Framework Convention for the Protection of National Minorities
Comments of the Government of Germany on the Opinion of the Advisory Committee on the Implementation of the Framework Convention for the Protection of National Minorities in the Federal Republic of Germany
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Introduction
On 1 March 2002, the Advisory Committee set up under the Council of Europe’s Framework Convention for the Protection of National Minorities (hereinafter referred to as the “Convention”) submitted an Opinion to the Council of Europe’s Committee of Ministers on Germany’s implementation of the Convention.
The report was served to Germany with the letter by the Director of Human Rights of 22 March 2002.
The Federal Republic of Germany values the activities of the Advisory Committee in the process of monitoring the implementation of the Convention and welcomes the efforts made by the Advisory Committee to search for ways of assessing the achieved level of compliance with Germany’s obligations arising from the Convention. Germany notes that the comments of the Advisory Committee show professional examination of the situation of minorities in Germany and that the Advisory Committee has in fact paid attention to important questions and problems.
Germany considers the fulfilment of the obligations under the Convention and the Opinion of the Committee as a continued pan-European process aimed at the creation of international standards laying down the foundations for a legal regulation of relations within a community of citizens of a particular State who claim to belong to various national minorities.
The State Report of Germany on the implementation of the Convention which serves as the basis of the monitoring mechanism is based on the principle of transparency, and Germany finds it important to maintain an open and constructive dialogue with the bodies responsible for monitoring the implementation of the Framework Convention, i.e. the Advisory Committee and the Committee of Ministers of the Council of Europe.
These comments by the Federal Government were drawn up by the Federal Ministry of the Interior as the lead agency with responsibility for minority law and were co-ordinated with the Governments of the Federal Länder which, because of the federal structure of the Federal Republic of Germany, are to a large extent responsible for the implementation. Where responsibility for legislation and/or administrative action lies with a Land, the pertinent observations presented in these Comments (submitted by the Federal Government) are based on the input provided by the respective Land. This applies, in particular, to the inputs under Section IV, nos. 74, 77, 78, 80, 83 - 89, and Section V, nos. 50, 53, 56, 57, 59 - 61.
The Opinion of the Advisory Committee, along with the draft of the following comments, was forwarded to the following umbrella organizations of national minorities, giving them the opportunity to express their views:
Sydslesvigsk Forening (SSF)/Südschleswigscher Verein (SSV - South Schleswig Association)
Sydslesvigsk Vælgerforening/Südschleswigscher Wählerverband (SSW - South Schleswig Association of Voters)
Domowina – Zwjazk Łužiskich Serbow/Bund Lausitzer Sorben (Domowina - Federation of Lusatian Sorbs)
Friesenrat/Frasche Rädj - Sektion Nord e.V. (Frisian Council, Section North)
Friesenrat/Freeske Raad - Sektion Ost e.V. (Frisian Council, Section East)
Seelter Buund
Zentralrat Deutscher Sinti and Roma (Central Council of German Sinti and Roma)
Sinti Allianz Deutschland (Sinti Alliance Germany)
For the observations submitted by those umbrella organizations that availed themselves of this opportunity, cf. Part VI of the following comments (pages 33 seqq.). Germany will publish the Opinion of the Advisory Committee together with these comments.
In addition, the Federal Government plans to discuss the Opinion of the Advisory Committee and the Decision of the Committee of Ministers with the organizations of the national minorities on the occasion of the forthcoming Implementation Conference.
Bearing in mind the positive nature of the "Opinion on Germany", the Federal Republic of Germany makes the following comments:
II. General introduction
Germany – like an encouragingly large number of other members of the Council of Europe – is among the countries that have ratified the Framework Convention; but it also belongs to the – regrettably fewer – countries that have ratified the European Charter for Regional or Minority Languages (Regional/Minority Language Charter). In Germany, the Regional/Minority Language Charter is applied to the languages spoken by national minorities – the Danish of the Danes, the North Frisian and the Saterland Frisian of the Frisians, the Lower and Upper Sorbian languages of the Sorbs and the Romany language of German Sinti and Roma – as well as to the regional language Low German. In German legal practice – both at government agencies and among national minorities - both Conventions are perceived as legal instruments that are used first and foremost to protect national minorities and their languages. As both instruments were drawn up by the Council of Europe and both were ratified by Germany within a short space of time of each other and as both pursue comparable objectives regarding the languages of national minorities, the two Conventions together represent the authoritative legal instruments for the benefit of national minorities. This implies that the two Conventions will be interpreted and applied concordantly.
On account of the fact that the two Conventions have been formulated according to different legal principles, difficulties are arising in respect of the concordant application of the two instruments and therefore are also encountered by the competent committees of the Council of Europe in examining whether they are being properly applied. Whereas all the Articles of the Framework Convention call for unqualified and uniform application, the Regional/Minority Language Charter, designed as a so-called “menu convention”, in its Part III leaves it to the discretion of the ratifying States to decide what obligations they undertake, as regards the range, scope and depth of these obligations as well as their territorial application and their scope of application with respect to minorities. While Article 11 of the Regional/Minority Language Charter, for instance, allows measures to be taken in respect of programmes broadcast on TV and/or on the radio in the respective minority or regional language, it gives the option to broadcast them as a full programme or as occasional programmes in this language; last but not least, the various options are expressed in the verbs used which are “to ensure”, “to facilitate”, “to make adequate provision” and “to encourage”.
Both conventions of the Council of Europe have become part of the German legal system, both as regards the personal scope of application as designated in the respective ratification document deposited with the Council of Europe, and in relation to the minority and regional-specific obligations undertaken under Part III of the Charter for Regional or Minority Languages.
The identical objectives pursued by both Conventions regarding the languages of national minorities and the authorship of the Council of Europe in both cases explain why the two instruments in question are interpreted and applied concordantly in Germany. This can also be important for evaluating whether the respective competent legislative and administrative bodies consider themselves to have met the obligations ensuing from the Conventions.
Germany suggests that the DH-MIN (Committee of Experts, Minorities), a body set up to deal with the issues of minority law, which regrettably has not been convened in the past few years, should discuss this matter in depth; it would be appropriate and expedient to have the Advisory Committee on the Framework Convention and the Committee of Experts on the Regional/Minority Language Charter take part in these discussions.
III. Comments on the “Concluding Remarks” of the Advisory Committee under Section V of the Committee’s Opinion (numbers 91 to 97)
In order to avoid repetition as regards items covered with regard to the Committee's “Concluding Remarks”, reference is made to the relevant observations in Sections IV and V of our Comments, specifically:
as regards Number 93: to IV. nos. 83
and 84
as regards Number 93: to IV. nos. 85 and V. no. 51
as regards Number 94: to IV. no. 86
as regards Number 95: to IV. nos. 87 and 88
as regards Number 96: to IV. no. 77
as regards Number 97: to IV. nos. 73, 74, 75, 78,
80, 81, 90 and V. no. 33
The Committee of Ministers is invited to draw its conclusions in the light of these comments.
IV. Responses to the “Main Findings and Comments” made by the Advisory Committee (numbers 72 - 90)
Re Article 3
Number 73:
The Advisory Committee finds that it would be possible to consider the inclusion of persons belonging to other groups in the scope of the Framework Convention on an article-by-article basis and considers that Germany should consider the question in consultation with those concerned.
The Framework Convention does not contain any definition of the term “national minorities”. According to the Explanatory Report to the Framework Convention it has been decided that a pragmatic approach should be taken, based on the realisation that is was not possible to find a definition that all the Member States of the Council of Europe could agree on. In view of this legal situation, Germany invokes the competency to define the term as regards the application of the Convention to the groups in question. Germany considers national minorities to be groups of the population who meet the following five criteria:
- their members are German nationals;
- they differ from the majority population insofar as they
have their own language, culture and history, in other words, they have their
own identity;
- they wish to maintain this identity;
- they are traditionally resident in Germany; and
- they live in the traditional settlement areas.
Application of the Convention, on this basis, to the Danes, Frisians, Sorbs, and Sinti and Roma ensures that it will also apply to all ethnic groups that are traditionally resident in Germany.
Since this means that Germany clearly has, on the one hand, laid down an abstract definition of the term “national minorities” for legal applications in Germany and, on the other, has - without any objections being raised by the Contracting States - designated the groups to whom this definition applies, there is no need for the Advisory Committee to comment on ethnic groups that fail to meet at least one of the above-mentioned criteria. This goes for the "migrants" and "immigrants" referred to in various parts of the Opinion, for “non-citizens” in general as well as for the "group of Poles" mentioned in Footnote 2 Re number 17. It also follows that the observations regarding naturalisation legislation expressed in Number 40 and regarding the integration of foreigners are not pertinent to the subject-matter regulated by the Convention as regards its application to and in Germany. The definition of national minorities laid down by Germany is not dissimilar to that made by other Member States of the Council of Europe (cf. for instance the Comments made by the Danish Government, CM(2000)166 Addendum).
The nationality reference chosen by Germany in relation to the protection of national minorities within the scope of the Council of Europe is also recognised in the protection concept of Parliamentary Assembly Recommendation 1201 (1993) – see Article 1, lit. a, of the draft Protocol contained in that Recommendation.
Reference is also made to the Regional/Minority Language Charter that stipulates in Article 1(a): the term ... "regional or minority languages" ... does not include ... the languages of migrants”.
In view of the fact that it has been spelt out how the Framework Convention should be applied to and in Germany - a clear definition that also is well within the scope of the margin of appreciation acknowledged by the Advisory Committee under Number 14 of its Opinion - it would seem that the Committee’s thoughts regarding application of the Framework Convention on an article-by-article basis to additional groups are not likely to lead anywhere.
As already expressed in its title, the objective of the Framework Convention is to protect national minorities; it is not a general human rights instrument for all groups of the population that differ from the majority population in one or several respects (ancestry, race, language, culture, homeland, origin, nationality, creed, religious or political beliefs, sexual preferences, etc.). Members of these groups are protected by the general human rights and – insofar as they are nationals – by the guaranteed civil rights. In Germany, these rights have been sufficiently established by national law and – as stated by the Committee itself in Number 10 – by the ratification of a wide range of relevant international instruments. The article-by-article approach would not just dilute the specific objective of the Framework Convention, i.e. the protection of national minorities; it would also entail the risk of creating first and second-class national minorities - that is, minorities that would benefit from the protection of all rights, and those who would be only granted selective rights.
Bearing all these facts in mind, the Federal Government requests that - at least in the Conclusions and Recommendations by the Committee of Ministers - no reference be made to the children of migrants and immigrants, as has been suggested in Number 97 of the Advisory Committee's Opinion.
Number 74:
The Advisory Committee finds that there is reason for concern about the fact that police practice in Bavaria has permitted, until a recent decision, any suspect questioned by the police to be classified as belonging to an ethnic group without the person’s permission and without this person even being informed, and that such a practice is not compatible with Article 3 of the Framework Convention. In general it considers that the Federal and Länder authorities should review the various methods of collecting criminal data of an ethnic nature in order to ensure that they are fully compliant with the principles laid down in Article 3 of the Framework Convention.
It is correct to say that until very recently the Bavarian police (not the Bavarian authorities) have been using personal description sheets including the physical categorisation ”Sinti/Roma type“, i.e. based on a person's outward appearance, in addition to the features mentioned in No. 19 (of the Opinion). As with all of the above-mentioned personal description features, these personal description sheets were filled in by police officers without the suspects concerned having a say in the matter. As such, the personal description feature “Sinti/Roma type” (rather than “Sinti/Roma”) referred exclusively to the suspect’s outward appearance; it did not matter whether or not the person did actually belong to the minority of Sinti or Roma. This is the reason why the Bavarian State Government - as opposed to the assessment expressed by the Central Council of German Sinti and Roma - takes the view that the above practice did not amount to data being collected specifically on the Sinti/Roma minority, as the persons to be recorded under this personal description feature included individuals who merely on the basis of their outward appearance were to be assigned to this "type" but did not actually belong to the ethnic group. On the basis of these aspects, it appears - in the Bavarian State Government's view - to be open to question whether this practice can be regarded at all as a breach of Article 3 of the Framework Convention.
In the meantime, the Bavarian Land Office of Criminal Police, together with the other Headquarters of the Bavarian Police, has revised the relevant personal description sheet in compliance with instructions issued by the Bavarian State Ministry of the Interior. The present new version takes account of the criticism voiced by the public regarding the above-mentioned personal description feature “Sinti/Roma type”. This version meets both the technical and legal requirements of personal descriptions recorded by the police and is also intended to serve as a basis for matching (collation) of the data with the relevant catalogue values of a nationwide uniform data processing project.
The revision specifically means, among other things, that the designation “Sinti/ Roma type” has been removed from the form. The structure focuses exclusively on overall terms designating origin (such as "Mediterranean type") and allows the allocation to certain types on the basis of visually structured instructions for completion of the forms, where persons whose features have been neutralised by technical means and who thus remain anonymous are depicted.
It also should be mentioned that no provision has been made in any of the Länder to record any ethnic typification of offenders; to this extent, the practices employed by the Criminal Police in Germany are fully compatible with Article 3 of the Framework Convention.
Re Article 4
Number 75:
The Advisory Committee finds that the lack of good statistical data makes it difficult for the German authorities to ensure that the full and effective equality of national minorities is promoted effectively, including as concerns the situation of the Roma/ Sinti on the labour market. It considers that the authorities should seek means of obtaining more reliable statistical data on persons belonging to national minorities broken down by age, gender and location and in particular seek better to evaluate the socio-economic situation of the Roma/Sinti and, as appropriate, undertake measures in their favour to promote full and effective equality in the socio-economic field.
Since World War II, no official data has been collected in Germany on the number and identity of persons belonging to national minorities; Germany abstains from such data collection especially against the backdrop of German history and the persecution of minorities during the Third Reich.
Furthermore, many practical and methodical obstacles prevent statistics from being collected on minorities in Germany:
- The German population statistics and many statistics in the social area (e.g. social benefits, education, public health) are largely based on the evaluation of administrative documents. As such records do not contain any information on national minorities and, if information is discriminating, as stated in Number 74, must not contain any such data, it is not possible to make any relevant evaluations with regard to national minorities.
- The number of persons belonging to national minorities is relatively low. Out of the approximately 74.8 million German nationals residing in the Federal Republic, far fewer than 100,000 persons each belong to any one of the four national minorities, according to the estimates notified in the First State Report. This explains why no reliable statistics can be collected on this group of persons within the framework of current official sample surveys.
- It is not necessary to establish whether a person belongs to a national minority in order to establish the identity of persons residing in Germany. That is why population registers do not contain any such data. There are no other official sources providing reliable information on the structure and distribution of national minorities on the basis of socio-demographic features.
- This means there is no information available, either, on which persons identify themselves with certain national minorities and where these specific persons live. The latter applies above all to the Sinti and Roma who settle in all parts of the FRG territory. This explains why there are considerable methodical and practical obstacles involved in conducting statistical surveys and in recording statistical data on these groups of persons.
For the above-mentioned reasons, inclusion of data on national minorities in Germany's official statistics would not be possible - or could only be achieved with disproportionate investments of time and effort.
Finally, Germany could not consider collecting any such data due to basic legal considerations. In addition to Article 3 (1) of the Framework Convention, also the Bonn-Copenhagen Declarations of 1955, Article 8 of the EU Data Protection Directive (Directive 95/46/EC of 24 October 1995 on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data) and other national provisions render this impossible.
Moreover, the Committee's own assessments regarding the overall subject of collection of data on persons belonging to national minorities by the Criminal Police show that, in the context of administrative practice, objections will indeed be raised to any recording of the affiliation with national minorities.
Bearing all of these facts in mind, the Federal Government does not intend to collect any statistical data on persons belonging to national minorities, especially since none of the national minorities have yet expressed, to the Federal Government, the wish that any such data be collected.
Re Article 5
Number 76:
The Advisory Committee finds that the present financial support system is perceived as very complicated by representatives of several national minorities because of the large number of authorities it involves. The Advisory Committee considers that Germany should seek, in co-
operation with the national minorities concerned, to simplify and clarify the financial support system for minority languages and cultures.
The funds appropriated by the Federal Government to national minorities for cultural purposes have developed in tandem with the various needs of the respective national minorities, thus taking their needs into account. This means that the criteria of financial support systems are just as specific. It therefore is neither desired nor intended to transfer a given financial support system for a minority, e.g. the system in place for the Stiftung für das Sorbische Volk ("Foundation for the Sorbian People"), to another minority. All applications for financial support for minority cultures submitted to the Federal Government Commissioner for Cultural Affairs and the Media are carefully examined, and the respective decisions are taken according to standardised criteria. The Länder in question become involved at the very latest when applications are processed; this reflects the fruitful co-operation that exists between the Federal Government and the Länder in this field.
Number 77:
The Advisory Committee finds that there is reason for deep concern about the forced dissolution of a municipality with Sorbian character aimed at allowing lignite quarrying to continue as such measures are likely to make the preservation of the Sorbian minority identity more difficult due to the population displacement involved. It considers that the German authorities should pay due heed to Article 5 of the Framework Convention when weighing any public interest against the legitimate aspirations of the Sorbian people to maintain their culture and preserve their identity so as to avoid such situations in the future.
Lignite quarrying in the area of Horno is absolutely vital for compelling reasons relating to public welfare. The Land Government and the Landtag (Land Parliament) recognise the high rank of minority law as reflected, inter alia, in Article 5 of the Framework Convention and have carefully weighed this legal priority against the facts underlying the need for excavation.
Article 1 (3) of the Brandenburg Act on Lignite Mining Policy (Brandenburgisches Braunkohlengrundlagengesetz - BbgBkGG) ensures that resettlement can only take place in the traditional settlement area. This maintains the cohesion of the Sorbian infrastructure and facilitates incorporation into the network of Sorbian facilities. The mining company is under the obligation to take measures for the preservation and promotion of the Sorbian infrastructure or to cover the costs of such measures. By resettling the inhabitants in Forst, the general terms and conditions have been created that will enable the inhabitants of Horno to maintain their cultural identity. This will not negatively affect the legal status of the population of Horno.
Article 6
Number 78:
The Advisory Committee finds that in general, with the exception of the Roma/Sinti who still report attitudes of rejection or hostility towards them, persons belonging to the Danish, Frisian and Sorbian minorities live in good harmony with their fellow citizens. It considers that the German authorities should intensify their efforts to enhance awareness of minority cultures in numerous areas, particularly in education.
Germany attaches paramount importance to fostering tolerance and intercultural dialogue and considers the implementation of Article 6 to be an important part of minority protection. Germany will therefore continue endeavouring to take measures, especially in the field of education, that are aimed at enhancing the prerequisites which enable the various ethnic groups to live together in harmony.
The following measures can be given as examples in this respect:
In the Free and Hanseatic City of Hamburg, in the field of education, the subject “History and Culture of the Roma and Sinti” is being integrated into the curricula that are currently in the pipeline for all types of schools and school levels. Dealing with this subject provides information and thus creates the prerequisites for raising understanding and tolerance vis-à-vis the minority culture of the Roma and Sinti.
Examples from the Land of Baden-Wurttemberg include the setting up of a “Sinti and Roma in Germany” Working Group at the beginning of the 1997/98 school year at the “Land Institute for Education and Instruction” (Landesinstitut für Erziehung und Unterricht - LEU). The Working Group developed a pamphlet (teachers' support material) for dealing with the history of the Sinti and Roma in the classroom. The Baden-Wurttemberg Land Association of Sinti and Roma (Landesverband Baden-Württemberg der Sinti und Roma) was also involved in the work of this Working Group. This pamphlet is to be published in the LEU’s series of papers.
Central further training for teachers was held at the Academy in Calw from 29 November 1999 to 1 December 1999 on the subject “Sinti and Roma; the Fate of a Minority in Germany”. Members of the Baden-Wurttemberg Land Association of Sinti and Roma were employed as speakers. The Ministry of Education and Culture contributed to a meeting organised by the Protestant Academy of Bad Boll on “Sinti and Roma – a (not a) subject for lessons” in Wiesensteig from 12 to 13 April 2002.
Within the framework of the revision of the Schleswig-Holstein curricula for general and vocational schools the “efforts to expand multi-cultural and multi-ethnic contents“ have been continued and intensified. This applies both to the curricula of primary schools and lower secondary schools (secondary education stage I) which entered into force in 1997, and to higher secondary schools (upper secondary grades of a Gymnasium) and to special classes for under-achievers that are to be introduced in the autumn of 2002.
Out of the five main problems of our time that were taken as a basis for curricula there is one that deals exclusively with the basic values governing the living together of people, focusing in particular on the ability to live together in the One World that has different cultures, religions, social systems, peoples and nations. All specialised curricula reflect the contribution they are making towards handling these problems.
Furthermore, the field of “intercultural learning” has been highlighted in the curricula as an area of general educational importance. In this respect, the individual schools are called upon also to develop and implement forms of work and organizational systems that integrate all subjects and focus on certain themes and that reflect the importance of this educational task.
A range of material and teaching aids have been developed in recent years in connection with the work on curricula in order to ensure that these principles are actually implemented. Thus, (in 1997) the Ministry of Education, Science, Research and Culture produced a documentation on “intercultural learning to be included in curricula” containing a wide range of tips and aids and sent that documentation to schools.
Number 79:
The Advisory Committee finds that self-regulation in the German media does not seem to prevent certain newspapers, when reporting on criminal offences, from mentioning suspects’ ethnic origin when they belong to the Roma/Sinti community, this information coming in some cases directly from police sources. The Advisory Committee considers that Germany should make sure the existing rules in this field are applied in practice by the competent authorities and encourage the media to follow their own rules of professional ethics and to review the effectiveness of complaints procedures they have established.
Government agencies have very limited influence on the media by virtue of Article 5 of the Basic Law which guarantees the freedom of the press and the freedom of broadcasting (radio and television). Therefore, in view of German constitutional law, the comments made by the Advisory Committee primarily concern the media themselves.
The Land authorities have ordered references to affiliation with particular groups of the population to be omitted from press releases issued by public authorities unless the general public would, without such references, not be able to fully understand the facts of the issue under consideration.
The Deutscher Presserat (German Press Council) laid down the following rule for press releases:
"Nobody may be discriminated against on account of his/her gender or his/her belonging to a racial, ethnic, religious, social or national group." (Press Code, no. 12)
For further specification, the German Press Council already on 21 September 1994 endorsed an amendment to the previous Directive on Protection from Discrimination. Under the new Directive 12.1 on Journalistic Work, the recommendations now read as follows:
“In reports on criminal offences, the fact that a suspect or offender belongs to a religious, ethnic or other minority shall be mentioned only if there is a reasonable need for such information, without which the reported incident would not be properly understood. Special attention should be paid to the potential effect that any such mention might stir up prejudice against groups requiring protection.”
The Federal Government thinks that the
practices of the German Press Council with regard to the observation of the
basic rules of free and responsible journalism is adequate in its present
form.
In each of the years between 1997 and 2000, the Central
Council of German Sinti and Rome submitted between 30 and 45 objections to the
German Press Council. The Press Council recognised one-third of them as
complaints, and during this period issued a total of three disapprovals and 17
(rectification) recommendations.
From 2001 until the present day, the German Press Council has dealt with 37 complaints by the Central Council and, as a result, issued ten disapprovals and seven (rectification) recommendations against press organs that had discriminated against Sinti and Roma in their reporting.
Number 80:
The Advisory Committee finds that children of Roma/Sinti, migrants and immigrants are over-represented at lower secondary schools and special schools for under-achievers and correspondingly under-represented at intermediate and grammar schools. It considers that this state of affairs merits close attention, in order to ensure that effective measures are taken to tackle these problems.
Reference is made first of all to the comments made in IV Re Number 73 regarding the scope of the Framework Convention.
Improving the integration and educational involvement of the children belonging to the national minority of German Sinti and Roma is an important objective of the Länder (which, within Germany's federal structure, are responsible for education). To this end, the Länder implement targeted measures that are developed and monitored in co-operation with the respective organizations of the national minority. Nonetheless, no data on Sinti and Roma pupils as such is recorded in the statistics (cf. the comments made in IV. Re Number 75). There is therefore no reliable statistical evidence to suggest that this group of pupils has a lower rate of participation in education. This group of pupils has access to all the school facilities and promotional measures that are available to all other pupils.
However, some Federal Länder have reported that in isolated cases children of Sinti and Roma have a particularly high level of representation in general remedial schools. Further efforts should be made in this area also in future to further enhance the general educational situation for this group of pupils. However, any such improvements cannot be brought about through state measures alone. It was, for instance, established within the framework of a project implemented in the Land of Schleswig-Holstein aimed at enhancing the school performance of Sinti children that there is an extremely high rate of absenteeism among these children even though four Sinti women are employed as educational assistants (helpers in schools). In order to bring about radical change, it is therefore also necessary for the individual families of this group of pupils to make sure their children attend school regularly and that they make use of government facilities that are currently available in the educational system. In this respect, all bodies and groups involved need to make a concerted effort to raise the relevant awareness.
Number 81:
The Advisory Committee finds that the German authorities openly recognise the importance of the problem caused by the marked increase in the number of crimes of an extremist, xenophobic and anti-Semitic nature in 2000 compared with the previous year, those phenomena being apparently primarily targeted at non-citizens of non-European origin who live in Germany but sometimes also at certain Roma/Sinti. The Advisory Committee considers that the German Government should pursue and even strengthen its strategy of counter-measures.
The Federal Government perceives the fight against violence of a right-wing extremist, xenophobic and anti-Semitic nature and the social background to such violence as a major priority and is actively pursuing its policy in this field.
The Federal Government’s prevention
strategy is based on a number of different pillars. Pursuing a consistent
human rights policy is the Federal Government’s starting point and the basis
for all its political work. The peaceful co-existence of people regardless of
their origin or religion is the crucial political and social basis of efforts
to ensure an open and democratic society. Against this backdrop, it is a
matter of vigorously and resolutely taking measures to prevent racist,
anti-Semitic and xenophobic attitudes and actions.
In order to achieve this goal, civil society above all
needs to be greatly strengthened and people need to be encouraged to have the
courage of their convictions, as is documented, inter alia, by the Bündnis
für Demokratie und Toleranz - gegen Extremismus und Gewalt
("Alliance for Democracy and Tolerance - Against Extremism and
Violence") initiated by the Federal Government or by the action programme
Jugend für Toleranz und Demokratie - gegen Rechtsextremismus,
Fremdenfeindlichkeit und Antisemitismus (“Young People for Tolerance and
Democracy – against Right-Wing Extremism, Xenophobia and Anti-Semitism”).
In full awareness that the successful integration of foreigners is a crucial factor for the peaceful co-existence of immigrants and the German population and thus also helps to prevent xenophobia, racism and discrimination in everyday life, the Federal Government has, for instance, drawn up a comprehensive concept for the organization of immigration and, in the Immigration Act, incorporated - for the very first time - a minimum framework of government provisions to promote integration.
In fighting right-wing extremist violence, it is also essential to implement measures that focus on the offenders and their environment. However, in addition to the consistent work performed by the security authorities (police and intelligence services), it is also important to strengthen the rights of victims and to adopt crime-preventing strategies in this field.
The preventative measures taken by the Federal Government have been designed as long-term and sustained measures in terms of their logical approach, and their stated aim is to fight the causes of this problem. It is not possible to change right-wing extremist attitudes and patterns of behaviour overnight. It is therefore less a matter of providing topical news items to highlight momentary successes; rather, this concerns a task that involves society as a whole and needs to be backed by all democratic forces. Politicians and society need to adopt a proactive stance in order to foster respect, acceptance and recognition of different cultures and lifestyles. The Federal Government is indeed performing this ongoing political task.
The success of this policy is also reflected by the fact, inter alia, that dealing with the phenomenon of right-wing extremism has not been made a taboo but has triggered widespread social and political debate that is accompanying the wide range of measures implemented by the Federal Government.
Furthermore, the steps taken by the Federal Government also met with a tremendous echo abroad. They not only concur with the views of the international community, in essence they already meet the international standard that was agreed on at the UN Anti-Racism Conference held in Durban/South Africa in the autumn of 2001.
The Federal Government also supports the decision taken by the Council of European Ministers for Justice and Home Affairs (JHA Council) of 25 April 2002. The Decision underlines the need to intensify co-operation between police forces, to forge ahead with judicial co-operation in this connection and to press ahead with the harmonisation of criminal law in Europe. Moreover, it acknowledges the huge importance of the “European Monitoring Centre on Racism and Xenophobia” (EUMC). The Federal Government considers this decision to be a major contribution towards the fight against right-wing extremism, xenophobia and anti-Semitism and will implement it as a top priority.
Number 82:
The Advisory Committee finds that additional efforts are needed in terms of the integration policy for immigrants, inter alia in the field of equality of opportunity in education and language promotion. It considers that the German authorities should pay particular attention to analysing the reasons that may discourage some non-citizens from making greater use of the new possibilities of naturalisation, as the lack of German citizenship may constitute an obstacle to their fuller integration, including their participation in political life
Generally, as regards the observations by the Advisory Committee on integration measures for foreigners in Germany, reference is made to our above comments in IV Re Number 73 on the scope of application of the Framework Convention and to Number 81 above.
Article 9
Numbers 83 and 84:
83. The Advisory Committee finds that apart from a pilot project, no television programmes are produced in Germany for the Danish minority, and only one private radio in Schleswig-Holstein broadcasts a daily news programme in Danish, although there is keen interest in such programmes among the Danish community. It therefore considers that the competent authorities should re-examine the Danish minority’s needs in terms of radio and television programmes and the possibility of supporting the creation of programmes aimed specially at this minority.
84. The Advisory Committee finds that there are at present no television programmes in Frisian and the public radio Norddeutscher Rundfunk broadcasts only one three-minute programme per week in North Frisian, although the representatives of the Frisian minority expressed the desire to have more radio and television programmes in their language. The Advisory Committee considers that the German authorities should envisage the possibility of increasing the presence of Frisian in the media.
1. When the “authorities” are requested
in the Committee's Opinion to look into the possibility of developing
programmes that are tailored specifically to the needs of minorities, it needs
to be pointed out that responsibility for programme-related issues does not
lie with the authorities, but with the broadcasting corporations themselves
(in whom freedom of broadcasting is vested). The rule of governmental
non-intervention in broadcasting means that broadcasting organizations
themselves, not the Government, decide on broadcasting programme schedules.
Article 11 of the European Charter for Regional or Minority Languages
therefore obliges the Contracting Parties only to the extent that “the
public authorities, directly or indirectly, are competent, have power or play
a role in this field, and respecting the principle of the independence and
autonomy of the media”.
Thus, on account of the broadcasting
corporations' freedom of programming, the Land of Schleswig-Holstein is
limited in the extent to which it can become involved in the development of
broadcasting programmes. The legislator thus is limited to taking appellate
measures also in respect of issues regarding the protection of minorities. For
this reason, German broadcasting laws only contain programming principles
worded as requests that are addressed to those responsible for making
programmes and to the autonomous media bodies. The latter are then responsible
for actually implementing these principles.
The “NDR Inter-State Treaty" (NDR-Staatsvertrag) can be given here as a
case in point; it states that NDR (Norddeutscher Rundfunk broadcasting
corporation) is to “support the protection of minorities" in the
programmes it broadcasts (Section 7, Subsection 2). Its programming mandate
says that “regions in northern Germany, their culture and language are to be
taken adequately into consideration in the programmes it broadcasts.”
(Section 5, Subsection 2). Further examples can be found in Section 22 (1) of
the Land Broadcasting Act (Landesrundfunkgesetz - LRG) for
private broadcasting stations, for full radio programmes in Section 15 (2) of
the LRG and, with regard to the priority admission of private broadcasting
companies, in Section 17 (2) of the LRG.
2. In addition to the regulary framework mentioned above, the number of facilities and programmes that are already available need to be stressed which have not been taken sufficiently into consideration in the Committee's Opinion.
- In the field of films and radio productions, audiovisual works are funded, inter alia, by Kulturelle Filmförderung (“Cultural Film Promotion, Schleswig-Holstein (reg'd)”) and by the Gesellschaft zur Förderung audiovisueller Werke in Schleswig-Holstein, i.e. the MSH (“Limited Liability Company for the Promotion of Audiovisual Works in Schleswig-Holstein”). In this context, works referring to Schleswig-Holstein and, of course, works by minorities are above all eligible for funding.
- It is possible to receive radio and TV
programmes from neighbouring countries in their own language direct and
without any restrictions. Danish programmes are an integral part of the
channel allocation plans.
- There are four "Open Channels" available in
Schleswig-Holstein for citizens' broadcasting stations (locations: Kiel, Lübeck,
Flensburg and Husum). They give citizens the possibility to air their own
programmes on TV and on the radio. The Open Channels give precisely minorities
a platform for airing programmes in Frisian, Danish or Lower German. Persons
residing in Sønderjyllands Amt (South Jutland county), namely in
Denmark, also have access to these channels. Production grants are also
available.
- The range of programmes broadcast by NDR 1 Welle Nord in the Frisian language can be given as an example for minority radio programmes. In the year 2001, for instance, the programme “Ferteel iinjsen“ relating the stories of over 100 listeners met with a huge response and has been taken into consideration in programming, with the result that this project is to be continued. The professional information available on the Internet also deserves special mention in this connection. Frisian content can be accessed on the Internet in a range of Frisian languages, as well as information on Nordfriesland, its history, its culture and above all the Frisian language. In this field, the NDR co-operates closely with the Nordfriisk Instituut (“North Frisian Institute”) in Bredstedt.
3. At the Unabhängige Landesanstalt für das Rundfunkwesen (ULR - Independent Land Supervisory Authority for Broadcasting) which, under Section 62 of the Land Broadcasting Act, has the mandate to conduct media research, it has been suggested that a comprehensive expert report should be commissioned in order to find out what services are available to the speakers of minority languages in the media (radio, television, Open Channels, print media, the Internet), what deficits exist, what level of acceptance has been reached and what prospects there are for the future. The expert report is to be discussed at a public event involving all parties concerned; it is intended to motivate and provide impetus for engaging in a dialogue with the responsible journalists. The Media Council of the Independent Land Supervisory Authority for Broadcasting (ULR) will in the near future take a decision on commissioning the expert report.
Article 10
Number 85:
The Advisory Committee finds that in the German-Sorbian areas, both German and Sorbian are allowed in relations with the administrations of the Land and local authorities but there appears to be shortcomings in the practical implementation of the relevant legal provisions, in particular in areas traditionally settled by the Sorbs in the Land of Brandenburg. The Advisory Committee considers that the German authorities should make sure that existing legal provisions concerning the use of Sorbian in official dealings are properly implemented in practice and remedy any shortcoming in this field.
The use of the minority language in the traditional settlement areas represents an important aspect of the protection and promotion of the minority. The government agencies are trying to further enhance the effective use of the minority language.
To the extent that the Sorbian language is rarely used in dealings with public authorities, the experience gained so far suggests that this is due to the lack of demand among the population. People are actually given the opportunity to use this language.
Recruitment decisions in the public service are to be based on the applicant’s suitability, skills and specialised performance. This explains why knowledge of the Sorbian language can only be taken into account in recruitment decisions if such knowledge is required for the fulfilment of the specific duties.
Putting up of notices on office doors stating that staff have knowledge of the Sorbian language is viewed with some reserve. The objective is to meet the already existing demand for use of the Sorbian language in dealings with administrative authorities, but not to create a demand that is not there in the first place. The obligations arising from the Framework Convention are understood to mean that the relevant needs of the population should be met and people who have mental barriers should be encouraged to use the Sorbian language wherever necessary, but that the aim should not be to create a demand that does not exist in the first place.
Article 11
Number 86:
The Advisory Committee finds that despite legal requirements to display topographical indications in the Sorbian language in areas traditionally inhabited by Sorbians, notably in the Land of Brandenburg, monolingual signs are only being replaced by bilingual ones at a very slow rate so that the whole operation (of bilingual signposting) could take several more years. The Advisory Committee considers that the German authorities should step up their efforts to speed up the full implementation of the legal provisions on bilingual signposting in areas traditionally inhabited by Sorbians.
Monolingual signposts in Brandenburg are being replaced by bilingual signposts in accordance with Section 11 of the “Act to regulate the substance of the Sorbs' (Wends') rights in the Land of Brandenburg” (Sorben (Wenden)-Gesetz - SWG). The details of bilingual signposting are regulated by the Decree of 1 March 1999 issued by the Ministry of Urban Planning, Housing and Transport on the use of bilingual traffic signs/road signs in the traditional settlement area of the Sorbs (Wends)
Monolingual signs will not be replaced by bilingual signs immediately in all communes, but will in part be replaced whenever, at regular intervals, old signs are replaced by new ones anyway. This might mean that in some cases replacement of signs will extend over a longer period of time. This does not, however, contravene the obligations ensuing from the Framework Convention which does not require immediate replacement of signs, but grants longer periods of time in which the necessary measures can be implemented. If all signs had to be replaced immediately, this would result in an additional workload for the communes in question, exceeding their capacity and incurring additional costs that would be beyond their financial means.
Moreover, the problem is just a minor one since, as a rule, there is not a total lack of bilingual signs; it is just that they have not been installed in the envisaged form throughout the given commune. This can be attributed to the fact that these measures will, as stated above, be implemented over a certain period of time, and thus the matter will take care of itself in the future.
Article 14
Number 87:
The Advisory Committee finds that there are reasons for considerable concern at the decision taken by the Ministry of Education and Culture of the Free State of Saxony to close the 5th class of a Sorbian-language secondary school in the municipality of Crostwitz from the beginning of the 2001-2002 school year. It considers that the authorities should urgently review the possibility of keeping the 5th class of Crostwitz’s secondary school open. More generally the competent authorities should agree on policies, programmes and resources in conformity with the Framework Convention to secure the long-term future of the historic network of Sorbian schools in the area traditionally inhabited by this minority.
At intermediate secondary schools with lower secondary grades (i.e. secondary education stage I) in the Free State of Saxony, pupils can obtain a range of school leaving certificates if there are at least 40 pupils in a year-group comprising two classes. In order to make up a year-group at intermediate secondary schools in Saxony, there would have to be a minimum of 40 pupils. The sharp decline in the birth rate of the early 1990s in Eastern Germany has also been mirrored in the German-Sorbian settlement area, meaning that adjustments have to be made to the new situation. The number of applicants for the 2001/2002 school year at the Crostwitz Sorbian intermediate secondary school - only 17 pupils applied - did not even reach the minimum number of 20 pupils needed to set up a class. Eight applications have been submitted for the 2002/2003 school year, and it is anticipated that there will only be a maximum of seven applications for the school year 2003/04. Sorbian intermediate secondary schools are within a reasonable distance. At the Sorbian intermediate secondary school in Ralbitz all lessons are conducted in Sorbian.
In order to ensure that lessons in the Sorbian language are available within a reasonable distance from pupils’ homes even if there are only a few pupils, small classes with fewer than ten pupils are actually set up, especially at primary schools. At secondary schools that are intended to prepare pupils for vocational training or third level education, pupils can be expected to travel five to ten kilometres, and pupils attending grammar schools (Gymnasium) can be expected to travel even further to school.
The "sufficient demand" mentioned in Article 14, para. 2 of the Framework Convention on the Protection of National Minorities obviously no longer exists for the intermediate secondary school in Crostwitz due to the demographic developments there. The Dresden Administrative Court and the Saxon Higher Administrative Court in Bautzen have reaffirmed this view. Discussions do not relate to the Crostwitz primary school.
Last but not least, reference is made to the “Sorbian-German School” Project that is intended to stabilise the network of schools in the Sorbian settlement area, also by including German pupils.
Number 88:
The Advisory Committee finds that there appear to be no Frisian schools and only a few hours of Frisian taught in state schools, mainly due to the initiative of volunteers. The Advisory Committee considers that the authorities should examine, in consultation with representatives of the Frisian minority, ways of developing and financing more teaching hours of the Frisian language, also at levels beyond primary school.
Only one out of the four primary schools in the Saterland in the Land of Lower Saxony – namely the one in Sedelsberg - does not have a teacher who is qualified to teach Saterland Frisian. It is only at this school that Saterland Frisian is taught by members of the “Heimatverein“ (an association/club dedicated to the preservation of local and regional traditions). The other primary schools teach Saterland Frisian within the framework of working groups established for the various year-groups. Two teachers qualified for instruction in Saterland Frisian teach at the Haupt- und Realschule mit Orientierungsstufe Saterland (5th-10th grade)
[i.e. the Saterland combined secondary modern school/secondary technical school, providing an orientation stage (grades 5 to 6)].
Also, it is not correct to say that Schleswig-Holstein owes Frisian lessons mainly to the initiative of persons volunteering to teach Frisian. Frisian lessons are given by teachers - especially, for instance, in all cases where parents enrol their children for Frisian lessons at primary schools. At present, 1,350 pupils have access to 150 hours of lessons at 28 schools. Continuing such lessons at secondary schools is proving to be a problem in a large region with many non-local pupils (having to travel to school over some distance). Furthermore, acceptance of Frisian lessons as an optional subject is dwindling among young people. Since Schleswig-Holstein was and still is aware of these facts, it has committed itself to providing for the inclusion of Frisian as an integral part of the curriculum for the secondary school stages I and II; this does not, however, imply that schools are under the obligation to provide Frisian instruction.
Article 15
Number 89:
The Advisory Committee finds that the Sorbian minority has a specific body - called the Foundation for Sorbian people - which helps it to enhance its participation in cultural, social and economic life and but notes that only 6 of the 15 members of the Foundation’s governing board are representatives of the Sorbian minority, without any veto right. It considers that the authorities should examine ways of strengthening the representation of the Sorbian minority in the functioning of the Foundation and in other fora.
It would not be expedient to grant the
Sorbian members of the Foundation’s Governing Board a veto right on policy
matters since the margin of practicability is narrow due to the lack of
clarity in defining the term "policy matters". Also, there would be
no point in allowing Sorbian representatives to have the majority on the
Foundation’s Governing Board, given that the parties providing funds to the
Foundation (Federal Government, Brandenburg, Saxony) would have to claim a
veto right in all financial matters
and since, due to the financial implications of
many decisions taken by the Foundation’s Governing Board, the majority right
would be incomplete in a large number of issues, and this could be perceived
as a de facto weakening of the majority principle. Nor does it appear
necessary to make any changes as the providers of funds so far have not
intervened in the Sorbs' policy formation process and since important
decisions must be taken by mutual agreement with the majority of the Sorbian
representatives.
The composition of the Foundation’s Governing Board is
regulated in Article 7 of the Inter-State Agreement on the Establishment of
the Foundation for the Sorbian People (Staatsvertrag über die Errichtung
der “Stiftung für das sorbische Volk”). Changes could only be made
regarding the composition of the Foundation’s Governing Board if this
Inter-State Agreement was amended.
All the members of the Foundation’s Governing Board jointly pursue the same objectives (see Article 2 of the Inter-State Agreement).
In co-ordination with the local authorities of the Sorbian settlement areas of the Land of Brandenburg and of the Free State of Saxony, the respective Association of Municipal Corporations and Local Authorities (Saxon Städte- und Gemeindetag; Brandenburg Städte- und Gemeindebund) and the respective Landkreistag (Association of Landkreise) of these Länder by mutal agreement appoint the representatives as listed in Article 7 (1), nos. 5 and 6 *. They represent municipalities and other local authorities as well as Landkreise (administrative districts; "counties") in the Sorbian settlement area.
The aforementioned Article 7 of the Inter-State Agreement does not state that the “representatives of the Sorbian people” are also obliged to acknowledge that they belong to this ethnic group (cf. "free declaration of one's affiliation with a minority"). They represent the Sorbian people. Nor does the wording of Article 7 rule out the possibility that representatives as defined in Article 7, para. 1, nos. 2 - 6, may represent the interests of the Sorbian people.
Number 90:
The Advisory Committee finds that substantial efforts need to be made to ensure the effective participation of the Roma/Sinti minority, particularly in economic, social and cultural life. It considers that the German authorities should review this matter and consider how to set up much more appropriate structures by which the Roma/ Sinti can be regularly consulted in all parts of the Federal State on matters concerning them
The Federal Republic of Germany considers the participation of German Sinti and Roma in economic, social and cultural life to be an important element of effective and practical protection of minorities. The Federal Republic of Germany therefore began in recent years to hold regular conferences on matters relating to the implementation of the Framework Convention for the Protection of National Minorities and of the European Charter for Regional or Minority Languages. Apart from the Federal and Land agencies, the relevant organizations of national minorities and language groups are also represented at these conferences, particularly the relevant umbrella organizations of the German Sinti and Roma.
The conferences have proven to be a useful and effective instrument in practical minority-policy implementation because the minorities and language groups are given the opportunity directly to discuss problems with the decision-makers, thus fostering mutual understanding and transparency of administrative action. In view of the positive experience gained so far, the Federal Republic of Germany will continue to stage Implementation Conferences also in future.
At the federal level, the umbrella organizations of the German Sinti and Roma in particular make use of the opportunity to have direct talks with the various government agencies and to voice their concerns, for instance at meetings with the Federal Chancellor and the Federal Minister of the Interior.
In addition, a wide range of contacts between government agencies and regional organizations of Sinti and Roma have been established at the level of the Länder and local authorities. The Advice Centre for Sinti and Roma in the Land of Lower Saxony is a perfect example of these activities. The Land of Lower Saxony has, since 1983, continually appropriated funds for the Niedersächsische Beratungsstelle für Sinti und Roma e.V. (Lower Saxon Advice Centre for Sinti and Roma). The personnel costs for three full-time staff and two part-time staff and the relevant material expenses (non-personnel costs) have been financed within the framework of institutional funding set up in the last financial year. Furthermore, three advisory councils from three different towns in Lower Saxony work for the Advice Centre in an honorary capacity.
The Lower Saxon Advice Centre for Sinti and Roma operates throughout the Land, offering personal support and advice to Sinti and Roma with the objective of helping them integrate into social, cultural and economic life. The support and advice are given both locally at the places of residence of the Sinti and Roma and at the Advice Centre’s office as well as over the telephone and in correspondence. Such support and advice deal with virtually all areas of everyday life where Sinti and Roma meet with special social difficulties, and include areas relating to compensation for wrongs suffered under the Nazi regime, provision of housing, schooling and employment, setting up their own business and protection of livelihoods, asylum law, consulting and support in the general social area and the corresponding public relations work. An important current area of activity for the Advice Centre is fostering the social and economic integration of Sinti and Roma by helping them find suitable gainful employment, for instance, by setting up their own business in the area of traditional trades of Sinti and Roma. In this context, enhancing the possibilities for young Sinti to obtain educational qualifications at the completion of their schooling and vocational training is another focal point of the Advice Centre. Furthermore, the Advice Centre is developing a project for school education providing additional lessons with the aim of promoting the bilingual and social skills of Sinti youngsters. The Advice Centre also provides specialised information and special advice for associations, public authorities and institutions, for schools and social workers and for local clubs representing the interests of the Sinti and Roma.
The provision of advisory services throughout the Land also has the additional effect of complying with the wish expressed by the Advisory Committee that the national minority of Sinti and Roma be involved in matters that affect them in relation to social, cultural and economic integration.
V. Response to other comments made by the Advisory Committee in the “Special comments in respect of Articles 1 – 19” (Numbers 10 - 71)
Article 6
Number 33 (Enhance awareness of minority cultures):
There is no evidence to suggest that certain public authorities display attitudes of rejection and hostility towards the national minority of German Sinti and Roma. Persons belonging to this national minority have the same rights and obligations as all other nationals.
With regard to any complaints about attitudes of rejection and hostility displayed by certain groups of the population, reference is made to the comment under IV. Re nos. 78 and 81.
Number 37 (discrimination):
The wording at the end, “necessity to set up ... as well as effective remedies to obtain compensation for damages (see related comments under Article 4)”, is not quite clear. It is doubtful in particular whether the term “compensation for damages” does not, more generally, mean“sanctions” or whether, as worded in the Committee's comments in respect of the referenced Article 4, it does not actually refer to the “adoption of further measures to fight discrimination”.
The Directive 2000/43/EC [implementing the principle of equal treatment between persons irrespective of racial or ethnic origin] refers to sanctions in the Recital (Consideration 26) and, in the text (Article 15, 2nd sentence), mentions sanctions as a generic term; the Directive refers to compensation for damages only as a possible, but not mandatory, sanction (“The sanctions that also can comprise payment of compensation to the victims must be effective, proportionate and act as a deterrent”).
Given the context to which the Opinion of the Advisory Committee and the Directive refer, the term “sanction” would actually be the more appropriate term.
Number 40 (integration measures):
Re line 3:
The Act to Amend Nationality Law (Gesetz zur Reform des Staatsangehörigkeitsrechts) entered into force on 1 January 2000 (not on 1 January 2001 as mentioned in the text).
Re line 4:
The Committee's description of the regulatory content of that Amending Act appears to be based on very broad terms. It does not make clear that children of foreign parents who are born in Germany receive German nationality at birth only if they meet certain other requirements, namely if one parent has lawfully had his or her habitual residence in Germany for a period of eight years and has been granted a right of unlimited residence (Aufenthaltsberechtigung) or has held an unlimited residence permit (unbefristete Aufenthaltserlaubnis) for the last three years. Children who wish to obtain German nationality through this ius soli (place of birth principle) have to choose between German and the foreign nationality once they come of age. If they opt for German nationality, they are required to renounce their foreign nationality provided that this is not impossible or unreasonable. This option must be exercised before their 23rd birthday. Since 1 January 2000, adult foreigners are entitled to apply for naturalisation already after eight years rather than after the previously stipulated 15 years. This is also linked to certain other requirements (having a sufficient command of the German language, ability to pay for their own subsistence, identification with, and commitment to, the principles of freedom and democracy, etc.).
Line 10:
There is no provision in the Nationality Act (Staatsangehörigkeitsgesetz - StAG) that says it is, in principle, not permissible to hold dual citizenship.
It is true that the Nationality Act retains the principle of avoiding multiple nationality. However, certain exceptions are provided for certain hardship cases. In this regard, there is also a special regulation that applies to nationals of EU Member States. In view of the goal of European integration, the incentive for this group of people to acquire German nationality has been enhanced by the fact that avoiding multiple nationality has not been made mandatory if there is “reciprocity”, i.e. the other Member State accepts multiple nationality in the case of persons applying for naturalisation.
From our perspective, preference should be given to the term “foreigner” rather than the term “non-citizen(s)" that has been used several times in the Opinion.
Article 10
Number 50 (civil service):
Reference is made here to a decision taken by the Landtag [Land Parliament] of Schleswig-Holstein in October 2001. It may be assumed to refer to the report and the recommendation for a resolution on the implementation of the European Charter for Regional or Minority Languages in the Landtag document (Printed Paper) no. 15/459 (new); the decision was adopted unanimously by the Landtag. However, this decision has not been correctly quoted. Contrary to the Advisory Committee’s statement, the Landtag merely urged the Land Government to take job applicants’ ability to speak the regional or minority languages into consideration as a recruitment criterion for employment in the public service of the Land, if and where this is deemed necessary, on a case-by-case basis, for the performance of specific duties.
Given the reponsibility of local authorities for staffing matters (i.e. their power to appoint and dismiss staff), it has only been possible to make an appeal to them to proceed likewise.
The decision did not include any comment on the placing of signs on office doors.
Number 51 (civil service):
The Opinion does not indicate in which cases the Advisory Council perceived any deficits in the implemention of Section 23 of the Brandenburg Administrative Procedure Act (BbgVwVfG). That is why it is not possible to deal with this comment or indeed to eliminate any deficiencies that have been identified. To the extent that this comment refers to the requirement for knowledge of the Sorbian language needing to be taken into consideration in recruitment advertising, reference is made to IV. Re Number 85.
The Council for Sorbian Affairs complained
some time ago that knowledge of the Sorbian language was not listed as a (an
additional) qualification in the Employers' Information Service (Arbeitgeber-Informations-Service
- AIS). The wording of the comment made in Number 51 regarding Employment
Offices appears to refer to this shortcoming.
The Bundesanstalt für Arbeit (BA - Federal
Institute for Employment) has confirmed that only official (national)
languages have so far been included as an additional vocational qualification
in the specialized computer-based placement system (computerunterstützte
Arbeitsvermittlung - coArb) and thus in the Employers' Information
Service. (AIS). As recently stated by the Federal Institute for Employment,
the relevant provisions have been amended as follows: “In compliance with
international agreements signed by the Federal Republic of Germany for the
protection of national minorities and with the Land laws and
Constitutions of the Länder of Saxony and Brandenburg, the Sorbian/Wendish
language shall be included. For technical reasons, this measure cannot be
implemented before the next software delivery takes place in late August
2002.”
When referring to the promotion of language courses for the unemployed, it is pointed out that official (national) languages are generally not funded as further training or advanced training measures. Yet Cottbus Employment Office has been offering a service since 9 June 2000 whereby applicants can be granted a three-month training scheme for participation in an intensive language course, during which unemployment benefits and/or unemployment assistance would continue to be paid.
Reference is made to the situation prevailing in the Land of Lower Saxony as an example of the active language policy adopted by government agencies. For the past two years, the Weser-Ems Bezirk (District) Government has included the criterion "knowledge of Saterland Frisian" in the procedure for inviting applications for vacancies.
The Weser-Ems Bezirk (District) Government, when advertising a job vacancy at Sedelsberg primary school starting on 6 August 2001, stated this additional requirement. However, it was not possible to find a teacher who was able to speak and read Saterland Frisian in addition to having the required combination of subjects.
Since pertinent information has been published repeatedly by the Ministry of Culture and Education of Lower Saxony, it may be assumed that Bezirk (District) Governments and schools are aware of the general framework and will continue to advertise jobs based on concrete demand. In this regard, the main criterion will have to be the demand for lessons, and nobody will be hired simply because they speak the Saterland Frisian language.
However, special consideration can also be given in the selection process to applicants who can speak and read Saterland Frisian even if this additional requirement is not specified in recruitment advertising. This, too, is contingent on there being a relevant demand at the school in question.
Number 53 (bilingual signposting):
According to Section 3 (2) of the Act on the Specification of the Rights of the Sorbs (Wends) (Sorben (Wenden)-Gesetz - SWG), a municipality belongs to the traditional settlement area of the Sorbian people if the features mentioned in this Act apply to them. Even though municipalities, given their closer association with the given local situation, are responsible for establishing whether the requirements have been met, taking decisions in this matter is not left to the free judgment or to the discretion of the municipalities; rather, this is a mandatory non-discretionary decision that is fully subject to examination by the local government supervisory authorities and that will be referred to the competent courts if the relevant municipality refuses to accept the decision taken by the local authorities’ supervisory body.
Up to now, none of the communes that have not established that they belong to the traditional settlement area have actually proven that they meet the legal prerequisites required for establishing that they do actually belong to the traditional settlement area. The Sorbian organizations claim that this is the case in a few communes, but so far they have not, in any of these cases, furnished any verifiable evidence that might refute the assessment made by the competent local authorities.
Article 13
Numbers 56 and 57 (Danish minority - education):
It can be stated that the practice - pointed out by the Advisory Committee as particularly commendable - of the Land giving, for each child of the Danish minority, grants that correspond to the costs incurred for a pupil attending a comparable publicly maintained school in the preceding year continues to apply.
Contrary to the fears expressed in Number 57, the Land did not make any provision for the financial year 2002 or for the following years that could be described in any way as “freezing” the financial resources earmarked for the Danish minority. Article 2 of the Budget Support Act (Haushaltsbegleitgesetz) for 2002 regulates the funding of substitute (private) schools provided by voluntary bodies. This Act provides that, for schools of the Danish minority, without verification of the requirements a contribution will be paid (per pupil) which corresponds to 100 per cent of the costs incurred, on a Land average, for a pupil at a comparable publicly maintained school in 2001, plus an increase in personnel costs corresponding to the percentage by which the salaries of teachers employed in the civil service are annually increased. This regulation will apply in full from the year 2004 onwards. A transitional provision applies for the years 2002 and 2003 which, on the basis of the numbers of pupils forecast by the Schools Association, leads to an increase in the grant by 413,100 € in 2002 over the original amounts in the budget estimate. A similar increase is to be expected in the year 2003. There is therefore no need to fear that certain Danish primary schools might be closed down.
The proposal made by the Advisory Committee to continue the dialogue corresponds to the ideas of the Land Government. An interdepartmental working group under the lead responsibility of the Federal Ministry of Education, Science and Culture will, in co-operation with the Danish Schools Association (Dansk Skoleforening for Sydslesvig), monitor the future development of financial support available to the Danish minority.
Article 14
Number 59 (Sorbs – education):
This item contains comments that are obviously based on some misunderstanding. It is correct to say that in the past few decades schools providing instruction in the Sorbian language have been developed in six different locations in what now is the Federal Land of Saxony. With the introduction of the Schools Act (Schulgesetz) and the restructuring of the GDR uniform school-type system, resulting in its replacement with a differentiated school system, the previously existing six "polytechnic secondary schools" (Polytechnische Oberschulen - GDR school system: a combination of a primary school and a Mittelschule, covering grades 1 to 10) and one "upper secondary school" (Erweiterte Oberschule - GDR school for the upper classes, i.e. grades 11 and 12 of the GDR second stage of secondary education) were transformed into six primary schools, six intermediate secondary schools (Mittelschulen - i.e. secondary education stage I) and one grammar school (Gymnasium, i.e. secondary education stages I and II). These schools not only have great importance as regards the Sorbian language but they are also important in terms of the respective type of school.
In order to perform these tasks, minimum numbers of pupils are required. All Sorbian primary schools are maintained even if they have far fewer than the minimum number of 15 pupils.
Number 60 (Sorbs - education):
Reference is made to the comments in IV. Re Number 87.
It also needs to be noted that the wording used by the Advisory Committee surely meant the "Council for Sorbian Affairs of the Free State of Saxony" (and not the Parliamentary Consultative Council – “Sorbian Council of the Saxon Parliament”, 6th line).
Number 61 (Sorbian language teaching/instruction in Sorbian):
By focusing further training for Sorbian teachers at Leipzig University, it has been ensured that the Lower Sorbian language is taken adequately into consideration in respect of training.
Number 65 (Foundation for the Sorbian People))
Reference is made here to the comments made under IV. Re Number 89. On this basis, the wording “... the others belong to the majority” should not be left as it is.
Also, in relation to the issue as a whole, it should be borne in mind that belonging to the ethnic group neither is nor can be a criterion for membership of the Foundation’s Governing Board. This follows from the provisions that members of a minority can freely declare whether they wish to be identified with that minority (Article 3 of the Framework Convention) and that such declaration shall be neither contested nor verified (Section 1 of the Act on the Sorbs' Rights in the Free State of Saxony - Sächsisches Sorbengesetz).
Article 17
Number 68 (cross border commuters)
This subject has not been addressed recently by the Danish minority in meetings with the Consultative Committee on Issues concerning the Danish Minority; it can, of course, be placed on the agenda for the next meeting.
Number 69 (taxation of Danish artists)
The Federal Ministry of Finance is involved in consultative negotiations with representatives of the Danish minority regarding the taxation of artists resident in Denmark who perform for events organized by the Danish minority in Germany.
VI. Comments of national minorities and ethnic groups
(1) Sydslesvigsk Forening (SSF)/Südschleswigscher Verein (SSV - South Schleswig Association) and Sydslesvigsk Vælgerforening/Südschleswigscher Wählerverband (SSW - South Schleswig Association of Voters)
(2) Friesenrat/Frasche Rädj - Sektion Nord e.V. (Frisian Council, Section North)
(3) Domowina – Zwjazk Łužiskich Serbow/Bund Lausitzer Sorben (Domowina - Federation of Lusatian Sorbs)
(4) Sinti Allianz Deutschland (Sinti Alliance Germany)
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Comments by the Sydslesvigsk Forening (South
Schleswig Association) and Südschleswigscher Wählerverband (South
Schleswig Association of Voters)
on the Opinion of the Advisory Committee on the implementation of the Framework Convention for the Protection of National Minorities and on the Comments by the Federal Republic of Germany
1. Introductory Remarks
Sydslesvigsk Forening (SSF) and Südschleswigscher Wählerverband (SSW) extend their express thanks for the receipt of the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities and of the related Comments by the Government of the Federal Republic of Germany. Also, we are pleased that, as an affected minority who took part in the consultation on this matter, we are now given the opportunity to state our own point of view regarding the Opinion and the Comments by the Federal Government. This approach shows that the minorities that come under, and are dealing with, the Framework Convention are being taken seriously as equal interlocutors participating in this process. We hope that this sensible and positive dialogue will be continued to the benefit of the minorities and of the relationship between the competent governmental bodies and the minorities.
With regard to the approach taken in drawing up our comments, we agreed that the SSF and the SSW should submit a joint co-ordinated statement on behalf of the Danish minority. At the same time, we note for the record that we are concerned exclusively with selected observations of importance to us that have been put forward in connection with the Danish minority.
This did not, of course, keep us from studying the Opinion in its entirety, and we can generally note that, as a result of the ratification of the Framework Convention for the Protection of National Minorities by the Federal Republic of Germany, a valuable basis has now been provided for addressing the existing problems in an outright fashion, and that at the same time the importance of minorities policy at the federal level and the responsibility, also of the Federal Government, for a proactive policy regarding minorities have attained a high status in terms of the attention and priority given to them.
2. Definition of the term "traditional minority", and our conception of 'belonging to a minority'
The Danish minority finds it regrettable that still no common definition of minorities has been arrived at by the Council of Europe Member States. Auxiliary terms such as "national minorities", "traditional minorities" or "autochthonous minorities" help to better understand a desired and/or necessary distinction among various groups, but in discussions these terms always require additional explanations and thus also can open up unintended cultural and social differences. The Danish minority, however, insists on a differentiation in the definition and description of minorities, and this requirement is also supported by the Framework Convention and in the context of the Regional/Minority Language Charter. A more precise and generally accepted definition continues to be the desired objective.
This desire is reflected by the listing of the five criteria in connection with the competency, invoked by the Federal Republic, to define this term (re No. 73) in support of Germany's conception of 'national minorities'. One of these criteria is "that their members are German nationals". This then brings us to the following decisive question: to which group do those persons belong who are Danish nationals and who feel to be members of the minority either by marriage or on account of their employment with the organizations and institutions of the Danish minority or simply because they have declared their affiliation with the Danish minority? In quantitative terms, this is a relatively large group who, from our point of view, are of course members of the Danish minority but are excluded on the basis of the aforementioned criterion. This obviously is a problem that must be clarified.
In this context, the Danish minority objects to any consideration being given to determinating the size of the Danish minority by means of statistical surveys (Art. 4, No. 23, Opinion of the Adv. Committee). It is true that, for a variety of reasons and in view of various specific measures in some areas, it may be desirable - even for the minority itself - to have more accurate figures available. Nevertheless, such statistical surveys meet both with legal obstacles (the right freely to declare one's affiliation with the Danish minority) and with significant practical and methodological obstacles. In this matter, the Danish minority supports the view taken by the Federal Republic of Germany.
3. Financial support for schools of the Danish minority
As understood by the Danish minority, these Danish schools are "publicly maintained schools for the Danish minority" organized within the Dänischer Schulverein e.V. (Danish Schools Association, reg'd). Financial support for schools of the Danish minority is regulated by the Schools Act of the Land of Schleswig-Holstein. Nevertheless, the Danish minority would like to see additional legal provisions with regard to the subsidy provided from public funds for the reimbursement of the costs incurred for the transportation of the Danish pupils and for needed investment costs in connection with the possible construction of any new schools and for maintenance expenditure for existing schools.
As a result of the situation of public finances, which in instances is dramatic, the grants provided by the Land for the Danish schools have over the past few years been curtailed on the basis of majority decisions taken by the Schleswig-Holstein Landtag. The Danish minority has refused to accept this. Recently a joint Working Group of the Land Government and the Danish school provider was established with the task of developing long-term regulations that will comply with the political will of the Act and will ensure a reliable planning base for the Danish school provider.
4. The Danish minority and its relationship with the media
As before, the Danish minority has the wish for its increased presence in the media in general and in the public service media in particular. The description given in the Opinion of the problems involved is correct, and the Advisory Committee's request will be supported by us.
Especially after the ratification of the Regional/Minority Language Charter, and given that the Federal Government has assumed responsibility for a pro-active policy regarding minorities also with regard to languages, the Danish minority uphold their call for continuous and sufficient consideration being given to the Danish language and for comprehensive presentation of the Danish minority in the media.
It is not acceptable that a questionable assessment of the importance and size of the Danish minority as a relevant group of society be given as the rationale for such neglect of the Danish language in the media, since the Regional/Minority Language Charter deals with language promotion as an obligation per se.
Similarly, the prominence given to the criterion of the required governmental non-intervention in the media does not carry conviction since, in the last analysis, the Inter-State Treaties are adopted by the respective Parliaments. The obligation imposed by the Regional/Minority Language Charter on the political actors needs to be anchored in such instruments.
The Danish minority continues to press for negotiations with the (supervisory) broadcasting institutions (Medienanstalten) in order to achieve that the Danish language will be taken account of by the media in a practicable and adequate way. At the same time, we expect the political actors to support these negotiations.
In this context, the Danish minority welcomes all successful initiatives undertaken at the local government and the Land levels for the promotion of multilingualism in Schleswig-Holstein (Danish, Frisian and the languages of Sinti and Roma, and Low German). This especially includes the Decision taken by the Schleswig-Holstein Landtag requesting that particular consideration should, in the staff recruitment process, be given to the languages to be promoted by virtue of the Regional/Minority Language Charter.
5. Financial support system
In fairness it must be stressed that the financial support provided by the German side to the Danish minority is offered primarily by Schleswig-Holstein State, as well as by local governments and, with the smallest share, by the Bund (Federation). It was as late as last year that the Danish minority obtained funding from the Federal Government for cultural purposes, namely the amount of 350,000 deutschmark provided by the BKM (Federal Government Commissioner for Cultural Affairs and the Media) for alterations to the Danevirkegården Museum. It is a positive factor that the Federal Government is ready to assume, through its BKM, co-responsibility for the financial support of our minority. It must be noted, however, that the present arrangement is entirely dependent on whether any appropiations go to the so-called Feuerwehrtopf ("fire-fighting", or contingency, fund/ reserve). Accordingly, the project promotion in question is not a continuous one, but must be termed arbitrary since it depends on the respective amounts flowing into the Feuerwehrtopf.
The Danish minority hopes that it will not have to rely solely on such arbitrary financial support, but that instead it will be possible to allocate a budgetary item to this minority for the purpose of annual project-oriented promotion to benefit the minority's cultural activities. A decision to this effect would, at the same time, result in a simplified filing procedure for applications.
With regard to cultural promotion, the Danish minority wishes to point out that the present criteria for authorization of appropriations in support of cultural activities are very narrowly defined and are based on a conception of culture that does not tally with the cultural activities as pursued within the Danish minority.
Unlike the German conception of culture, the Danish conception of culture is based on a broader definition because culture, sports and church activities all interlock and overlap. Sport not only is sport, but also is a person's cultural opening up; church not only means divine service, but also a wide range of cultural and club-based activities. These examples apply to other areas as well. Thus, the minority's cultural activities are of a transboundary nature, as compared with the conception of culture as defined by the Federal Government (in Berlin).
We view this as entirely inappropriate because this fact is blocking the optimum political effect which, as we assume, the political actors had intended for the promotion of minorities. We therefore appeal to the German Federal Government that promotional measures for minorities be designed in such a way that the prerequisites for the authorization of promotional funds will be formulated in consideration of the minority's organization and its cultural "worldview".
The efforts undertaken by the Danish minority in the cultural policy field are aimed at organizing the activities within the minority with greater flexibility and more effectively. Our aim is to co-ordinate and to assign the various fields of activity within the minority to the greatest extent possible. This, of course, will also have an influence on the way in which the joint financial support system within the minority will develop in the years to come. Therefore, it would be gratifying if this objective, i.e. flexibility, will not be impeded by a rigid conception of culture and by a cumbersome administrative structure.
Sydslesvigsk Forening and Südschleswigscher Wählerverband in this respect support the Advisory Committee's suggestion that the German authorities "should seek, in co-operation with the national minorities concerned, to simplify and clarify the financial support system for minority languages and cultures".
6. Taxation of artists in Germany
Since the year 2000, the Danish minority has worked on a solution regarding the problems involved in the collection, from artists from Denmark, of German (personal) income tax in relation to the cultural activities of Sydslesvigsk Forening. Last year already, the SSF and SSW tried to find a practical solution to this problem during talks held with the Federal Ministry of Finance.
The problem arises from the fact that the German system of taxation of artists includes the provision that foreign artists performing for events in Germany must pay (personal) income tax in Germany and that the organizer of a given event is reponsible for ensuring that such taxes have actually been paid. It is, however, possible to obtain exemption from taxation provided that the artist's visit to Germany is financed exclusively, or for the major part, directly or indirectly with Danish public funds (cf. German-Danish Double Taxation Convention). About 80 per cent of the SSF's expenditures are paid out of the Danish government subsidies, and this fact has been notified by the SSF to the German authorities.
The German revenue authorities have, strictly speaking, never disputed this exemption provision, but they have always required and upheld that Sydslesvigsk Forening must undergo a tax declaration procedure before a subsequent decision could be made on any possible exemption from German taxation. This administrative procedure has entailed tremendous investments of time and effort on the part of the SFF. In the meantime, however, the SSF has found a solution at the administrative level.
Although the German Federal Government has in the meantime adopted a new legal provision that lays down the de minimis limitations for the tax assessment procedure with regard to foreign artists, the minority takes the view that it should be possible for Danish artists, who are funded by the Danish State, to be exempted from German taxation in respect of their performance at events organized by the Danish minority. In this regard it should be possible to obtain a general notice of nonliability for tax (i.e. a decision on general exemption from taxation).
7. Intensified contacts and exchanges of the four recognized minorities of the Federal Republic of Germany with the German Bundestag
The Sorbian, Frisian and Danish minorities as well as the ethnic group of the Sinti and Roma have, in the course of spring 2002, made focused efforts to ensure more intensive contacts of the four recognized autochthonous minorities of the Federal Republic of Germany with the German Bundestag and Members of Parliament. The ultimate aim is the establishment of a - more or less institutionalized - forum for dialogue for the four minorities, including contacts and exchanges with the Bundestag and its Presidency. Also, the minorities strive to establish some regular presence at the Bundestag for maintaining contacts, covering some form or other of permanent accreditation, including access to information, bills, etc.
In response to a letter addressed jointly by the representatives of the minorities to the President of the Bundestag, Mr. Wolfgang Thierse, these representatives were invited to talks with the Bundestag Committee on Internal Affairs in Berlin on 24 April 2002. In the course of these talks, the minorities expressed the following wishes with regard to more intensive contacts with the Bundestag:
· continued efforts to formulate an Article on minorities for inclusion in the German Basic Law;
· hearings with
regard to legislative initiatives on minority-policy subjects;
· information exchanges between
minorities and Parliamentarians; and
· negotiations on, and
monitoring of, the implementation of the Framework Convention for the
Protection of National Minorities and of the Regional/Minority Language
Charter.
The Bundestag Committee on Internal Affairs generally took a positive stance in the matter. It was fully accepted that the [Government of the] Federal Republic has primary responsibility for the four autochthonous minorities. It was considered very important that minority-related issues must be seen as a matter to be dealt with, above party lines, jointly by Parliament and the Government, and that therefore provision must be made for a more intensive involvement of the minorities in the work of the Bundestag.
On 26 June 2002, the four minorities will,
in another talk with the Bundestag Committee on Internal Affairs, once
again explain their wishes.On the one hand, the minorities want to present a
model for a Secretariat for the National Minorities of the FRG to be
established at the Bundestag and, on the other hand, they wish to
propose the establishment of an Inter-Parliamentarian Conference on Minority
Issues which is intended to discuss relevant minority-policy matters.
The Danish minority hopes that the wishes of the minorities
will continue to meet with a positive response in the best interests of an
unabatedly positive development of the Federal Republic's policy regarding
minorities - both within the country and at the international level.
Jens. A. Christiansen Flensburg, 24 June
2002
Secretary General (SSF)
Comments by the Friesenrat/Frasche Rädj
- Sektion Nord e.V. (Frisian Council, Section North)
On
a) the Opinion of the Advisory Committee on the protection of national minorities in the Federal Republic of Germany;
b) the Comments by the Federal Republic of Germany on the Opinion of the Advisory Committee on the protection of national minorities in the Federal Republic of Germany
Preliminary Remarks:
The Friesenrat (Frisian Council) welcomes the efforts undertaken by the Federal Republic of Germany in respect of the implementation of the Framework Convention for the Protection of National Minorities.
The Friesenrat in particular welcomes the fact that the national minorities in the Federal Republic of Germany were afforded the opportunity to state their point of view regarding the above-mentioned Opinion and Comments. The Friesenrat sees this as an important step towards mutual communication between the national minorities and the Federal Government.
a) Opinion of the Advisory Committee on the protection of national minorities in the Federal Republic of Germany
Article 3
12. The Friesenrat sees the Frisian as an autochthonous ethnic group in the Federal Republic of Germany. Therefore, the Friesenrat welcomes the application of the Framework Convention for the Protection of National Minorities to the Frisians. The Friesenrat in particular welcomes the fact that the Government of the Federal Republic of Germany explicitly recognizes and reaffirms this status in its Comments.
The national minority status in Germany resulted in decisive improvements of the bases for the protection and promotion of the Frisian ethnic group since 1998 (entry into force of the Framework Convention), and this has been very noticeably reflected by the promotional measures both of the Bund [Federation] and of the Land of Schleswig-Holstein.
73. The Friesenrat shares the view that in Germany the national minority status, within the meaning of the Framework Convention for the Protection of National Minorities, applies to the Danes, Sorbs, Frisians and the Sinti and Roma of German nationality.
Article 4
24. &
75. As the Friesenrat sees it, cultural promotion of
national minorities does not depend on their number or on the percentage of
national minorities in relation to the total population figure; rather, such
promotion first of all depends on the fact that a group, irrespective of its
size and demographic composition, fulfils the criteria for its recognition as
a national minority. Conceivable measures in favour of the Frisian ethnic
group would be an extension of Frisian language instruction, bilingual
signposting or a higher profile given to the Frisian language in the media (on
this point, cf. the remarks in the Advisory Committee's Opinion). Such
measures can easily be taken and are appropriate without the need for any
quantitative assessment of the Frisian ethnic group.
As regards the according of equal status to the majority and the minority populations in economic and social terms, the Friesenrat points out that any measures taken to promote the economy in the Nordfriesland area benefit both the majority population and the Frisian ethnic group and that, in view of Nordfriesland's structural weakness, it is necessary to step up measures to promote the economy.
Article 5
25. &
76. The Friesenrat welcomes the fact that the Bund
since 2000 has provided financial support for the Frisian ethnic group. The
funds provided so far are nevertheless not considered sufficient for sustained
promotion of the Frisian language and culture. Also, there is constant
uncertainty as regards the amount of promotional funds and the period for
which such funds are granted. For these reasons the Friesenrat
recommends that in the short term a specific budget item be allocated in the
Federal Budget for the promotion of the Frisian ethnic group and that no time
limit be set with regard to that item.
Also, it is noted that the Frisian ethnic group already in the early Nineties suggested that a "Foundation for the Frisian People" be set up on the analogy of the "Foundation for the Sorbian People". Both the Bund and Schleswig-Holstein Land should assume an adequate share in this project.
Article 9
43. The Friesenrat notes that Frisian language articles are only published about once per month on half a page in the newspapers of Nordfriesland. The editing costs of the Frisian articles are borne by the minority itself. This situation is absolutely unsatisfactory.
45. The Friesenrat welcomes the suggestion of the Advisory Committee that the Federal authorities should assume a share in the funding of Frisian language programmes.
47. The Friesenrat points out that provision of Frisian language radio and television programmes should not be made dependent on whether a person speaks Frisian as his/her first, second or third language, but that instead the only decisive factor must be the fact that Frisian exists as a minority language and that consequently those German nationals who are members of the Frisian ethnic group are entitled to adequate state-provided media services. With this in mind, the Friesenrat welcomes the Advisory Committee's suggestion that consideration should be given to the possibility of increasing the presence of Frisian in the media as part of the basic service.
84. &
93. Furthermore, the Friesenrat notes that a weekly
radio programme of only three minutes' duration aired by the NDR at an
unattractive broadcasting time does not suffice for fulfilling the
aforementioned right to media services. It is noted that the Open Channel in Hüsem/Husem
is not an equivalent alternative, either, since on account of its small reach
its broadcasts cannot be received in the Frisian speech area.
With regard to television programmes, it is noted that no television programmes are aired in the Frisian language, and this is also considered as absolutely inadequate.
The Friesenrat suggests that the pertinent legal bases be created for the provision of media services to the Frisian ethnic group.
Article 10
50. The Friesenrat suggests that all public administrations in Nordfriesland put up, on the office doors of their staff, signs showing the minority language/s spoken by the respective employees. Also, public administrations should urge their staff to use the Frisian language in their dealings with Frisian citizens. Where such language skills do not exist, possibilities for learning the Frisian language should be offerend in the Frisian speech area.
The Friesenrat furthermore suggests that Frisian signs should generally be put up in, and on the outside of, administrative buildings in Nordfriesland in accordance with what is the usual practice in other minority regions in our country as well as in foreign countries. This measure would strengthen the motivation to use the Frisian language in public administrations.
Article 11
54. &
86/94 The Friesenrat notes that bilingual
signposting in Nordfriesland is not yet significantly advanced. So far, only a
number of local governments have provided bilingual place-name signs. In most
instances, such signposting fails to be carried out because of lack of
interest or for financial reasons. Given that local governments on their own
responsibility decide on signposting, it is difficult to introduce bilingual
place-name signs throughout the region concerned. The Friesenrat takes
the view that in this respect mandatory legal provisions might help to
expedite the process.
Also, the Friesenrat notes that a similarly sluggish process can be observed with regard to the introduction of bilingual signposting along bicycle paths in Nordfriesland.
Article 12
55. &
95. The Friesenrat notes that knowledge of the
Frisian language, history and culture has so far been imparted by schools only
to a very limited extent. This state of affairs was confirmed some time ago
when the Nordfriisk Instituut carried out a survey on this subject
among pupils in Nordfriesland. The Friesenrat suggests that curricula
must take still greater account of the Frisian language, history and culture.
Also, teaching material should include the Frisian language. One example would be the inclusion of North Frisian place names, in addition to the German names, in the maps in school atlases. A similar initiative regarding Sorbian place names was only recently launched by the Standing Conference of Ministers of Education and Cultural Affairs of the Länder.
Article 14
62. &
88/95 The Friesenrat notes that there are no Frisian
publicly maintained schools. In some publicly maintained schools, Frisian is
offered as a subject and is taught on a voluntary basis for a number of
year-groups. Despite some successes over the past few years, practical
experience has shown that efforts to expand Frisian instruction meet with
considerable difficultires. The Friesenrat notes that the aim must be
to ensure unbroken Frisian instruction from the first until the last
year-group in publicly maintained schools in the North Frisian speech area,
and that Frisian must be included as a regular subject in the range of
subjects taught at publicly maintained schools. The basis for this would be
that teacher training is ensured in qualitative and quantitative terms at Kiel
and Flensburg Universities, that adequate planning of subjects is carried out,
and that the legal bases for this are created.
With regard to nursery schools, the Friesenrat notes that it has been possible to achieve a positive effect thanks to the impulse given by the two previous pilot projects "Frisian in nursery school" in Söleraanj/Süderende and Risem-Lonham/Risum-Lindholm. Nevertheless, professionalization of the Frisian nursery school system is still deficient. The Friesenrat therefore suggests that the subject 'Frisian' should also be included in the training of nursery-school staff.
Article 15
65. &
89/90 The Friesenrat notes that the "Gremium
für Fragen der friesischen Bevölkerungsgruppe beim Schleswig-Holsteinischen
Landtag" ("body established at the Schleswig-Holstein Landtag
to deal with matters related to the Frisian population group") has had a
significant share in bringing about that the Frisian ethnic group can submit
its problems and questions directly to the Land Parliament. One of
the reasons given by the Frisian ethnic group for the positive experience gained in this respect is the fact that the aforementioned body is set up at the office of the Landtag President and thus is in immediate contact with the supreme souvereign, i.e. the Landtag. The Friesenrat suggests that a similar body be established at the federal level for the national minorities recognized unter the Framework Convention; this body should be attached to the Bundestag President and thus to the Bundestag.
Article 18
70. The Friesenrat notes that it suggested to the Land Government that a cultural agreement should be concluded with the Netherlands. The aim of this initiative is to create the general conditions which would make it possible to intensify inter-Frisian contacts between West and North Frisians. The Friesenrat suggests that this type of transfrontier co-operation be supported by the Bund and by the Land.
b) Comments by the Federal Republic of Germany on the Opinion of the Advisory Committee on the protection of national minorities in the Federal Republic of Germany
Preliminary remark:
The Friesenrat refers to its foregoing comments and only makes additional remarks on new aspects arising from the Federal Government's Comments:
Article 3
p. 6 The Friesenrat welcomes the fact that the Federal Government laid down five objective criteria for classing population groups as national minorities, and like the Federal Government, it notes that the Frisians meet these criteria.
The Friesenrat considers that its status as a national minority in Germany forms the basis for the protection and promotion of the Frisian ethnic group.
Article 5
p. 11 The Friesenrat notes that the structural assistance measures of the Bund in support of the Frisians are not yet geared to the Frisians' needs, but are seen as a first step towards demand-oriented assistance. Even though any formal transposition, by the Bund, of the promotional structures of one minority to those of another minority is neither desired nor planned, consideration should be given to the introduction of functionally equivalent funding as regards the provision of basic cultural services for the autochthonous minorities of Germany. In this context, see also our comments above on Article 5.
Article 9
In the Friesenrat's view, the Federal Government's invocation of the rule of governmental non-intervention in broadcasting is not convincing. The minorities are not public institutions or parties, but they are groups of society whose interest (language) is not adequately attended to by the media and/or bodies which are dominated by the majority population. Therefore, this is not a matter of any direct influence on individual programmes; rather, we must ask ourselves the fundamental question as to whether the cultural plurality of public-service broadcasting is still guaranteed in this respect.
Article 10
p. 20 The Friesenrat notes that it must be left to the national minorities themselves to define the extent to which the use of a minority language meets the speakers' requirements. This is also in line with the freedom to declare one's affiliation with a given minority. It is not admissible under any circumstances to reject the wishes of the national minorities on account of the fact that these are only the wishes of a small group of people in a given region and that consequently the official side denies that there is any demand. The rights of minorities must not be based on the number of applicants
etc., but must be oriented generally to the situation of the given minorities. Therefore, the Friesenrat rejects the statements in the last paragraph re Article 10.
p. 28 The Friesenrat suggests that, along the lines of the future provisions applying to the Sorbian people, the Bundesanstalt für Arbeit (Federal Institute for Employment) should also include knowledge of the Frisian language as an additional qualification in the job placement process.
Article 14
p. 23 The Friesenrat does not see the issue of non-local pupils as the core problem in connection with Frisian instruction. Much bigger problems arise from the fact that Frisian is offered as a voluntary subject and that consequently Frisian instruction is perceived as an additional burden. The Friesenrat refers to its suggestions above regarding Article 14.
Ingwer Nommensen Risum-Lindholm, 24 June 2002 President
Comments by the Domowina – Zwjazk Łužiskich Serbow/Bund Lausitzer Sorben (Domowina - Federation of Lusatian Sorbs)
on the Draft Comments of the Federal Republic of Germany on the Opinion of the Advisory Committee (ACFC) on Germany's implementation of the obligations under the Framework Convention
1. General Remarks
Both the Opinion of the CoE Advisory Committee on the status of Germany's implementation of the obligations under the Framework Convention and the draft Comments by the Federal Republic of Germany on that Opinion show that the two commenting parties made a very precise analysis and that the respective statements regarding the situation of the Sorbian people in Lusatia generally reflect the real facts. On a number of points, however, opinions diverge as regards the status of the implementation of the obligations under the Framework Convention by the Federal Republic of Germany. The Presidency of the Domowina Federal Executive Committee concurs with the Advisory Committee's Opinion where the Committee, on the one hand, notes the positive legal regulations for the Sorbs and, on the other hand, also identifies deficits, in regard of which a certain scope for action and additional activities by the Federal Republic can be expected.
In the following, our comments only address items on which our view diverges from that expressed by the Federal Republic in its Comments. With regard to those Articles and specific comments not addressed by us, a consensus of opinion exists, also on the part of the representation of the Sorbian people.
As regards the overall effort, the Presidency of the Domowina Federal Executive Committee expresses its sincere thanks to all parties involved for their work and the recorded findings of their research.
Together with these thanks, we also express the hope, especially directed to the representatives of the Federal Republic, that we will, within the scope for action still available to us, be able jointly to make further positive steps in the implementation of these European obligations.
2. Comments by the Presidency of Domowina - Bund Lausitzer Sorben on those statements in the Comments by the Federal Republic of Germany which are not supported by the Sorbian view
Re Article 5, No. 77
We agree with the Advisory Committee's finding that there is reason for deep concern about the forced dissolution of a municipality with Sorbian character aimed at allowing lignite quarrying to continue. In its Comments, the Federal Republic claims that ignite quarrying in the area of Horno is absolutely vital for compelling reasons relating to public welfare. In our view, the authorities failed to weigh all aspects of the case in an adequate and thorough fashion and, in particular, failed to study the possibility of bypassing the Horno settlement. Also, we do not share the view that resettlement in the traditional settlement area will, for all affected citizens, maintain the cohesion of the Sorbian infrastructure. According to the results of compact resettlement that have become known until now, it is not possible to resettle all citizens at a 100 percent rate. The drifting apart of an ethnic community when they leave a traditional settlement area is an established fact and will, also in our case, entail substantial damage. The future will show whether focused support measures by the mining company will succeed in bringing about some compensation for these deficits.
Re Article 10, No. 85
The Sorbs share the view taken by the Advisory Committee. The first part of the statement in the Comments by the Federal Government also is correct. It is a fact that the demand by the Sorbian population for use of the Sorbian language in dealings with public authorities is at a low level. This is due to the experience made by the Sorbian citizens in the past and, in instances, even nowadays - namely that, when using of the Sorbian language, the speakers were, or are, reproached by the "opposite side" with lack of insight, intolerance and
nationalist attitudes. This did not help to encourage these speakers to use the Sorbian language. Since every Sorbian citizen also speaks the German language, the Sorbian language inevitably has come to take a backseat. Unfortunately, a similar valuation approach is to be noticed in the second part of the Comments where it says that primarily recruitment decisions in the public service are to be based on the applicant’s suitability, skills and specialised performance, and that only in the second place knowledge of the Sorbian language can be taken into account in recruitment decisions if such knowledge is required for the fulfilment of the specific duties. For Sorbs, this statement carries the connotation of inferiority of the Sorbian language. In our view, the additional qualification criterion "command of the the Sorbian language" should, in cases where applicants have the same specialised qualification, be included in all recruitment decisions so that, to begin with, the very prerequisite for use of this language by Sorbian citizens in their dealings with public authorities is provided within the administration itself. We are disturbed by, and object to, the statement in the following sentence that the authorities are prepared to meet the already existing demand for use of the Sorbian language in dealings with administrative authorities, but not to create a demand that is not there in the first place. Encouragement to use the Sorbian language in dealings with these authorities in the Sorbs' settlement area is a legal requirement stipulated by Section 8 of the Saxon Sorbs Act. This Section reads as follows: "Use of their own language is an essential feature of the Sorbs' identity. The Free State of Saxony recognises the Sorbian languages, especially Upper Sorbian, as an expression of the intellectual and cultural wealth of the Land. Use of the Sorbian language shall be left to the speakers' discretion. Its use, in spoken and written form, in public life and encouragement to use it in this way shall be protected and promoted." Domowina will encourage all Sorbian citizens to make persistent use of this right in their future dealings with public authorities. Basing the assessment of the demand for use of the Sorbian language in relations with public authorities on the ascertained actual use of this language gives rise to concern from a constitutional law point of view.
Re Article 11, No. 86
We agree with the Advisory Committee's statement that the German authorities should step up their efforts to speed up the full implementation of the legal provisions on bilingual signposting in areas traditionally inhabited by Sorbs. Since the pertinent legal bases providing for bilingual signposting exist in both of the Länder, these provisions should be actually implemented within the foreseeable future. It is true that the required funding - i.e. the additional expenditure - in some cases exceeds the financial capacity of local authorities. However, this situation should be remedied by specific subsidies granted by the Land and the Bund. It must be pointed out that signs newly put up, especially after the political Change [in East Germany], in many instances had only bilingual inscriptions. The Sorbs criticize the failure of the responsible authorities, despite their knowledge of the relevant legal bases, to take the initiative in implementing the stipulated bilingualism, and their failure to comply with this requirement when putting up new signs. There is no regulation as regards bilingual marking of motorway signposts and advance direction signs in the Sorbian settlement area, which come under the responsibility of the Federation.
Re Article 14, No. 87
On this point, we share the concern expressed by the Advisory Committee. Contrary to the view stated in the German Comments, we note that the Free State of Saxony has not sufficiently studied and taken account of the required overall conditions arising from the minority situation of the Sorbian people. A case in point is that the minimum number of pupils required to set up a class, as laid down in the Saxon Schools Act and applying to the schools of the majority population, is given as the reason for the closure of the 5th class of Crostwitz secondary school.
The members of the Presidency of the Domowina Federal Executive Committee take the view that this approach does not comply with the conditions stipulated in Article 6 of the Saxon Constitution with regard to Sorbian schools. Rather, they are of the opinion that the appropriate minority conditions for Sorbian schools must be firmly established by the inclusion of new legal provisions in the Saxon Schools Act; these will ultimately also have the effect that acceptable distances to be covered by pupils on their way to secondary schools will be realized, with due regard to the growing size of the peripheral schooling districts. An initial proposition paper has been drafted by the Domowina on this subject.
The argument that the “Sorbian-German School” Project ... is intended to stabilise the network of schools in the Sorbian settlement area, also by including German pupils cannot be validly put forward with regard to the status of a minority school. Application of the minimum number of pupils stipulated for majority schools in rural areas also to minority schools is seen as unequal treatment of the Sorbs.
For the Sorbs as an autochthonous minority and for all persons interested in acquiring the Sorbian language and identity, schools as a public language area have much greater importance than is required for the preservation of the language and culture of the linguistic majority. The public need for a Sorbian school and a Sorbian network of schools derives from the fact that they form the keystone of a public infrastructure, that otherwise is extremely confined, in which the Sorbian language can be used. At the same time, they are places of cultural communication and an educational institution for the preservation and development of the Sorbian identity of all citizens of the region. However, given the present legal situation, even decisions on the existence of Sorbian schools are not based on criteria which are decisive for the preservation and the development of a firmly implanted Sorbian identity among the young generation. The determining criteria applied are economic factors (numbers of pupils, the financial position of the respective school provider), such as they are similarly applied to all publicly maintained schools in Saxony and Brandenburg. There is a pressing need for action in order to remedy this state of affairs.
Re Article 15, No. 89
We support the Advisory Committee's
recommendation that the authorities should examine ways of strengthening
the representation of the Sorbian minority in the functioning of the
Foundation and in other fora. However, from the Comments of the Federal
Republic it emerges that such strengthening in the sense of consolidating the
Sorbs' cultural autonomy is not desired. On account of the right to enter a
reservation as to budget appropriations, providers of funds already have a
right of veto in all financially relevant matters. It is exactly the financial
implication of the decisions taken by the Foundation's Governing Board that
prevents the Sorbs from freely forming and articulating their will in
substantive matters. With this reservation, individual representatives of the
parties providing funds exert a direct influence also with regard to
substantive issues, for instance when they require that, in the case of budget
cuts on the basis of staff reductions, severance pays must also be borne out
of the reduced budget.
After 10 years of activity within the Foundation's
Governing Board, it is noted that policy matters must not be settled by the
Governing Board itself, but outside the Board by means of political activities
of the Sorbs since, after the respective budget appropriation has been frozen
and/or slashed over a period of ten years, "damage limitation" is
the only option which the Foundation's Governing Board still has for making do
with the available amount.
Jan Nuck Bautzen, 15 June 2002
Chairman
Comments by the Sinti Allianz Deutschland (Sinti Alliance Germany)
on the Opinion of the Advisory Committee on the implementation of the Framework Convention for the Protection of National Minorities and on the Comments by the Federal Republic of Germany.
1. In your Comments re Art. 3, no. 73, (p. 6) you state that:
"The Framework Convention does not contain any definition of the term 'national minorities'. ... Germany considers national minorities to be groups of the population who meet the following five criteria:
- their members are German nationals;
- they differ from the majority population insofar as they
have their own language, culture and history, in other words, they have their
own identity;
- they wish to maintain this identity;
- they are traditionally resident in Germany; and
- they live in the traditional settlement areas.
The Sinti Allianz Deutschland (SAD) takes the view that this calls for further specification.
In this regard, a distinction must be made, on principle, between the groups recognized as national minorities in Germany, i.e. the Danes of German nationality and the members of the Sorbian people of German nationality, and the German Gypsies, and for the sake of clarity regarding the legal situation, it should be noted that the Gypsies in Germany, whose interests are represented by the SAD, do not define themselves as a national minority. Rather, they see themselves as an independent ethnic group within the German people, who in addition to their German culture and language live and maintain the Sinti culture and language on an equal footing.
With a view to clearly reflecting this difference, we kindly ask you to replace, in the following texts of your Comments, the passages referring to 'national minorities' by "national minorities and ethnic groups".
2. Your Comments re Art. 4, no. 75, (p. 9), 2nd hyphenated enumeration:
We should like to point out - as we already did in our comments on the First German State Report - that, on the basis of our own surveys, the members of the Sinti community in Germany, in the large German cities alone, number much more than the 70,000 persons estimated so far, and that your statement that fewer than a total of 100,000 persons [each] belong to the national minorities and ethnic groups is not correct.
3. Your Comments re Art. 5, no. 76, (p. 11):
During the talks which the SAD had with the representative of the Federal Ministry of the Interior, i.e. Parliamentary State Secretary Dr. Cornelie Sonntag-Wolgast, with the then President of the Bundesrat, Mr. Kurt Beck, with the representatives of the Länder on the Bundesrat, with representatives of the Council of Europe committees of experts, with the present President of the Bundesrat, Mr. Klaus Wowereit, and with representatives of the Länder, the question was discussed as to whether the promotional measures established by the Federal Government in the cultural field, which so far are for the exclusive benefit of the association Zentralrat Deutscher Sinti und Roma, might be converted into a federal foundation or comparable institution dedicated to the promotion of the culture of German Sinti and Roma. This is intended to ensure that all groups of German Gypsies can contribute their share and participate in the shaping of policies, and can, as partners of equal rank, represent their aims and interests and file applications for promotional grants.
In this respect, too, the members of the SAD see themselves as an independent ethnic group whose - social, cultural and political - aims and concerns differ from the Central Council's positions.
The SAD therefore requests that these considerations be taken into account in the Comments of the Federal Government.
4. Opinion of the Advisory Committee re Art. 6, no. 78, (p. 12 of your Comments):
"The Advisory Committee finds that in general, with the exception of the Roma/Sinti who still report attitudes of rejection or hostility towards them, ..."
The Advisory Committee's sweeping statement calls for a differentiating explanation since the experience gained by the SAD members would indicate that such rejection refers to Roma migrants and Roma refugees, and not to the Sinti who are natives of Germany.
5. Opinion of the Advisory Committee re Art. 6, no. 81, (p. 15 of your Comments):
"The Advisory Committee finds that the German authorities openly recognise the importance of the problem ... primarily targeted at ... but sometimes also at certain Roma/ Sinti. ..."
In this respect, too, we ask for further specification and/or differentiation among German nationals (Sinti) and Roma refugees (asylum-seekers).
As far as we know, there have been no right-wing extremist or racist outrages against Sinti.
In Germany, there are a number of residential areas inhabited exclusively by members of our population group. For these areas, no radical-right outrages have come to our knowledge.
On the other hand, a number of xenophobic
attacks were committed against asylum-seekers' hostels and refugees' residence
centres where, among other refugees, also Roma refugees were affected.
In the reporting by the German media, however, the
designation 'Sinti and Roma', which had been introduced by the Central Council
of German Sinti and Roma several years ago, was used instead of the historical
term 'gypsies', with the result that these outrages were by mistake reported
as having also been directed against the Sinti.
6. Opinion of the Advisory Committee re Art. 15, no. 90, (p. 24 of your Comments):
"The Advisory Committee finds that substantial efforts need to be made to ensure the effective participation of the Roma/Sinti minority, particularly in economic and social life. ..."
With regard to this item, we kindly request you to clarify, in your Comments in response to the Advisory Committee's Opinion, that the Sinti as German nationals enjoy equal rights in all areas of economic, social, political and cultural life in our country and fully exercise these rights.
However, as an independent ethnic group, the members of the SAD are at a disadvantage in comparison with the members of the association Central Council of German Sinti and Roma.
On account of its Documentation and Cultural Centre and of the pertinent federal funding, the association Zentralrat Deutscher Sinti und Roma (Central Council of German Sinti and Roma) is in a position to employ a number of full-time staff and thus can present its concerns and wishes to the competent agencies in a much better focused way, to set priorities and to present the Sinti's culture exclusively from the Council's view.
The SAD and its affiliated organizations are not offered any comparable facilities.
As an example of the lack of financial support for the cultural activities of those Sinti who are members of the SAD, we refer to the radio programme "Radio Flora" which is financed by our affiliated association in Lower Saxony from its own funds and is operated on a voluntary basis.
Any number of further examples can be given as regards the lack of financial support for the SAD in comparison with the Central Council of German Sinti and Roma.
Wherever in your Comments re Article 15, no. 90, the term "relevant umbrella organizations of the German Sinti and Roma" is used, we kindly request that the names of both umbrella organizations be given, i.e. Sinti Alliance Deutschland e.V. and Zentralrat Deutscher Sinti und Roma e.V.
Natascha Winter Cologne, 25 June 2002
Executive Board
.