July 24, 2024

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In Dialogue with Germany, Experts of the Committee on Enforced Disappearances Commend the State’s Prosecution of International Crimes, Ask About Integration of Law on Enforced Disappearance and Protections from Non-Refoulement

In Dialogue with Germany, Experts of the Committee on Enforced Disappearances Commend the State’s Prosecution of International Crimes, Ask About Integration of Law on Enforced Disappearance and Protections from Non-Refoulement

The Committee on Enforced Disappearances this morning concluded its consideration of the additional report of Germany on how it implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance, with Committee Experts commending the State for prosecuting international crimes in its territory, and asking questions about the full integration of enforced disappearances in legislation as a separate offence and protections from non-refoulement.

Olivier de Frouville, Committee Expert and Country Co-Rapporteur, said the Committee greatly appreciated efforts by the State party to continue to prosecute and bring to justice the authors of serious crimes against international law that found themselves in German territory, including on the grounds of universal jurisdiction. Germany, he said, was at the forefront of efforts to combat impunity of authors of crimes including enforced disappearances.

Mr. de Frouville noted that the State party was hesitant to transpose the Convention into national law, which created an obstacle to the effective implementation of the Convention and encouraged impunity for authors of enforced disappearances. Suela Janina, Committee Expert and Country Co-Rapporteur, invited the State party to review its position, reiterating the need to introduce a separate offence for enforced disappearance in the legislation.

Ms. Janina expressed concern over protection from non-refoulement. Could more information be provided on how individual assessments were taking place, with the pressure of the high number of refugees and migrants reaching Germany?

Sigrid Jacoby, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, in her opening statement, said German criminal law provided for criminal responsibility and appropriate penalties for enforced disappearance in line with articles six to eight of the Convention. The delegation added the Government believed there was no obligation under the Convention for the State party to create an autonomous offence for enforced disappearance. The State party may consider establishing a new project for considering the creation of such an offence.

Ms. Jacoby said every asylum case was assessed to ensure non-refoulement. If Germany had the impression that a destination State was not adhering to their assurances, then the extradition would not take place.

In her concluding remarks, Ms. Jacoby said a consensus was not reached on all topics discussed in the dialogue, owing to different legal interpretations. However, the consistent prosecution of enforced disappearance in all its forms was a very important issue for Germany. Three divisions with 16 prosecutors were pursuing cases of enforced disappearance, showing that Germany was serious about tackling this issue, promoting the rule of law and pursuing justice for victims and their relatives.

In concluding remarks, Carmen Rosa Villa Quintana, Committee Chair, thanked the delegation for participating in the dialogue, which constituted a significant step forward in cooperation between the State party and the Committee. She said the Committee’s previous concluding observations had recommended that the State party introduce dedicated legislation on enforced disappearance and address the statute of limitations on enforced disappearance. She called on the State party to implement those recommendations.

The delegation of Germany was made up of representatives of the Federal Ministry of Justice; the Federal Prosecutor General at the Federal Court of Justice; the Federal Ministry of the Interior and Community; the Federal Ministry of Defense; the Federal Foreign Office; the Federal Ministry of Education and Research; and the Permanent Mission of Germany to the United Nations Office and other international organisations in Geneva.

The Committee will issue its concluding observations and recommendations on the report of Germany at the end of its twenty-fourth session, which concludes on 31 March. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. Summaries of the public meetings of the Committee can be found here, while webcasts of the public meetings can be found here.

The Committee is next scheduled to meet in public at 3 p.m. on Wednesday, 22 March to begin its review of the initial report of Costa Rica (CED/C/CRI/1).

Report

The Committee is considering the additional information submitted by Germany under article 29 (4) of the Convention (CED/C/DEU/AI/1).

Presentation of the Report

KATHARINA STASCH, Ambassador, Permanent Representative of Germany to the United Nations Office at Geneva and co-head of the delegation, said 2023 marked 50 years of Germany in the United Nations and a series of reviews of the State in several human rights treaty bodies. The dialogue with United Nations treaty bodies was of outmost importance to the State party, which took its human rights obligations seriously. Enforced disappearances were no longer a practice in the country. The preservation of the rule of law required continued efforts. Germany was actively prosecuting enforced disappearances happening abroad, including in Ukraine and in Syria.

SIGRID JACOBY, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, said the Convention required all high contracting parties to hold those who committed any of the acts listed in article six criminally responsible. German criminal law provided for criminal responsibility and appropriate penalties in line with articles six to eight of the Convention. In submissions by civil society, the criticism was mainly directed at the fact that in some theoretical scenarios, offenders might be held responsible only as participants rather than as main perpetrators. In the State party’s view, however, even in these scenarios, criminal responsibility would be established in line with article six. The punishments applicable would also necessarily vary according to the degree of culpability and the respective roles of any perpetrators or participants. The penalties provided even for just a single offence might amount to as much as ten years imprisonment. Severe penalties had been handed out for mere participants.

The Federal Government would keep the matter of introducing an autonomous offence of enforced disappearance under consideration and continue to evaluate the possibility of reform.

Regarding the implementation of article five of the Convention, the German Code of Crimes Against International Law incorporated the crime of enforced disappearance as defined in the Rome Statute. The Government considered following the Rome Statute’s definition to be the best solution.

Germany was actively prosecuting perpetrators of crimes against humanity under its universal jurisdiction. Enforced disappearance was very much part of these investigations and prosecutions. This also included the collecting of evidence in the Ukraine war for eventual prosecution. Germany had taken in roughly one million refugees from Ukraine, an issue considered in investigations.

The Committee had asked for details of the procedure for a constitutional complaint before the Constitutional Court in the context of extradition. An English leaflet had been produced containing this information, as well as an example of a successful complaint against extradition. The State party had found no factual basis for the allegations made against Germany by certain non-governmental organizations.

Education and training were two further important elements of implementation. The Convention was included in general training and education schemes on Germany’s international human rights obligations that were provided for law enforcement personnel and the military.

Questions by Committee Experts

SUELA JANINA, Committee Expert and Country Rapporteur, asked if the Government intended to take the necessary steps to implement the Committee’s recommendation to criminalise enforced disappearances as a separate offence. What initiatives had been launched so far to address the recommendation? How were the Committee’s recommendations regarding mitigating and aggravating circumstances and the statute of limitations considered in the ongoing discussion in the State Party on possible improvements of its criminal law?

OLIVIER DE FROUVILLE, Committee Expert and Country Rapporteur, said the Committee greatly appreciated efforts by the State party to continue to prosecute and bring to justice the authors of serious crimes against international law that found themselves in German territory, including on the grounds of universal jurisdiction. Germany was at the forefront of efforts to combat impunity of authors of crimes including enforced disappearances. However, there was some hesitance to transpose the Convention into national law, which created an obstacle to the effective implementation of the Convention and therefore encouraged impunity of authors of enforced disappearances. Some years after the ratification of the Convention, it was difficult to understand why the State had yet to ensure that enforced disappearance constituted an offence under criminal law. To illustrate the difficulties created by the lack of this legislation, in a case involving a citizen of Vietnam who was a victim of enforced disappearance, a person was tried, receiving 5 years community service. If the court had recognised the perpetrator as an author of enforced disappearance rather than solely of deprivation of liberty, the punishment would have been much harsher.

The State party had informed that criminal proceedings currently pending before Koblenz Higher Regional Court against two members of the Syrian intelligence service demonstrated that the provisions of German law allowed criminal prosecution as described in article nine, paragraph two of the Convention. The case involved actions that fell under the definition of “enforced disappearance” as set down in article two of the Convention. The Committee praised the fact this trial had taken place, together with other trials, an important step to combat impunity in connection with very serious crimes against international law, including the crime of enforced disappearances. In its list of issues, the Committee had asked if the charges had included the crime of enforced disappearances as a crime against humanity. The European Center for Constitutional and Human Rights had reported that in the Koblenz trial, some plaintiffs presented a motion to add the offence of enforced disappearances to the charges brought, which originally included murder, torture and deprivation of liberty. The tribunal had rejected the demand. The German Institute for Human Rights had reported that the definition of enforced disappearance integrated in the code of international law was not in line with the terms of the Convention and included conditions that seemed difficult to fulfil. The tribunal had convicted the authors of the crime, but had not taken into account the reality of enforced disappearance, which was different from the arbitrary deprivation of liberty. To qualify the crime properly was of major importance for society at large and the victims.

What was the statute of limitations for offences of abductions and falsification of identity? Did the State party intend to lift the statute of limitations in light of the ongoing nature of these offences? Many adoptions in various countries, possibly including Germany, took place under illegal conditions, the product of enforced disappearance. Could the criminal code cover and tackle this situation?

Were there modalities in Germany for cooperation against terrorism, and for providing information to people at risk of enforced disappearance?

SUELA JANINA, Committee Expert and Country Rapporteur, said the Committee had recommended that Germany incorporated into its domestic legislation a prohibition on carrying out expulsions, returns or extraditions where there were substantial grounds for believing that the person would be in danger of being subjected to enforced disappearance. Had the State Party taken any measures to address this recommendation?

Could the State party provide data on the number of diplomatic assurances requested, given and rejected by the State party, including the reason of refusal? What was the procedure for filing a constitutional complaint with the Federal Constitutional Court? Was the State party addressing the Committee’s recommendation to withdraw the State party’s declaration on article 16?

Information had been received about an increasing number of migrants, refugees and asylum seekers that had disappeared in Germany, either as soon as they had arrived or after a short period, including unaccompanied minors. Could the State party give relevant data on the disappearance of these groups in the State party and the criteria to classify them as missing?

OLIVIER DE FROUVILLE, Committee Expert and Country Rapporteur, asked for additional information on specific approaches to include the Convention in training modules. Did training modules grant specific attention to enforced disappearance? To what extend were experts involved? On the prevention of torture, the Committee against Torture, in its concluding observations of 2019, had highlighted the lack of financing, logistical and technical means made available for the national prevention mechanism for the deployment of its duties. The budget of the mechanism had been increased by 100,000 euros in 2019. Was that due to that Committee’s recommendation? Would the State’s commitment to implementing additional measures be honoured?

MILICA KOLAKOVIC-BOJOVIC, Committee Vice-Chair, asked about the role of civil society organisations both in the dissemination and the implementation of recommendations of United Nations treaty bodies.

Responses by the Delegation

SIGRID JACOBY, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, said that over 70 years since the end of fascism in Germany, enforced disappearance were happily not part of the tools used by State powers. The problem was present, however; since 2015, over two million people had come to Germany from States where enforced disappearance was a problem. Many of these persons did not know what had happen to their family and friends. In this way, the issue affected Germany, so the State was grateful for the Committee’s work worldwide.

The delegation said the Government believed there was no obligation under the Convention for the State party to create an autonomous offence for enforced disappearance. The State party ensured that the various forms of commission of enforced disappearance given under the Convention could be criminally punished through German criminal law. The recommendations of the Committee would have an effect on the logic of the German criminal law system, so the State party needed to examine their effects very closely.

From 2014 to 2016, the Federal Government engaged in an extensive exchange with civil society on enforced disappearance. Further, there had been numerous discussions with experts and institutions. The issue of enforced disappearance was examined by the German Bundestag’s Committee on Human Rights and Humanitarian Aid in November 2014. More recently, an internal assessment within the Federal Ministry of Justice looked at the issue.

There was dispute within the travaux préparatoires of the Convention over the establishment of a separate offence of enforced disappearance. How Germany was going to assess the issue should be left to legal academics. The State party was aware of the particularly complex nature of the felony of enforced disappearance. Wrongdoing could be considered in judgements of the individual elements of an offence.

Regarding the abduction of a Vietnamese businessman in July 2017 by the Vietnamese secret services, on 30 January 2023, there had been a conviction for crimes of aiding and abetting depravation of liberty, abduction and unlawful imprisonment for over one week. The perpetrator was sentenced to five years imprisonment. In April 2022, he had been arrested. The accused was in Germany in detention. This case showed that in this interplay of existing provisions of criminal law in Germany, immunity did not exist and the State party was able to cover offences. In this case, the State party considered the duration of deprivation of liberty, the fact that the victim was still in Vietnam, and the burden on the family caused by the abduction. This was a severe violation of human rights. It was considered that the accused had only committed subordinate offences and for that purpose the prosecutors believed a mitigation was possible for merely participating in the offence. He did not have a subjective interest in the completion of the offence. This circumstance would have to be considered if Germany were to implement an autonomous offence of enforced disappearance.

The prosecution of core crimes against international law was of key importance to Germany. The code on crimes against international law, which entered into force in 2009, implemented the Rome Statute. In the Federal Prosecutor General, there were 3 divisions with 16 prosecutors focused solely on these cases. At the federal criminal police office, there was also a specialised division for crimes against international law.

In 2011, a structural investigation was initiated against unknown persons in the Syrian regime. In the order, reference was made to section seven in the code on crimes against international law, mentioning enforced disappearance. In the trial of this case, enforced disappearance was not mentioned under section seven, because an objective element of the crime had not been fulfilled—article seven required an inquiry. The Convention would not have applied in this case, as the Convention in article two required a refusal by a State authority to recognise disappearance or conceal the fate or whereabouts of the disappeared. In this case, none of these elements were present. The State party was sparing no efforts to prevent secondary victimisation.

On 8 March 2022, the Federal Prosecutor General initiated structural investigations against persons unknown related to the war in Ukraine, looking at offences by all parties in the conflict. Germany had contacted many refugees from Ukraine in Germany to acquire testimonies. The State party worked with European Union partners and the European Union Agency for Criminal Justice Cooperation to develop a questionnaire for refugees, accompanied by an information sheet. It contained a question on whether Ukrainian refugees had witnessed disappearance, defined very broadly to cover all forms of enforced disappearance, depravation of liberty and abductions. Ukrainian refugees could go to police stations to report enforced disappearance, and such reports would be passed on to the federal criminal police office and other prosecution authorities connected to the International Criminal Court. Germany was taking seriously the prosecution of international offences.

Sentencing varied regarding abduction of children, with five years imprisonment set as the highest penalty, with a period of limitation of five years. When aggravating factors were present, the statute of limitation was 10 years. If death occurred because of child theft, the limitation period was 20 years. Different periods of limitation applied to trafficking of children, ranging from three to 10 years. For falsification of identity, the limitation period was three years; when aggravating factors were present, the period was 10 years. Suppression of identity documents had a limitation period of four to five years. The period of limitation only began once the offence had been concluded, including in cases of continuous offences. The period of limitation could be interrupted by investigations and extended for a maximum of twice the legal period of limitation.

SIGRID JACOBY, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, said Germany was exchanging information with other States to combat terrorism and enforced disappearance. Article three of the European Convention on Human Rights had the status of federal law in Germany. All State authorities in Germany were subject to article three. In its relations with other States, Germany could not render support if there was a risk of persons falling victims to treatment counter to the European Convention on Human Rights.

The delegation added that when Germany trained soldiers, the protection of human rights was part of the curricula. Human rights standards and conventions were taught in detail. A strict reporting procedure on possible human rights violations occurring overseas had been established. German law precluded that the State should not extradite a person at risk of human rights violations or enforced disappearance in their home country. The federal criminal police office had since 2018 continuously updated sheets of information about the respect for human rights and human rights standards and state of protection in other countries. These “State sheets” were available for 181 third party States and autonomous overseas territories. The staff of the federal criminal police office were obliged to consult the relevant State sheet prior to transferring information to the third-party State, and if there was a risk that the exchange of information might lead to violation of the human rights of the person concerned, then the specific case was presented to Federal Office of Justice. The risk of enforced disappearance was an obstacle to extradition, and there was always a “theoretical risk”.

The national preventive mechanism implementing the Optional Protocol to the Convention against Torture had been stepped up based on recommendation of various monitoring organisations. The State party was continuously working on improving this mechanism and was in the process of establishing another authority in this context. Specific modules within training courses for public officials dealt with enforced disappearances, which also involved former Experts of the Committee on Enforced Disappearances.

Unaccompanied minors of foreign nationalities were received by social services responsible for minors. If they evaded this care, they would be reported missing. In 2021, a change of law enabled the State to investigate the identity of minors over the age of six using fingerprinting, and to include more persons in the process. Currently, there were only a few cases of minors of age six or above who were not identified.

SIGRID JACOBY, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, said in 2016, there had been a large influx of refugees. Many Arabic names sounded similar or were transcribed in German in a similar way, and this may have led to certain persons being registered twice. Investigators were looking into potential cases of registration errors.

Questions by Committee Experts

SUELA JANINA, Committee Expert and Country Rapporteur, said that in the Committee’s view, the debate on criminalisation of enforced disappearance was not only theoretical but related to the implementation of the Convention and the system of protection that the Convention offered to the State party. The Committee invited the State party to review its position, reiterating the need to introduce a separate offence for enforced disappearance in the legislation of the State party. Articles two and four imposed an obligation on the State party in this regard. The State party had had ample time to discuss such legislation in the ten years that had passed since it had ratified the Convention. Further, the Committee had received information that civil society had not been included in discussions. The Committee counted on Germany to lead by example. Was the State party discussing any general reform to criminal law? This would be a window of opportunity to address the Committee’s recommendation.

The length of statutes of limitations depended on the nature of the infraction and the penalty attached. It could go from five to ten years, and further it could be restarted. With regards to enforced disappearances, how would this work in practice? Who would ask for an interruption of the statute of limitations? The seriousness of the crime of enforced disappearance should be reflected.

Ms. Janina expressed appreciation that Germany had started to collect information on enforced disappearance in Ukraine and some procedures were in place, including a questionnaire for refugees and migrants. But these were initial steps. Were there concrete terms for investigations and prosecutions? Were there cases in which ex officio instigations had been conducted by authorities in Germany? How was the State party cooperating with Ukrainian authorities to exchange information and search for disappeared persons?

Noting the new procedure for fingerprinting minors, how was the State party handling information and protection of data?

Ms. Janina expressed concern over protection from non-refoulement. Could more information be provided on how individual assessments were taking place, with the pressure of the high number of refugees and migrants reaching Germany?

OLIVIER DE FROUVILLE, Committee Expert and Country Rapporteur, asked what the timetable was for consulting with non-governmental organisations at the national level regarding separate legislation for enforced disappearance. How could the State party assess the responsibility of persons involved in complex cases of enforced disappearances based on deprivation of liberty or other provisions? A stand-alone offence was needed to properly hold perpetrators of enforced disappearance responsible. In the Syrian case mentioned, it was impossible for the State to issue a conviction on enforced disappearance due to the complexity of the definition included in the code on crimes of international law. Mr. de Frouville cited a testimony describing the use of enforced disappearance by the Syrian regime. The approach taken by the State party perhaps led to unnecessary levels of caution, and could have been counter-productive in combating impunity and dealing with enforced disappearances.

Responses by the Delegation

SIGRID JACOBY, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, said the Committee’s recommendations would be fed into internal discussions. The State party would enter discourse with civil society. Recommendations would be passed to the Parliament and be discussed in the legislature. The State party was very aware of its responsibility to lead global efforts to combat enforced disappearance. On Ukraine, there would be criminal proceedings where the State would be able to identify and apprehend perpetrators. Germany was working intensely with the prosecutor in Ukraine. Every asylum case was assessed to ensure non-refoulement. The State party had no statistics on diplomatic assurances in conjunction with extradition proceedings. If Germany had the impression that a destination State was not adhering to their assurances, then the extradition would not take place. For example, Germany was no longer conducting extraditions to Vietnam.

The delegation said the aim of the investigations on Ukraine was to bring the perpetrators to justice, be that in Germany, in third countries, or in the International Criminal Court. Germany worked together with European partners, Ukraine and the International Criminal Court, but further details could not be provided on investigations or offences. The Syrian State was allegedly conducting enforced disappearances, and Germany had been investigating since 2011. For the satisfaction of the family members of the victims, it was essential that those offences were defined as such. In individual cases, the wrongfulness of the perpetrators’ actions had to be proven though sufficient evidence. This was a challenge because these offences had been deliberately committed in clandestine situations.

Germany was currently devising a framework for mutual legal assistance to simplify the exchange of evidence for assisting Ukraine in prosecuting offences. The structures in Ukraine were particularly difficult to find and access currently. Germany could not extradite perpetrators to Ukraine, with courts establishing that there would be risks of human rights violations. Germany was preparing a revision of the current law on mutual legal assistance. Assurances were verified, including through reports from civil society. If there were risks of human rights violations, Germany would not exchange information with other States.

The Government was planning a systematic revision of the criminal code. The creation of an offence of enforced disappearance would not fit into the intention of this revision project, but that was not to say that the State party would not be considering an autonomous offence. A new project may have to be established for this. A long list of actions would result in the interruption of statutes of limitations.

Data was exchanged between German authorities and with other States in the case of disappeared unaccompanied minors who were refugees under relevant European Union ordinances. Unaccompanied minors could be reunited with relatives in other member States. Intensive talks were ongoing with the national office for the prevention of torture to determine their needs, in terms of funding as well.

Closing Statements

SIGRID JACOBY, Head of Directorate IV C, Ministry of Justice, and co-head of the delegation, thanked the Committee for the dialogue and for its criticism, which would drive the State to make improvements. The delegation would convey the content of the dialogue to relevant Government authorities. Citizens were increasing concerned about these issues. A consensus was not reached on all topics discussed in the dialogue, owing to the complex nature of discussions entailing different legal interpretations. However, the consistent prosecution of enforced disappearance in all its forms was a very important issue for Germany. Three divisions with 16 prosecutors were pursuing cases of enforced disappearance, showing that Germany was serious about tackling this issue, promoting the rule of law and pursuing justice for victims and their relatives.

CARMEN ROSA VILLA QUINTANA, Committee Chair, thanked the delegation for participating in the dialogue, which constituted a significant step forward in cooperation between the State party and the Committee. Ms. Villa Quintana said that Committee’s previous concluding observations had recommended that the State party introduced dedicated legislation on enforced disappearance and to address the statute of limitations on enforced disappearance. She called on the State party to implement those recommendations. Recommendations were not symbolic. They aimed to assist the State party in implementing the Convention. The Committee and State party shared a common goal of implementing the Convention domestically and worldwide. Ms. Villa Quintana promised the Committee’s continued support in achieving this goal. The strong participation of civil society in the dialogue and the reporting process indicated Germany’s seriousness in tackling enforced disappearance.


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