The derogation of rights under the ICCPR

The Committee started the session by inquiring on the issues related to the efforts undertaken by Germany to prevent the negative impacts of the Covid-19 pandemic. The Committee expressed its concern regarding the significant curtailments of civil and political rights made in the context of the State party's pandemic response (articles 4, 12, 21 and 22 of the Covenant).  In particular, Mr José Manuel Santos Pais, a member on the Committee posed a question to the delegation of Germany regarding the official derogation of ICCPR rights.

The delegation of Germany has not provided an answer to this question in their general response to the Committee, leading the Committe to recommend Germany to avail itself of the right of derogation and immediately inform other State parties to the Covenant.

Prohibition of discrimination is universal

Among other questions of the members of the Committee, the question of Mr Shuichi Furuya stood out regarding the measures undertaken to prevent discrimination. He himself pointed out that non-discrimination is not limited only to the rights provided in the Covenant. He further questioned the compatibility of Germany's reservation with its obligation of non-discrimination which the State party has accepted without any reservation.

The German delegation responded that it is considering the possibility of withdrawing its current reservation concerning individual communications, as suggested by the Committee members, in order to avoid discrimination. No specific expected time frame for implementing such an action was, however, given by Germany.

During the session the Committee member Mrs Vasilka Sancin also underlined that discrimination by public authorities is in practice rarely addressed by the administrative courts and that compensaton is seldomly obtained by the victims through official proceedings and urged the German delegation to provide insight into the improvements made on this topic. She also stressed that the problem of the housing market discrimination remains unresolved.

The delegation of Germany further responded by highlighting that trainings to prevent racial discrimination are being constantly developed and that any type of racial profiling is illegal. It also recognized that current protection against discrimination does not include a mechanism of Ombudsman and that the national antidiscrimination agency does not include such functions as the Ombudsman would hold and is therefore open to reevaluate the need to establish the protection of such an institution as an Ombudsman. 

Insufficient measures taken to address hate speach and the expressions of antisemitism

The Committee Member Mahjoub El Haiba has also inquired on the steps taken by Germany to respond to the hate speach and the expressions of antisemitism and has urged for more information on the conducted investigations and prosecutions, as well as their outcomes.

The delegation of Germany recognized the problem of antisemitism as a phenomenon that is seen in many countries. Its Federal Ministry of Interior has pointed out that efforts are being undertaken to create more awareness of racism and antisemitism and to integratre this awareness into all structures of society, including the formation of the Cabinet Committee to combat Right-Wing Extremism and Racism, the Independent Muslim Council and the Federal Government Strategy to Prevent Extramism and Promote Democracy. The Committee, however, remains concerned by the Germany's indication that it is not considering any legal amendments to remove the requirement to disturb public peace from the definition of incitement to hatered.

Recommendations of the Human Rights Committee

Concluding Observations on Germany's 7th periodic report were released on November 11 2021. The State party is requested to provide, by 5 November 2024, information on the implementation of the following  recommendations:

Intersex persons

• Ensure that all acts relating to the assignment of a sex to intersex children performed without their free and informed consent, are specifically prohibited, except in cases where such interventions are absolutely necessary for medical reasons and the best interests of the child have been duly taken into account. This should include the consideration of amendments to the Law on the Protection of Children with Variants of Sex Development 2021 within the five-year period allocated for its review, if necessary.
• Ensure that all victims can access remedies, including through revision of the application of statutes of limitation for violations in childhood, taking steps to ensure that all victims can access their health records and considering the establishment of a dedicated compensation fund. 

Institutional care

• Continue and step up efforts to monitor, prevent and eradicate the use of physical and chemical restraints in institutional care settings;
• Intensify efforts to monitor, prevent and eradicate all forms of abuse against older persons and those with psychosocial disabilities in residential care facilities;
• Consider further harmonization of the legal standards in different Länder on the involuntary hospitalization and forced committal of those with psychosocial disabilities, ensuring that all such standards and their judicial oversight uphold the principles of necessity and proportionality;
• Remove any exception to the ban on the forced sterilization of adults with disabilities within law and ensure such standards are effectively implemented;
• Consider widening the availability of specific complaints mechanisms to receive, investigate and facilitate the prosecution and punishment of all forms of abuse within institutional care settings;
• Ensure targeted measures to protect older persons from COVID-19 and/or other major public health emergencies and restore full regulatory oversight as soon as possible. 

Right to privacy

• Ensure that all types of surveillance activities and interference with privacy are in full conformity with the Covenant, in particular article 17.
• Such activities should comply with the principles of legality, proportionality and necessity and be subject to judicial authorization. 
• Ensure that surveillance is subject to effective independent oversight mechanisms, namely judicial, and ensure access to effective remedies in cases of abuse. 

Here you can find all the recommendations given by the Committee in the Concluding Observations.