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Follow-up CEDAW: djb calls for the German Government to take immediate measures

Stellungnahme vom 10.12.2019

Comments on the information provided by Germany in follow-up to the Concluding Observations of the UN Committee on the Elimination of Discrimination Against Women (CEDAW) on the combined seventh and eighth periodic reports of Germany submitted by the German Women Lawyers‘ Association (djb).

I. Access to safe and legal abortion (CO 38b)

The Committee recommended to ensure access to safe abortion without subjecting women to mandatory counselling and a three-day waiting period, and the reimbursement of such procedures through health insurance which is in compliance with recommendations of several human rights treaty bodies. The German government answered that access to safe abortion was ensured by law in Germany, and that the mandatory counselling took place „without a preconceived outcome and based on a woman’s autonomous decision“. Further, the mandatory counselling, the waiting period, and the non-reimbursement as well as the underlying concept of abortion as a punishable but generally unpunished crime were introduced to comply with a Federal Constitutional Court decision of 1993 and reflected a hard-won societal consensus in Germany which was why no change could be offered.

Access to safe abortion is not ensured in Germany. Abortion is a punishable crime against life under the Penal Code. Since February 2019, it is no longer a criminal offence for doctors and clinics to inform about the fact that they offer abortion services but it is still a crime for them to inform about the methods, circumstances or costs. The pressure exercised by criminal laws, authorities and anti-abortion activists takes its toll: In 2003 there were 2,050 clinics and doctors’ practices offering abortion services in Germany, by the end of 2018 there were only 1,173 left. In rural areas, women’s access to safe abortion is severely limited. Women who can afford it travel to the Netherlands to have an abortion (just like in the 1980s). The German states’ obligation to provide for sufficient supply of ambulatory and stationary facilities under Section 13 of the Pregnancy Conflict Law is totally ignored without sanctions.

Under Section 219 of the Penal Code, the mandatory counselling shall be destined to serve the protection of ‘unborn life’. The law requires that the unintentionally pregnant woman is to be encouraged to carry her pregnancy to term, that she must be lectured to make a responsible and conscientious decision, and that she must be made aware that abortion was only understandable and therefore unpunished under exceptional circumstances when carrying to term would mean an unacceptable sacrifice for her. It is true that, under Section 5 of the Pregnancy Conflict Law, the mandatory counselling shall be conducted in an unbiased and respectful manner. The relationship between these two conflicting federal statutory provisions is completely unsettled; however, as an infringement of Section 219 constitutes criminal liability, no counsellor wishes to find out in practice whether the Penal Code prevails or not.

As these two provisions might illustrate, there is neither societal nor legal consensus in Germany about the question whether abortion should be a punishable crime or a reproductive health issue. The same is true for the decisions of the Federal Constitutional Court, both decided by majorities (6:2 and 5:3) and both with dissenting votes doubting the constitutional reasoning. After years of campaigning by anti-abortion activists, societal consensus has finally broken apart concerning the question of criminal liability for providing information about abortion as well as the new phenomenon of street harassment of pregnant women.

The mandatory counselling (see above) can only be offered by (very few) state-approved counselling centres. For some time now, anti-abortion activists have been loitering on the streets directly in front of these centres to harass women who seek counselling. They yell at any woman crossing their way, insult women as ‘baby murderers’, show them pictures of foetuses cut into pieces and lots of blood, put mock child coffins on the sidewalk, and harass women in any way to force them to refrain from seeking counselling and safe and legal abortion. This constitutes inhuman and degrading treatment of women who are in an especially difficult and vulnerable position and who cannot avoid the harassment due to the mandatory character of the counselling and the small number of approved counselling centres.

Authorities refuse to protect women against this discrimination, harassment and interference with their most intimate decisions upon pregnancy and family planning, arguing that the anti-abortion activists would exercise their freedom of religion and freedom of speech. But neither of these freedoms includes the right to impose (religious) opinions upon other people or to harass women, especially not when they are in a vulnerable position and cannot avoid the interference, as several German courts have confirmed[1]. As the street harassment takes place in different towns and regions of Germany, a federal statute obliging authorities to intervene would be necessary for the effective protection of the reproductive rights, intimacy, integrity and equality of women.

We therefore urge the German Government to take immediate measures to guarantee access to safe and legal abortion for all women, especially women living in rural areas, and to guarantee this access in respect for women as competent decision-makers, especially concerning their own reproductive rights.

We urge the German Government to take the necessary measures to offer respectful and supportive counselling on a voluntary basis for every pregnant woman in need.

We urge the German Government to de-criminalize objective information about abortion comprehensively, including when given by doctors or clinics offering abortion services.

In light of the German past, we ask the German government to consider the introduction of a fine imposed for the equation of abortion and the Shoah in (digital) public.

We urge the German Government to take immediate measures to guarantee protection against degrading treatment and street harassment of pregnant women by anti-abortion activists in front of approved counselling centres or medical practices and clinics offering abortion services.

II. Economic empowerment of women – Payment of child maintenance (CO 40b)

In its Concluding Observations, the Committee has established that a significant number of parents, predominantly fathers, fail to pay child maintenance, and that the often limited and onerous access to maintenance advances are one reason that single-female-headed households are at considerable risk of falling into poverty (para. 39 [b]). The Committee then recommended that Germany should design a sustainable system of child maintenance payment and introduce a means-tested child allowance along with minimum maintenance payments for children after their parents separate or divorce (para. 40 [b]). However, the German Government has not implemented this recommendation satisfactorily:

Despite the complaints about child poverty in Germany, there are tendencies in maintenance law to weaken the maintenance claim of minor children. The structural reform of the so-called “Düsseldorfer Tabelle” (the maintenance guideline of the Düsseldorf Higher Regional Court in coordination with the other Higher Regional Courts and the German Family Court Conference) in 2018 – without involvement of the legislator – led to a reduction in child support. Since then, maintenance above the minimum amount only has to be paid in case of an income over 1,900 € (instead of 1,500 €). This shift has an impact on all income groups in the “Düsseldorfer Tabelle” and means that all underage children who were entitled to more than the minimum maintenance until 2017 will be able to claim less maintenance per month from 2018. Depending on the age of the children and the income of the breadwinner, the decrease ranges between 10 € and 28 € per month. At the same time, the maintenance requirement of adult students as shown in the “Düsseldorfer Tabelle” was frozen, which also leads to a reduction of the maintenance of these children – irrespective of the ability of the liable party to pay.

The simplified procedure in Sections 249 et seq. FamFG (“Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit”, Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction) was also amended as of 2017, making it more difficult for minor children to assert their maintenance claim quickly and successfully. In contrast to the previous law, the parent liable to pay cash maintenance is now permitted to raise objections to the application for determination of maintenance informally (Section 257 FamFG), which is likely to increase the potential for dispute in the simplified procedure. In addition, the obligation of the debtor to provide information has been restricted. In the case of alleged (partial) inability to pay, the debtor is only obliged to provide information on his income and assets. He no longer needs to disclose his further personal and financial circumstances.

With regard to the advance on maintenance payments, the government pointed out that statutory regulations on advance maintenance payments have been expanded (“Information provided by Germany in follow-up to the concluding observations“, para. 16). However, for children over the age of 12, the advance on maintenance payments is only accessible under limited conditions.

The regulations on the advance on maintenance payments were amended with effect from 1 July 2017. The main elements of the reform were that the entitlement to subscription was extended to 18 years of age. However, there may still be losses and gaps in provision, as harmonisation with other social benefits has not yet been completed, e.g. with the housing allowance.

We urge the German Government to evaluate the 2018 amendments to the “Düsseldorfer Tabelle” which led to a decrease in the amount of child allowances for all single parent families where the obligated parent earns less than 4,300 € monthly (net) and to introduce effective measures to compensate for disadvantages and losses. 

We urge the German Government to implement fair regulations of child maintenance for parents who wish to practice a parity model of child care or a broader approach concerning the parental right of access after their separation and to ensure compensation for family-related economic disadvantages, including in the calculation of child maintenance.

We urge the German Government to evaluate the current system of child-maintenance with a particular view to the underlying reasons of failed payments or non-payments by the parent liable to pay and to introduce measures to guarantee full and timely payments by the obligated parent.

We urge the German Government to amend the inconsistent civil law and social law regulations on child maintenance and child allowances with the minimum aim to guarantee an easy accessible minimum subsistence for all children under any given circumstances, irrespective of their family status or the status or level of income of their (single) parents.

We urge the German Government to withdraw the full crediting of child benefits to the advance on maintenance payments, as the result of this crediting is that especially poor families and single parent families are generally left with no more than minimum subsistence for their children.

III. EU asylum legislation and specific needs of asylum-seeking women (CO 48b)

In 2018, more than 43% of all asylum applications were submitted by women, with the number of female asylum seekers rising steadily (34% in 2016, 39.5% in 2017).[2]Unfortunately, no firm statements can be made regarding the figures on gender-based persecution provided by the Federal Office for Migration and Refugees (BAMF), as its statistics are still not gender-segregated. Under Article 21 of the EU Reception Directive (2013/33/EU), vulnerable persons include minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minors and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. The specific needs and requirements arising from vulnerability must be taken into account by States at any stage of the procedure.

Germany has implemented most of the EU asylum legislation referred to by the CEDAW committee in Concluding Observation 48(b) through national law. Especially the regulation on gender-based persecution in Section 3(b) AsylG is more favourable for the women concerned than the provisions in EU law (Article 10 of Directive 2011/95/EU).

However, significant shortcomings remain in the implementation of the above-mentioned provisions, in particular as regards accommodation, access to protection, consultation and medical care, but also the identification and recognition of gender-based persecution.

1. Women in refugee shelters

Under German immigration law, most asylum seekers and tolerated persons are required to live in collective housing, in some cases for multiple years. The legal provisions restrict their freedom of movement, whether they must live in an initial reception facility and are not entitled to leave a certain area (residency requirement) or they are not accorded the freedom to choose their own place of residence (condition restricting place of residence). Deficits in the protection against violence in refugee shelters have become visible in the past years. Professionals who work with women and/or refugees have reported extensively about various forms of sexualised and domestic violence directed against women by their partners, shelter staff or security staff.

In 2016, the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) and UNICEF launched an initiative to protect women and children in refugee shelters. Together with the partners of the initiative, minimum standards for the protection of refugees in reception facilities were developed.[3] These minimum standards, however, continue to be merely recommendations in the absence of federal responsibility for accommodating asylum seekers, and are binding neither for the federal states nor for the municipalities. Additionally, a pilot project, which deployed coordinators for the protection against violence in 100 shelters, was terminated at the end of 2018 after three years.[4]

In addition, not all federal states have defined concepts for the protection against (gender-based) violence. Some of the concepts only apply to state reception facilities, but not to municipal accommodation. Moreover, not all concepts are mandatory at the federal state level. Only occasionally, for example in Berlin[5], is the submission of a concept for the protection against violence an integral part of the contract between the federal state and the accommodation operator, and thus, mandatory.

Furthermore, many of the concepts contain only softened commitments. For example, they stipulate that although lockable rooms should be available in principle, this should only be the case where this is possible within the limits of local conditions. There is no explicit provision for the targeted reconstruction of existing accommodation to guarantee the standards set. In addition, the situation of women is aggravated by the introduction of the so-called AnkER centres. These centres are large shelters in which up to 1.000 people can be accommodated. Within 18 months, identity verification, decisions on residence status, municipal allocation or deportation of refugees are to take place.[6] The sheer size of these centres makes effective protection against violence impossible and gives rise to fears that, due to the long accommodation period and the large number of people, violence will be incited rather than prevented. Current media reports on the conditions in Bavarian AnkER centres and on sexualised violence against women in these accommodations confirm these fears.[7] Mass accommodation is not suitable for providing a safe environment for people traumatised by war.

We therefore urge the German Government to oblige the Federal States to enforce mandatory concepts for the protection against violence on state and municipal level and to set up independent monitoring bodies to ensure the implementation of and compliance with these concepts.

In order to fulfil its obligations under the Convention, the Federal Government should abandon the concept of AnkER centres.

2. Access to shelter

The restrictions on freedom of movement described above represent a major obstacle for the access to effective protection against violence. Although the legislation in question does provide for exemptions, neither in the legislation itself nor in the guidelines for interpreting the laws is gender-based violence designated as constituting grounds for exemption. Women who request the immigration authority to reassign them to another, safe shelter can sometimes face a wait of multiple months: a reassignment of this kind often requires the approval of two separate authorities, and the authorities do not have a standardised procedure in place for cases involving violence. The competent authorities are not set up to respond to the need to provide protection to women at short notice in such cases, and fiscal concerns and immigration law considerations play a central role in their decision-making. The restrictions on freedom of movement described above represent a major obstacle to access to effective protection against violence. The often short-term sanctuary and reception in a women's shelter without prior official permission constitutes an administrative offence, which is why access to this protection is often associated with fears that it may influence the asylum procedure.

We therefore urge the German Government to enact legislative amendments or at least binding guidelines for the immigration authorities, clearly communicating that protection from violence takes priority over immigration law considerations and that the immigration authorities must take immediate action to provide protection in cases of gender-based violence, e.g. by reassigning women to a safe shelter.

3. Counselling and identification

The identification and recognition of gender-based persecution is still not acceptable. The fact that the Federal Government has still not drawn up any criteria for the identification of a vulnerability of refugees within the meaning of the EU Directive 2013/3328 makes it even more difficult for the first reception authority to identify them. Furthermore, there is still no comprehensive and independent counselling on asylum procedures in Germany, although this was laid down in the coalition agreement.[8] In addition, no nationwide consultation on asylum procedures was established. Rather, the Federal Ministry of the Interior has decided to transfer the responsibility to provide counselling in the AnkER centres to newly arrived refugees, to the BAMF. However, this does not take place individually from the beginning, but in groups.[9] The BAMF, as a federal institution, cannot function as a counselling centre independent of the policy of the Federal Government. There is a conflict of interest here, which obstructs the exercise of individual asylum rights. In addition, people from safe countries of origin have shorter time limits for appeal, making it almost impossible for them to obtain comprehensive advice.

We urge the German Government to guarantee comprehensive, independent and individual counselling on asylum procedures immediately, in order for refugee women to be able to make full use of their rights in the asylum procedure. These must be gender-sensitive and be carried out by counsellors who have received further training on the subject of gender-specific violence.

We urge the German Government to introduce gender guidelines to identify gender-based persecution and protection needs due to gender-based vulnerabilities.

4. Access to health treatment

At present, the legal entitlement for asylum seekers and tolerated persons in the first 18 months is limited to emergency treatment (§ 4 AsylbLG) as well as to medical services that are "indispensable for safeguarding health" (§ 6 AsylG). In the reception facilities (residence up to 24 months) there is no free choice of doctors, only female doctors or even only male doctors for certain specialisations are available who have the necessary qualifications only in exceptional cases. Only psychiatric care is guaranteed, but not psychotherapeutic treatment.

We urge the German Government to ensure comprehensive and effective access to health care, including psychotherapeutic and psychosocial treatment and counselling.

Prof. Dr. Maria Wersig                      
President                                                

Prof. Dr. Ulrike Lembke
Chairwoman of the Commission European law and public international law

Brigitte Meyer-Wehage
Chairwoman of the Commission Private law, family law, inheritance law and law pertaining to other forms           of co-habitation
                                                                                      

Additional information

It was a challenging task to discover the information provided by Germany (untranslated). Improvement of the inclusion of civil society into the reporting procedures seems possible.

Literature and sources

Access to safe and legal abortion

Gloria Berghäuser, Die Strafbarkeit des ärztlichen Anerbietens zum Schwangerschaftsabbruch im Internet nach § 219a StGB – eine Strafvorschrift im Kampf gegen die Normalität, in: Juristenzeitung 10/2018, S. 497-504.

Andrea Büchler, Reproduktive Autonomie und Selbstbestimmung – Dimensionen, Umfang und Grenzen an den Anfängen menschlichen Lebens, 2017.

Ulrike Busch (ed.), Sexuelle und reproduktive Gesundheit und Rechte: Nationale und internationale Perspektiven, 2010.

Deutscher Juristinnenbund, Stellungnahme zum Gesetzesentwurf der Fraktion DIE LINKE Hessisches Gesetz zum Schutz der Rechte von schwangeren Frauen bei Schwangerschaftsberatung und -abbruch (Drs 20/384 vom 22.3.2019), https://www.djb.de/verein/djb-regional/hessen/pm-st/St19-07_LV-Hessen/.

Deutscher Juristinnenbund, Stellungnahme vom 31. Januar 2019 zum Referentenentwurf des BMJV „Entwurf eines Gesetzes zur Verbesserung der Information über einen Schwangerschaftsabbruch“ vom 28. Januar 2019 und zum Eckpunktepapier zur „Verbesserung der Informationen und Versorgung in Schwangerschaftskonfliktlagen“ vom 12. Dezember 2018, https://www.djb.de/verein/Kom-u-AS/ASRep/st19-03/.

Deutscher Juristinnenbund, Stellungnahme vom 26. Juni 2018 für eine öffentliche Anhörung des Ausschusses für Recht und Verbraucherschutz des Deutschen Bundestages am 27. Juni 2018 zu den Gesetzesentwürfen zur Änderung des Strafgesetzbuches – Einschränkung bzw. Aufhebung von § 219a, https://www.djb.de/verein/Kom-u-AS/ASRep/st18-09/.

Administrative Court of Karlsruhe, judgment of 27 March 2019, 2 K 1979/19 (http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&nr=27813).

Higher Criminal Court of Gießen, judgment of 12 October 2018, 3 Ns 406 Js 15031/15, https://www.rv.hessenrecht.hessen.de/bshe/document/LARE190006030.

Criminal Court of Gießen, judgment of 24. November 2017, 507 Ds 501 Js 15031/15, https://www.rv.hessenrecht.hessen.de/bshe/document/LARE190000405.

Economic empowerment of women – Payment of child maintenance

Deutscher Juristinnenbund, “Sterntaler 2018 – djb kritisiert die Änderung der Düsseldorfer Tabelle“, Press Release November 13, 2017, https://www.djb.de/verein/Kom-u-AS/K2/pm17-38/.

Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction), https://www.gesetze-im-internet.de/famfg/.

EU asylum legislation and specific needs of asylum-seeking women

Deutscher Juristinnenbund, Stellungnahme vom 15. April 2019 zum Referentenentwurf des Bundesministeriums des Innern, für Bau und Heimat eines Zweiten Gesetzes zur besseren Durchsetzung der Ausreisepflicht (Geordnete-Rückkehr-Gesetz) vom 11.4.2019, https://www.djb.de/verein/Kom-u-AS/K4/st19-10/.

Deutscher Juristinnenbund, “djb fordert Überprüfung der Einschränkungen und Sanktionen im Asylbewerberleistungsgesetz“, Press Release of 17 April 2019, https://www.djb.de/verein/Kom-u-AS/K4/pm19-13/.

Deutscher Juristinnenbund, Stellungnahme vom 21. Februar 2019 zum Referentenentwurf des Bundesministeriums des Innern, für Bau und Heimat zum Entwurf eines Gesetzes zur Entfristung des Integrationsgesetzes, https://www.djb.de/verein/Kom-u-AS/K4/st19-05/.

Deutscher Juristinnenbund, “djb kritisiert Entfristung der Wohnsitzauflage für Geflüchtete“, Press Release of 22 February 2019, https://www.djb.de/verein/Kom-u-AS/K4/pm19-08/.

Endnotes

[1] Administrative Court of Karlsruhe, judgment of 27 March 2019, 2 K 1979/19 (http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&nr=27813); see further Administrative Court of Freiburg, judgment of 4 March 2011, 4 K 314/11; State Administrative Court of Baden-Württemberg, judgment of 11 October 2012, 1 S 36/12; approved by the Federal Administrative Court, judgment of 22 July 2013, 6 B 3/13.

[2] http://www.bamf.de/SharedDocs/Anlagen/DE/Publikationen/Broschueren/bundesamt-in-zahlen-2018 asyl.pdf?__blob=publicationFile

[3] https://www.bmfsfj.de/blob/jump/121372/minimum-standards-for-the-protection-ofrefugees-and-migrants-in-refugee-accommodation-centres-data.pdf.

[4] See https://www.bmfsfj.de/bmfsfj/gewaltschutz-in-fluechtlingsunterkuenften-verbessern/130580.

[5] State Office for Refugee Affairs (2017): Annex I to Appendix 1, III.3, available under:http://docplayer.org/59270777-Anlage-1-leistungs-und-qualitaetsbeschreibung-zum-betreibervertrag-fluechtlingsunterbringung-land-berlin.html

[6] „Ein neuer Aufbruch für Europa. Eine neue Dynamik für Deutschland. Ein neuer Zusammenhalt für unser Land. Koalitionsvertrag zwischen CDU, CSU und SPD, 19. Legislaturperiode“, Berlin 2018, p.107, available under: https://www.cdu.de/system/tdf/media/dokumente/koalitionsvertrag_2018.pdf.

[7] E.g. Leischwitz, Christoph: „Fliegerhorst Fürstenfeldbruck. Der Aufenthalt im ‚Ankerzentrum‘ dauert oft Monate“, Sueddeutsche.de, 15.04, available under: https://www.sueddeutsche.de/muenchen/fuerstenfeldbruck/abschiebung-fluechtlinge-ankerzentrumfliegerhorst-fuerstenfeldbruck-1.4411250, „Fast 20-fach vorbestraft. Vergewaltigungsprozess gegen Heimleiter sorgt für politischen Wirbel“, Sauerlandkurier.de,  25.11.16, available under: https://www.sauerlandkurier.de/hochsauerlandkreis/meschede/vergewaltigungsprozess-heimleiter-landgerichtfluechtlinge-meschede-heggen-7014726.html.

[8] See https://www.bmfsfj.de/bmfsfj/gewaltschutz-in-fluechtlingsunterkuenften-verbessern/130580.

[9] „Ankunftszentren und AnkER-Einrichtungen“: http://www.bamf.de/DE/Fluechtlingsschutz/Ankunftszentren/ankunftszentren-node.html.

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