Anti-Discrimination Legislation
The Constitution of the Federal Republic of Germany proclaims the equality of all before the law and prohibits discrimination on the basis of gender, kinship, race, language, nationality, origin, religion, and religious or political views.
Article 86 of the German Criminal Code criminalises the distribution of propaganda materials of anti-Constitutional organisations. Article 130 (Incitement to hatred) covers the incitement to racial hatred, and is one of the most important tools in combatting extremism and xenophobia.
Organisations promoting racist ideology, or condoning or inciting to racial hatred and discrimination, are subjected to criminal prosecution in accordance with Article 129 and 129a of the Criminal Code.
German law prohibits political parties and groups that do not meet constitutional requirements. In accordance with the Basic Law (Article 9), private civil society associations can be banned if they do not comply with the requirements of the criminal legislation, or are aimed against the constitutional order or against the concept of international understanding.
German legislation provides for criminal liability for denial of the Holocaust. It is based on the Criminal Code and the law on overcoming the consequence of crimes (1994).
Article 130 of the German Criminal Code is dedicated to incitement to hatred. Article 3, which was written in 1985 (last revision in 2005), provides criminal liability for incitement to hatred on the grounds of nationalism, religious or racial hatred, humiliation of human dignity, and public denial of the Holocaust and crimes committed during the Nazi regime. These crimes are punished with up to 5 years of imprisonment or a fine. Article 166 of the Criminal Code, punishes defamation of religions, religious and ideological associations. Article 186 punishes defamation of the dead.
Investigations and trials around the terrorist National Socialist Underground (NSU) shocked Germany in 2013. As a result, on February 26, 2014, Parliament approved a joint request of all political parties, which comprises in total 50 proposals for reform of the police, judiciary and constitutional protection. They should lead to better cooperation between federal security agencies to tighter regulation of the use of the informants and a culture-sensitive training of security forces – but all are still in the planning stage. When penalties are given, "a racist, xenophobic or other inhuman" background should be given special consideration.
The General Equality Act (Allgemeines Gleichbehandlungsgesetz, AGG) is the central law of the Federal Republic of Germany that protects the rights of minorities and prohibits discriminatory practices. It was passed in 2006 and replaced the Employee Protection Act (Beschäftigungsschutzgesetz, BeschSchG), which had been in force since 1994, and brought German law into line with EU anti-discrimination directives.
The AGG is still in force today. While the previous law interpreted "discrimination" very narrowly and reduced it solely to verbal or physical sexual violence in the workplace, the current regulation explains much more broadly what discrimination is and prohibits it: "Any disadvantage based on race, ethnicity, sex, religion, worldview, disability, age, or sexual identity is not permitted and must be suppressed" (§1).
The law in many of its tenets is the national implementation of the four main European Parliament regulations (2000/43/EG, 2002/73/EG, 2004/113/EG and 2007/78/EG) regulating the fight against racism, equality in the workplace and at home, and gender equality. The main lobbyists for the law have been and continue to be the political parties SPD, the Greens and the Left, the women's associations of the Federal Republic of Germany, the German Lesbian and Gay Association (LSVD), trade unions and organizations defending the rights of people with disabilities. Thus, the law is supported by representatives of the interests of groups subjected to discrimination.
At the same time, there are many voices in society calling for changes and additions to the AGG. The Federal Republic of Germany is a federation with very broad powers of the Länder. Therefore, the center for the development of changes and additions to the AGG has traditionally been the regional organizations for combating discriminatory manifestations. In 2018. The Anti-Discrimination Network Hesse published specific proposals to expand the list of discriminatory practices. Specifically, the following types of discrimination not mentioned in the law were named:
- Social background and social status, including difficulty in confirming education obtained abroad, preference for holders of a higher educational level without good reason dictated by the company situation, illiteracy, dialect.
- Health status: chronic diseases that do not lead to disability, intellectual ability.
- Discrimination due to refugee status, foreign citizenship, negative prospects for extension of residence permit in the Federal Republic of Germany.
- Receipt of social benefits in the past.
- Intra-German regional origin, e.g. from East Germany.
- Family status, including the need to care for children and/or sick relatives, raising children without a partner.
- Person's appearance: weight, height, tattoos, scars.
- Place of residence within the boundaries of the locality: so-called "disadvantaged neighborhoods", connection to public transportation, social structure, noise pollution, such as those living near the airport.
A number of suggestions were also made to replace or clarify concepts used in the text of the law, such as "native language" or "sexual violence. In addition, the need for greater involvement in the work of the Councils for Foreigners and the Integration Councils was noted. Finally, human rights activists pointed to a number of bureaucratic barriers to the effective implementation of the AGG. In another large German federal state, North Rhine-Westphalia, the anti-discrimination organization ARIC-NRW e.V. held two information events in 2019 involving residents with a migration background. During the discussions, it was found that migrants are mostly unaware of this law. Those who are informed about the AGG were skeptical about its application in practice, believing that discrimination in Germany is a "fact" and that it is difficult or even pointless to fight against it. A number of event guests gave examples of situations at school, kindergarten, at the Aliens' Office and in the workplace, and were not able to determine for themselves whether there was an element of discrimination in the actions of those responsible.
In recent years, Landtags (State Diet – parliament of the Federal Land) of some Federal Lands were actively eliminating gaps in federal legislation to accommodate for the rights of Islamic organisations in education and religion.
In 2013, state governments of Bremen, Hamburg and Hessen had officially recognised Islamic organisations and provided them with more rights and powers. From now on, members of any association, union or non-governmental organisation will receive free access to public institutions such as prisons, hospitals and schools. Furthermore, Islamic associations and unions will now be able to establish special theological universities and schools, diplomas of which will be legally recognised. The above-listed federal states also signed agreements to equate the status of Muslim and Christian holidays.
On February 19, 2013, Federal Constitutional Court ruled that civil partnerships (including same-sex couples) must be equally protected by law as a traditional marriage.
On March 19, 2015, the German Penal Code was finally amended by Article 46.2, according to which courts are now obliged to take into account the motive of hatred when passing sentences. This is an important reform, putting an end to the loyal attitude towards racism and discrimination in the German courts.
In July 2015, the federal parliament, the Bundestag, agreed to toughen Germany's refugee law. In the future, refugees coming to Germany with the help of smugglers and those circumventing border controls could lose their passport, and asylum-seekers making false statements to authorities could be arrested. German Interior Minister Thomas de Maizière of the CDU said that the tough approach to the new arrivals is necessary in order to secure public "approval for immigration and the entry of people in need of protection in Germany.
On 30th June 2015, new anti-terrorism legislation entered into force in Germany. According to the new law, it is a crime to travel abroad with the intent to receive terrorist training. The new legislation places the financing of terrorism under the Criminal Code. It also introduces restrictions on foreign fighters’ national ID cards and passports.
In 2015, the German Criminal Code was amended with Art. 46.2, which instructed the courts to consider racist, xenophobic or other discriminatory motives as aggravating circumstances in the commission of a crime . This is an important development, since previously German legislation did not cover these factors when dealing with violent crime, stating instead that the courts may take them in consideration during sentencing.
It was only one major change in this area of German federal law in 2017. In June, the Bundestag voted to pass a law on the resolution of same-sex marriages. The draft of the SPD, the Green Party and the Left Party, drafted in 2015, gained the majority: 393 for, 226 against, 4 abstained. Chancellor Angela Merkel voted "against", in solidarity with most of her fellow party members. In July, the Law received the approval of the Bundesrat. In the same month, the law was signed by Federal President Frank-Walter Steinmeier. In October, the law came into effect.
In this regard, two factors should be noted. First, the SPD decided to speak synchronously with the two opposition factions, contrary to the coalition discipline within the broad coalition with the CDU / CSU. This happened in the context of election battles. Secondly, same-sex family communities, in essence marriages, had previously a number of civil rights in Germany. But the recognition of a "full-fledged marriage" equal to that of heterosexual couples was for many politicians and public figures in Germany a formal final end to the period of persecution of homosexuals.
At the land level, legislators considered anti-discrimination laws designed to improve the observance of minority rights. In March 2017, the Land Government of Thuringia submitted to the local parliament a draft law on the First Law Amending the Law of Thuringia on Public Catering Enterprises (Erstes Gesetz zur Änderung des Thüringer Gaststättegesetzes). The bill tightened the punishment for discrimination and imposed a fine of 10,000 euros, for example, for discrimination by the ethnic or religious affiliations, when the visitor entered the disco during face-to-face control.
In September 2019, the FDP, Green, and Left factions in the Bundestag introduced a bill to amend Article 3, Part 3 of the Basic Law of the Federal Republic of Germany to include the concept of "sexual identity. This article lists the grounds on which a person cannot be discriminated against, such as sex, origin, race, language, place of birth, religious or political outlook. The bill was supported by civic organizations such as the German Lesbian and Gay Association (LSVD). In the text of the bill, the deputies referred to the experience of several federal states that already include sexual identity as a criterion for equal rights in their constitutions. The law was passed to the Legal Committee in its first reading. In February 2020 hearings were held, at which invited experts expressed their views on the initiative. The majority of academics and public figures who expressed their opinions approved of the planned change: "Discrimination remains a sad reality" (Prof. Ulrike Lemke, Humboldt University Berlin), "The addition to the prohibited practices of discrimination is welcome" (Dr. Petra Vollmar-Otto, German Institute for Human Rights), "Clarity and protection of people living in same-sex unions is necessary" (Prof. Anna Katharina Mangold, European University of Flensburg).
In 2020 the question arose about the possibility of removing the concept of "race" from Art. 3 of the Basic Law of the Federal Republic of Germany (listing the criteria according to which discrimination cannot be tolerated). The argument of the proponents of change: the definition of "race" is outdated in itself and even racist. There is a view in modern science that the existence of "races" as understood in the 18th and 20th centuries is obsolete. In June 2020, the government expressed its agreement in principle (a statement by Minister of Justice Christine Lambrecht), and the Green Party expressed its support. Given the favorable position of the Left, the combined votes of the four factions in the Bundestag (the coalition, the Greens, and the Left) should be enough for such a change. At the same time, the process of changing the Basic Law of the country is traditionally very long. At this stage (November 2020), the Ministry of Justice and the Ministry of the Interior are preparing their concrete proposals. At the same time the issue is already being considered in the upper house of the German parliament, the Bundesrat, where representatives of the Länder meet. In the meantime, it is not quite clear how the authorities will deal with real racism after this amendment has been passed.
A number of recent legislative initiatives are not directly related to anti-discrimination practices, but are closely linked to them. For example, in October 2020 the CDU/CSU factions submitted to parliament a draft law on a tougher and more consistent fight against sexual violence against minors. The law also includes measures to protect persons who have been sexually abused as minors and to suppress discrimination against the victims in society.
Germany's federal structure allows state lawmakers to pass meaningful laws without the approval of the federal level. In June 2020, the "Berliner Landesantidiskriminierungsgesetz" (LADG) was passed in Berlin by the local governing coalition of the SPD, the Greens and the Left Party. Even at the stage of its consideration in parliament, the bill provoked fierce public debate. The polarity of opinion persists to this day. The main lobbyist of the law, Senator for Justice Dirk Behrend (Greens), considers the law a major achievement and recognizes that even today there are people who are subject to domestic discrimination and need to be protected. Burkard Dregger, chairman of the CDU faction in the local parliament, considers the law pointless and takes a different view: "If someone feels discriminated against, they can go to court. The FDP faction continues to consider legal action to veto the application of the law. Criticism was also voiced at the highest level, by Horst Seehofer, head of the German Interior Ministry.
The main stumbling block in the law were two provisions: the delegation of authority to file a lawsuit to a public organization and the need for police officers to prove the absence of discrimination in their actions in the case of complaints. Opponents of the law (CDU/CSU and FDP deputies and ministers at various levels and police unions) believe that such a rule violates the presumption of innocence and forces policemen to find excuses for acting within the limits of the law. Some state interior ministers and local police chiefs have emotionally stated that they refuse to send police units to the capital of Germany to help the Berlin police, because they do not want to create complicated legal situations for their subordinates. Supporters of the law (representatives of the ruling Berlin coalition, specialized expert commissions and migrant organizations) reject the criticism and see no reason for concern. Police operations are filmed on camera. The video serves as proof of the lawful or unlawful actions of a law enforcement officer. Most police officers work within the law, including in stressful situations.
There have been regulations at the state level regarding the legal status of refugees. These types of rules do not require legislative changes and can be regulated within the competence of the executive branch. In December 2019, for example, the Ministry of the Interior of the state of Brandenburg extended special rules for family reunification of Syrian nationals and also made it easier for persecuted members of the Christian minority living in Arab states to obtain asylum.
In April 2020, Germany passed a package of anti-hate laws. First, the criminal code was expanded and tightened. For example, Art. 241 now provides for liability not only for death threats, as before, but also for threats to commit acts against sexual self-determination, physical integrity, personal freedom or objects of significant value, such as threatening to set fire to a car, directed against the victims or their relatives. These acts are now also punishable by imprisonment for up to one year or a fine. If the act is committed online or otherwise publicly, there is a risk of imprisonment for up to two years. The penalty for threatening to commit a crime has also been increased to two years in prison if not done publicly. Publicly threatening to commit a crime can lead to imprisonment for up to three years.
Art 185 now states that anyone who publicly insults people on the Internet can now be punished with up to two years in prison instead of one. Art 188 now provides liability for insulting not only top-level politicians, but also the local level. Art 140 extended liability for approving crimes, including those that have not yet been committed. In other words, approval of someone else's threat of violence is now punishable by law in the same way as approval of violence that has already been committed. Anti-Semitic motives are now listed explicitly as reasons for aggravating the punishment (Article 46, Part 2 of the Criminal Code).
In addition, since 1 February 2022, social networks must not only delete criminal messages, but in some serious cases they must also report them to the Federal Criminal Police Office (BKA) so that criminal prosecution is possible. Victimized citizens are also protected. From now on, persons who have suffered threats, insults and unauthorized harassment can easily hide their information (information block) in the population register. This protects them from passing on their addresses to potential criminals. To this end, Section 51 of the Federal Registration Act was amended . In the future, the registration authorities will have to take into account whether the person concerned belongs to a group of persons who, by virtue of their professional or volunteer activities, see themselves as susceptible to an increased degree of hostility or attack. In the case of blocking information under the registration law, candidates' home addresses are no longer listed on electoral lists (as has been the case so far).
