Gemeinsame NGO Einreichung ? UPR zur ... - BRK-Allianz

BRK-ALLIANZ - German CRPD ALLIANCE


Alliance of German Non-governmental Organizations on the UN Convention on
the Rights of Persons with Disabilities


Joint NGO Submission - UPR regarding the Federal Republic of
Germany, 16th Session, May 2013













Submitted by:

BRK-ALLIANZ
c/o NETZWERK ARTIKEL 3 e.V. (Geschäftsstelle)
Krantorweg 1
D-13503 Berlin
GERMANY

Tel.: +49-30-4364441
Fax: +49-30-4364442
E-mail: brk.allianz@googlemail.com
www.brk-allianz.de
Preliminary remarks on the submission

The German CRPD ALLIANCE[1] was established in January 2012 in order to
support the state report examination for Germany on the UN Convention on
the Rights of Persons with Disabilities (UN CRPD) and to draft a parallel
report. The German CRPD Alliance is working together with the FORUM
MENSCHENRECHTE (the German human rights forum) in this UPR process: The
German CRPD Alliance is focusing on the UN CRPD. FORUM MENSCHENRECHTE
associates itself with the issues of this submission; however, it is also
making its own submission which relates to the other conventions on human
rights.

The German CRPD Alliance is submitting this joint report[2] on the
implementation of the UN CRPD in Germany to the office of the High
Commission for Human Rights.

Volume of Part I-III: 5,551 words.

For further information on the German CRPD Alliance, contact: H.- Günter
Heiden, e-mail: brk.allianz@googlemail.com

I. General assessment of CRPD implementation and the Action Plan /
Human rights perspective

1. Germany is a State Party to the UN CRPD and the Optional Protocol [3]. A
National Action Plan (NAP) to implement the UN CRPD was approved by the
Federal Government in June 2011. The first state report[4] was published in
August 2011 and referred to the appropriate committee.

2. The UN CRPD is deemed to be binding law in the Federal Republic and in
the federal states ("Länder"). It establishes a great need for action
because a consistent human rights perspective has not yet been adequately
implemented in German policy and legislation concerning persons with
disabilities.


3. In its memorandum[5], the Federal Government qualifies the need for
implementation at many points. It maintains, for example, that German law
pertaining to the denial of liberty through enforced institutionalisation
already fully satisfies the guidelines of the CRPD (Art. 14)[6] and also
the German education system already identifies "numerous similarities" with
the CRPD (Art. 24). The Standing Conference of the Ministers of Education
and Cultural Affairs of the Länder in the Federal Republic of Germany also
took the view that the German legal position in principle satisfies the
requirements of the convention[7]. In this respect, the Federal Government
is acting considerably less firmly domestically than it has done at
international level in the run-up to the adoption of the Convention.


4. Structural implementation of the CRPD has been successful with the
designation of the German Institute for Human Rights as the monitoring
body, the appointment of a coordination mechanism and associated committees
and with the political goal to develop an action plan. This does not,
however, apply to the implementation of the content which is either not
taking place at all or inadequately.


5. The National Action Plan of the Federal Government for implementing the
CRPD [8] does not guarantee adequate implementation of the objectives of
the CRPD. This is because it releases the Federal States and local
authorities from (joint) responsibility, although they would, for example,
be centrally responsible in the field of inclusive education in accordance
with Art. 24 CRPD. The action plan "For a Child-Oriented Germany 2005-
2010"[9] in which federal, state and local authorities had jointly
committed themselves to act in concert shows the fact that things can be
done differently.


6. The National Action Plan is also disappointing in terms of content. It
does list over 200 individual measures. These are, however, often
unambitious (new edition of an information leaflet on age-appropriate
renovation[10]), in parts do not consider the specific concerns of persons
with a disability (law on patients' rights) or have not been developed
explicitly having the Convention in mind (pilot projects on the cooperation
of agricultural enterprises with sheltered workshops 2008 - 2011[11]).

7. Last but not least, it lacks binding, time-related components and
verifiable objectives to be achieved through the measures. It testifies to
less determination if the Federal Government - despite a considerable rise
in unemployment amongst persons with severe disabilities[12] - only wants
to "sensitize" employers and their willingness to train and employ persons
with disabilities merely "should be encouraged"[13] instead of designating
specific objectives for employing persons with disabilities in commercial
enterprises.

Recommendation:
. The Federal Government is requested to take specific legislative action
immediately to implement the UN CRPD in national law and invoke penalty
mechanisms where not implemented.




Translation / Participation of civil society / Awareness-raising


8. Internationally, the CRPD was negotiated under the slogan "Nothing about
us without us!". The German government, however, only inadequately complies
with its obligations to involve persons with disabilities via the
organizations representing them[14].

9. The translation of the CRPD into German took place without involving the
civil society which means that the official translation[15] contains
significant errors and is therefore unsuitable for the task of awareness-
raising (Article 8). For example, "inclusion" was translated by
"Integration" ['integration'] and not by the correct term of "Inklusion"
['inclusion']. German DPOs[16] therefore developed a "shadow
translation"[17] with the correct concepts. The government has since then
referred to inclusion, but a binding correction of the incorrect
translation is still missing.

Recommendation:
. The official translation must be changed in accordance with the
guidelines of the "shadow translation".

10. Persons with disabilities and their associations do collaborate on many
committees and have been invited to numerous conferences; however no
involvement at eye level is taking place. The associations which cooperate
on the German Council of Disabled People have made specific proposals as to
how good participation in developing the action plan[18] might occur.
Despite several reminders, there has never been a response to this, which
means that the civil society is at this point still only in a reactive
role[19].

Recommendation:
. The Federal Government must, together with persons with disabilities,
develop binding participation standards for all areas of policy planning
and implementation in order to guarantee comprehensive participation.




II. Implementing the UN CRPD - General provisions


"Reasonable accommodation"[20] (Art. 2)

11. The concept of "reasonable accommodation"[21] constitutes a key
instrument in the CRPD in order to guarantee non-discrimination and equal
opportunities[22]. The state has the guarantor's obligation for reasonable
accommodation which it can also pass on to individuals by rule of law. In
German legislation, reasonable accommodation is, however, only occasionally
included[23] and often inadequately. There is no general enshrinement of
reasonable accommodation as an instrument of law. In addition to this, the
refusal of reasonable accommodation in German law has not yet been
designated as a form of discrimination.


Recommendations

. The concept of reasonable accommodation must be enshrined in national law
in accordance with the guidelines of the CRPD. Equality legislation at
federal and state level is provided for this.
. Specific regulations must be adopted in the corresponding sectoral laws.
. The refusal of reasonable accommodation must be defined in law as a form
of discrimination in the General Act on Equal Treatment (AGG).

Variety of disability, Non-discrimination (Articles 3 and 5)

12. Disabled persons with a migrant background[24] often experience
multiple disadvantages: They do not appear in official reports or reliable
data are not available[25]. They are inadequately taken into account in
legislation[26]. There is hardly any multilingual and easy-to-understand
literature on assistance for them; advice centres are not set up
interculturally[27]. The number of disabled children with a migrant
background is often above-average in schools for children with learning
difficulties and they then often go on to work in a "sheltered workshop"
(WfbM).

Recommendation:

. The UN Convention on the Protection of the Rights of all Migrant Workers
and Members of their Families of 18.12.1990 (ICRMW) must be signed and
ratified.

13. Refugees receive basic services in accordance with Sections 3 ff of the
Law on Benefits for Asylum Seekers (AsylbLG)[28]. This stipulates that
providing for the requirement for food, clothing and accommodation should
generally be made in kind, even if many Federal States have in the meantime
been granting cash. This principle of benefits in kind results in numerous
serious disadvantages particularly for refugees with a disability, as state
preliminary reception centres and hostels have neither accessible living
spaces, sensory assistance, communication support, nursing beds, retaining
handrails and auxiliary equipment in the group toilets and washrooms, nor
a spec