project-oriented actions; it was important that the new plan considered a structural approach and included this Committee’s concluding observations. The Country Rapporteur was concerned about persistent and long-lasting overlooking of actions by right-wing extremists and stressed the need to continue police training on this subject. Data collection was another source of concern and action needed to be taken to ensure that racial profiling was not taking place at all. Ms. Crickley asked about progress made in terms of inclusion and participation in the country, the difficulties that veiled Muslim women faced, particularly in the employment sector, and measures to improve the educational outcomes of Roma, Sinti and black children; about the protection of asylum seekers, particularly in their place of residence, and the support for those who had spent weeks in high seas; and about measures to ensure that racism and racial discrimination were not part of German businesses abroad.
Questions by the Committee Experts
A Committee Expert welcomed the position of Germany that racial discrimination was a structural problem which required structural solutions, and stressed that the Convention provided for the use of special measures to address indirect discrimination. The courts did not always apply the Convention and it would be beneficial to pass a law that reflected the Convention’s definition of racial discrimination. Under the basic law, a citizen could file a complaint or grievance against public authorities, but this was not easy, particularly in cases involving patterns of discrimination, such as in racial profiling.
There were 16 million migrants in Germany; were they citizens? Was it acceptable to make a distinction between German citizens and German citizens of migrant background? German citizens of migrant background suffered discrimination by the institutions, the man on the street, in education and in employment. Combatting hate speech was crucial for Germany and Europe as a whole, and Germany needed to grapple with the problem of indirect discrimination.
Another Committee Expert took up the issue of people of African descent, or black communities, and asked about the integration of this population, estimated at about 250,000 persons. What was being done within the framework of the European Union or the State itself to address human tragedies in the Mediterranean, and the plight of the migrants?
A Committee Expert expressed concern about the manifestations of racism and extremism and accepted that some national minorities had reservations about the gathering of disaggregated data, which might prove negative or backfire. Did Muslims in Germany form a homogenous ethnic group and who did the German Islam Conference represent? In spite of the well-known resistance to recognize racial discrimination as a crime, Germany was making impressive progress in integrating minorities, but the growth of Patriotic Europeans Against the Islamisation of the West and election victories of right-wing parties were unsettling.
Racism in Germany was not only a right-wing phenomenon, but a very serious problem; racism was acquiring electoral legitimacy which called for development of tools to distinguish between democratic goals and electoral means. This was a challenge that must be faced. Governments must find solutions to the problem of refugees: the solutions must not be restrictive and must address the problem at the root. There was a duality in the approach to the issue of racism: on one hand, there were great efforts to tackle it, and on the other, there was a strong reticence to name things, and a reluctance to recognize racial grounds to many crimes.
The delegation was asked about the achievement of the XENOS programme which aimed to improve the situation of children of migrant background, human trafficking of minorities, balance between freedom of expression and prevent hate speech against minorities including Jews and Muslims, and about the lack of definition of racial discrimination in German municipal law.
ANASTASIA CRICKLEY, Committee Expert acting as Country Rapporteur, asked whether Germany would consider replacing a bundle of individual measures aimed at Roma and Sinti with an integrated strategy in line with the European Union Framework for National Roma Integration Strategies 2020. Anti-Muslim racism and xenophobia had their specificities which needed to be urgently studied and analysed, and measures needed to be undertaken to counter discrimination against Muslims in employment.
An Expert raised the issue of public money being directly or indirectly provided to the National Socialist Underground and asked about neo-Nazi informants being provided with legal counsel paid for by the State when testifying in cases.
Responses by the Delegation
Racist elements and motivations were included in the criminal law as aggravating circumstance in judgements and in sentence order. Many charitable institutions and organizations demanded that their staff were Church members; this right of church-based organizations was guaranteed in the Constitution, but more and more people in those organizations believed that the basic rules for employment needed to be reviewed. This review was proposed by the German Bishop Conference in April and the Government was ready to accompany the process.
Human rights were part of the police training courses and included a number of human rights issues such as racism, discrimination and torture, and aimed to teach the trainees to recognize situations of prejudice and stereotype and were further strengthened during in-service training. As a result of the National Socialist Underground cases, the training courses for the federal police on statistics of crimes had been expanded and strengthened with intercultural aspects.
Germany recognized that the lack of disaggregated data was a problem, which would provide a whole different basis for discussion, but gathering such data in the country was problematic. Capturing data on ethnicity, particularly in relation to Sinti and Roma, should be the individual decision of a person belonging to a minority. Social benefits were not dependent on ethnicity, but were defined by the Social Law which was equal for everyone.
Statement by the National Human Rights Institution
PETRA FOLMAR-OTTO, German Institute for Human Rights, said that the expression of racist views in the public sphere was on the rise, and that due to a narrow understanding of racism, such statements were often not recognized as racist. Racism was frequently equated with organized and violent right-wing extremism and the definition of racial discrimination as per article 1 of the Convention was barely known in Germany. The Government must speak out and take decisive action against any racist statement in the political sphere and in public life, and cultivate an understanding of racism in line with the provisions of the Convention in the judiciary and administration. The failure to solve the crimes committed by the National Socialist Underground between 1998 and 2007 was an indicator of systemic shortcomings in the handling of racially motivated crimes, and could be attributed in part to attitudes and patterns of behaviour which had roots in racist stereotypes. It was crucial for the Government and the Länder to take decisive action to implement the reform of the police and the judiciary which would address their shortcomings concerning the handling of racially motivated crimes. It was important that legislative amendments were accompanied by training. The police carried out several thousand discriminatory identity checks every year, which represented de facto discrimination. This provision should be repealed and racial profiling should be prohibited. The General Act on Equal Treatment 2006 considerably strengthened the legal framework for the protection against discrimination, but gaps in legal protection and barriers to full access to justice remained. Studies showed that a great number of people seldom sought justice despite the widespread discrimination in all areas of life. Further, the provision in some states which required refugees to spend several years in a shared accommodation should be repealed and refugees should be allowed to freely enter the housing market.
Replies by the Delegation
Some Länders had in place laws banning the wearing of headscarves in teaching, but those laws had been repealed by the decision of the Constitutional Court.
Concerning the definition of racism and racial discrimination in the legislation, the delegation said that Article 1 of the Convention was applicable in the Federal law and that the drafting of a specific law would just be a repetition of the provision that already existed. All laws in Germany were examined to ensure their alignment with Germany’s international obligations. The definition of indirect discrimination existed in the legal order and was included in the General Anti-Discrimination Act. After the European Union Framework Decision of 2008 on racism and racial discrimination, Germany examined its terminology and a team of experts had found that the term racism was understood in relation to biological determinants; therefore, Germany preferred the use of the term xenophobia which appropriately covered all aspects of racism and racial discrimination. A specific ban on discrimination existed in the law on the provision of social benefits. There were ongoing discussions in several states concerning legal amendments which would see the removal of the term “race” from the Constitution; the Government believed that its legislation understood race and racial discrimination as the Convention. Germany was in the process of developing a new national action plan on anti-discrimination which should be in place by the end of 2016.
One of the tasks of the Federal German Police was to prevent illegal entry into the country which was a criminal offence. In order to do this, the police could stop and question people in trains and airports; those were selective actions with the view to determine if people had residency permits or if they were entering illegally, and also to prevent human trafficking. Stop, search and questioning activities were based on several indicators; individual cases were assessed by police officers who then acted accordingly. There were no plans to change those norms in legal provisions. Training of police officers took two to three years and included human rights, legal provisions and discrimination; officers received continuing training during their career through the Police Academies, while teaching letters ensured that the police were continuously up to date on important issues. Accusations of police misconduct in relation to racial profiling were taken very seriously; a complaint form was available on the webpage and the Federal Police saw this as an opportunity to learn and improve.
Germany had moved away from seeing integration as assimilation and was now promoting inclusion and accommodation of the society as well, including establishing agencies to promote the culture of welcome and increasing intercultural competence in the administration. The Integration Ministers Conference had been in place for eight years now and worked on developing a federal integration structure and coordinate between states’ policies.
The European Union had analysed the situation of Roma and in 2011 had requested Member States to come with a comprehensive strategy to address this issue or a comprehensive package of measures and programmes, and this was the path that Germany chose. Data on ethnic groups, including on Roma, were not collected and it was hard to make informed statements about their school performance, but it was observed that Roma children had very poor literacy skills and almost non-existent German language skills, and there was a great mistrust within the group towards formal schooling. Newly arrived migrants, including those from Romania and Bulgaria which were majority Roma, enjoyed all measures that other migrants enjoyed, including integration and language classes, and literacy skills. A pilot project was in place in four locations, where special teaching schemes were set up to improve the attendance of those classes.
Education was key to successful integration in the labour market. The pilot project on anonymous applications led to the preparation of guidelines for employers, including public and private entities; the implementation of this approach was on a voluntary basis. Integration was very difficult without knowledge of German language, which was crucial for entry into the labour market. Many migrants arrived without documentation and since 2012, a statutory recognition of qualification had been in place, as well as a project to finance subsequent qualifications upon arrival.
Efforts should be strengthened to address the tragic loss of lives and the crisis in the Mediterranean, including through search and rescue action. Germany offered human and material resources to assist the reception of the migrants who arrived to Italy. There was a large number of migrants from the Balkan states, mainly people who did not have an obvious reason to seek asylum and Germany would like to speed up the procedures to be able to help those who were really in need. It was also urgent to address human trafficking. Germany could not provide a solution for everybody and concerted action by all European States was required. Last year, 200,000 had sought asylum in Germany, and the forecast for this year was more than 300,000 and all those applications needed to be processed.
Unfortunately, the number of attacks on places where asylum seekers lived was on the rise, from 24 in 2012 to 203 in 2014. Politically motivated attacks were a warning sign of future scenarios and the 2014 figures were alarming, as were the increasing xenophobic attacks on mosques and synagogues. Germany had several ways to address this issue, including through criminal responses, investigations and prosecution, and preventive and protective measures.
Measures were being taken to address right-wing extremism and hate speech on the Internet, including prosecution. An Act was in place which authorised authorities to filter content that was harmful to people, all the while respecting freedom of expression and opinion.
Concerning the scope of the General Equal Treatment Act, the delegation said that the protection of people from discrimination by public institutions was covered by the basic law, i.e. the Constitution. Germany had no plans to change the provisions of the Act concerning access to accommodation; this article 19(3) allowed landlords with a large number of apartments to ensure balanced living environments and that people of different cultural backgrounds enjoyed a stable housing situation. This provision could not be used to justify racial or any other discrimination in the housing market, said the delegation, recalling that Germany had a long tradition of directing the housing policies to avoid creating ghettos.
In her follow up questions, ANASTASIA CRICKLEY, Committee Expert acting as a Country Rapporteur, said that the persistent use of the term “migration background” raised concerns, particularly in the treatment of German citizens of such background who had lived in the country for generations. Germany should revisit its definition of indirect discrimination and its application. The use of the term “benefit tourism” in relation to Roma and Sinti was also a source of concern.
Responding, the delegation said that Germany was aware of the terminology used, including migrant background, and said that this was under revision; until that was done and new appropriate terms were found, this term would have to be used to depict the situation and get to grips with the problems. Changing the policy and collecting different data risked damaging the relationship with groups which opposed the collection of data, which the Government did not want because those were the groups that had experienced prosecution under the Nazi regime.
Germany would continue its efforts to disseminate the provisions of the Convention, particularly the understanding of the term racial discrimination, and had commissioned a report to clarify how the Convention could be used to take down electoral posters with racist slogans, for example. People from Romania and Bulgaria generated more in gross domestic product than they took away in social benefits and the Government put in efforts to educate the public to this effect.
Questions by the Committee Experts
There was a clear definition of racism in international law and it was odd that Germany was consulting linguists on the meaning and the use of the term. Experts asked the delegation about measures that were in place to ensure that the Convention was applied consistently at the Länder level; and about ways to go around the lack of disaggregated data.
Responses by the Delegation
The issue of the interpretation of the term racism was an important one. There were discussions at the moment on whether criminal law provisions should include terms “racism” and “xenophobia”, or if only the term “racism” should be used. It was crucial to understand the meaning of the term “racism” in the German context and the way that term and the term “race” were understood by the citizens. The legislation must be worded in a manner that was understandable to citizens. It was not only important to include racism in the legislation, but to develop positive measures which would foster peaceful living. With regard to hate crime, it was important to examine the circumstances such as the determination of race or ethnicity in the crime, before it could be classified as hate crime.
All complaints against police officers were investigated and this was seen as an opportunity to look at one’s own conduct. If a breach of duty was revealed, options were available to deal with the offender, and criminal offences were reported and prosecuted. There was no need for an independent complaint process. The use of the term “migration background” was used to collect disaggregated data, particularly concerning the minorities which were not very visible.
Concluding Remarks
ANASTASIA CRICKLEY, Committee Expert acting as Country Rapporteur, thanked the delegation for their forthrightness and recognized the limits in terminology and challenges in bringing about change. The Committee aimed to assist countries to remove barriers of racial discrimination and this meant naming them in the first place, with full awareness of the complexity of addressing racial discrimination at this point in time.
ALMUT WITTLING VOGEL, Head of Directorate for Human Rights, European Union Law and International Law, Federal Ministry of Justice and Consumer Protection, thanked the Committee and said that Germany had tried to provide as much information as possible. Presenting a report always provided a forum to learn something new and this was the case during this review. Germany was ready to tackle questions openly and would make every possible effort that the solution found so far would be subject to scrutiny.
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