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Legislation Impacting Anti-Discrimination and Anti-Radicalisation Efforts

Legislation Impacting Anti-Discrimination and Anti-Radicalisation Efforts

Three areas of German legislation have been sparking criticism of human rights organisations:

The Aliens Act, which contains restrictions for persons applying for refugee status. These persons are restricted in benefits, freedom of movement (they cannot leave the territory of the Federal Land where they are registered as asylum seekers), and their professional employment opportunities are minimal.

The Criminal Code of Germany, which despite recommendations of various international organisations, does not include racism and other hate motives in the list of aggravating circumstances in commission of a crime (although there have been cases, where local courts have regarded such motives as aggravating).

Germany’s implementation of the European Framework Convention for the Protection of National Minorities. The Framework Convention does not contain the definition of “national minority”. Thus, Germany declared that on its territory this Convention will be applied to Danes, Serbs (Sorbs), Friezes and German Gypsies (Sinti and Roma). Federal Constitution of Germany does not contain any special provisions regarding protection of minorities; these are contained only in the constitutions of Federal Lands. Therefore, the term “minority” in Germany does not include the so-called new minorities – groups that migrated to Germany in the past decades. Largely, these include Turks, former Yugoslavians, and Russian-speaking Jews. These peoples are not officially recognised as minorities; however, the current German legislation provides them with rights to develop their language, culture and religion.

On the other hand, Poles who amount to about 200 000 people in Germany and who have deep historical roots in the country (until 1940, Polish community had the rights of a national minority), are not included in this category. According to the 1991 German-Polish treaty of friendship and cooperation, Germans in Poland and Poles in Germany have equal, including cultural, rights; and this issue became a source of tensions between the two countries.

“New” national minorities in Germany are not subject to the European Charter of Regional or Minority Languages, which Germany ratified in 1998. Thus, Germany to a certain extent follows the European tradition of national and linguistic unification, albeit not as much as France.

Religious communities are in a similar position. German Constitution guarantees freedom guarantees freedom of religion and the peaceful exercise of religion. Furthermore, according to Art. 140 of the Basic Law of Germany, religious communities have the right of taxation (so-called “Church Tax”), which is 8-9% of religious citizen’s income. This tax is deducted from the tax base and charged by Financial Management (Finanzamt) of the Federal Land, and then transferred to the community. The problem is that the right of taxation is given only to religious organisations that are a “public law corporation”. This status means that the religious community, through its statute and the number of its members, must ensure its long-term existence. Currently, this status is applies to various German Christian communities, including Orthodox and Mormons, Jehovah’s Witnesses, Jews and the Union of Religious Communities, which does not belong to any official religion and including various small primarily Christian communities and sects.

At the same time, German Muslim community, which amounts to more than 4 million people (almost 5% of the general population), do not fall under the public law corporation, even though it meets all the necessary conditions.

Transgender people are unable to change their names and receive legal recognition of their gender without going through psychological and legal examination. They are often asked to get “real life experience” as a person of their desired gender (according to health insurance companies, this period should be at least 18 months) before they can change their name. Full legal recognition of a sex change requires transgender persons to confirm that they have been wanting to change their gender for at least three years and go through a sterilisation operation (the latter requirement has been recognised as unconstitutional in 2011). This “real life experience” requirement poses a number of problems for transgender people, especially when confirming their identity.

Until 2015, the German Criminal Code, despite the recommendations of international organizations, has not been amended to equate racism and other hate motives as aggravating circumstances in the commission of crimes. This issue was left to the discretion of the courts. However, 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.

The big problem is the expanding the "list of safe countries", from where refugees come. In 99 cases out of a hundred this means deportation to their homeland for asylum-seekers. While it was a question of the Balkan countries, Morocco, Tunisia, and Algeria, this did not provoke a strong protest from human rights defenders, although in many cases, the deportation caused danger, too. However, in 2016, Afghanistan entered the list of safe countries in Britain and Germany.

In their defense, officials in Berlin and London claimed that they would deport Afghanistan people only to areas not controlled by the Taliban. Due to general instability in that country and the inability of the Afghan authorities to resist terrorism, this justification can hardly be considered acceptable. . According to the UN High Commissioner for Refugees, between January and June 2016, more than 1,600 people were victims of terrorist attacks in Afghanistan, and more than 3,500 people were injured. These are maximum numbers since 2009. In 2016, a further 530,000 people became internally displaced persons. They are the inhabitants of the 31 provinces of the 34. Thus, the total number of Afghans forced to leave their place of permanent residence and seek refuge within the country has reached 1.2 million.

On March 17, 2016, Germany adopted the "Law on the introduction of a system for accelerated consideration of asylum applications" (the so-called "Second package of laws on asylum seekers"). It is about examining cases of a certain category of asylum-seekers under a simplified procedure. The law concerns persons who have falsified or misrepresented their data, destroyed their documents, etc. In this case, according to the already mentioned art. 60 of the Law on the Residence of Aliens, the date of deportation of an alien may now be postponed only if the deportee suffers a serious, life-threatening disease.

The human rights organization "For Asylum" (Pro Asyl) criticized this law in detail. In particular, human rights activists noted that many asylum seekers could not keep their passports. Moreover, some refugees were not able to obtain travel documents precisely because of the persecution in the country of origin. Also, the organization's lawyers stated that psychological traumas and post-traumatic syndromes caused by the war are not recognized by German doctors as a serious illness and do not serve as an excuse for deferring deportation. In general, the organization considered the innovation as a violation of the European Convention on Human Rights and the Geneva Convention on Refugees.

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