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Anti-Discrimination Legislation

Anti-Discrimination Legislation

The Constitution of the Federal Republic of Germany proclaims the equality of all before the law and prohibits discrimination on the basis of gender, kinship, race, language, nationality, origin, religion, and religious or political views.

Article 86 of the German Criminal Code criminalises the distribution of propaganda materials of anti-Constitutional organisations. Article 130 (Incitement to hatred) covers the incitement to racial hatred, and is one of the most important tools in combatting extremism and xenophobia.

Organisations promoting racist ideology, or condoning or inciting to racial hatred and discrimination, are subjected to criminal prosecution in accordance with Article 129 and 129a of the Criminal Code.

German law prohibits political parties and groups that do not meet constitutional requirements. In accordance with the Basic Law (Article 9), private civil society associations can be banned if they do not comply with the requirements of the criminal legislation, or are aimed against the constitutional order or against the concept of international understanding.

German legislation provides for criminal liability for denial of the Holocaust. It is based on the Criminal Code and the law on overcoming the consequence of crimes (1994).

Article 130 of the German Criminal Code is dedicated to incitement to hatred. Article 3, which was written in 1985 (last revision in 2005), provides criminal liability for incitement to hatred on the grounds of nationalism, religious or racial hatred, humiliation of human dignity, and public denial of the Holocaust and crimes committed during the Nazi regime. These crimes are punished with up to 5 years of imprisonment or a fine. Article 166 of the Criminal Code, punishes defamation of religions, religious and ideological associations. Article 186 punishes defamation of the dead.

Investigations and trials around the terrorist National Socialist Underground (NSU) shocked Germany in 2013. As a result, on February 26, 2014, Parliament approved a joint request of all political parties, which comprises in total 50 proposals for reform of the police, judiciary and constitutional protection. They should lead to better cooperation between federal security agencies to tighter regulation of the use of the informants and a culture-sensitive training of security forces – but all are still in the planning stage. When penalties are given, "a racist, xenophobic or other inhuman" background should be given special consideration.

In 2006, Germany adopted an Equal Treatment Act, which brought German legislation in line with EU anti-discrimination directives. After Cologne Court imposed a ban on circumcision, many political figures put forward their initiatives to protect Muslim and Jewish rights, which resulted in the abolition of the ban in December 2012.

In recent years, Landtags (State Diet – parliament of the Federal Land) of some Federal Lands were actively eliminating gaps in federal legislation to accommodate for the rights of Islamic organisations in education and religion.

In 2013, state governments of Bremen, Hamburg and Hessen had officially recognised Islamic organisations and provided them with more rights and powers. From now on, members of any association, union or non-governmental organisation will receive free access to public institutions such as prisons, hospitals and schools. Furthermore, Islamic associations and unions will now be able to establish special theological universities and schools, diplomas of which will be legally recognised. The above-listed federal states also signed agreements to equate the status of Muslim and Christian holidays.

On February 19, 2013, Federal Constitutional Court ruled that civil partnerships (including same-sex couples) must be equally protected by law as a traditional marriage.

On March 19, 2015, the German Penal Code was finally amended by Article 46.2, according to which courts are now obliged to take into account the motive of hatred when passing sentences. This is an important reform, putting an end to the loyal attitude towards racism and discrimination in the German courts.

In July 2015, the federal parliament, the Bundestag, agreed to toughen Germany's refugee law. In the future, refugees coming to Germany with the help of smugglers and those circumventing border controls could lose their passport, and asylum-seekers making false statements to authorities could be arrested. German Interior Minister Thomas de Maizière of the CDU said that the tough approach to the new arrivals is necessary in order to secure public "approval for immigration and the entry of people in need of protection in Germany.

On 30th June 2015, new anti-terrorism legislation entered into force in Germany. According to the new law, it is a crime to travel abroad with the intent to receive terrorist training. The new legislation places the financing of terrorism under the Criminal Code. It also introduces restrictions on foreign fighters’ national ID cards and passports.

In 2015, the German Criminal Code was amended with Art. 46.2, which instructed the courts to consider racist, xenophobic or other discriminatory motives as aggravating circumstances in the commission of a crime . This is an important development, since previously German legislation did not cover these factors when dealing with violent crime, stating instead that the courts may take them in consideration during sentencing.

It was only one major change in this area of ​​German federal law in 2017. In June, the Bundestag voted to pass a law on the resolution of same-sex marriages. The draft of the SPD, the Green Party and the Left Party, drafted in 2015, gained the majority: 393 for, 226 against, 4 abstained. Chancellor Angela Merkel voted "against", in solidarity with most of her fellow party members. In July, the Law received the approval of the Bundesrat. In the same month, the law was signed by Federal President Frank-Walter Steinmeier. In October, the law came into effect.

In this regard, two factors should be noted. First, the SPD decided to speak synchronously with the two opposition factions, contrary to the coalition discipline within the broad coalition with the CDU / CSU. This happened in the context of election battles. Secondly, same-sex family communities, in essence marriages, had previously a number of civil rights in Germany. But the recognition of a "full-fledged marriage" equal to that of heterosexual couples was for many politicians and public figures in Germany a formal final end to the period of persecution of homosexuals.

At the land level, legislators considered anti-discrimination laws designed to improve the observance of minority rights. In March 2017, the Land Government of Thuringia submitted to the local parliament a draft law on the First Law Amending the Law of Thuringia on Public Catering Enterprises (Erstes Gesetz zur Änderung des Thüringer Gaststättegesetzes). The bill tightened the punishment for discrimination and imposed a fine of 10,000 euros, for example, for discrimination by the ethnic or religious affiliations, when the visitor entered the disco during face-to-face control.

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