Home > Gemeinsame NGO Einreichung – UPR zur Bundesrepublik Deutschland 16
BRK-ALLIANZ
– German CRPD ALLIANCE (Eds.)
Alliance of German Non-governmental Organisations on the
UN Convention on
the Rights of Persons with Disabilities
Submission by the
German CRPD Alliance (BRK-Allianz)
for the List of Issues on Germany
Committee on the Rights of Persons with Disabilities,
11th session, 31 Mar
- 11 Apr 2014
Submitted by:
BRK-ALLIANZ
c/o NETZWERK ARTIKEL 3 e.V. (Secretariat)
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
Germany is a State Party to the UN
CRPD and the Optional Protocol1 since 24 February 2009. A National Action
Plan (NAP) to implement the UN CRPD was approved by the Federal Government
in June 2011. The first state report2 was published in August 2011 and referred
to the CRPD committee.
The German CRPD ALLIANCE
(BRK-Allianz) was founded in January 2012 with the purpose of participating
in the review of the state report on the implementation of the UN Convention
on the Rights of Persons with Disabilities (UN CRPD) in Germany, and
of compiling a parallel report. This parallel report was submitted to
the CRPD Committee in December 2013.
Altogether, the alliance is comprised
of 78 organizations and thus essentially represents a wide range of
disability politics associations in Germany. Most of these organizations
emerged from the fields of self-representation of persons with disablities,
disablity self-help associations and social associations. Other members
include welfare organisations, expert associations concerned with supporting
persons with disabilities, psychiatric experts as well as professional
and expert organisations from the educational field, development work,
parents´ associations and trade unions. This consortium is the most
comprehensive alliance that has ever dealt with disability issues from
a human rights perpective in Germany. A list of these 78 associations
is available at http://www.brk-allianz.de/ and
in the Annex.
This submission on the list of issues
prepared by the German CRPD Alliance provides brief information from
the German civil society on the priority issues relating to the situation
of CRPD implementation. In particular, it suggests questions for the
list of issues to the German government leading up to its initial review
by the CRPD Committee. The proposed questions are regrouped at the beginning
of this submission and also appear throughout the text under the sections
corresponding to the relevant CRPD provisions.
Proposed questions for the List of Issues
Articles 1-4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 12
Article 14
Article 16
Article 17
Article 19
Article 23
Article 24
Article 25
Article 26
Article 27
Article 28
Article 29
Article 31
Article 32
A. Purpose and general obligations (arts. 1-4)
Crosscutting issues: Federal structure, Participation and Consultation
Federal structure:
The UN CRPD is binding in the Federal Republic and in the federal states
[“Länder”]. It establishes a great need for action because
a consistent human rights approach and perspective has not yet been
adequately implemented in German policy and legislation concerning persons
with disabilities. Unfortunately, in their memorandum3,
the Federal Government relativises the necessity of implementation in
many instances. For example, they contend that the German legislation
on the deprivation of liberty with regard to institutionalization corresponds
entirely with CRPD stipulations (Art. 14).4 Likewise, they maintain that the German education
system already includes “manifold compliances” with the CRPD’s
Article 24. On the same note, the standing conference of the ministers of education and cultural affairs of the Länder in the Federal Republic of Germany [Kultusministerkonferenz/KMK]
asserted that the legal situation in Germany essentially corresponds
to the standards stipulated in the CRPD.5 In this respect, the Federal Government is
considerably less decisive within Germany than they were in the international
context prior to the adoption of the Convention. The BRK-Allianz finds
fault with this, and emphasises the tremendous need for responsive action
in accordance with the UN CRPD in Germany.
National Action Plan:
The Federal Government’s National Action Plan for the implementation
of the UN CRPD6 does not represent satisfactory implementation
of the CRPD goals. It does not hold the Länder and the municipalities
responsible, even though Article 24 CRPD for example defines them as
the key authorities in charge of inclusion in the education system.
Likewise, the actual content of the NAP is disappointing. Although it
lists more than 200 individual steps, these steps often lack ambition
and practical measures (such as reissuing an information leaflet on
the reconstruction of buildings to fit the needs of senior citizens7).
Other specifically listed cross-cutting issues, such as migration, remain
largely unconsidered in these measures. In contrast to the stipulations
issued by the German Institute for Human Rights [Deutsches Institut
für Menschenrechte]]8, there is a lack of binding, verifiable goals
that the NAP is supposed to achieve. Many of the measures listed in
the NAP do not include specific targets, indicators, benchmarks, and
an implementation schedule. As a result, it is not possible to measure
the results or monitor the implementation of the CRPD. - Participation
of civil society in the process of drafting the NAP was nonsatisfying.
Civil society associations were invited to governmental conferences
and issued statements regarding the NAP, but this did not result in
any changes. The associations that cooperate with the German Disability
Council [Deutscher Behindertenrat/DBR] made precise suggestions
about how to promote better participation during the compilation of
the NAP.9 During a hearing of the associations, most
suggestions from the civil society regarding the NAP were not taken
into consideration.
Suggested Questions:
Participation in translation: The international disability movement’s slogan, “Nothing about us without us!”, underpinned the negotiations of the Convention and was successfully incorporated as a guiding principle and obligation for the implementation of all provisions. However, the German Federal Government failed to fulfil its obligation to ensure the participation of persons with disabilities by consulting the organisations that represent them (as enshrined in Art. 4, Para. 3). When the CRPD was translated into German, civil society was not involved. As a result, the official translation adopted by the government10 contains considerable mistakes and distorts the meaning of the CRPD; as a result it reduces the level of protection of the rights of persons with disabilities and is unsuitable for the aim of awareness-raising (Art. 8). For example, “inclusion” was translated as “Integration” instead of using the correct term “Inklusion” (Art. 24). The term “living independently” (Art. 19) was translated as “unabhängige Lebensführung”, while “Selbstbestimmt leben” would have been the better option. The notion of “accessibility” (Art. 9) was translated as “Zugänglichkeit”, while the BRK-Allianz regards “Barrierefreiheit” as the appropriate term, as this term is legally binding11. Since the responsible authorities refused to correct their mistakes, German self-representation organisations found themselves forced to compile a “shadow translation”12 using the terminology which best corresponds to the CRPD. In the meantime, the Federal Government started to use the term “Inklusion”, but did not prompt a binding correction of the faulty translation up to this day.
Suggested Question:
Participation of civil society -
State Report: While people with disabilities and their associations
do participate in many governmental committees and have been invited
to numerous conferences13, this participation does not qualify as
equal. The BRK-Allianz holds the opinion that the state does not
comply with the CRPD’s obligation for the government to actively involve
and closely consult with organisations of persons with disabilities,
but simply continues to use the current dominant modes of participation.
The BRK-Allianz calls for a new approach to be put into place to ensure
DPO participation. The state would need to define how this new type
of participation could be implemented in cooperation with civil society.
The introduction of the first State
report mentions the “inclusion of civil society […] under the
umbrella of the CRPD” with regard to equal participation. However,
in contrast to Art. 35, Para. 4(2) CRPD, the State report was not compiled
with the close consultation or active involvement of organisations representing
disabled persons (Art. 4, Para. 3 CRPD). In general, the BRK-Allianz
is of the view that the State report does not represent an evaluation
of the CRPD’s implementation based on the premise of human rights
during the reported period. Instead, the State report amounts to a representation
of the legal situation in the Federal Republic of Germany which lacks
nuanced data on the lived experiences and diversity of persons with
disabilities. In this respect, the BRK-Allianz considers the present
State report to fall short of the stipulations set out in the CRPD Committee’s
guidelines.14
Suggested Question:
B. Specific rights (arts. 5 - 30)
Equality and non-discrimination
(art. 5)
In the CRPD, the notion of “reasonable
accommodation”15 represents an essential tool for ensuring
non-discrimination and equal opportunities.16 The state is obliged to guarantee “reasonable
accommodation” including by private entities. However, German
law provides for very few “reasonable accommodations”, and those
that do exist are not explicitly designated as such (for example, §
81, SGB IX17). Some of these accommodations are insufficient,
or their funding is not guaranteed.18 They are not inherently established by law.
Furthermore German law does not state that the denial of resonable accomodation
constitutes a disability based discrimination and does not yet provide
for any penalties for the denial of reasonable accommodation nor awareness-raising
nor training to both public and private actors on it.
Suggested Question:
People with extensive care needs,
including deaf-blind persons, experience multiple disabilities.
This results in multiple barriers preventing them from participating
in social life. Consequently, they are in need of assistance and support,
interpretation, plain language, rehabilitation measures and aids in
the fields of communication, information, mobility and the organisation
of everyday life. In many cases, the support provided to persons with
disabilities that is supposed to enable them to participate in social
life is not sufficiently tailored to their individual specific needs
that result from their multiple disabilities, either in terms of quality
or in terms of quantity. - The European Parliament already acknowledged
deaf-blindness as a specific disability in 2004. The current political
debates in Germany seem to point to a growing desire to establish the
feature of “deaf-blindness”. However, up until this day, no concrete
steps were taken.
Persons with disabilities with migrant
backgrounds experience multiple discrimination19
on the basis of these two features. Comprehensible information on available
support in their native languages is rarely accessible, and the majority
of people working in counseling facilities do not receive any intercultural
training.20 On the grounds of real or supposed language
deficiencies, a disproportional number of children with disabilities
with migrant backgrounds are attending special schools (see Art. 24).
Upon completion of their schooling, they are often placed in a “sheltered
workshop” [Werkstatt für behinderte Menschen/WfbM].
Suggested Questions:
Women with disabilities (art.6)
Approximately 4 million women with
disabilities are currently living in Germany. However, they experience
multiple discrimination in many aspects of their lives based on their
gender and their disability. More often than women without disabilities
or than their male peers, women with disabilities live close to the
poverty threshold , face financial hardship and are socially excluded.
Likewise when compared to other women, they are more likely to live
without a partner and without children, their unemployment rate is higher
than the average, and they experience two to three times more violence
than women without disabilities.22
In Germany in late 2009, 2.34 million
persons, the majority of whom were women, were in need of care as defined
in the long-term care insurance law [Pflegeversicherungsgesetz,
SGB XI]. More than two thirds of the care recipients lived in their
own home, and again, most of them were women. Also, 75% of full in-patient
care recipients in institutions are women.23 - The fact that care should on request
be provided by a carer of the same gender is not protected by
law in Germany either. According to the Long-Term Care Insurance Act,
this request must only be fulfilled “as far as possible”.24
This regulation does not take adequate account of the protection of
the privacy of the person with disabilities and his/her individual rights25.
Women with disabilities with migrant
background experience even greater disadvantages on the labor market,
and have even lower incomes at their disposal. Among all persons with
disabilities, they have the lowest education level. Only slightly more
than half of them completed some kind of vocational training.26
In spite of these manifold disadvantages, counseling services that cater
to women with disabilities report that they have enormous difficulties
reaching women with disabilities with migrant backgrounds.
Suggested Questions:
According to statistical data
from late 2005, 161,555 children with disabilities were living in Germany
at that time.27 However, this figure does not represent all
children with disabilities, since it only includes children who received
an identification card for the severely disabled [Schwerbehindertenausweis].
Children with disabilities and their families face considerable problems
in Germany. These are partly related to unclear legal stipulations,
and partly to the vast number of different agencies.
The German social system is characterized
by its strictly separated areas and responsibilities. As a result, children
with disabilities often do not receive the necessary support, which
negatively impacts their development. The “comprehensive early
intervention set of measures” [Komplexleistung Frühförderung]
that was established in 2001 in SGB IX, was targeted at compensating
for these disadvantages. Moreover, the Federal Government has concluded
on general agreements [Rahmenvereinbarungen] with the Länder.
These agreements do not work in practice and eleven years later, in
2012 the majority of the children were still not able to access the
necessary services. It is scientifically proven that a legal reform
is necessary to solve the shortcomings of the “Komplexleistung
Frühförderung” system.28 However, the Federal Government states in
the NAP that it simply intends to “assess” and to “discuss”
this issue, and dismisses legal solutions.29
Suggested Questions:
Since the dominant notion of disability
is still very much informed by a medical perspective in Germany, there
is an urgent need for campaigns and other awareness-raising activities.
Persons with disabilities are regarded as deficient and in need of help.30
The notions of “disability”, “suffering” and “pity” are
often intertwined, and most prenatal measures are aimed at avoiding
“disability”. The German discourse on society’s view of disabilities
largely disregards the theoretical approach of “ableism”31
that was introduced in the context of Disability Studies. Within the
administration and in the public sphere, a notion of “disability”
based on human rights remains practically nonexistent.
Suggested Question:
Accessibility (art. 9)
Accessibiliy Plans: Although
there are laws on federal level [BGG] and the level of the Länder
regarding accessibiliy there are no real accessibility plans existing
covering all areas - environmental, physical, informational, communication,
etc. There are only a couple of measures designated in the National
Action Plan and the Action Plans of the Länder. But there are no sanctions
provided if the deadlines are not respected and there are no binding
procedures in monitoring and evaluation and to include DPOs at all stages,
only non-binding letters of intent.
Target agreements for private businesses:
Instead of stipulating a binding legal obligation for private businesses,
§ 5 BGG (2002) only provides for the possibility to negotiate accessibility
target agreements between companies and business associations and disabled
persons’ organizations. However, private businesses are not placed
under any obligation to do so. Therefore, only a small number of agreements
have been negotiated.33 As a result, there has been no comprehensive
improvement of accessibility.
Internet and user interfaces:
With the BITV2.0 decree, Germany set model legal standards with regard
to the design of the Federal administration websites.34
However, these standards are not valid outside the administration, and
are often ignored. Likewise, IT user interfaces contain accessibility
barriers. Numerous software, mobile apps and digital signatures are
not subjected to any legally binding accessibility standards. Many public
services as well as job positions therefore remain inaccessible for
persons with disabilities. For example, De-Mail35,
a platform for future IT-based communication between citizens and authorities
or courts, is as inaccessible as the corresponding functions of electronic
ID documents.36
Accessible homes: The number
of accessible homes in Germany is officially unknown; it is estimated
at around 500,000 by the Federal Ministry of Transport, Building and
Urban Development [Bundeministerium für Verkehr, Bau und Stadtentwicklung].
The anticipated need for accessible homes for 2025 is, however, 2.0
to 2.5 million37. Given these circumstances, it is incomprehensible
that the Federal Government phased out its participation in the disadvantage
compensation “age-appropriate renovation”38
scheme from Germany‘s Reconstruction Loan Corporation (KfW), a public-law
institution of federal and state governments, in 2011. It remains imperative
to fund accessible (including social) housing and the dismantling of
barriers within the scope of modernisation measures.
Suggested Questions:
Equal recognition before the law
(art. 12)
The number of legal guardianship arrangements
is constantly increasing (1,200,000 cases in late 2005; 1,300,000 in
early 2010).39 Many persons do not have an alternative to
legal guardianship: there is no easy-to-access, low-threshold system
to support persons to make their own decisions.40
While German guardianship law includes a few references to the principle
of “support”, it is still based on the principle of “substituted
decision-making” [ersetzende Entscheidung]. Consequently, there
is a need to repeal this law and introduce the mechanism of supported
decision-making so that it is possible to implement Art. 12, Para. 3
CRPD, which obliges States parties to make sure that persons with disabilities
can access the support they may need in order to exercise their legal
capacities (“supported decision-making” [unterstützende Entscheidung]).
The stipulations regarding contractual
incapacity in the German civil law are based on the assumption that
persons can be permanently in a state of “pathological mental disturbance,
which prevents free exercise of will”. These persons are excluded
from participating in legal relations, and their declarations of intent
are null and void (§ 104 et seq. BGB), apart from the exceptions defined
in § 105a BGB. These civil law provisions are not in line with the
notion of “legal capacity” according to Art. 12, Para. 2 and 3 UN
CRPD, which requires that every person has legal capacity and that the
necessary support must be provided in order to help them exercise their
legal capacity. Characterizing a person as permanently contractually
incapacitated is not compatible with the UN CRPD.
Suggested Questions:
Liberty and security of the person (art. 14)
Several German laws allow for the institutionalisation
of individuals against their will. Consignments to public institutions
are subject to different stipulations in the Länder, and provide for
the possibility to institutionalise individuals in order to prevent
danger to themselves and to others. According to the BGB civil right
stipulations with regard to institutionalisations, it is lawful to institutionalise
persons in order to protect them from harming themselves. In 2005, there
were 193,373 cases of compulsory institutionalisation in Germany, and
236,377 cases in 2009. The overall figures have been on a continuous
rise since 1992.41
Many instances of institutionalisation
result from a lack of other community-based therapeutic or social support,
or from another institution’s inability to handle a specific situation
or person. Also, agencies are often not willing to provide their services
in a timely manner or in a way that is adequate for the individual case
within the community, which can result in institutionalisation.
Suggested Question:
Freedom from exploitation, violence
and abuse (art. 16)
In recent years, the Federal Government
has carried out and implemented several measures targeted at the prevention
of and the fight against violence against women and girls with disabilities.
Non-governmental organisations approved these steps (for example, the
Action plan II for the fight against violence against women). However,
the NAP has not provided for any further anti-violence measures since
2012.
The Federal Government commissioned
a representative survey on the living conditions of women with disabilities.
The results were presented in 2012 and show that women with disabilities
are two to three times more likely to be victims of sexual violence
than women without disabilities (that is, more than half of the population
of women with disabilities is exposed to sexual violence). Approximately
74% of these women have been exposed to physical and psychological violence,
which is twice the percentage when compared to women without disabilities.
Another issue is the structural violence within institutions which facilitate
the occurrence of violence,43 such as the lack of single private rooms,
and existence of bathrooms and toilets that cannot be locked, etc.44
In addition, the law on protection
against violence [Gewaltschutzgesetz] does not sufficiently protect
women with disabilities. For example, if a domestic partner who provides
care for a disabled person exerts domestic violence and is expelled
from the shared home, there is no clear legal regulation which guarantees
that expenses for an alternative care person are covered promptly and
without having to undergo a complicated procedure. Also, the law on
protection against violence is not applicable to institutions within
the field of agencies and services for persons with disabilities, since
it is not possible to expel the offender if she or he is living in the
same institution.
Violence in the context of care
exists on many different levels. These include the shaming of the care
recipient, supplying insufficient nutrition, neglecting hygiene needs,
violence during the administration of drugs, verbal attacks and physical
assault. Although extreme cases, such as those in which a care recipient
is bound or physically tied down, are frequently made known to the general
public, less obvious cases, such as verbal humiliation or insults, also
qualify as violence45.
Suggested Questions:
Protecting the integrity of the person (art. 17)
Compulsory treatment and forced medication
are serious violations of the right to physical integrity. In psychiatric
institutions, this norm is violated in many ways in the course of the
daily routines. It is estimated that approximately 10% of all in-patients
are exposed to compulsory treatments46, and that 2%-8% of all in-patients are exposed
to forced medication.47 The percentage of compulsory institutionalizations
varies considerably across the Länder, as well as across the districts
within the Länder.48 The use of coercion depends on different legal
stipulations and procedural laws that are specific to the individual
Länder, as well as on the regional care conditions.
Up to this day, psychiatric treatments
frequently take place without the free and informed consent of the individual
concerned. During treatment, the staff may use threats and violence,
which is traumatic for many of those concerned. There are very few measures
that provide for out-patient community based crisis intervention or
peer support services.
The German federal constitutional court
[Bundesverfassungsgericht/BVfG] ruled that the current psychiatric
laws [Psychiatriegesetze] of two of the Länder are unconstitutional.49
Both laws allow for unconstitutional compulsory treatment measures.
Forced sterilisation; see p
13 "Respect for home and the family (Art. 23)"
Suggested Question:
Living independently and being included in the community (art. 19)
There is a great need for a dense network
of services that is based on the beneficiaries’ living and social
environment, such as assistance for communication, mobility and
participation, or independent counseling, all of which are essential
for people with disabilities who want to live independently. As a result,
it is often impossible for individuals to freely choose their place
of residence. In contrast to the stipulations in the “UN Guidelines”50,
the State report remains silent on this issue. The authors do not explain
to which extent such offers actually exist or are to be created in order
to comply with UN CRPD Art. 19. However, if disabled persons are not
provided with adequately available assistance, they are likely to become
dependent on public institutions or on relatives and other personal
contacts, who are then in charge of compensating for the lack of paid
assistance.51
Particularly persons in need of extensive
support are often forced to live in a residential facility for financial
reasons, instead of being enabled to live the life that they would like
to live, namely, in their own apartment with assistance.52
In this way, these individuals do not have a free choice of their
place of residence as CRPD Art. 19 stipulates. Agencies only cover
expenses for out-patient social services if this service does not entail
“disproportionate additional costs” when compared to a “reasonable”
[zumutbar] in-patient option (such as living in a care facility;
see provision on additional costs [Mehrkostenvorbehalt], § 13,
Para. 1(3) SGB XII). The agencies determine what is “disproportionate”
and what is “reasonable”. In this sense, the clause on additional
costs violates the right to freely choose the place of residence, and
therefore goes against the UN CRPD. The monitoring body, located at
the German Institute for Human Rights [Monitoring-Stelle] also
stated that the authorities should not have the right to refuse applications
for living with out-patient support and assistance.53
An existing statutory requirement in Germany which could enable persons with disabilities to lead a more independent life is the “Personal Budget”54. But there are often problems in realizing the Personal Budget: sometimes, the responsible authorities refuse; often those affected cannot grasp the complex subject matter without expert advice and support. But the latter is not guaranteed.
With Art. 19 CRPD, the State Parties
guarantee the necessary support services including personal assistance
in the community. In Germany, there is, however, a lack of the appropriate
infrastructure particularly in rural areas55.
Suggested Questions:
Respect for home and the family
(art. 23)
Parents with disabilities -
Currently, approximately 390,000 families in Germany57
consist of mothers or fathers with disabilities living together
with minors58. Usually they have to struggle for a long
time to have access to services such as parental assistance59
or supported parenting60. To some extent, prejudice against
persons with disabilities (also linked to lack of awareness raising)
means that, in the case of parents with disabilities, children are more
likely to be taken out of the family than the necessary support being
granted to the parents61. Parents with a disability who also have a
migrant background are exposed to particularly severe disadvantages
when it comes to applying for support. There is also a lack of appropriate
counseling services.
Forced sterilisation: Between
2002 and 2009, an annual average of 100 forced sterilisations
of “persons who were unable to consent” were permitted and carried
out in Germany.62 This is possible because legal guardians can
seek substituted consent to sterilisation if the person in question
is deemed “unable to consent”. § 1905 BGB determines the conditions
under which the sterilisation of somebody who is
deemed “unable to consent” is permitted. This regulation is not
compatible with either CRPD Articles 12 on legal capacity, 17 on protection
of physical and mental integrity, 23, Para. 1(c) that guarantees persons
with disabilities the right to retain their fertility, and Article 25
on free and informed consent to healthcare. Likewise, the CRPD Committee
has emphasised that sterilisation is inadmissible and consistently urged
States Parties “to adopt national uniform legislation prohibiting
the use of sterilisation of boys and girls with disabilities, and of
adults with disability in the absence of their prior, fully informed
and free consent”63 (CRPD Committee Concluding Observations on
Australia in September 2013).
Suggested Questions:
(Inclusive) Education
(art. 24)
The legal situation in Germany does not comply with Art. 24 CRPD. It is true that all Länder schooling laws envisage the possibility64 of inclusive learning groups that include both students with and without disabilities.65 Nevertheless, students with disabilities are not legally guaranteed access to mainstream schools66; in spite of legislative changes brought about in 2009, almost all of the Länder laws stipulate that students can exercise this right only under the condition that specific human resources, organizational and material preconditions are fulfilled.67 In some of the Länder, it is even legitimate to send students to special schools against their parents’ will.68
The federal structure of educational
policy prevents the establishment of universal standards for inclusion
in schools. The short period of elementary education spent by
all students together and the hierarchically ordered educational
system stabilize the idea of homogeneous learning groups (?) and legitimate
selection by achievement.
In 2010, only 29% of all students with
disabilities were able to attend a mainstream school in Germany.69
In the different federal states the numbers of students who are diagnosed
as disabled varies widely (different classification quotas). Furthermore,
the provision of special inclusive needs schooling also vary between
federal states and between different special needs (different
integration quotas).The integration quotas vary considerably between
the different Länder; they range from 6% to more than 40%70.
The highest quota is found in primary schools. The integration quota
in secondary schools differs widely between the school types: it amounts
to 39% in lower secondary education schools [Hauptschule], but
only to 5% in high schools [Gymnasium].71
The overwhelming majority of students
with disabilities continue to attend special needs schools in Germany.
In 2010, 75% left school without obtaining any diploma.72
Inclusion requires high quality standards; it cannot be reduced to the
highest possible quota of students who obtain a school qualification.
In spite of rising integration numbers, the number of special needs
school students has not decreased significantly, due to the fact that
more and more students are diagnosed with the need to obtain special
needs support resources. In 2010, this was the case for 487,000 students,
which corresponds to 6.4% of all students.73 “Measured against all other EU states, […]
Germany has the highest percentage of students who receive special needs
education” (Bundesbildungsbericht 2010).74
Higher education: The laws pertaining
to higher education [Hochschulgesetze] stipulate the obligation
to ensure accessibility and compensation for disadvantaged students.
But there are still difficulties in implementing the obligations: In
day-to-day work students with disabilities encounter problems, especially
students with impairments which are not visible (e.g. students with
dyslexia and psychological impairments). The regulations pertaining
to the funding of the students’ livelihood in the context of state
funding and loans for students [Bundesausbildungsförderungsgesetz/BAföG]
provide for the compensation of disadvantaged students, for example
with regard to income deductions and the funding period. Impairment
related costs to finance daily living are not acknowledged (e.g. additional
requirements for medication and accessible appartments).
Funding for technical aids, personal
assistance (such as Sign Language interpreters) and mobility aids that
are necessary in individual cases and in the context of the person’s
study courses, is regulated in the stipulations on inclusion assistance
for persons with disabilities (§ 54 SGB XII). It depends on the person’s
own income and assets, and is often very restricted.75
Young researchers: The second
report of the Federal Government „Wissenschaftlicher Nachwuchs 2013“(BuWin
2013) stated again the disadvantages of young researchers with disabilities
and chronic conditions. As in the first BuWin report it named a lack
of statistical data and empirical findings on the situation of this
group and a lack of regulations of reasonable accomodations in relevant
laws.
The education system lacks committed
coordinated action by the authorities at the Federal and Länder levels.
The Federation does not sufficiently assume its responsibilities. In
contrast to other Action Plans76, the Federal Government’s CRPD National
Action Plan entirely disregards the Länder and the municipalities,
even though they are given key responsibilities when it comes to education.
The Federation77 and many of the Länder assert that there
is hardly any need for action resulting from Art. 24 CRPD with regard
to the education system.78
In addition, CRPD Art. 24 was incorrectly
translated ; “inclusive” was translated as “integrated”79
(see first section of this submission, p 4). The German education system
is only partly integrated, and it is certainly not inclusive. Moreover,
the authorities ignore the international legal debate with regard to
the extent to which Art. 24 CRPD allows persons with disabilities to
claim immediate rights, and especially their right to access regular
education institutions (Art. 24, Para. 2(2) CRPD). The Federal Government
and the Länder even question these rights.80
Suggested Questions:
Health (art. 25)
Access to outpatient medical care is characterised by a variety of barriers for persons with disabilities including persons with psychosocial disabilities. These range from structural barriers and a lack of information and guidance to unresolved communication problems and hostile attitudes which result in denial of services, lower quality care, and as mentioned above under Articles 14, 17 and 23, forced treatment due to the denial of the requirement for free and informed consent by the individual concerned. Lack of knowledge and shortcomings with regard to practical expertise on how to interact with certain groups of disabled persons constitute a significant barrier.
In hospitals, persons with a disability, in particular persons with intellectual disabilities, psychosocial disabilities, dementia or multiple disability, are not treated on an equal basis with others. The necessary assistance and support for persons with disabilities is only guaranteed in exceptional cases during a hospital stay.
Mistakes in care continually occur such as the multiplication of pressure sores and contractures which could have been avoided with adequate trained staff in terms of quantity and quality and consistent compliance with care standards.
Suggested Questions:
Habilitation and and Rehabilitation
(art. 26)
With a comprehensive perspective, Art.
26 CRPD stipulates that habilitation and rehabilitation measures be
provided in and across all related areas of health, employment, education
and social services. In contrast to this, the field of rehabilitation
is strongly subdivided in Germany. In addition to medical and occupational
rehabilitation, some social rehabilitation measures are provided, but
the field itself remains undeveloped. The vast number of rehabilitation
agencies and responsibilities result in a system that is obscure to
those who need it, and that entails many problems with regard to clear
distinctions and defining sectional responsibilities. The German rehabilitation
sector is still dominated by inpatient facilities. In contrast, there
is a lack of outpatient and mobile rehabilitation services that approach
patients and cater to them in their everyday environment.
Suggested Questios:
Work and Employment (art. 27)
Quota system: In Germany, companies
with 20 or more employees are obliged to staff at least 5% of their
job positions with severely disabled people. If they do not comply with
this so-called employment obligation
[Beschäftigungspflicht], they must pay staggered compensation
levies (currently, a maximum of only 290 EUR per month for each job
position that was not given to an employee with a disability). Just
as in previous years, the minimum employment quota of 4.5% was not met.
Private employers reached an employment quota of only 4.0% (public sector:
6.3%) The positive development of this quota over the last few years
(increase from 4.0% on 2003 to 4.5% in 2009) is almost solely limited
to employers in the public sector. 31% of all German employers who are
under employment obligation do not employ any disabled persons or less
than 1 %: the majority of them belongs to the private sector.
In Germany, persons with disabilities
are much more often affected by unemployment than others. The
unemployment rate for disabled people with more extensive support needs
("severely disabled person") reached 14.8% in 2011, while
the general unemployment rate was 7.9% (see chart 1). The high unemployment
rate among disabled people with more extensive support needs remains
unmentioned in the NAP, even though it would be a good indicator for
measuring the inclusiveness of the labor market. Likewise, no mention
is made of the stark regional differences. In comparison to West Germany,
the unemployment rate for disabled people with more extensive support
needs in East Germany is particularly high, as is the general unemployment
rate.
According to an OECD survey, when it comes to the unemployment rate of disabled people with more extensive support needs, Germany, Slovenia, Czech Republic and Belgium are found at the bottom of the list in comparison to other industrialized nations.81
The labor force participation rate among disabled people with more extensive support needs between the ages of 15 and 65 amounted to 52% in 2009, and to 79% among non-disabled people.82
When compared to both non-disabled
women (72%) and disabled men (56%), women with disabilities represent
the lowest employment rate, 47%. Women with disabilities with a migrant
background have to contend with even lower employment opportunities
on the labor market.83
In “sheltered workshops for persons with disabilities” [Werkstätten für behinderte Menschen/WfbM], the number of persons with disabilities who are permanently employed in these institutions increased from 211,246 in 2005 to 248,441 in 2010.84
This partly results from the lack of job opportunities on the open labor market.85
Altogether, the average annual growth rate amounts to 3% and only 0.16% of WfbM/- sheltered workshop employees transition to the open labor market.86
Women remain in WfbM for longer periods of time compared to men, and they are less likely to transition into the open labor market.87
In 2010, employees of the so-called regular work section [Arbeitsbereich] in a WfbM/- sheltered workshop earned an average monthly salary of 180 EUR, or 2,160 EUR throughout the entire year.88
The law stipulates that at least 70%
of the income generated by a WfbM/- sheltered workshop must be paid
out in employee salaries. The pension funds contributions are not calculated
on the basis of the de facto salaries, but on a figure that corresponds
to 80% of the reference value in the general social insurance framework.
After an entitlement period of 20 years of work in a WfbM/- sheltered
workshop, the persons concerned obtain a pension that is subsidised
by federal funds, based on their deemed full incapacitation for work.89
Some legal regulations in the field
of employment have discriminatory effects on persons with disabilities.
According to the workplaces decree [Arbeitsstättenverordnung],
enterprises are not obliged to provide accessible workplaces per se,
but only in the case that they are already employing disabled staff
members. Moreover, the integration offices [Integrationsämter]
are not necessarily obliged to cover all costs that accrue from (re)designing
an accessible workplace (see § 27 SchwbAV). Disabled persons are not
legally entitled to this service and they are not determined according
to the criteria of “reasonable accommodation”. These regulations
put persons with disabilities at a disadvantage when applying for jobs:
employers fear costs of redesigning accessible workspaces, and they
prefer to employ persons without disabilities.
While a number of high quality vocational rehabilitation programs exist in Germany, they are not easy to access. The number of recognized vocational rehabilitants managed by the Federal Employment Agency has been in continuous decline over the past years. The reintegration figures decreased from 50,000 in 2002 to 22,000 in 2007, the rehabilitation figures with regard to young people sank from 57,000 (2002) to 46,000 (2007).90
Ever since then, the numbers have remained static at this low level.91
Likewise, it became more difficult
to obtain rehabilitation services from the German statutory pension
insurance scheme [Deutsche Rentenversicherung]. While the demand
and the number of applications increased in 2010 (by 3.3% compared to
the previous year), the number of approvals decreased by 2%.92
Suggested Questions:
Adequate standard of living and
social protection (art. 28)
Persons with disabilities in Germany are often subjected to poverty and discrimination. There are many reasons for this: persons with disabilities participate in working life less often than persons without disabilities93
. While 76.5 per cent of persons without a disability aged between 15 and 65 years work, the figure is only approximately half for persons with disabilities.94
Women with disabilities are more affected by poverty than men with disabilities: according to the 2005 micro-census, 32.4% of disabled women had a monthly net income of less than 700 euro. The same was true for 12.8% of disabled men.95
In addition to this, programmes enabling participation in community life are means-tested.96
So, for persons who require assistance services, 40 and more per cent of their adjusted income is confiscated. Persons with disabilities in full in-patient facilities are only left with pocket money of 100.98 euro per month.97
Persons on income support who are employed in a sheltered workshop are left with only 46.75 euro per month from the workshop payment plus 25 % of the workshop payment exceeding this amount.98
The means-testing for participation benefits only grants persons with disabilities protected assets of 2,600 euro. Persons with disabilities are as a result permanently restricted in their opportunity for economic development and set at a low level throughout their lives99
.
Suggested Question:
Participation in political and public life (art. 29)
According to Section 13 No. 2 of the Federal Electoral Act (BWG), a person for whom a guardian is not only appointed by an interim order to manage all their affairs, is excluded from the active and passive right to vote in Germany 100
and exclusion from the right to vote also extends to participation in European, state and local elections as a result of identical provisions in applicable laws.
In addition to this, individuals who
committed a crime and have been deemed to be in a state of diminished
responsibility, and who are institutionalised in a psychiatric hospital,
are denied their electoral rights (§ 13, Para. 3 BWG). This general
withdrawal of electoral rights from persons with psychosocial disabilities
from the right to vote is discriminatory given that non-disabled offenders
retain their right to vote.
By excluding persons with disabilities from the right to vote according to § 13 Para. 2 and 3 BWG, Germany violates the CRPD and current international law obligations. Further, on 20 March 2012, the UN Human Rights Council published their resolution, "Rights of persons with disabilities: Participation in political and public life".101
In this resolution, they substantiated the right to participate in political and public life that was established in Art. 21 of the Universal Declaration of Human Rights, in Art. 25 of the International Covenant on Civil and Political Rights and in Art. 29 CRPD. The Council determined that the withdrawal or limitation of the political rights of persons with disabilities on the basis of their disability is an act of discrimination, and is in contradiction to the CRPD.102
Germany expressed their explicit consent
to this UN Human Rights Council resolution.
As stated in Art. 29b, States parties place themselves under the obligation to proactively promote the creation of circumstances that ensure the political self-representation of persons with disabilities. The European Council’s recommendation from November 2011 regarding the participation of persons with disabilities in political and public life103
is in accordance with this obligation. Likewise, in the survey compiled by the High Commissioner for Human Rights104
with regard to UN CRPD Art. 29 (December
2011), item 19 emphasizes the obligation of States parties to promote
the creation of self-representative organisations of persons with disabilities
on the local, regional, national and international level. Unfortunately,
this is not happening in Germany. Self-representative organisations
of persons with disabilities do not receive institutional support, but
instead, they are allocated short-terme project funds that usually serve
other project purposes rather than political self-representation.
Suggested Questions:
D. Specific obligations (art.
31, 32)
Statistics and data collection (art.31)
Up to now there is insufficiant data concerning the barriers and the lack of participation of people with disabilities in all areas. Therefore the German CRPD Alliance welcomes the new Federal Report "Teilhabebericht"105
from July 2013 as a first step to these data and welcomes the preparations to establish a Life Opportunities Survey, too. At the moment it is not evident, whether this survey is working with human rights indicators. - Furthermore, all federal statistics in Germany refer only to men and women. This excludes intersex persons and renders them "invisible". Hence, no reliable statistical data on intersex persons is available. Without regard to their genetic, chromosomal and hormonal condition, without their informed consent, and without basing decisions on medical evidence, many intersex people become disabled due to operations which result in mutilation. The associations of the individuals concerned estimate that this group consists of 80,000-120,000 persons in Germany. 85% of all intersex persons106
become "females" after the
gender "reassignment" procedure. They are entirely excluded
from any expert medical treatment. Other UN bodies have already observed
and criticised this problem.107
Suggested questions:
International cooperation (art.
32)
While some efforts were made in order to implement Art. 32 CRPD, Germany is a long way from a
systematic development policy
that is inclusive of persons with disabilities. So far, only isolated sp
e
cific or inclusive programs and projects exist. The model projects that are referred to in the State report are not representative examples of a systematic
establishment of inclusive German develo
p
ment assistance programmes.
108
While the government included persons with disabilities as a cross cutting issue and target group on a policy level109
inclusion is not yet embedded in the practices and processes of the respective ministries and implementing agencies.110
Suggested Question:
Since German development policy does not include any systematic data collection, markers or criteria regarding the quality, number and range of projects and programs that are inclusive vis-à-vis persons with disabilities,111
it is not possible to monitor and evaluate the degree to which German development policy is inclusive.
Suggested Question:
National implementation and monitoring
(art. 33)
There is a Focal Point within the government,
but no reliable governmental procedure for involving civil society in
the evaluation and monitoring of the NAP. There is a coordinating
mechanism existing [Koordinierungsstelle] and the crucial body
is called the "Inklusionsbeirat" with a majority
of persons with disabilities. This body is supported by four expert
committees. - There is also a independent monitoring body [Monitoring-Stelle]
in Germany located at the German Institute for Human Rights which complies
with Paris Principles. This body is actively consulting and cooperating
with civil society and especially DPOs and tries to employ persons with
disabilites in the body.
Berlin, December 2013
ANNEX- Members of the BRK Allianz
A
AKTION PSYCHISCH KRANKE e. V.
Allgemeiner Behindertenverband in Deutschland e. V. – ABiD
ALZheimer ETHik e. V. – ALZETH
Arbeiterwohlfahrt e. V. – AWO
Aspies e. V.
autismus Deutschland e. V.
B
Bundesarbeitsgemeinschaft Behinderung und Studium e. V.
Behinderung und Entwicklungszusammenarbeit e. V. – bezev
Bundesarbeitsgemeinschaft der Berufsbildungswerke – BAG BBW e. V.
Bundesarbeitsgemeinschaft der Taubblinden – BAT e. V.
Bundesarbeitsgemeinschaft für Unterstützte Beschäftigung – BAG UB e. V.
Bundesarbeitsgemeinschaft Gemeindepsychiatrischer Verbünde – BAG GPV e. V.
Bundesarbeitsgemeinschaft Gemeinsam leben – Gemeinsam lernen e. V.
Bundesarbeitsgemeinschaft Selbsthilfe – BAG SELBSTHILFE e. V.
BundesElternRat (BER)
BundesElternVereinigung für anthroposophische Heilpädagogik und Sozialtherapie e. V.
Bundesverband behinderter und chronisch kranker Eltern – bbe e. V.
BUNDESVERBAND DER BERUFSBETREUER/INNEN – BdB e. V.
Bundesverband evangelische Behindertenhilfe – BeB e. V.
Bundesverband Frauenberatungsstellen und Frauennotrufe – bff e. V.
Bundesverband für Ergotherapeuten in Deutschland – BED e. V.
Bundesverband für körper- und mehrfachbehinderte Menschen – bvkm e. V.
Bundesverband Psychiatrie-Erfahrener – BPE e. V.
Bundesverband Selbsthilfe Körperbehinderter – BSK e. V.
Bundesvereinigung Lebenshilfe e. V.
Bundesvereinigung der Landesarbeitsgemeinschaften der Werkstatträte – BVWR e. V.
Büro zur Umsetzung von Gleichbehandlung
– BUG e. V.
C
Caritas Behindertenhilfe und Psychiatrie – CBP e. V.
Christoffel-Blindenmission Deutschland
– cbm e. V.
D
Dachverband Gemeindepsychiatrie e. V.
Der Paritätische – Gesamtverband e. V. – DPW
Deutsche Alzheimer Gesellschaft e. V.
Deutsche Gesellschaft der Hörgeschädigten – Selbsthilfe und Fachverbände e.V.
Deutsche Gesellschaft für Soziale Psychiatrie e. V. -DGSP c/o Unionhilfswerk Regionalleitung
Deutsche Rheuma-Liga Bundesverband e. V.
Deutscher Blinden- und Sehbehindertenverband – DBSV e. V.
Deutscher Gehörlosen-Bund e. V.
Deutscher Gewerkschaftsbund – DGB
Deutscher Schwerhörigenbund – DSB e. V.
Deutscher Verein der Blinden und Sehbehinderten in Studium und Beruf – DVBS e. V.
Deutsches Rotes Kreuz – DRK e. V.
Deutsches Studentenwerk – DSW e. V.
Diakonie Deutschland – EWDE
E
Eltern für Integration e. V.
Elternzentrum Berlin e. V.
Enthinderungsselbsthilfe von Autisten für Autisten – ESH
Bundesverband Forum selbstbestimmter
Assistenz behinderter Menschen e. V. – ForseA
F
Forum-Pflege-aktuell
G
Gewerkschaft Erziehung und Wissenschaft (GEW) – Hauptvorstand
Grundschulverband e. V.
H
Handicap Netzwerk – Freundeskreis
Menschen mit Handicap e. V.
I
Interessengemeinschaft Gehörloser jüdischer Abstammung in Deutschland – IGJAD e. V.
Interessenvertretung Selbstbestimmt Leben in Deutschland – ISL e. V.
Intersexuelle Menschen e. V. – Bundesverband
K
Kreisverband der Gehörlosen Potsdam und Umgebung e. V.
Freie Kunst Akademie U7 gUG
L
LAG GEMEINSAM LEBEN – GEMEINSAM LERNEN Niedersachsen e. V.
LAG Inklusion in Sachsen – LAGIS e. V.
Leben mit Usher-Syndrom e. V.
Lebensinsel e. V.
M
Menschzuerst – Netzwerk People First Deutschland e. V.
mittendrin e. V.
MOBILE – Selbstbestimmtes Leben Behinderter
e. V.
N
NETZWERK ARTIKEL 3 – Verein für Menschenrechte und Gleichstellung Behinderter e. V.
Netzwerk behinderter Frauen Berlin e. V.
Netzwerk gegen Selektion durch Pränataldiagnostik
P
PRO RETINA Deutschland e. V.
S
Sozialverband Deutschland – SOVD e. V.
Sozialverband VdK Deutschland e. V.
Stiftung taubblind leben
U
unerhört e. V.
V
Verband Entwicklungspolitik Deutscher Nichtregierungsorganisationen – VENRO e. V.
Verbund behinderter ArbeitgeberInnen – VbA – Selbstbestimmt Leben e. V.
ver.di – Vereinte Dienstleistungsgewerkschaft
Verband für anthroposophische Heilpädagogik,
Sozialtherapie und soziale Arbeit e. V.
W
Weibernetz e. V., Bundesnetzwerk von
FrauenLesben und Mädchen mit Beeinträchtigung
Z
Zentrum für Flüchtlingshilfen und Migrationsdienste (zfm) unter der Trägerschaft des Behandlungszentrums für Folteropfer e. V. (bzfo)
1 signed in 2007, ratified in 2008 and which came into force on 26 March 2009
2 CRPD.C.DEU.1_en cf. http://www.ohchr.org/EN/HRBodies/CRPD/Pages/futuresessions.aspx
3 The need for implementation is qualified at many points not only in the memorandum, but also in the 1st state report by the Federal Government
4 Draft law of the Federal Government on the UN Convention on the Rights of Persons with Disabilities (December 13, 2006), and on the corresponding Optional Protocol (December 13, 2006), BT-Drs. 16/10808, p. 58: “[…] when looking at core themes in educational politics in the individual federal states of the Federal Republic of Germany, one can see numerous congruencies.”
5
“Educational and legal aspects of the implementation of the United Nations Convention on the Rights of Persons with Disabilities (December 13, 2006)”, agreement of the Standing Conferenc
e of
the
Ministers
of
Education
and
Cultural
Affairs
of
the
Länder
in
the
Federal
Republic
of
Germany (KMK) from November 18, 2010, p. 2: “The German legal situation essentially complies with the standards of the Convention.”
6
National Action Plan of the federal government with regard to the implementation of the UN CRPD (NAP): “Our path towards an inclusive society”, date of publication: September, 2011 (hereafter abbreviated as NAP).
7
See NAP, p. 162.
8
Deutsches Institut für Menschenrechte (ed.): Aktionspläne zur Umsetzung der UN-Behindertenrechtskonvention. Positionen der Monitoring-Stelle. Berlin, September 2010.
9
See http://www.deutscher-behindertenrat.de/mime/00060491D1274941874.pdf (p. 50-52).
10 http://www.kompre.de/brk/attachments/article/72/BMAS%20-%20Deutsch-abgestimmte%20uebersetzung.pdf
11
see Definition of "Barrierefreiheit" in § 4 of the German equal opportunities for disabled people act [Behindertengleichstellungsgesetz, 2002]
12 http://www.netzwerk-artikel-3.de/attachments/093_schattenuebersetzung-endgs.pdf.
13 See, for example, the conference”Teilhabe braucht Visionen” at:
http://www.einfach-teilhaben.de/DE/Service/UN_BRK/UN_BRK_Teaser/UN_BRK_dossier_neu.html?nn=1649116¬First=true&docId=1649348.
14 CRPD/C/2/3, October 2009.
15 The following paragraph refers to 1) Deutscher Behindertenrat: Forderungen des Deutschen Behindertenrates für einen Nationalen Aktionsplan zur Umsetzung der UN-Behindertenrechtskonvention. Berlin, May 2010, p. 10/11; 2) Peter Masuch: Die UN-Konvention über die Rechte von Menschen mit Behinderungen vom 13. Dezember 2006. In: Wolfgang Schütte (ed.): Abschied vom Fürsorgerecht. Von der “Eingliederungshilfe für behinderte Menschen“ zum Recht auf soziale Teilhabe. LIT Verlag, Berlin 2011, p. 75.
16 “Reasonable accommodation” is referred to in CRPD Articles 2; 5 (3); 13 (1); 14 (2); 24 (2c, 5); 27 (1i).
17 § 81, Sozialgesetzbuch IX (SGB IX) is referring to the tasks of the employer e.g. to provide accessible technical equipment at their workplace
18 For example, persons with hearing or communication impairments do not have a legal right to obtain refunds for communication aids. Hearing impaired persons only have a right to obtain financial support for sign language interpreters or other communication aids in welfare services proceedings, their workplace, and their personal administrative and legal proceedings.
19 the concept of "multiple discriminiation" or "intersectional discrimination" is not recognised in German laws
20
See http://www.bagfw.de/fileadmin/media/Projekte_2012/Gemeinsame_Erkl%C3%A4rung_2012-01-23_final.pdf.
21 The European Parliament already acknowledged deaf-blindness as a specific disability in 2004. The current political debates in Germany seem to point to a growing desire to establish the feature of “deaf-blindness”. However, up until this day, no concrete steps were taken. See the Bundestag debate (PlProt. 17/17211, November 29, 2013, http://dipbt.bundestag.de/dip21/btp/17/17211.pdf#P.25887
), as well as the unanimous vote at the 89th Conference of Ministers for Labor and Social Affairs on November 28-29, 2013 (agenda item 5.1), http://www.sachsen-anhalt.de/fileadmin/Elementbibliothek/Bibliothek_Politik_und_Verwaltung/Bibliothek_MS/ASMK/Ergennisse_der_89_Konferenz_am_28_und_29_11__2012.pdf.
22
Bundesministerium für Familie, Senioren, Frauen und Jugend (2009): Lebenslagen behinderter Frauen in Deutschland. Auswertung des Mikrozensus 2005; Bundesministerium für Familie, Senioren, Frauen und Jugend (2012): Lebenssituation und Belastungen von Frauen mit Beeinträchtigungen und Behinderungen in Deutschland.
23 Pflegestatistik 2008, Pflege im Rahmen der Pflegeversicherung – Deutschlandergebnisse, Statistisches Bundesamt, Wiesbaden 2011.
24 Section 2 of the German Code of Social Law XI: …“Wünsche der Pflegebedürftigen nach gleichgeschlechtlicher Pflege haben nach Möglichkeit Berücksichtigung zu finden.“ […”If the person who needs care requests care by someone of the same gender, this must be taken into consideration as far as possible.”]
25 With Art.19 CRPD, the State Parties have also committed themselves to the provision of personal assistance. Personal assistance means, amongst other things, being freely able to choose the assistance person.
26 Bundesministerium für Familie, Senioren, Frauen und Jugend (2009): Lebenslagen behinderter Frauen in Deutschland. Auswertung des Mikrozensus 2005.
27 See Germany’s third and fourth state reports on the Convention on the Rights of Children, p. 64.
28 See Rechtsdienst der Lebenshilfe 3/2012, p. 108/109.
29 See NAP, p. 152 et seq.
30 The “Menschen mit Behinderungen” leaflet published by federal agency for civic education [Bundeszentrale für politische Bildung/BPB] provides a good overview of the current societal perspectives: http://www.bpb.de/apuz/27782/menschen-mit-behinderungen.
31 The word “ableism”, from “ability” and “-ism” can be compared to notions such as racism or sexism. See Rebekka Maskos’ input, : http://www.zedis.uni-hamburg.de/wp-content/uploads/maskos_14122011.pdf
32 See texts and materials at http://www.institut-fuer-menschenrechte.de/de/menschenrechtsbildung.html
33 Over a period of ten years, only 25 target agreements have been negotiated. See the target agreement register at http://www.bmas.de/DE/Themen/Teilhabe-behinderter-Menschen/Zielvereinbarungen/Zielvereinbarungsregister/inhalt.html.
34 See http://www.gesetze-im-internet.de/bitv_2_0/
.
35 Law from April 28, 2011, BGBl. I, p. 666.
36 Law on ID documents and electronic proof of identity, June 18, 2009, BGBI.I, p. 1346.
37 see http://dip21.bundestag.de/dip21/btd/17/094/1709406.pdf
38 the "age-appropriate-renovation-scheme" includes the reduction of barriers in existing homes; see https://www.kfw.de/Download-Center/F%C3%B6rderprogramme-(Inlandsf%C3%B6rderung)/PDF-Dokumente/6000002642-M-159-AU.pdf
39 Source: Bundesamt für Justiz, analysis: Deinert
, http://www.bdb-ev.de/220_Basisinformationen.php –3Fakten.pdf
.
Potential support systems within families are becoming less frequent and reliable. At the same time, the social welfare scheme was transformed according to the paradigm of the “activating welfare state”, and linked to high expectations regarding the beneficiaries’ involvement. Support services, such as budget assistance in the context of the Personal Budget as defined in § 17 SGB IX, or regional care management offices [Pflegestützpunkte] according to § 92c SGB IX, could potentially serve as guidelines when navigating the highly segmented German social care system, but their implementation was deficient. On the issue of budget assistance,
see http://www.forsea.de/projekte/Gesetzesreformen/040522_pb_ass.shtml
.;
on care management offices, see Deutscher Bundestag (Drucksache 17/9203): Kleine Anfrage der SPD-Fraktion vom 28. 3. 2012 zum Ausbau der Pflegeinfrastruktur durch Pflegestützpunkte und Pflegeberatung.
40 For example, the Swedish Skåne region established this type of system and therein the Personligt Ombud (PO) program. See www.po-skane.org
; see World Bank & WHO (2011): World report on disability, p. 138.
41 Source: Federal Ministry of Justice, Special Survey on Legal Proceedings according to the Guardianship Law [Verfahren nach dem Betreuungsgesetz] 1998 – 2005.
42 For example, the laws on mentally ill persons [Psychisch-Kranken-Gesetze/PsychKGs].
43
In Germany in late 2009, 2.34 million persons, the majority of whom were women, were in need of care as defined in the long-term care insurance law [Pflegeversicherungsgesetz, SGB IX]. More than two thirds of the care recipients lived in their own home, and again, most of them were women. Also, 75% of full in-patient care recipients in institutions are women.
(
Bundesministerium für Familie, Senioren, Frauen und Jugend (2012): Lebenssituation und Belastungen von Frauen mit Beeinträchtigungen und Behinderungen in Deutschland (see also http://www.uni-bielefeld.de/IFF/for/zentrale_ergebnisse_kurzfassung.pdf).
44 Bundesministerium für Familie, Senioren, Frauen und Jugend (2012): Lebenssituation und Belastungen von Frauen mit Beeinträchtigungen und Behinderungen in Deutschland (see also http://www.uni-bielefeld.de/IFF/for/zentrale_ergebnisse_kurzfassung.pdf).
45 verbal humiliation [Beleidigung] is a criminal act in Germany; see § 185 StgB
46
R. Ketelsen, M. Driessen, C. Zechert (2007): Kooperationsmodell zwischen psychiatrischen Kliniken mit dem Ziel der Qualitätssicherung bei Zwangsmaßnahmen. In: Psychiatrische Praxis, Supplement 2, 35: p. 208-211.
47
Steinert T, Kallert TW (2006) Medikamentöse Zwangsbehandlung in der Psychiatrie. In: Psychiatrische Praxis 33: p. 160-169.
48
See BT-Drs. 17/10712.
49 Decision of the BVerfG from March 23, 2011 – 2 BvR 882/09 Rheinland Pfalz, decision of the BVerfG from October 12, 2011 – 2 BvR 633/11 Baden Württemberg.
50
Committee for the Rights of Persons with Disabilities: Guidelines on the treaty-specific document to be submitted by States parties under Article 35, Paragraph 1, of the Convention on the Rights of Persons with Disabilities, United Nations, Geneva 2009 (CRPD/C/2/3).
51
For example, this is frequently the case with deaf-blind persons, since there is not enough staff trained to provide deaf-blind assistance.
52 See for example, http://www.kobinet-nachrichten.org/cipp/kobinet/custom/pub/content,lang,1/oid,25110/ticket,g_a_s_t.
53 Monitoring-Stelle zur UN-Behindertenrechtskonvention: Die UN-Behindertenrechtskonvention: ihre Bedeutung für Ämter, Gerichte und staatliche Stellen. Deutsches Institut für Menschenrechte, Positionen Nr. 6, Berlin 2012.
54 vgl. http://www.sozialgesetzbuch-sgb.de/sgbix/17.html. This theoretically enables services from a single source, which would be helpful regarding the variety of cost-bearers and competence wrangling associated with this.
55
This fact is not mentioned in the German state report on the CRPD; there are no corresponding measures in the action plan on implementing the CRPD.
56 The additional advice on offer to be financed separately from the Personal Budget is part of this.
|
57 According to Statistical Yearbook 2010 (figures dated 31.12.2007), Federal Statistical Office 2010, p. 234 and |
| Lebenslagen behinderter Frauen in Deutschland - Auswertung des Mikrozensus 2005 [Circumstances of disabled women in Germany – Analysis of the 2005 micro census] , BMFSFJ 2009, p. 57 |
58 Chronically ill parents without a “severely disabled person” identity card are not included in this figure.
59 See also www.elternassistenz.de
34 See also http://www.elternassistenz.de/004.php
60 Youth and welfare agencies shift the responsibility to each other. Clear statutory regulations are lacking.
61 See also http://www.elternassistenz.de/004.php
62 http://www.bmj.de/SharedDocs/Downloads/DE/pdfs/Betreuungsgesetz_Verfahren.pdf?__blob=publicationFile.
63 See CRPD/C/AUS/CO/1, para 40.
64 In German education law, the term “students with disabilities” [“Schüler*innen mit Behinderungen”] designates “students with a need for special-needs pedagogic support” [“Schüler*innen mit sonderpädagogischem Förderbedarf”]. In order to simplify the following pages, we use the term “students with disabilities”.
65 See NAP, p. 45
66 The term “regular school” is used in order to emphasize the difference between “special (needs) schools” and all other schools. “Regular schools” comprise all types of general education schools with the exception of special (needs) schools. In this way, the word does not correspond to the secondary type of school called “regular school” in Thuringen, but greatly exceeds it.
67 See Hesse schooling law [Hessisches Schulgesetz], § 49 Para. 2(1), November 21, 2011, GBl. I; p. 679.
68 See Lower Saxony schooling law [Niedersächsisches Schulgesetz], March 23, 2012, GVBl. p. 83, § 59 Para. 5.
69 Federal education report [Bundesbildungsbericht] “Bildung in Deutschland 2012”; authors’ group “Bildungsberichterstattung”, commissioned by KMK, p. 7.
70 Ibid., table D 2-7.
71 Prof. em. Dr. Klaus Klemm, Universität Duisburg-Essen, Bildungsforschung und Bildungsplanung, input: “Eine Schule für alle: Bildungssystem und Inklusion”, Evangelische Akademie Tutzing, May 21, 2011.
72 This means that these students did not even acquire a Hauptschulabschluss, a lower secondary education diploma. Source: Statistische Veröffentlichungen der Kultusministerkonferenz, Dokumentation Nr. 196 – Februar 2012 “Sonderpädagogische Förderung in Schulen” 2001 bis 2010; p. XVI.
73 Ibid., p. XI.
74 Bildung in Deutschland 2010; p. 6.
75 The German Rectors’ Conference [Hochschulrektorenkonferenz] also points this out in the recommendations (“Eine Hochschule für Alle”) adopted during their general assembly on April 21, 2009.
76 National Action Plan “For a child-friendly Germany 2005-2010”, accessible at: http://www.kindergerechtes-deutschland.de/zur-initiative/nationaler-aktionsplan/
77 Draft law by the Federal Government on the UN CRPD and on the Optional Protocol (BT-Drs. 16/10808, p. 58): “[…] in the education politics of the individual Länder within the Federal Republic of Germany, manifold areas of agreement are visible.“ Likewise, the faulty German translation of Art. 24 CRPD has still not been corrected. Also, the Federal Government continues to insist on the incorrect statement made in the memorandum, namely that Art. 24 CRPD only reflects the current integrative approach of the German schooling system (“lassen vielfältige Übereinstimmungen erkennen“, BT-Drs. 16/10808, p. 58). This is in clear contrast to the resolution adopted by the German Bundestag (BT-Drs. 16/ 11234).
78 The KMK produced a similar statement during their conference, “Pädagogische und rechtliche Aspekte der Umsetzung des Übereinkommens der Vereinten Nationen vom 13.12.2006 über die Rechte von Menschen mit Behinderungen”, resolution of November 18, 2010, p. 2: “The legal situation in Germany essentially complies with the CRPD stipulations.”
79 Ibid p. 23: “[…] the States parties guarantee an integrative education system on all levels“.
80 See ibid p. 2: “Subjective legal entitlements only exist where the legislator has already implemented the law.”
81 OECD: Sickness, Disability and Work, 2010, p. 53.
82 Pfaff, Heiko et al. (2012): Lebenslagen der behinderten Menschen. Ergebnis des Mikrozensus 2009, https://www.destatis.de/DE/Publikationen/WirtschaftStatistik/Sozialleistungen/Lebenslagenbehinderte032012.pdf.
83 BMFSFJ (ed.), Libuda-Köster, Sellach (2009): Lebenslagen behinderter Frauen in Deutschland. Auswertung des Mikrozensus 2005. Short Version, p. 21/22.
84 2010 statistical comparison conducted by the BAGüS, p. 90. The numbers of WfbM employees in the admission and the vocational education sections are not included.
85 According to a 2008 BMAS survey, the number of persons with mental disabilities who attend WfbMs has particularly increased. Altogether in 2011, according to BAG WfbM, more than 285,000 persons with disabilities were attending 2,500 WfbM.
86 ISB-Bericht (2008): Entwicklung der Zugangszahlen, p. 111.
87 Barbara Vieweg (2009): JobBudget. Frauen mit Behinderung und der Übergang aus der Werkstatt auf den Arbeitsmarkt in: WeiberZEIT No. 18, p. 6-7, December 2009.
88 Quoted in: Bundesarbeitsgemeinschaft Werkstätten für behinderte Menschen e.V.: http://www.bagwfbm.de/page/101.
89 According to § 43 Para. (6) SGB VI in combination with § 50 Para. 2.
90 Kurzbericht 25/2008 des Instituts für Arbeitsmarkt und Berufsforschung “Berufliche Rehabilitation in Zeiten des SGB II”.
91 Statistics of the Bundesagentur für Arbeit: admission, number of people (annual average) and departure of rehabilitants according to §19 SGB III, Nuremberg, September 2011. According to these figures, 21,900 reintegration cases were recognized and 45,000 rehabilitation cases were recognized.
92 Reha-Bericht 2010 der Deutschen Rentenversicherung, p. 55.
93 cf. also Point 47 regarding the data on unemployment
94 Federal Statistical Office: Status and trend of employment in Germany in 2010
95 cf. Federal Statistical Office on this, Economics and Statistics 2/2007, p.199
96 SGB XII Section 19 par. 3 in conjunction with Section 85 par. 1 (Income commitment) and Section 90 par. 1 (Asset commitment)
97 Necessary living expenses in facilities in accordance with Section 27b SGB XII
98 Income for employees of a sheltered workshop (WfbM) in accordance with Section 82 par. 3 p. 2 SGB XII
99 This restriction breaches Art. 28 par. 1 UN CRPD according to which the State Parties must guarantee continuous improvement of living conditions and breaches the non-discrimination provisions embodied in Art. 5 par. 2 UN CRPD.
100 According to the 2nd clause of the provision, this also applies if the responsibilities do not cover the areas of postal and telephone monitoring subject to specific custody law regulations in accordance with Section 1896 par. 4 BGB as well as sterilization in accordance with Section 1905 BGB.
101 Human Rights Council, Resolution A/HRC/19/L9/Rev. 1, March 20, 2012: Rights of Persons with disabilities: Participation in political and public life; accessible online at www.ohchr.org.
102 …(the) exclusion or restriction of political rights of persons with disabilities on the basis of disability constitutes discrimination contrary to the Convention on the Rights of Persons with Disabilities".
103 Council of Europe: Recommendation CM/Rec(2011)14 of the Committee of Ministers to member states on the participation of persons with disabilities in political and public life, November 16, 2011. They state: "[The member states] should take appropriate capacity-building and financial measures with a view to making sure that organisations of persons with disabilities (DPOs) have the capacity to fully participate and contribute to the conduct of public affairs."
104 Thematic study by the Office of the United Nations High Commissioner for Human Rights on participation in political and public life by persons with disabilities (A/HRC/19/36).
105 http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/2013-07-31-teilhabebericht.pdf?__blob=publicationFile
106 Studie zu Lebenslagen intersexueller Menschen des Instituts für Sexualforschung Hamburg (2008).
107 CEDAW 2008, UN-Sozialpakt 2010, CAT 2011.
108 In fact, these are just a few measures, some of which had a test-trial status, or were already completed and not continued. Binding regulations or guidelines for a consistent establishment of inclusion remain non-existent.
109 Inclusion of persons with disabilities in strategy papers of the Federal Ministry for Economic Cooperation and Development (BMZ), such as the program "Human Rights in German Development Policy", the Sector Strategy on Social Protection, the Sector Strategy “German Development Policy in the Health Sector”, the policy statement "Disability and Development, the “2008-2010 Human Rights in German Development” Policy, and the “Action Plan for the Inclusion of Persons with Disabilities 2013-2015”.
110 Often development staff do not know about the CRPD and the German commitment to inclusive development cooperation. Mechanisms that exist for other cross cutting issues (like gender or HIV/AIDS) such as the employment of focal persons in different departments, budgetary quotas in general projects, or specific markers (including indicators) for program designs, do not exist for persons with disabilities.
111 There is some information regarding planned projects that are exclusively targeting persons with disabilities, but even these do not include a consistent collection of data sets.
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