Executive Summary – Germany

Executive Summary Discrimination on the ground of race and ethnic orgin GERMANY Matthias Mahlmann 23 June 2004 Introduction Germany has autochthonous minorities: The Danish and the Sorbs, both not very significant in number, enjoy some particular protection. The Friesians of German Nationality and the Sinti and Roma of German Nationality are officially recognized as minorities as well. The most important groups of ethnic minorities are, however, immigrants, the so called “Guest workers” and their descendants. There was before the Nazi-Period mostly immigration from Polish people. After 1945 Turks, people from former Yugoslavia, Italians and Greeks form the biggest immigration groups. Accordingly of the 7, 3 million foreigners in Germany about 30% are Turks, 9% are from former Yugoslavia, 8,5 % from Italy and about 5 % from Greece. In addition, especially through asylum seekers and refugees, a heterogeneous ethnic community has formed in Germany in the last decades. The German Government has frequently underlined its intention to combat discrimination, racism and xenophobia and to foster the realisation of equal treatment. It has initiated various activities to achieve this end. To take some examples: It has founded in 1998 the “Forum against Racism” to coordinate the activities of different initiatives. The “Alliance for Democracy and Tolerance against Extremism and Violence”, established 2000, is intended to focus local activities and unites several hundred projects. The reform of the German Nationality Act has liberalised the rules for obtaining German citizenship to foster integration. Through programs like Civitas, Entimon or supplements to the means of Xenos considerable sums are channelled into concrete action against right wing extremism and xenophobia. Activities are furthermore unfolded in areas like political education, media policy, the support of victims of hate crimes or repressive action against right wing propaganda and organisation. To take a last example: The recently founded “German Institute for Human Rights” concerns itself as well with these questions. Parts of civil society and NGOs propose further measures, e.g. to improve the legal protection against discrimination, to better the legal status of foreigners and refugees in certain respects or appeal to political parties not to instrumentalize issues of immigration for political purposes in electoral campaigns, partly echoing remarks of monitoring bodies in recent years of international instruments of which Germany is a party. In the German civil society there is a great amount of awareness of the problems of racism and xenophobia in a significant segment of the population. This consciousness is nourished through the now well established knowledge of the terrible consequences of racism in Germany’s recent past. It extends, however, beyond the problem of Anti-Semitism to the more general problem of racism and xenophobia in general and is for many people a firm principle of action and concern. The reality of this consciousness is illustrated by the activities of numerous NGO’s in this field and events like mass demonstrations for tolerance and against xenophobic or racist discrimination mobilising hundred thousands of citizens. Various empirical studies indicate that xenophobic and racist beliefs are nevertheless widespread in Germany. There is very little reliable broader empirical research on the prevalence of discrimination in every day life e.g. in labour relations, in contact with public authorities like the police, concerning housing etc. There are, however, many reports of such incidents Community Action Programme to Combat Discrimination - European Group of non-governmental experts in the field of combating discrimination on the grounds of racial and ethnic origin and religion or belief – coordinated by the Migration Policy Group 1 that indicate that such discriminatory patterns of behaviour are a part of Germany’s social reality. Better documented are in contrast hate crimes with xenophobic and racist background. These kind of crimes have increased since German reunification, persist on a considerable scale and have even led to several dozens of deaths. The problem of xenophobia and racism is thus an important and empirically not quite fathomed problem of German society today. 1. Main legislation There are various legal regimes that contain norms relevant for the principle of equal treatment. Germany is party of several international instruments dealing with the principle of equal treatment. She ratified the Convention on the Elimination of all Forms of Racial Discrimination in 1969 and in 2001 recognized the individual petition mechanism. The antidiscrimination regime of the European Convention of Human Rights applies to Germany. Protocol No.12 to the Convention for the Protection of Human Rights and Fundamental Freedom has not been ratified yet. European Framework Convention for the Protection of Minorities entered into force in 1998. This convention will be applied to the Danes of German citizenship, the Sorbs of German Citizenship, the Frisians of German citizenship and to the Sinti and Roma of German citizenship. The European Charter for Regional or Minority Languages was ratified 1998. The Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems has been signed by Germany in 2003. The ILO Convention 111 has been ratified 1961. Other instruments like the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, some other ILO conventions or the European Convention on the Legal Status of Migrant Workers have not been ratified by Germany. On the national level the core provision is the constitutional guarantee of equal treatment. It establishes the principle of equal treatment in general and forbids any discrimination because of sex, parentage, race, language, homeland and origin, faith, religious or political opinions or disabilities. Especially in the area of discriminations because of sex this provision has been sharpened by the German Constitutional Court. Other constitutional norms buttress this principle e.g. as to the access to public office irrespective of ethnic origin. Similar norms are found in the constitutions of the Länder. The constitutional provisions are directly applicable in all spheres of Public Law. There are, however, special equality clauses as well. The law regulating the public service e.g. contains equality clauses to ensure equal treatment in employment irrespective – among other characteristics - of race. In Criminal Law there are various norms that can be relevant to prevent discrimination like prohibition of libel and slander or specialised norms directed against right wing extremist activities and propaganda. The Laws for the Protection of Youth contain prohibitions of spreading materials that are potentially inciting racial hatred buttressed by criminal sanctions. In Civil Law there is not special anti-discrimination legislation as regards to discrimination on the base of race and ethnic origin. There is the opinion in legal scholarship that general bona fide and equity clauses of civil law are to be interpreted in the light of the constitutional provision of equal treatment. Understood like that they are supposed to be a sufficient base to remedy any grievances in connection with discriminations on the base of race or ethnic origin in in civil law as its stands, e.g. if employment or a lease is denied because of the ethnic origin of the applicant. There are hardly any such cases reported that concern racist or xenophobic discrimination in which these doctrines were successfully applied. That these doctrines can Community Action Programme to Combat Discrimination - European Group of non-governmental experts in the field of combating discrimination on the grounds of racial and ethnic origin and religion or belief – coordinated by the Migration Policy Group 2 have some practical importance is illustrated in cases that deal with discrimination because of other characteristics than race or ethnic origin, e.g. sexual orientation. In Labour Law there are norms to prevent discrimination at the work place, e.g. in the recently reformed Works Constitution Act that establishes an obligation for employers and Work Councils to assure that all employees are treated according to the principle of law and fairness, in particular that they are treated without discrimination because of – among other grounds – nationality and origin. Other procedural rights are designed to foster the fight against racism and xenophobia at the work place. In general the legal network dealing with discriminations because of sex and - due to some recent improvements - disability has been more closely nit than the network of norms concerning discriminations on the base of race and ethnic origin. In the former areas the German legal system has mainly gained the experience it has with legal anti-discrimination regimes. The German Government has formulated in 2001 a draft legislation to implement the directive 2000/43/EC in the area of Civil Law. The draft bill included a broad equality clause banning discrimination not only because of race and ethnic origin but because of other characteristics listed in Art. 13 as well. Labour Law was excluded to be regulated in a later legislation. The bill was severely criticised for curtailing private autonomy too much, for not differentiating appropriately between the different characteristics – the characteristic “religion” raised particular concerns - and for going in its scope beyond what was demanded by the directive. The Government decided not to pursue this concrete bill any further. After its re-election in 2002 it underlined its intention to transpose the directives – among others in the coalition agreement. So far no new draft bill has been presented. An internal draft is currently (June 2004) discussed that covers among other grounds discrimination on the ground of race and ethnic origin. This draft has not been made available to the public yet. It contains norms on the establishment of an independent body, a reform of labour law, changes of general civil law and other amendments. It is unclear when a transposition can be expected. 2. Main principles and definitions The principle of equal treatment is well-established in German Law. At its core is its constitutional guarantee. The scope of application of this provision has been widened in the last decades by the jurisdiction of the Federal Constitutional Court. There are two important developments. First, not only direct discriminations are covered by this clause but indirect discriminations as well, i.e. regulations that are seemingly neutral but in fact discriminate against a certain group fall within its scope, too. As in other parts of legal doctrine dealing with the principle of equal treatment the concept of indirect discrimination as been developed in the area of discrimination because of sex and has not been applied yet thoroughly to other fields of discrimination. Second, the principle of equal treatment has been doctrinally sharpened in recent decisions of the Federal Constitutional Court. The principle consists of a general equality clause and special prohibitions of discriminations. The former has been traditionally interpreted as forming mainly a prohibition of arbitrary decisions. In more recent decisions the Federal Constitutional Court has developed a strict test of proportionality of any unequal treatment in cases of characteristics that are personal features of a person like e.g. the sexual orientation. The protection against violations of the principle of equal treatment has been considerably improved by this jurisdiction as it increases the burden of justification of any discrimination in these areas. This jurisdiction applies to race and ethnic origin as well. The special prohibitions of Community Action Programme to Combat Discrimination - European Group of non-governmental experts in the field of combating discrimination on the grounds of racial and ethnic origin and religion or belief – coordinated by the Migration Policy Group 3 discriminations by the constitutional guarantee explicitly state which grounds cannot form a legitimate base of unequal treatment. They are sex, parentage, race, language, homeland and origin, faith, religious or political opinions or disabilities. Harassment is a rather new concept for German Law. In recent legislation it has been introduced for sexual harassment. In this area it is defined as an intentional sexually determined behaviour which violates the dignity of employees at the work place or is “unwanted”. In the area of discrimination because of race and ethnic origin no such definition has yet been formulated. There are voices in legal science who think that cases of harassment are actually covered by the existing tort law on the protection of personality rights and maintain that these norms are wider in scope and more effective than any special anti-harassment clause could be. Certain acts that form harassment are covered by general Criminal Law, e.g. under libel and slander prohibitions. The instruction to discriminate might be covered by general civil law depending on the circumstances of the case, e.g. as a breach of contractual duties. General criminal law can be applicable, too, e.g. in cases of instigation to commit libel or slander. In public law any such instruction – for example in the police forces - would be an illegal violation of the principle of equal treatment irrespective of race or ethnic origin. There are no specialised norms dealing with victimisation in the area of discrimination because of race or ethnic origin. Victimisation as such, however, does exist in German Law. A provision in private law for example forbids employers to disadvantage employees merely on grounds that they exercise their legal rights. The case law on this norm concerns e.g. strike action. A similar provision was introduced in a bill regulating part time labour. The principle of equal treatment in constitutional law allows - broadly speaking - for exceptions if there are legitimate grounds for unequal treatment and the differentiation is proportionate. Special exceptions exist for religious communities. They enjoy the right to make a certain religious affiliation and comportment according to the standards of behaviour of this particular religion a precondition e.g. of employment. As religion is often closely connected to ethnic origin this – constitutional - privilege is relevant for questions of (indirect) discrimination because of ethnic origin and their potential justification as well. 3. Material scope In public law the constitutional equality provision is directly applicable in every sphere. It is thus central for such areas as public employment, social law and healthcare, education, the administrative law concerning trade and industry or police law. Several of these areas have further special provisions that concretise the principle of equal treatment. If the state provides goods or services it is bound by the principle of equal treatment as well. In private law, the general equality clause is not directly applicable but has – as other fundamental rights provisions of the German Basic Law – indirect horizontal effect by influencing the interpretation of the general clauses of private law including labour law and housing regulations. There are in addition some specialised norms dealing with the problem of discrimination e.g. as mentioned in the Work Constitutions Act or the Insurance Supervision Act. The right to private autonomy, most importantly of freedom of contract is constitutionally safeguarded and includes according to general legal opinion in principle the right to follow any motive – morally or otherwise critizisable as it might be – in shaping one’s own legal obligaCommunity Action Programme to Combat Discrimination - European Group of non-governmental experts in the field of combating discrimination on the grounds of racial and ethnic origin and religion or belief – coordinated by the Migration Policy Group 4 tions. Discrimination on the base of race or ethnic origin are widely held to be, however, beyond this discretional liberty. 4. Equality bodies There are no specialised equality bodies directly implementing or supervising the principle of equal treatment in Germany. There are, however, various institution that are concerned with this matter. The Commissioners for Foreigners on the federal and regional level are monitoring and actively fostering the principle of equal treatment. They established sometimes special offices dealing with discrimination. In addition, there are some anti-discrimination offices in certain municipalities. Certain states have specialised agencies dealing with migration matters and discrimination. NGO’s are active in this area, too, sometimes supported by local or regional government. The “Forum against Racism” or the “Alliance for Tolerance” are mayor networks concerned with equal treatment. Another example is the German Institute for Human Rights that choose as one of its focuses of work the problem of discrimination because of race or ethnic origin. 5. Enforcing the law Any complaint of racial discrimination – if hard legal sanctions and not only advice or mediation is sought – has to be brought to the general institutions enforcing the law, the police and – depending on the nature of the case and redress wanted – criminal, administrative or civil courts. If an administrative act has occurred, the person aggrieved has to initiate administrative proceedings reviewing the individual administrative decision before going to court. There is no right for organisations like NGO’s to start a mechanism of legal redress after a discrimination has occurred in civil or public law proceedings. There is no right to representative action in courts. The possibility to give legal advice is narrowly circumscribed as well through legislation allowing only the legal professions (with some exceptions) to give such advice. An organisation, however might give political or material support to any claim. Incidents of hate crimes like arson or killings based on xenophobia or racist beliefs draw a great amount of attention of the German public and civil society. As to the documentation of these crimes by the police in 2001 the system of statistical records has been improved to remedy some shortcomings of former procedures. There are, however, not many chancels that report less dramatic incidents of discrimination that take place e.g. at the work place, in education or the housing market. Accordingly, these incidents occupy the attention of the general public to a lesser degree. There is no shift of the burden of proof concerning discriminations on the ground of race or ethnic origin. Such regulation exists for discriminations because of sex or disability. The sanctions for discriminations based on race or ethnic origin are the (general) sanctions of the legal area concerned. There is no special regime of sanctions for discriminations because of race or ethnic origin. To take some examples: If a criminal offence has be committed the sanctions may be a fine or a prison sentence, if a contractual obligation has been breached compensation for the incurred losses may be awarded, if a personality right has been violated immaterial damage can be compensated. Community Action Programme to Combat Discrimination - European Group of non-governmental experts in the field of combating discrimination on the grounds of racial and ethnic origin and religion or belief – coordinated by the Migration Policy Group 5 There is, however, very little case law – apart from criminal proceedings concerning hate crimes – that deal with discrimination on the base of race and ethnic origin. The legal system in Germany has gained therefore only little experience with these phenomena in everyday life. Community Action Programme to Combat Discrimination - European Group of non-governmental experts in the field of combating discrimination on the grounds of racial and ethnic origin and religion or belief – coordinated by the Migration Policy Group 6