Experts of the Committee on the Rights of Persons with Disabilities Welcome Germany’s Increase in Social Benefits, Raise Questions on the Guardianship Law and Coercion in Psychiatric Facilities
The Committee on the Rights of Persons with Disabilities today concluded its consideration of the combined second and third periodic report of Germany, on its implementation of the Convention on the Rights of Persons with Disabilities. Committee Experts expressed appreciation for Germany’s work to increase social benefits and protection, while raising questions on the reform of the guardianship law and the use of coercive measures in psychiatric facilities.
Muhannad Salah Al-Azzeh, Committee Expert and Co-Rapporteur, said the Committee appreciated that Germany had increased social benefits and promoted the social protection system through several laws, including the Participation Law. Mr. Al-Azzeh also emphasised that Germany was at the frontline defending human rights and promoting diversity everywhere, which the Committee also appreciated.
Rosemary Kayess, Committee Expert and Co-Rapporteur, noted that while the improvements to the Act reforming the guardianship law provided a focus on support, the law still allowed for the denial of legal capacity. While the State had a duty to protect persons with disabilities, it needed only to facilitate rights, not to limit them. Could the delegation clarify why Germany continued to hold the view that limiting legal capacity protected persons with disabilities? Were there any plans to implement a nationwide strategy for supported decision-making?
Ms. Kayess also highlighted that persons with disabilities placed in psychiatric institutions and care could be subjected to chemical and physical restraints, which could amount to torture and would not be accepted if forcibly applied to other members of the community. Could information be provided on the findings of the research project on the avoidance of coercive measures in psychiatric centres? Had recommendations been implemented and had these resulted in a reduction of coercive measures?
The delegation said the concluding observations from the Committee had been a clear motivator for the reform of the guardianship law. Legal guardianship was a support which helped persons with disabilities take care of their legal requirements. Persons with mental disabilities needed to be protected from abuse. Substituted decision making was a support for these people. It could only be applied if purely supportive measures were not sufficient. Since the guardianship law entered into force at the beginning of the year, it had had broad-ranging influences.
The delegation said the Länder had been assessing measures to avoid coercion. Policy officers responsible for psychiatric institutions had worked on measures preventing coercion. A survey had been carried out between 2017 to 2019 on self-determination in psychiatric facilitates, showing that the individual Länder took this issue seriously. Guidance had been issued by the German Society of Psychotherapists and doctors had developed guidelines for practitioners.
Rolf Schmachtenberg, State Secretary, Federal Ministry of Labour and Social Affairs, introducing the report, said the Convention had become a crucial guide to Germany since its entry into force in 2009. Various measures, processes and projects had been introduced since the last dialogue in 2015. The Federal Participation Act redefined the term “disability”, allowing individual personal needs to take centre stage. Germany had also reformed voting rights, abolishing the denial of voting rights for persons under legal guardianship. Turning to the present, the Federal Accessibility Initiative aimed to achieve accessibility in all areas. An inclusive labour market was another major goal. The system for mandatory employment quotas had been revised.
In concluding remarks, Leander Palleit, Independent Monitoring Mechanism, German Institute for Human Rights, said three key issues remained to be resolved in Germany: ensuring inclusion and self-determination of persons with disabilities; overcoming traditionally segregated structures; and providing effective protection against violence and coercion. The Committee’s concluding observations would provide an important reference framework for all actors in Germany involved in bringing the Convention’s rights to life.
Mr. Schmachtenberg, in concluding remarks, said the intensive, constructive dialogue had illustrated that there were many areas where Germany needed to be become better, including regarding protection against violence. Germany would continue to work on these issues. He thanked the Committee for their questions and contributions.
In her concluding remarks, Ms. Kayess expressed her appreciation to Germany for the open, frank and constructive dialogue. The Committee was concerned about how Germany would achieve the transformation towards a human rights approach when it continued to maintain ableist views towards disability. Transformation was not easy and required coordinated action and legislative and cultural change. The Committee urged Germany to use the concluding observations as a blueprint for the transformation.
The delegation of Germany consisted of representatives of the Ministry of Labour and Social Affairs; the Ministry for Family, Senior Citizens, Women and Youth; the Ministry for Health; the Ministry for Justice; the Ministry of Labour, Social Affairs, Health and Equality of the Land Saxony-Anhalt; the Ministry of Education and Cultural Affairs; the Bavarian State Ministry for Family, Labour and Social Affairs; the Office of Social Affairs, Hamburg; the Federal Government Commission for Matters relating to Persons with Disabilities; the Hessian State Government for Matters relating to Persons with Disabilities; the German Bundestag; and the Permanent Mission of Germany to the United Nations Office at Geneva.
The Committee will issue its concluding observations on the report of Germany after its twenty-ninth session, which will conclude on Friday, 8 September 2023. Summaries of the public meetings of the Committee can be found here, while webcasts of the public meetings can be found here. The programme of work of the Committee’s twenty-ninth session and other documents related to the session can be found here.
The Committee will next meet in public at 3 p.m. today to consider the combined second and third periodic report of Paraguay (CRPD/C/PRY/2-3).
Report
The Committee has before it the combined second and third periodic reports of Germany (CRPD/C/DEU/2-3).
Presentation of Report
ROLF SCHMACHTENBERG, State Secretary, Federal Ministry of Labour and Social Affairs, said Germany was committed to the work of the United Nations. In the time of the Russian war of aggression against Ukraine, multilateral cooperation and constructive dialogue were more important than ever. The Convention had become a crucial guide to Germany since its entry into force in 2009. Germany was aware that the State had not yet reached its goal, but was proud of what it had accomplished. Various measures, processes and projects had been introduced since the last dialogue in 2015. Since that time, there had been a deep paradigm shift in Germany towards to a human rights approach. The Federal Participation Act redefined the term “disability”, allowing individual personal needs to take centre stage. Germany had also reformed voting rights, abolishing the denial of voting rights for persons under legal guardianship. In September 2021, 85,000 individuals previously excluded from voting were able to exercise their right to vote for the first time. Persons with disabilities were at a risk of becoming victims of violence or abuse. To protect these people, Germany’s system of reported decision-making had replaced the previous guardianship law. Many things had changed in positive ways for persons with disabilities since Germany’s first periodic report.
Turning to the present, the Federal Accessibility Initiative aimed to achieve accessibility in all areas. An inclusive labour market was another major goal. The system for mandatory employment quotas had been revised. Companies with more than 20 employees would have to pay higher levies if they did not employ at least one person with disabilities. All major stakeholders were being involved in plans and reforms. This summer in Berlin, Germany held the Special Olympic Games, in which more than 7,000 athletes participated. This was a major event and Germany planned to host the Global Disability Summit in 2025. Mr. Schmachtenberg said he looked forward to the dialogue with the Committee.
JÜRGEN DUSEL, Federal Government Commissioner for Matters Relating to Persons with Disabilities, said the Committee’s concluding observations from 2015 had positive effects on numerous legislative processes in Germany. However, there were also areas where little progress had been made. The Commissioner for Matters relating to Persons with Disabilities was appointed by the German Government for one legislative term. The task of the Commissioner was to ensure that the responsibility of the Federation to ensure equal living conditions for people with and without disabilities was accomplished in all areas of social life. There were still some unsolved issues, including in accessibility, participation in working life and inclusive education.
Accessibility was the basic prerequisite for an inclusive society, but unfortunately was not a matter of course in all areas. The Equality for Persons with Disabilities Act stipulated clear requirements to be fulfilled by public sector bodies. In Germany, the lack of access was particularly striking in the healthcare system. Doctors’ surgeries and rehabilitation clinics were often inaccessible due to the absence of legal obligations. This often lead to a poorer health care provision for persons with disabilities. There was also a lack of accessible housing, which prevented deinstitutionalisation. Despite some efforts in recent years to improve participation in working life of persons with disabilities, the situation had not changed significantly since 2015. The unemployment rate of persons with disabilities was almost twice as high as that of persons without disabilities and they were unemployed for much longer.
Finally, in Germany, the Länder were responsible for education. But throughout Germany, children were segregated at an early stage due to academic performance and disability. More than half of all pupils with special needs were taught at special needs schools, and the majority of pupils at these schools left school without a recognised school-leaving certificate. To avoid continued disability-based exclusion from the mainstream education system and later from the general labour market, targeted national measures were required. It was necessary that the Federation and the Länder joined forces in this effort.
Opening Statement by National Human Rights Institution
BRITTA SCHLEGEL, Independent Monitoring Mechanism, German Institute for Human Rights, thanked the Committee for its excellent List of Issues prior to reporting published in 2018, which pointed out key challenges for the implementation of the Convention in Germany. 14 years since the Convention came into force in Germany, there had been no real paradigm shift towards inclusion and self-determination. Germany still had a highly developed system of segregated structures. Six out of 10 children with disabilities were still taught in special schools and new special schools were still being built. More than 300,000 persons were working in sheltered workshops, and nearly 200,000 persons with disabilities were living in residential facilities. The Mechanism strongly recommended that the Government develop strategies for deinstitutionalisation.
Furthermore, the principle of self-determination of persons with disabilities was questioned in several areas and their rights were violated, including through coercive measures employed in psychiatric care, physical restraints used in residential facilities, and the lack of implementation of supported decision-making. Germany still lacked legal obligations under anti-discrimination law to ensure accessibility and reasonable accommodation across the private sector. Overall, the State Party was not doing all it could to implement the Convention. The international community needed to pressure the Government to afford a higher political priority to the rights of persons with disabilities in the future. Regrettably, the State Party’s reports did not reflect due awareness of the problems and failed to deal with weaknesses. However, Ms. Schlegel was optimistic that the delegation would be able to compensate for this in the dialogue.
Questions by a Committee Expert
MARKUS SCHEFER, Committee Expert and Co-Rapporteur for Germany, said Germany was Europe’s economic powerhouse. It had exerted colossal influence in Europe, including on its laws. What Germany did mattered, which was why this review was particularly important. Special education, workshops and institutions for persons with disabilities seemed to be entrenched in the laws and practices of the State party. Segregation was perceived as a way to alleviate the burdens of modes of life of persons with disabilities. This perception was deeply erroneous and stood in contrast to the Convention. While segregating adults and children with disabilities could seem benevolent and reasonable, it denied these people their dignity. Inclusion was the antithesis of segregation. Despite the pledges in the coalition agreement, the national action plan on disability was only loosely tied to the Convention. What was the State party’s understanding of inclusion? What was the relevance of the national action plan? Why had no comprehensive reviews of legislation been carried out at the Federal and Lander levels?
There did not seem to be any rules or standards mandating the involvement of persons with disabilities in laws and policies which concerned them. What were plans to implement rules and standards for the participation of organisations of persons with disabilities? What measures were being taken to provide support to organisations of persons with disabilities to allow them to participate in public discourse? What were the plans of the State party to require private entities to extend reasonable accommodation to persons with disabilities? What was the plan to convince the Ministry of Justice to agree on the directive on access to justice for persons with disabilities? How was the Federal Government planning to render social housing accessible? What measures were taken to make public transport accessible?
Responses by the Delegation
ROLF SCHMACHTENBERG, State Secretary, Federal Ministry of Labour and Social Affairs, said Germany was a welfare State with a long history. Human dignity was inviable, as outlined in the German Constitution. Nobody should be discriminated against on account of a disability. On 1 January 2024, minimum income benefits would be adjusted based on economic factors, and benefits would go up by 12 per cent. The Federal Participation Act prioritised individual needs and allowed the persons concerned to receive support from other persons. Germany had begun implementing this major paradigm shift. The State now had was a mandatory employment quota, whereby companies with more than 20 employees were obligated to employ at least one person with severe disabilities. When the company had more than 60 people, this amount was five per cent. This meant Germany now had the highest rate of employment for persons with disabilities in its history. There were new counselling structures for employers, so they knew what support was available if they created a job for persons with disabilities.
The delegation said the principle of inclusive education was recognised by all Länder. In many Länder, there were special needs schools which the Länder felt did not violate the Convention. The State’s laws included mandates for those making the laws to involve persons with disabilities and their representative organisations. Before laws were adopted by cabinet, a hearing would be held with non-governmental organisations. The Federal Participation Act introduced complimentary peer counselling into the planning procedure for benefits, carried out with the support of representative organisations. Since 2017, Germany had supported more than 50 related projects, and 1.5 million euros a year was spent on independent participatory counselling.
Germany pursued an inclusion policy throughout society. Persons with disabilities were faced with obstacles which needed to be removed. Inclusion policy was a cross-ministerial matter. The Act on Equal Opportunities for Persons with Disabilities was only addressing the public sector, but it was hoped this would be extended to the private sector. The Convention called for reasonable accommodation to be provided at the Federal, Länder and municipal levels. There were training institutions promoting reasonable accommodation. Germany would closely examine the Act to see how conditions in the public sector could be improved. The key areas were housing, mobility, healthcare and digitisation. These four areas were what Germany believed fell under the responsibility of all ministries.
Housing and mobility were key issues within the Federal Accessibility initiative. Federal subsidies were available for the promotion of social housing, and these funds could also be used for accessibility. Billions of euros had been earmarked in 2023 for social housing. Many persons with impairments lived in institutions, but this percentage was decreasing. A person with a disability could live where they liked under the Federal Participation Act. The payment of a participation benefit did not depend on where the person lived, but rather what their needs were. Nobody wanted to institutionalise a person with severe disabilities. Persons should have the right to live as they liked. Germany was trying hard to implement this. However, investigation was needed to determine if there was enough accessible housing. Germany wanted to support accessible housing but there was not enough housing in Germany, making it difficult to increase social hosing.
The Länder had invested a large amount of money to make public transport accessible. All 16 Länder had agreed to the implementation of the Convention. Each of them had their own action plans in this regard. 6.5 million euros had been earmarked for the implementation of the Federal Action Plan alone. Some German universities even had their own action plans. Germany was a federal system so there were divided responsibilities, but now there were federals initiative with the focus on housing, mobility, healthcare and the digital world.
Questions by Committee Experts and the National Human Rights Institution
MARKUS SCHEFER, Committee Expert and Co-Rapporteur for Germany, asked for clarification around the finances and the budget for persons with disabilities. Had there been a systematic assessment of legislation from the perspective of the Convention? Which areas needed to be reformed? This was difficult but provided an insight into what the tasks that needed to be achieved were.
Representatives of the German Institute for Human Rights said the Federal Accessibility Initiative only impacted some areas and was not an instrument for wholistically implementing the Convention. This problem with this Initiative was that it had not yet received funding. So far, there had not been a budgetary commitment, and it would not be implemented until 2025. It was currently not clear whether there were concrete measures included within the Initiative and what the funding for them would be. It was the joint goal of the Federal Government and the Länder to ensure the provisions of the Convention were put into practice. There was a discrepancy between the stated goal and actual practice. The National Human Rights Institution did not share the delegation’s view that there was already an inter-ministerial project to implement the Convention.
ROSEMARY KAYESS, Committee Expert and Co-Rapporteur for Germany, said the segregation in Germany was the result of ableism, which was the foundation of social prejudice and discrimination. Individual impairment did not underpin inequality. While the improvements to the Act reforming the guardianship law provided a focus on support, the law still allowed for the denial of legal capacity. While the State had a duty to protect persons with disabilities, it needed only to facilitate rights, not to limit them. Could the delegation clarify why Germany continued to hold the view that limiting legal capacity protected persons with disabilities? Were there any plans to implement a nationwide strategy for supported decision-making?
Persons with disabilities placed in psychiatric institutions and care could be subjected to chemical and physical restraints, which could amount to torture and would not be accepted if forcibly applied to other members of the community. Could information be provided on the findings of the research project on the avoidance of coercive measures in psychiatric centres? Had recommendations been implemented and had these resulted in a reduction of coercive measures? Were there oversight mechanisms for psychiatric facilities which acted as complaints and redress mechanisms? Had steps been taken to protect children with disabilities on the same level as other children?
The Committee was concerned by reports of the State’s reliance on residential institutions. Many people with disabilities were forced into institutions through pooling of supports and services. Could the delegation update the Committee on plans to commit to a comprehensive deinstitutionalisation strategy? How was it responding to concerns raised around the Intensive Care and Rehabilitation Strengthening Act? What steps was Germany taking to provide quality mobility aids and other equipment to persons with disabilities?
Did Germany have a nation-wide strategy to respond to gender-based violence? If so, were there specific measures addressing women and girls with disabilities? Women with disabilities were often coerced to consent to sterilisation. Did legislation prohibit sterilisation of persons with disabilities in all circumstances? What steps were taken to protect women with disabilities from coercion? Was Germany engaging with organisations of intersex persons regarding the law which concerned them?
Responses by the Delegation
ROLF SCHMACHTENBERG, State Secretary, Federal Ministry of Labour and Social Affairs, said the four priorities of housing, mobility, healthcare and digitisation were in place. The bottleneck situation regarding housing affected all citizens, particularly persons with disabilities. This was a clear priority for Germany. People needed to keep inclusion and accessibility in minds. For example, making trains accessible was not a matter of cost; they only needed to be planned differently. Germany did not lack funds but lacked the philosophy that accessibility needed to be considered when making any kinds of plans. It was important that any construction kept accessibility at the forefront. The Länder had set up a special commission to bring about these amendments. It was important that accessible planning and design became standard in Germany.
The delegation said the concluding observations from the Committee had been a clear motivator for the reform of the guardianship law. Legal guardianship was a support which helped persons with disabilities take care of their legal requirements. Germany had removed wording from the law which spoke about the best interests of the person concerned. Persons with mental disabilities needed to be protected from abuse. Substituted decision making was a support for these people. It could only be used and applied if purely supportive measures were not sufficient. Since the guardianship law entered into force at the beginning of the year, it had had broad-ranging influences. This was a process which would develop continuously, and it was not right for the Government to play an active role in this process.
Responses by the Delegation
ROLF SCHMACHTENBERG, State Secretary, Federal Ministry of Labour and Social Affairs, said the German Government did not agree with the assessment of the Committee; deprivation of liberty was not always tantamount to torture. In Germany, the Federal Constitutional Court had taken several decisions on this matter, and had checked restraints and places of deprivation of liberty to assess whether they were in line with the Convention. The German State had a duty to put those who could not look after themselves into institutions. This was a last resort; there needed to be court authorisation and there were strict criteria.
It was important to abide by the decisions of the Federal Constitutional Court, and the Länder had been implementing these decisions over the past few years. The Länder had been assessing measures to avoid coercion. Policy officers responsible for psychiatric institutions had worked on measures preventing coercion. A survey had been carried out between 2017 to 2019 on self-determination in psychiatric facilitates, showing the individual Länder took this issue seriously. Guidance had been issued by the German Society of Psychotherapists and doctors had developed guidelines for practitioners. There was a focus on developing out-patient care to ensure that people did not need to be placed in institutions. There was monitoring in individual regions, with the overall goal to have standards in place to provide a good overview. Commissions from the Länder visited and inspected psychiatric facilities, and their feedback was taken very seriously.
The delegation said forced medical treatment was possible, but there were strict rules. In 2017, the guardianship law was revised with this in mind, and the standards were narrow and strict. This was being evaluated in a research project by the Justice Ministry with results expected to be received at the end of the year. Several recommendations had been issued on avoiding coercion in the psychiatric system and the results were being implemented at all levels. Institutions were inspected at Federal and Länder levels. The anti-torture body had received more funding; its annual budget was now 640,000 euros. The body had recently prepared a report focusing on psychiatric institutions. Its findings were being seriously considered and put into practice.
Germany was painfully aware that women and girls with disabilities were affected by multiple forms of discrimination and were disproportionality affected by violence. The German Government would do more to give persons with disabilities, including women with disabilities, the opportunity to be involved in federal decision-making. Across Germany there were peer-to-peer services with more than 1,000 staff members, most of whom had a disability and were female. There were 135,000 women who needed assistance, and in every sheltered workshop there needed to be a woman representative. The cost for this could be reimbursed under the German social code. Germany wanted to implement the Istanbul Convention within the legislative period, following the Committee’s 2015 concluding observations.
There was a large amount of support provided at federal, Länder and municipality levels for women with disabilities or addiction issues who wished to be admitted to a women’s shelter. A study was being financed for the prevention of violence against women and men in institutions, which was expected to be published in 2024. The study, which built on a 2012 study, would illustrate how successful measures had been so far. All people affected by violence in institutions were protected legally. Legislative changes in 2021 strengthened the rights of children and youth with disabilities.
The delegation said Germany did not have a rule allowing for sterilisation. Rather, there was a rule within the Civil Code which provided protection for persons with disabilities, stipulating the requirements for sterilisation. Sterilisation was now only possible if the person concerned consented to the procedure. A blanket-ban on sterilisation was not the right way forward as it interfered with the right of self-determination of the persons concerned. Germany did not plan to introduce this ban, but would evaluate the situation continually to see whether the rule needed to be revised. The delegation had no information about forced abortions or contraception in institutions. The 2021 law did not distinguish different forms of intersex children. All intersex minors were covered by the rule, which would be evaluated in 2026.
The delegation said the Act on Federal Hospitals, enacted in 2020, aimed at achieving quality assurance in the intensive care sector. During the legal procedure, the preferences of the insured person regarding where they received intensive care were considered.
The Federal Participation Act aimed to strengthen self-determination, which was a concept which needed to be disseminated throughout the community. A counselling network of more than 500 offices had been established to empower persons with disabilities to enforce their own rights. 98 per cent of those who previously made co-payments were no longer required to. The Government had to invest an additional 390 million euros to compensate for this. There was progress in this area. The implementation of the Act was taking place in the Länder. Technical benefits were no longer linked with accommodation and food, which marked the move towards a person-centred approach. Institutions still existed, but the Länder were trying to find options for community integration and to improve the institutions which still existed. There were pilot programmes in Bavaria which aimed to decentralise institutions. 460 places were created to allow these people to live outside of institutions.
Public transport should be accessible, and the Federal Government had committed to making it accessible by 2025. There was a budget of 11 billion euros for ensuring the accessibility of all large infrastructure projects.
Questions by Committee Experts
ROSEMARY KAYESS, Committee Expert and Co-Rapporteur for Germany, said she had heard the words “vulnerable” and “protection” several times in the delegation’s responses. Germany needed to interrogate its systems around people and their environment. People with disabilities were not inherently vulnerable but were made vulnerable by inequality and discriminations experienced in social contexts. If the State were to assess its systems, it might find more humane ways to react to situations faced by persons with disabilities. If people were placed in closed environments and isolated from the community, they were at much greater risk of violence and abuse. This was not protection but was setting them up for risks and lifelong and detrimental impacts. Ms. Kayess cautioned using the terms “vulnerable” and “protection”, and said it was time to start interrogating the system and speaking with persons with disabilities to find what it was that made them vulnerable and in need of protection.
Did Germany have arrangements with other countries to enable the placement of persons with disabilities in institutions in those countries? Ms. Kayess raised the issues of risk and humanitarian emergencies and the specific situations of refugees and asylum seekers with disabilities. How did Germany facilitate access to justice for persons with disabilities? Was cost-free access to gender and age-appropriate procedural accommodation provided? Were sign language interpreters and captioning provided? What measures had been taken to develop a nation-wide plan to address all aspects of risk and humanitarian emergencies? Was this plan in line with the Sendai Framework, and the Committee’s guidelines on deinstitutionalisation? The Committee recognised the significant and important role that Germany played in being one of the biggest host countries for refugees in Europe. The Committee was concerned about reports that there was inconsistent implementation of human rights law and access to essential supports for refugees and asylum seekers. What measures were there to establish a nationwide registration and identification system across all Länder for asylum seekers with disabilities? Could information be provided on the draft law amending the Nationality Act?
MUHANNAD SALAH AL-AZZEH, Committee Expert and Co-Rapporteur, asked the Committee about measures taken to ensure access to information for persons with disabilities during the pandemic. What measures were there to ensure full respect of privacy for persons with disabilities, including those in institutions and sheltered workshops? There were restrictions within Germany’s Civil Code which jeopardised the rights of persons with intellectual and psychosocial disabilities. The issue of sterilisation should not be a judgement, but rather based on concrete human rights standards. What measures had been taken to promote the supported decision-making model? All citizens deserved access to inclusive education. What concrete plans with timeframes were in place to truly shift from special education to mainstream and inclusive education?
How was full and informed consent ensured for persons with disabilities for any medical intervention? To what extent was the employment quota enforced? What measures were taken to encourage the private sector to hire persons with disabilities, bearing in mind that the compulsory levy was quite modest? Why was the process slow to shift 300,000 persons with disabilities enrolled in sheltered workshops to the open market? It was appreciated that Germany had increased social benefits and promoted the social protection system through several laws, including the Participation Law. Did thematic reports clarify the linkages between poverty and disability? Were there intentions to create more flexible conditions to promote personal assistance for persons with disabilities, enabling them to exercise their political, recreational and social rights? Did the Federal Foreign Office have reliable information on the number of persons with disabilities benefitting from German support? Germany mattered, not just at the European level but also at the international level. Germany was at the frontline, defending human rights and promoting diversity everywhere, which the Committee appreciated.
Members of the National Human Rights Institution expressed deep concern regarding Germany’s interpretation of articles 12, 14 and 15 of the Convention. There needed to be independent monitoring of efforts to prevent violence in institutions. Few women’s institutions were accessible, and there were not enough shelters in general.
GERTRUDE OFORIWA FEFOAME, Committee Chairperson, acknowledged the presence of Theresia Degener, former Committee member and Chairperson from Germany, who had been witnessing the dialogue with 15 members of her university.
Responses by the Delegation
The delegation said refugees with disabilities had a need for special protection. When identified, they received counselling from counselling centres and medical institutions. Outlines had been prepared on how to identify a special need for protection in the asylum assessment procedure. The staff of the office assessing asylum applications had been trained in dealing with vulnerable people and ensured there were no restrictions for them.
Refugees from Ukraine were in Germany, with a high number of these refugees being elderly people and people with disabilities. A Federal Contact Point had been created and coordinated with the 16 Länder to find suitable accommodation for persons with disabilities. In some cases, entire institutions had been evacuated from Ukraine to Germany and were now hosted by the Länder. All Ukrainians with disabilities or in need of long-term care were entitled to citizens’ benefits and basic income support in Germany. They were also entitled to housing and child benefits. Ukrainian refugees with disabilities also had a right to integration assistance benefits. This was a special measure for refugees from Ukraine. People coming to Germany from other parts of the world received benefits under the Asylum Seekers Benefits Act. They also received goods and services needed for everyday life, including basic health care, in Germany.
Legal documents for blind and deaf persons needed to be prepared in a form of communication that those persons could understand. Courts were required to provide the necessary technical assistance, including reasonable accommodation. Courts could also receive documents in advance to facilitate court proceedings for persons with disabilities.
People with disabilities had received COVID-19 vaccinations early in the pandemic and 83 million special masks had been sent to institutions. Information was translated into Easy Read and was communicated via sign language interpreters on the websites of the Federal Ministries.
There was a mix of warning instruments for disasters which the Government was working to improve. Germany was drawing lessons from the flood disaster in 2021 to improve disaster preparedness for persons with disabilities. It had prepared more training for warning and alerting people with disabilities. The Nora Disability App had been created in 2021 for people with speech impairments. The German Government aimed to provide forward-looking humanitarian assistance. Using data, early warnings were made in advance of escalating situations to reduce disaster risks. The Government collected disaggregated data on gender, age and disability and focused on measures for persons with disabilities. Data was also collected to ensure projects abroad covered persons with disabilities.
Parents with disabilities received support to care for their children. This often involved parental assistance or supported parenthood, including pedagogical advice. Families with children with disabilities received different support depending on their needs. This included remodelling housing and special cars to support children with disabilities.
Education was the exclusive responsibility of the Länder. The Federal Government could not interfere in this regard, but they did cooperate with the Länder on education. The best interest of the child was an undefined legal term and was decided on a case-by-case basis. The Länder believed the existence of special needs schools did not violate Article 24 of the Convention, but rather helped parents to choose a school for their children. A framework had been created to ensure that all teachers could receive necessary training for inclusive education. The curricula for teacher training had been changed to reflect the concept of inclusion. All the Länder had trained all teachers in special needs. Since 2015, the number of children with special needs in mainstream schools had risen from 37 to 44.6 per cent. Special inclusive schools were being established which were given special staff resources. Projects were in place to prevent automatic transitions to orkshops, so pupils with disabilities could work in the open labour market.
An action plan had been announced within the Coalition agreement for persons with disabilities which focused on making doctors surgeries accessible. Patient consent could always be withdrawn and was not limited to age-limits. The Act to Strengthen Participation had enabled a better relationship between job centres and rehabilitation providers. In 2021, Germany increased the levies for employers not employing persons with disabilities. A study had been commissioned which considered the wishes of those concerned. Older persons in sheltered workshops were sometimes more afraid of change, but the Government wanted to improve their situation. There needed to be a different approach, such as ensuring they did not enter a workshop directly upon leaving school to ensure they could participate in the labour market. It was important to develop the pension insurance system further. Persons with reduced earning capacity would receive better pensions from June 2024. The population needed to be convinced that it was necessary to increase basic income support. Political parties could provide services and assistance to candidates with disabilities, as well as those provided by the Government.
A monitoring system was being established which included development policy markers and markers for persons with disabilities. Three per cent of the budget of the Federal Ministry of Development was earmarked for inclusive education. Germany had a different statistical system and had started a process in 2010 to improve the participation report, which was provided on a four-year basis. 16,000 persons with disabilities were being interviewed to obtain more information about their situations and lives, to be used for the reports. It was expected that a significant amount of new information would be obtained from these surveys.
Questions by National Human Rights Institutes and Committee Experts
Members of the National Human Rights Institutes said they were concerned that the importance of education was not recognised by all Länder. The Federal Government needed to take initiatives to teach the Länder a different understanding of inclusion, so everything was done in line with the Convention. More information was needed on the transition from school to jobs. Young persons with disabilities did not have equality of opportunities to choose the job they wanted to take.
MUHANNAD SALAH AL-AZZEH, Committee Expert and Co-Rapporteur, asked if asylum seekers with disabilities had access to all forms of health services, including occupational and physical therapy?
A Committee Expert said she was scandalised by some of the delegation’s responses, which demonstrated that they did not understand the change of paradigm regarding disability. The Committee was concerned over responses where the delegation said all types of institutionalisation or forced treatment were not torture. These were in violation of Article 14 guidelines. Were gynaecological services accessible to women and girls?
A Committee Expert said it was important to ensure that persons with disabilities had a possibility to choose where they lived. Parents did not really choose to put their children into institutions, but were forced to, as they were not receiving the support they needed. The choice needed to be between good and better, not bad and worse. Persons with disabilities needed to be involved in decision-making. How many children had been separated from their parents due to disabilities? What legislation prohibited this separation?
A Committee Expert said those who had lived in institutions their whole life did not know what it was like to live in a community. This meant it was not a choice. The Expert had visited Germany in the 1990s and seen people of all ages living in institutions together, which created opportunity for abuse to occur. Was this still happening? Who monitored these places?
A Committee Expert asked what was being done to monitor the accessibility of schools. How many persons with disabilities were attending tertiary institutions?
Another Expert asked about the safeguards the Government had put in place to ensure the loophole in the Guardianship law which allowed substituted-decision making in extraordinary circumstances, was not abused. How did the State define “severely disabled”?
A Committee Expert asked whether the Federal Government had any plan to encourage and support the Länders in their reviews of legislation and programmes to bring them into line with the Convention. To what extent were persons with disabilities included in the monitoring of inclusive education?
An Expert asked to what extent the issue of accommodation would be considered in the new law on employment.
A Committee Expert said it was essential that the State party afforded all persons with disabilities an opportunity to exercise their self-determination, using specific measures to promote their legal capacity.
Responses by the Delegation
The delegation said in Germany the State was composed of the Länder and the Federation and both were obliged to implement the Convention. It was not true that children in Berlin did not have the right to attend regular schools. There were almost no court proceedings regarding children being sent to a mainstream school or a special needs school. Inclusive education also required the right attitude from the teachers and the professional staff. Measures had been taken in all Länder to change teacher training. For example, the examination curricula had been changed to create an inclusive system. There was an initiative to improve the overall quality of teachers at regular schools. 87 per cent of the population were insured by statutory health insurance. The Asylum Benefits Act guaranteed health services for basic provisions. This was open to everyone seeking asylum in Germany. Special needs were fulfilled by the Act, including integration benefits and services and physiotherapy. There was an inspection undertaken by a special guardianship court. Guardians always needed to seek approval from this court.
“Severely disabled” was defined as a person with a disability degree of 50 per cent, which was laid down in a German statutory instrument. Germany supported several projects which aimed at mainstreaming the objective of inclusion locally and globally. More than 3.5 million euros were invested in this area. Closing the digital divide was very important. Projects were being carried out in Palestine and Rwanda in this regard.
Closing Remarks
JÜRGEN DUSEL, Federal Government Commissioner for Matters Relating to Persons with Disabilities, said he attached great importance to the constructive dialogue. He thanked the Committee for their questions and looked forward to the concluding observations and recommendations. A conference would be held in 2024 to ensure the Federation, Länder and municipalities fulfilled their task of ensuring equivalent living conditions.
ROLF SCHMACHTENBERG, State Secretary, Federal Ministry of Labour and Social Affairs, said the intensive, constructive dialogue had illustrated that there were many areas where Germany needed to be become better, including the areas of protection against violence. He concurred with the statement by Ms. Kayess that persons with disabilities were not automatically vulnerable. Germany would continue to work on these issues. He thanked the Committee for their questions and contributions.
LEANDER PALLEIT, Independent Monitoring Mechanism, German Institute for Human Rights, said they highly appreciated the close scrutiny of the Committee in assessing many of the key issues regarding implementation of the Convention in Germany. The dialogue illustrated that there was still a long way to go in this regard. Three issues remained to be resolved, including ensuring inclusion and self-determination of persons with disabilities; overcoming traditionally segregated structures; and providing effective protection against violence and coercion. The Committee’s concluding observations would provide an important reference framework for all actors in Germany involved in bringing the Convention’s rights to life.
ROSEMARY KAYESS, Committee Expert and Co-Rapporteur for Germany, expressed her appreciation to Germany for the open, frank and constructive dialogue. Germany had a wealth of resources to draw upon for law and policy reform, including the high level of expertise of German organisations of persons with disabilities. Germany was encouraged to strongly consult with and actively involve these organisations in the reform agenda. The Committee was concerned about how Germany would achieve the transformation towards a human rights approach when it continued to maintain ableist views towards disability. Transformation was not easy and required coordinated action, legislative and cultural change. The Committee urged Germany to use the concluding observations as a blueprint for the transformation.
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CRPD23.019E