残疾人权利委员会审议德国的初次报告（部分翻译）

2015年3月27日

残疾人权利委员会审议德国有关其落实《残疾人权利公约》规定的初次报告

德国联邦劳工和社会事务部国务秘书加布里埃尔·罗瑟克鲁格-莫勒（Gabriele Lösekrug-Möller）在介绍报告时概述了德国残疾人政策的历史演进，并称以扩大的定义将残疾人法纳入德国社会法典标志着从福利性方法向参与性方法的决定性范式转变。《残疾人权利公约》在德国生效为此提供了很大的推动作用，并加强了德国对残疾人基于人权的政策的承诺。德国的所有年轻人无论是否身患残疾，都有上学的权利和义务。许多联邦州都改革了立法，其中大多数都希望在主流学校和特殊需求学校之间提供选择。为残疾人融入一般劳动力市场的支持已获得加强，而包括在参与和平等集会领域开展的立法改革也正在进行。

联邦政府残疾人问题专员维蕾娜·本特勒（Verena Bentele）谈到了剥夺受监护者投票权，保护残疾妇女免受性暴力和对残疾妇女和女童赋权等问题。德国人权研究所的一名代表也在讨论中发言。

委员会专家在互动对话中对德国的几项进步举措表示赞赏，但对该国联邦政体造成的有关残疾人的法律和政策较为零散表示关切。提出的其他问题包括残疾的定义，身患残疾的难民和寻求庇护者，盲人和视障人士获取多种形式的媒体以及制度化问题。讨论者还对残疾人的隔离和边缘化，全纳教育系统的落实以及生活在护理所中的残疾人数量等问题表示关切。讨论者还询问了“庇护工厂”中就业增加以及30万人在未获得最低工资的条件下在此工作的问题。讨论中还涉及了对自闭症的态度，残疾女童遭受暴力的危险和使用看管关押等问题。

担任德国国别报告员的委员会专家黛安·金斯顿（Diane Kingston）在总结发言中提到了德国的几项值得赞赏的举措，但表示需采取更多努力以确保德国所有残疾儿童能获得真正的全纳教育。对监护法的修订是值得欢迎的，但该国缺乏对心理和精神残障者和自闭症患者的意识令人关切。

德国大代表团包括来自劳动和社会事务部，外交部，劳工部，司法部，卫生部，家庭事务、老年人、妇女和青年部的代表，以及来自几个州的地方政府和德国议会的成员。

委员会将于2015年4月17日（星期五）会议结束时发布有关德国报告的结论性意见和建议。委员会将于3月30日（星期一）下午3点再次召开会议，届时将开始审议克罗地亚的初次报告（CRPD/C/HRV/1）。

德国的报告

点此查看德国的初次报告：CRPD/C/DEU/1

Presentation of the Report

THOMAS FITSCHEN, Deputy Permanent Representative of Germany to the United Nations Office at Geneva, said that the size of the delegation Germany presented before the Committee today reflected the importance that the country attached to disability rights. It also reflected the federal character of the German State, said Mr. Fitschen, introducing the Germany delegation which was composed of more than 30 members.

GABRIELE LÖSEKRUG-MÖLLER, Parliamentary State Secretary, Federal Ministry of Labour and Social Affairs of Germany, described the historical development of Germany’s policies for persons with disabilities dating back to the mid nineteenth century, stressing that in 1974 Germany adopted a law that set out the legal standards for equal opportunities for persons with disabilities, and an assistance scheme to support them. The transformation process was made difficult by the two world wars and especially due to the mass atrocities inflicted by the Nazis on persons with disabilities, which had had a profound impact on the political and social development of Germany. However, in 2001 the law on persons with disabilities was incorporated into the Germany Social Code, with an expanded definition, which marked a decisive and paradigm shift from a welfare approach to a participative approach. The entry into force of the Convention on the Rights of Persons with Disabilities in Germany had provided a great impetus in that regard and reinforced its commitment to a human rights-oriented policy for persons with disabilities in Germany.

Ms. Lösekrug-Möller emphasized that regardless of the division of powers in Germany the Convention on the Rights of Persons with Disabilities was binding at the federal level and at the state level. In addition the Federal Government encouraged states to consistently implement the Convention. Inclusive education was a priority area for action in the Federal Government National Action Plan. All young people in Germany had the right and obligation to attend school regardless of whether they lived, whatever their disability. The transition to an “inclusive education system at all levels” was a long-term goal to make joint learning in regular schools the rule. Germany supported research and development projects in that area. Work and employment for persons with disabilities was another priority area, and the Federal Government supported the integration of persons with disabilities into the general labour market. The number of persons with disabilities who were in work was increasing continually, but there had been an increase in the number of unemployed persons with disabilities. Germany expressed its commitment to use new technologies and new types of work organisations to convince employers that people with disabilities were ready and capable to perform.

The shaping and application of adult guardianship law was also important, and a core element of that law was the right to self-determination. Persons were not placed under guardianship against their free will, but only if the interest of the person concerned could not be equally well taken care of by an authorized representative or in any other way which did not require the appointment of a legal guardian. All citizens with disabilities could exercise their right to vote, including people with intellectual disabilities, prisoners and people living in psychiatric hospitals. The only exception was people who had been placed under guardianship by court order. Germany provided accessible polling stations, voting assistance and absentee ballots. The Federal Government was currently considering the question of whether the exclusion from the right to vote had been applied too widely. Ms. Lösekrug-Möller also spoke about legislative reform, including the drafting of a Federal Participation Law and reform of the Equal Opportunities for People with Disabilities Act to take into account the requirements of the Convention. The Federal Government’s goal to promote the participation of disability organisations in the decision-making processes at the federal level would require financial and personal resources on the part of disability organisations, so therefore the issue would be enshrined in law.

VERENA BENTELE, Federal Government Commissioner for Issues Relating to Persons with Disabilities spoke about the issue of the deprivation of the right to vote for persons who were under guardianship. Protection for women with disabilities was insufficient because in many cases the women had encountered sexual violence at some point in their lives. The empowerment of girls and women with disabilities through national-level training courses was important. More than 300,000 people worked in Germany in sheltered workshops for their rehabilitation and reintegration into the labour force, she noted, but that was not always the most suitable procedure for the inclusion of all people with disabilities to integrate the primary labour market, she commented.

A representative of the German Institute for Human Rights suggested that the State Party must overcome a number of difficulties on the road to implementing the Convention. In order for it to succeed, the representative suggested the clarification of key issues since in some cases those “issues” masked larger socio-political conflicts; the orientation as to where the implementation process stood and what the next steps would be; the adoption of ideas as to how further implementation could succeed and the impetus and international pressure for taking more seriously the rights of persons with disabilities. Other issues raised by the representative included the need for organized participation in a meaningful and inclusive fashion; voting rights for all persons with disabilities; strengthening of protection against discrimination; and awareness raising in order to combat prejudices and stereotypes within the population.

Questions by the Committee Experts

DIANE KINGSTON, Committee Expert acting as Country Rapporteur for the Germany congratulated Germany for producing its initial report in a timely manner and on its detailed and extremely comprehensive answers to the list of issues prepared by the Committee.

The Country Rapporteur welcomed Germany’s National Action Plan to implement the convention. However, she observed there were significant variations in the implementation of the Convention across Germany’s sixteen federal states, each with their own exclusive legislative powers. The Rapporteur expressed concern at a fragmentation in the laws and policies concerning persons with disabilities, a lack of coordination between the Länders and the federal Government, and a lack of structural guarantees to assure that new laws were aligned to the Convention. She recalled that international human rights treaty obligations were binding upon the State party throughout its territory.

The Rapporteur also expressed concern about the segregation and discrimination of persons with disabilities in Germany, in particular the intersection of disability and gender, migrants with disabilities and children with disabilities, as well as the marginalization of particular groups of persons with disabilities. The Rapporteur observed that, from the reading and discussions, Germany had not yet made the paradigm shift so persons with disabilities across their life cycle could be fully included in all aspects of society. Further, the progressive realization of economic, social and cultural rights appeared to be hindering the implementation of the Convention.

In terms of education, the Rapporteur noted that Germany had yet to establish an inclusive education system across the country. It appeared that segregated employment or sheltered workshops continued to grow, with some 300,000 persons working in such environments who did not receive the minimum wage. The higher unemployment rate among persons with disabilities, and women in particular, than persons without disabilities were also noted. On the implementation of Article 19, the Rapporteur noted that it appeared that too many Germans with disabilities lived in institutions and were supported by generous budgets. Persons with disabilities appeared to face significant barriers to live independently and participate fully in the community. Living in institutions also put persons with disabilities at greater risk of violence and abuse.

The Rapporteur congratulated Germany for establishing structures to monitor the implementation of the Convention at federal level, but observed that not all the Länders had formally recognized specific focal points and their existing administrative units were underfunded. The Rapporteur welcomed the response to addressing the rights of persons in psychiatric institutions and older persons in residential care homes. The Rapporteur also addressed the necessity to replace all substituted decision-making with supported decision-making in line with the Committee’s General Comment No. 1.

Other Committee Experts asked the delegation for information on data collection practices in Germany, and asked whether there were sanctions for people who failed to implement the accessibility standards, especially for private entities. An Expert requested information on the status of the implementation of the recommendations made by the Committee on the Elimination of Discrimination against Women in 2009 regarding women with disabilities.

An Expert asked about measures taken to fight against hate speech towards persons with autism. She also asked about progress made regarding giving children with disabilities and their families ‘a voice’ on issues concerning them, and about children with disabilities who were victims of abuse.

The delegation was asked about challenges in implementing inclusive education, whether there was a clear definition of the concept of reasonable accommodation, and about the use of sign language, which was already accepted as an official language, in the media and television.

Response by the Delegation

Responding to the questions, a delegate spoke about the provision of reasonable accommodation, informing the Committee that the Federal Ministry of Labour and Social affairs was currently working on amending the law on equal opportunities for persons with disabilities, and no final decision had been taken yet. The general definition of ‘disability’ was to be interpreted in line with the Convention, confirmed a delegate.

The National Action Plan to implement the Convention incorporated more than 200 measures in policy areas and had duration of 10 years. Furthermore, Germany was complying with European Union legislation. Awareness about the issue of stigmatization of persons had been raised, including through a very comprehensive publication containing recommendations. Migrants and refugees had access to healthcare.

In 2002 several pieces of legislation on the issues of rehabilitation, questions of participation, equal opportunity and the self determination of persons with disabilities were reformed. The Passenger Transport Act was amended so that companies providing transport services by bus were required to install two wheelchairs places in the buses.

A member of the delegation commented on the Marrakesh Agreement which had been signed by Germany but had not yet been ratified due to some questions awaiting clarification at the European Union level. Regarding data collection, a delegate said the Government had no data on discrimination cases, but a survey on the living situations of women with disabilities was published in 2012 and that study was currently being analyzed.

Questions by the Experts

An Expert asked about training provisions for the judiciary on disability-based discrimination issues, and more widely on the application the Convention and human rights standards. He also asked for information on the detention of persons with disabilities and accessibility in prisons.

What was being done to prevent risks of the exploitation and trafficking of women and girls with disabilities, asked an Expert. He also enquired about access to justice for girl victims of psychological, physical or sexual abuse, and what the ‘reservation to consent’ meant. An Expert asked for information on measures to prohibit treatments imposed on persons with disabilities, and asked the State party to consider making changes to the guardianship regime.

Response by the Delegation
Responding to questions about a suggested incompatibility between the recognition of full legal capacity of persons with disabilities and the guardianship law, a delegate explained that guardianship was a supported decision made on the basis of the law. The core tenet of the law was the right to self-determination. Guardianship could not be established against the will of persons concerned, unless an authorized representative permitted it. The law aimed to support the person concerned in making decisions. Further studies on the issue would be made, noted a delegate.
Concerning measures to prohibit treatments imposed on persons with disabilities, a delegate said forced medical treatment did not contravene the Convention. They could only be carried out under restrictive conditions, including a court decision, and had to be proportional to the risks involved. Many mechanisms had been implemented to allow persons to decide and determine which compulsory medical treatment would be permitted.
Regarding access for persons with disabilities to the emergency calls system, particularly for those who were deaf or hard-hearing, the Committee was informed that Germany had an emergency hotline which had some disadvantages as it was not possible to contact these emergency control centres with text messages. However, several initiatives were being developed to allow persons who were hearing impaired to access emergency hotlines, for example a digital application. There had been public awareness raising and training on that issue, noted a delegate.
On the best interest of children with disabilities, and the possibility for them to express their opinion, including deciding whether or not to attend a special or mainstream school, a delegate explained that parents made the decisions, and they could appeal decisions made by schools requesting specialized schooling for the child. Parents tended to avoid specialized schools for fear of stigmatization.
Concerning access to justice for girls with disabilities who were victims of psychological, physical or sexual abuse, the Committee was informed that they had the same rights and opportunities as other persons. Measures had been put in place to guarantee the access to justice for persons with disabilities, and further amendments to the Judicial System Act were planned for 2018. The various legal frameworks that could be applied for victims of a sexual assault did not discriminate between persons with and without disabilities, but a higher penalty may be established for offences against girls and women with disabilities.
Regarding forced sterilization and coerced abortions a delegate observed that Germany respected and promoted the right of women to decide to have a family. Initiatives aimed at women with disabilities had been established to advise pregnant women with learning disabilities, as well as training programmes and family planning programmes.
Migrants with disabilities had the same rights and access as any other person with a disability in Germany, and in addition, were provided with special assistance to eliminate any barrier to their integration in society.
Training was provided at all levels on the application of the Convention, as well as human rights standards. Germany had been conducting awareness-raising initiatives for judges and in courts, particularly at the Academy of Judges, which ran regular training courses and seminars at which judges learned about human rights and conventions. Training specifically on the guardianship laws was also provided.
Responding to questions raising concern about human rights violations in psychiatric institutions and care centres for older persons, the Committee was informed that supervisory authorities were in place. Those authorities were independent, they provided quality assurance and advised the facilities on ways to prevent abuse and violence. Institutions were sanctioned in cases of violations, they were supervised on a regular basis, and the supervisory authorities could also intervene upon complaints by residents.
Regarding the detention of persons with disabilities involved in criminal offenses, delegates affirmed that they were given all the due process guarantees as well as any other special assistance according to their case. The concept of reservation of consent was tied to self-determination, and the precondition for the reservation of consent was that persons were not able to understand the risks they faced.
Concerning accessibility in television and radio programmes a delegate observed that, thanks to the involvement of disability organizations, better access to television and radio programmes had been achieved. German public television programmes had implemented sign language interpretation. However, both private and public radio stations were seeking better accessibility. Enormous efforts had been made to increase accessibility for training sign language interpreters.

Questions from the Experts

Experts also enquired about the options for persons with disabilities to adopt, and about issues related to the adoption of children with disabilities. What measures had been taken to remove stigmatization of children with disabilities in mainstream inclusive education, and what training was provided to special education schools and teachers, asked an Expert.

Experts requested information on plans for traditional shelter workshops, on the promotion and creation of jobs for persons with disabilities and on the number of trained sign interpreters in Germany.

Restrictions in psychiatric institutions and geriatric institutions with persons with disabilities were enquired about by an Expert who recalled that the Special Rapporteur on Torture felt that the coercive measures in institutions, which persons with disabilities could be subjected to, constituted a form of cruel, inhuman or degrading treatment; gold in Germany, such constraints are customary and common practice in institutions.

An Expert asked how the privacy of persons with disabilities in special institutions was guaranteed. Access to health care and new technology for persons with disabilities were also enquired about. What was the Government doing to reduce poverty levels among persons with disabilities, and what was its strategy on disaster risk reduction for persons with disabilities, asked an Expert. The political rights of persons with disabilities were also raised by an Expert who asked if there were any restrictions on them voting or joining political parties.

Response by the Delegation

Concerning the right to education a delegate noted that the right to equal living conditions was recognized, as well as the creation of equal opportunities. Teachers were trained in the fields of inclusion and special needs, as well as how to teach mixed ability groups in mainstream schools, and millions of Euros were being invested into that training, confirmed a delegate.

On the issue of labour market, the Committee was informed that federal employment agencies had spent €2.2 billion to make improvements, and had developed tools to ensure that more persons with disabilities could enter the primary labour market. Many other employment and inclusion initiatives had been launched. The private sector was also committed to make sure that more persons with disabilities were employed, noted a delegate. A delegate noted that people could choose to work in a shelter workshop or not, and there training and support for the transition to the regular labour market was provided.

Measures had been taken to support persons with disabilities to vote in elections, and everybody had the right to become a member of a political party. Disability could not and did not constitute a reason for not being candidate, emphasized a delegate.

On the access to health services for persons with disabilities, a delegate said that Germany recognized the right to access health services for all persons, with or without disabilities. Regarding the use of coercive measures or restraints in institutions, a delegate informed the Committee that a new scheme had been set up which aimed to reduce or eliminate the use of such coercive measures without negatively affecting the people concerned. Between 2010 and 2013, the number of compulsory measures requested by the courts decreased by 25 per cent and now stood at 75,000 per year.

Concluding Remarks

DIANE KINGSTON, Committee Expert acting as Country Rapporteur for Germany, thanked Germany for the constructive dialogue. She referred to several laudable initiatives, but said Germany needed to do more to ensure that education was truly inclusive for all children with disabilities in Germany. The Rapporteur welcomed the revision of the guardianship law, but expressed concern about a lack of awareness regarding persons with psychosocial and mental disabilities, and autism. She also regretted that the concept of reasonable accommodation was addressed on a case by case basis, instead of universally.
____________

For use of the information media; not an official record