Reply to List of Issues : Germany. 28/09/95.
. (Reply to List of Issues)
COMMITTEE ON THE
RIGHTS OF THE CHILD

WRITTEN REPLIES BY THE GOVERNMENT OF GERMANY
TO THE QUESTIONS RAISED BY COMMITTEE
IN THE LIST OF ISSUES (CRC/C.10/WP.5) IN CONNECTION WITH
THE CONSIDERATION OF THE INITIAL REPORT
OF GERMANY (CRC/C/ll/Add.5)

[Received on 28 September 1995]

IMPLEMENTATION OF THE CONVENTION ON THE RIGHTS OF THE CHILD
List of issues to be taken up in connection with the
consideration of the initial report of Germany
(CRC/C/11/Add.5)

List of Abbreviations


ABM = ArbeitsbeschaffungsmaBnahmen
AFG = Arbeitsförderungsgesetz
AFT = Aus- und Aufbau von Trägern der freien Jugendhilfe
AuslG = Ausländergesetz
BGB = Bürgerilches Gesetzbuch
BSHG = Bundessozialhilfegesetz
FGG = Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit
FLA = Familienlastenausgleich
GDR = German Democratic Republic
GG = Grundgesetz
EBFJ = Informations-, Beratungs- und Fortbildungsdienst
der Jugendhilfe
IPOS = Institut für praxisorientierte Sozialforschung
JGG = Jugendgerichtsgesetz
KJHG = Kinder- und Jugendhilfegesetz
OEG = Opferentschädigungsgesetz
SGB = Sozialgesetzbuch
StGB = Strafgesetzbuch
StPO = StrafprozeBordnung
VVJug = Bundeseinheitliche Verwaltungsvorschriften zum Jugendvollzug
VwVfG = Verwaltungsverfahrensaesetz
ZPO = ZivilprozefBordnung

General measures of implementation
(Arts. 4, 42 and 44, para. 6 of the Convention)




1. In light of the Declaration and Plan of Action adopted by the World Conference on Human Rights which, inter alia, encouraged States to consider reviewing any reservations to international instruments with a view to withdrawing them, please indicate whether the Government is considering the possibility of withdrawing its reservations and declarations to the Convention on the Rights of the Child.


Insofar as the Federal Government declared at the time the instrument of ratification was deposited that the Convention provided impetus for the initiation of reforms in its domestic legislation and that these included, in particular, a revision of the law on parental custody in respect of children whose parents have not married, are permanently living apart while still married, or are divorced, this is to be realized within the framework of the reform of the law of parent and child planned by the Federal Government. The Government draft of a bill to reform the law of parent and child is to be introduced before the end of this year so that parliamentary deliberations can be concluded within the current legislative period. Not until after the conclusion of this reform will it be possible to consider to what extent the grounds which were decisive in leading the Government to submit a declaration in respect of individual provisions of national law at the time the instrument of ratification was deposited are still to be upheld.


Otherwise, the declarations submitted at the time the instrument of ratification was deposited constitute clarifications pertaining to the interpretation of the Convention and continue to be valid.

General measures of implementation
(Arts. 4, 42 and 44, para. 6 of the Convention)

2. With respect to the information contained in para. 7 of the report, have any further measures been taken to make the principles and provisions of the Convention widely known to adults and children alike, in all Länder and at the local levels?

3. Is the Convention and other publications about the Convention available in languages spoken by the larger refugee and immigration groups, including in forms accessible to children?

4. What measures exist to train professionals working with and for children, including teachers, social workers, judges, administrators and personnel working in institutions, about the provisions and principles of the Convention?

The Federal Government has fulfilled the obligation laid down in article 42 of the Convention to make the principles and provisions of the Convention widely known by means of a brochure published by the competent Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, which contains the text of the United Nations Convention on the Rights of the Child and additional materials. 5,000 copies of the first edition of the brochure were printed in January 1993. In the same year another 20,000 copies were printed. Demand for the brochure at any given time can be satisfied by further reprints.

To reach the target group children, the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth has financed a separate printing of 8,000 copies of the brochure "Die Rechte des Kindes" (The Rights of the Child) published by the Child Commissioner for the Land North Rhine-Westphalia, Tailored to a child's information needs and level of comprehension, the brochure contains the full text of the Convention on the Rights of the Child as well as explanatory texts and illustrations.

Preparations for a reprint of this brochure are currently under way.

Both brochures have been widely distributed, especially in the statutory and voluntary youth services sectors. They are available free of charge to the interested public, above all for use in youth services and in schools, and may be obtained free of charge from the aforementioned federal ministry as well as from numerous Land and municipal agencies. The United Nations Convention on the Rights of the Child has also indirectly been publicized through the Initial Report of the Federal Republic of Germany on the measures adopted to give effect to the rights recognized in the Convention, which was submitted to the competent United Nations Committee on the Rights of the Child in August 1994 in accordance with article 44, para. 1 (a) of the Convention. The report is likewise available free of charge, in both German and English, from the aforementioned federal ministry.


Foreign-language publications have not been issued for aliens living in the Federal Republic of Germany. It must be noted in this context that foreign nationals living in Germany have generally learned the German language or are in the process of doing so. This is especially true of alien children, who without exception learn German in public schools. Irrespective of this fact, brochures from aliens' native countries that are written in the given native language are welcomed as a supplementary source of information.

The courts and authorities concerned with the Convention on the Rights of the Child have been provided with the text of the Convention and the Initial Report of the Federal Republic of Germany. In addition, judges and public prosecutors are informed about the principles and provisions of the Convention within the framework of continuing education courses offered at the Deutsche Richterakademie (German Academy of Judges). Conferences with themes relevant to the rights of the child regularly take place at which, inter alia, the Convention on the Rights of the Child is also addressed.

General measures of implementation
(Arts. 4, 42 and 44, para. 6 of the Convention)

5. Please indicate the mechanisms in place at the Federal, Länder and local levels to coordinate, monitor and evaluate the implementation of the Convention and whether indicators are used to assist in this task. Please provide information on the ways in which non-governmental organizations and private organizations are in involved in implementing the rights of the child.


It can be presumed - taking into consideration the comments in response to Question 1 - that the standards and objectives of the United Nations Convention on the Rights of the Child are met by German law and, moreover, that the statutory provisions in force in Germany for the protection and furtherance of children and juveniles in the various areas and contexts are as a rule more concrete and more extensive than the provisions of the Convention on the Rights of the Child. In respect of all provisions of the Convention that are already embodied in, given substance under and covered by German law, the query formulated above basically amounts to the question of "what mechanisms are in place at the federal, Lander and local levels to coordinate, monitor and evaluate" German law and German statutory provisions for the benefit of children and juveniles. An answer to this question would require a comprehensive explanation of the German legal and administrative system, including the police and child and youth services authorities. Since this would exceed the scope of these remarks, let it be pointed out in general terms here for purposes of comparison that in Germany the monitoring of laws, including the provisions for the benefit of children, can be termed very close and effective, involving all authorities at the federal, Land and local levels within their competences to the extent that their duties are affected by the Convention on the Rights of the Child. Similarly, an exhaustive answer to the second part of Question 5 would be necessary in order to describe the multifarious and dense network of nongovernmental organizations and voluntary organizations concerned with the welfare of children. By way of a summary, let it therefore be pointed out that non-governmental organizations and voluntary organizations have joined together to form a "National Coalition" specifically for the purpose of implementing the Convention on the Rights of the Child in Germany. This coalition staunchly advocates the rights of children within the respective organizational structures and vis-à-vis government authorities at the local, Land arid federal levels. The individual organizations autonomously determine their own activities.
General measures of implementation
(Arts. 4, 42 and 44, para. 6 of the Convention)

6. Please provide information on whether the Government is considering the possibility of establishing a national institution, such as a Federal Commissioner for children's rights, with a view to further promoting and protecting the rights of the child.


In the Federal Republic of Germany there are legal, technical and political control mechanisms vis--à-vis all state functions, mechanisms which today are already concurrent in many areas,

Active at the federal level is the Commission for Children's Concerns of the German Bundestag, which sees itself as the representative of children's interests. Its duties are to be the body approached in matters of concern to children, to examine legislative proposals in light of their consequences for children and, through initiatives of its own, to promote a more child-friendly environment in Germany. The Commission strives to support the rights of children and improve their living situation. It was therefore involved in efforts to achieve adoption and implementation of the United Nations Convention on the Rights of the Child. The appointment of a national child commissioner in addition to this Commission is not considered necessary.


At the Land and municipal levels, moreover, there is the institution of the Child Commissioner (in the states of North Rhine-Westphalia and Saxony-Anhalt, for example). Finally, it must be pointed out that the Federal Advisory Committee on Youth Problems and a nationwide network of Land and municipal youth services committees have been established on the statutory basis of the Child and Youth Services Act to deal with all matters pertinent to child and youth welfare services at the federal, Land and local levels.
General measures of implementation
(Arts. 4, 42 and 44, para. 6 of the Convention)

7. Please provide further details of the policy in place in relation to the implementation of article 4 of the Convention with regard to the allocation "to the maximum extent of available resources" for the rights of the child. In this connection, please provide clarification as to the mechanisms which exist to ensure that Länder and municipalities are guided by this principle in their policy decision making.


Insofar as this issue is not addressed in the responses to other questions in this list, the following must be noted:

The following monetary payments are provided for children within the framework of financial benefits for the family, and especially within the framework of the equalization of family burdens regime:


1. Child benefit

The child benefit is paid for all children under the age of 16. Eligibility for the child benefit can be extended up to the age of 27 for children who are still enrolled in an educational institution or a vocational training programme. If during this time the child renders basic military or civilian service or another form of service in lieu of such compulsory service, and if his or her education or training is consequently interrupted, the maximum period of eligibility is extended accordingly. There is no age limit in the case of disabled children. If children undergoing education or training have income of their own, and if certain limits are exceeded, their parents are no longer entitled to the child benefit.

Child benefit rates:
Reduced amount Reduced amount
for parents for parents
Monthly with higher with high
child benefit Full amount incomes* incomes**

for 1st child 70 DM 70 DM 70 DM
for 2nd child 140 DM 70 DM 70 DM
for 3rd child 220 DM 140 DM 70 DM
for 4th child
and for each
additional child 240 DM 140 DM 70 DM


* Reduction effective for an annual parental net income of DM 45,480 or more in the case of a married couple with two children or of DM 7,780 or more in the case of a single parent with two children. This income threshold rises by DM 9,200 for the third child and by another DM 9,200 for each additional child.
** Reduction effective for an annual parental net income of DM 100,000 or more in the case of a married couple with three children or of DM 75,000 or more for a single parent with three children. This income threshold rises by DM 9,200 for the fourth child and by another DM 9,200 for each additional child.


Cost borne by: Federation 100%



2. Supplementary child benefit

Parents with low incomes receive a supplementary child benefit of up to DM 65 per month per child. The supplementary child benefit is paid if the parents' income is so low that they are either unable or only partially able to benefit from the tax-free child allowance. Entitlement to the child benefit is a precondition for receipt of a supplementary child benefit.


Cost borne by: Federation 100%


3. Planned readjustment of the child benefit and the child allowance within the framework of the 1996 Annual Tax Act


On 2 June 1995 the German Bundestag passed the Annual Tax Act (Jahressteuergesetz), including the revised version of the equalization of family burdens regime (FLA), effective as of 1 January 1996. After being rejected by the Bundesrat, the bill was referred to the Mediation Committee of the Bundesrat and the Bundestag. On 31 July 1995 the Mediation Committee adopted the following proposals, which must still be approved by the Bundestag and the Bundesrat:


As of 1996 a monthly child benefit of DM 200 each is to be paid for the first and second child, DM 300 for the third child, DM 350 for the fourth child, and DM 350 for each additional child. As of 1997 the child benefit for the first and second child is to be increased by DM 20 each.
The tax-free child allowance, which can be selected in lieu of the child benefit, is to be increased as of I January 1996 to DM 522 per month (DM 6,264 per year) and as of 1997 to DM 576 per month (DM 6,912 per year). During the current year, the child benefit is initially to be paid out each month; when income tax is assessed after the end of the year, the effect of the child allowance is to be offset against the child benefit that has been paid and, where applicable, the difference in excess of the child benefit is subsequently to be paid out (so-called "optional model").


Children who have not yet attained the age of 18 are generally taken into account irrespective of their earnings. In addition, unemployed children can be taken into account until they attain the age of 21; children who are undergoing vocational training, seeking a training place or serving a "Voluntary Social Year" or a "Voluntary Ecological Year" within the meaning of the respective promotion acts can be taken into account until they attain the age of 27.


If a child has rendered statutory basic military service, civilian service or another form of service in lieu of such compulsory service, and if his or her training has been interrupted as a result, the child can qualify for an additional period corresponding to the length of such compulsory service even beyond the age limit of 21 or, respectively, 27. If the child is unable to support himself or herself due to a disability, he or she is also taken into account beyond the age of 27; this eligibility is not subject to any age limit.

The child benefit is henceforth to be paid irrespective of the parents' income. The entitlement to the child benefit or, respectively, the tax-free child allowance, is to cease to exist if the child's annual income and earnings are at least DM 12,000 in 1996, at least DM 12,360 in 1997, at least DM 12,360 in 1998, and at least DM 13,020 as of 1999. The provisions governing the supplementary child benefit have been deleted.


Entitled persons who are subject to unlimited income tax liability or are considered subject to unlimited income tax liability are to receive the child benefit in the form of a tax refund pursuant to the Income Tax Act (Einkommenssteuergesetz). Entitled persons who do not fall under the Income Tax Act are to receive the child benefit pursuant to the (revised) Federal Child Benefit Act (Bundeskindergeldgesetz).


4. Child-raising benefit


Mothers and fathers who take care of their newborn child themselves receive a child-raising benefit in the amount of DM 600 per month. They may at the same time be gainfully active for up to 19 hours per week. For children born on or after 1 January 1993, the child-raising benefit is paid until the child attains the age of 24 months.

The child-raising benefit is based on income. Starting in the child's seventh month of life, the child-raising benefit is reduced on a graduated scale for married couples with an annual income in excess of DM 29,400 or single parents with an annual income in excess of DM 23,700. This income limit is increased by DM 4,200 for the second child and by another DM 4,200 for each additional child. Parents with high incomes (DM 100,000 for married couples, DM 75,000 for single parents) receive no child-raising benefit at all.

The maternity benefit paid to women who are gainfully active is credited toward the child-raising benefit. This benefit is paid 100% by the Federation.


5. Child-raising leave

Male or female employees have a night to take child-raising leave to care for their newborn child. In the case of children born on or after 1 January 1992, child-raising leave can be taken until the child attains the age of 36 months. During this time the parents can alternate up to three times in taking leave.


6. Maternity benefit


During the period of maternity protection - 6 weeks before and generally 8 weeks after the birth of a child - mothers who are employees receive a maternity benefit. Mothers who are members of the statutory health insurance scheme receive up to DM 25 per day, The difference between DM 25 per day and the employee's previous net remuneration is borne by the employer. Employees who do not participate in a health insurance scheme or who are insured by a private health insurance carrier are also paid this difference. Moreover, they are entitled to a one-time maternity benefit of DM 400, which is paid by the Federal Insurance Office.


7.a. Advance maintenance payment

The Advance Maintenance Payment Office helps single mothers and fathers if the other parent fails to pay maintenance for the child.

Advance maintenance Children under Children between
payment the age of 6 ages of 6 and 12

in the old Länder DM 291 per month DM 353 per month
in the new Länder DM 262 per month DM 317 per month

Advance maintenance payments are paid for a maximum of 72 months but not, however, after the child attains the age of 12.

The Federation and the Länder each bear 50% of the cost. Government authorities subsequently recover the amounts paid out for advance maintenance - when possible - from the parent liable to provide maintenance.

7.b. Standard maintenance ordinance


Pursuant to section 1615 f, subs. 2 and section 1615 g, subs. 4 of the Civil Code (BGB) as amended in the Act on the Legal Status of the Child Born out of Wedlock (Gesetz über die rechtliche Stellung des nichtehelichen Kindes), the standard maintenance required by a child has been laid down in the Ordinance on the Calculation of Standard Maintenance (Verordnung zur Berechnung des Regelunterhalts).

The standard maintenance requirement rates are graduated by age group, of which there are three (up to the age of 6, from age 6 to 12, and from age 12 to 18). These rates are currently DM 291, DM 353 and DM 418 respectively and, pursuant to a resolution of the Federal Government, are to be increased by 20% as of 1 January 1996.

Every three years on average, the standard maintenance requirement rates are adjusted to reflect changes in economic conditions.

In the area of housing and urban development, attention is being focused on creating a living environment more suited to the child's needs both at home and in the greater urban setting. Few public functions affect the immediate living environment of people - and consequently of children -more strongly than city planning. In many cities, urban structures and apartment design still fail to sufficiently meet the needs of children. The Federal Building Code (Baugesetzbuch), however, affords cities and municipalities a set of planning instruments adaptable to their given situation which can help them to structure a more child-friendly environment. The different needs of all groups of people - including children and juveniles - should likewise be taken into account within the framework of housing assistance, which is governed under federal law above all by the Second Housing Act (Zweites Wohnungsbaugesetz).


The importance and timeliness of the issue of cramped living quarters, shortage of housing and homelessness affecting Juveniles and young adults prompted the Conference of the Ministers for Youth Affairs of the Länder to address this subject in June 1995. The Conference commissioned a working group to submit a concept encompassing all aspects of housing pertinent to children and juveniles.
General measures of implementation
(Arts. 4, 42 and 44, para. 6 of the Convention)


8. In view of the information contained in part II of the report please indicate the progress made is regards the law reform envisaged with respect to the abolition of statutory curatorship of the Youth Welfare Office and the law of counsel, the amendment of section 1631 of the Civil Code as well as the granting to children born out of wedlock of equal treatment under the law of inheritance. In addition, please provide further information on the progress being achieved as regards the efforts being undertaken to harmonize the standards and structural framework for the provision of services, particularly youth society and support services, in the new Länder with those of the old Länder.


The three above-mentioned bills were introduced in the form of Government draft bills during the previous legislative period, but it was not possible to conclude the parliamentary deliberations before the legislative period ended. The draft bill on the law of counsel was reintroduced during the current legislative period and is still the subject of parliamentary deliberations. No decision has yet been reached concerning the reintroduction of the other two draft bills.

The Federal Government's position in regard to sentence 2 of this question was expressed in the comments on the Ninth Youth Report ("Report on the Situation of Children and Juveniles and the Development of Youth Services in the New Länder") compiled by a committee of experts at the request of the Federal Government.

There it was stated that juveniles in the new Länder have largely mastered the challenges posed by the unification and restructuring process and that the majority of young people wholeheartedly approve of reunification, express great satisfaction with their own living circumstances and look forward to the future with considerable optimism.

This assessment is also confirmed by a recent study prepared by the Institute for Practice-Oriented Social Research (IPOS), which the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth submitted in June 1995.


According to this study, in 1995 three quarters of the juveniles in the new Länder (75%,
compared to 71% in 199)) felt that the decision to stricture the political system according to the western model had been correct; 63% of the juveniles interviewed (1993: 60%) thought they had greater opportunities for personal development.

Considerable progress can also be registered in the development of structures for child and youth services. Given the fact that child and youth services of the kind envisaged in the Child and Youth Services Act (KJHG) did not exist in the German Democratic Republic (GDR), the conclusions presented in the Ninth Youth Report are encouraging:

In this context the Federal Government would like to stress the efforts undertaken by the new Länder and their municipalities in the past few years. In 1993 expenditure in the new Länder for functions and services pursuant to the Child and Youth Services Act was approximately DM 8.2 billion - 25.5% of the total expenditure for statutory youth services in Germany. Between 1991 and 1993 expenditure in the new Länder increased by an estimated 30%.

The Federation has likewise expended considerable financial and personnel resources to enable the new Länder and their municipalities to promote the establishment and expansion of voluntary youth service organizations. Crucial help was made available to the new Lander and their municipalities during the transition period through the "German Unity Fund", the "Joint Project Upswing East", the "Lump Sums for Municipal Investment" and other financial instruments.

From the very beginning, irrespective of any questions as to competence, the Federation strove to close transition-precipitated gaps in the offerings and services of the Länder and the municipalities by means of extensive programmes, grants and other forms of aid in selected areas. To name but a few:

- approximately 20,000 positions in the area of child and youth services established through job creation measures (ABM);

- qualification and further training measures in the area of child, youth, family and social services;

- assistance to 18,000 persons engaged in the fields of youth services and social services, provided within the framework of employment promotion pursuant to section 249 h of the Employment Promotion Act (AFG);

- discounts of up to 80% for acquisition of federal land and buildings;

- an additional DM 47 million per year (since 1991) earmarked in the Federal Child and Youth Plan for the new Länder;

- special federal programmes tailored for the new Länder, such as the "Programme for the Establishment and Expansion of Voluntary Youth Service Organizations" (AFT) and the "Information, Counselling and Advanced Training Service of the Youth Services Sector" (EBFJ) for further training of Youth Welfare Office personnel (total volume: approximately DM 100 million).


The Federal Ministry for Family Affairs, Senior Citizens, Women and Youth is financing two projects to promote the establishment of structures and the further development of pedagogical concepts for day care establishments for children. The first is a further training project for multipliers who are to assume an advisory role in day care establishments for children. The second is a project for the further development of pedagogical materials.
At 12 project sites, day care staff and specialists are collaborating on the development of pedagogical materials oriented towards the living situations of children and their families. These materials will ultimately be made available to establishments in the new Länder - and in the old Länder as well.
Efforts to achieve an approximation of standards and structures in youth social work and youth services in east and west are manifest in the fact that of the 83 pilot projects in the area of vocationally oriented youth social work, more than half are being conducted in the new Länder. The results of the work in these projects are equally good in both the old and the new Länder, which can be interpreted as an indication of successful approximation of pertinent standards and structures in all the Länder.

The task now is to safeguard the progress that has been made with a view to the separation of powers between the Federation, the Länder and the municipalities mandated by law. The following issues in particular must resolved:

- Priority must be given to a consolidation of the personnel situation in the Youth Welfare Offices. The functions of the Youth Welfare Offices prescribed by law cannot be fulfilled through ABM positions but must instead be reflected in permanent staff planning.

- A great and acute need for training of specialized child and youth services staff can be expected for many years to come. It is the responsibility of the competent Land authorities and voluntary youth service organizations to furnish the requisite opportunities for such training.

- Additional public funding by the competent state bodies is indispensable for the establishment of voluntary youth service organizations. Between 1989 and the 1995 draft budget, the Federation increased the volume of its Child and Youth Plan from DM 120 million to DM 208 million. Funds have again been earmarked in this Plan for special tasks in in the new Länder.

- There is a pressing need for rooms and buildings for local youth work. Provision of such facilities is the responsibility of the Länder and the municipalities, whereby funds should be made available if necessary through the Federation's Investment Promotion Act Recovery East (Investitionsförderungsgesetz Aufbau Ost).
General measures of implementation
(Arts. 4, 42 and 44, para. 6 of the Convention)


9. The Declaration and Programme of Action adopted by the World Summit for Social Development required, inter alia, the striving for the fulfilment of the agreed target of 0.7% of GNP for overall official development assistance, as soon as possible, as well as the agreeing on a mutual commitment between interested developed and developing country partners to allocate, on average, 20% of ODA and 20% of the national budget, respectively, to basic social programmes. In view of this, please provide more details of present or planned Government policy with respect to development cooperation and assistance and the mobilization of financial resources to developing countries.

At the World Summit for Social Development held in Copenhagen in March 1995, it was resolved that interested developing and industrial countries should translate into action the goal formulated in the 1994 Human Development Report, namely to make at least 20% of the national budgets and 20% of the funding for official development assistance (ODA) available for basic social services.

Basic social services have already been an important element of development cooperation in the
past. As a crucial area in the war against poverty, these services have been one of the focal points of the Federal Government's development policy concept. The Federal Government is therefore receptive to the wishes expressed by interested developing countries seeking to accord great importance to the area of basic social services in their domestic policies, namely that the percentage of development cooperation funds earmarked for basic social services be increased to 20% or more.

The commitment to make 0.7% of the gross national product available for official development assistance was likewise reaffirmed on the occasion of the World Summit for Social Development in Copenhagen. The Federal Government acknowledges this commitment without specifying a time-frame for its fulfilment. It will do what it can, within the limits imposed by the maintenance of sound government finances, to achieve the desired relationship between ODA and gross national product.

Definition of the child
(Art. 1 of the Convention)


10. Please provide information on the minimum age for medical counselling without parental consent and the minimum legal age for sexual consent.


Medical counselling: There is no specific statutory provision governing this issue in Germany. The natural ability of the person involved to understand and assess a specific upcoming medical procedure is decisive. Since it is especially difficult to determine the maturity of minors and the risk of correctly judging such maturity cannot be imposed on the physician, in cases involving minors (children under the age of 18) the consent of the legal representative is required as a matter of principle in addition to the consent of the minor.

Sexual consent: Neither civil law nor criminal law provides for a minimum legal age for sexual consent. There is, however, provision under criminal law for the protection of children under the age of 14 or, respectively, juveniles under the age of 16 or 18 (sections 174 seq. of the Criminal Code [StGB]).

General principles
(Arts. 2, 3, 6 and 12 of the Convention)


11. In view of the serious nature of the manifestations of xenophobia, racism and racial discrimination which have occurred in Germany, please provide further information on the measures being taken to protect children of minorities/refugee children/asylum-seeking children/children of migrant workers from being affected by such acts.

The alarming incidence of xenophobic crimes in recent years has led the competent federal and Land authorities in the Federal Republic of Germany, in cooperation with non-governmental bodies, to adopt a number of measures for the protection of aliens and asylum-seekers. These measures also fully encompass the protection of children.


The focus of the measures has been to improve protection of accommodations, for example by improving communication facilities (emergency telephones), by noticeably strengthening police presence, and by heightening neighbours awareness of the issue. These measures have been complemented by organizational changes within the security authorities. Special organizational units for effectively combatting xenophobic crime have been established or strengthened, for instance, and the exchange of information between authorities has been improved.


Considerable effort has been expended in the area of public relations, combined with appeals to actively help prevent or clear up xenophobic crimes, in order to heighten public awareness of the problem.

Specifically:

- The police have been instructed to be more observant and to intervene more quickly when aliens in Germany are exposed to danger.

- Criminal liability for the use of National Socialist and racist symbols and terms has been extended.

- Prosecution of corresponding criminal offenses has been accelerated and made more effective.

- The perpetrators have received stiffer sentences.

- Support and compensation for victims of criminal acts (Crime Victims Compensation Act [OEG]) have been extended and improved.

- Public awareness of the situation confronting persons of foreign origin in Germany has been improved through suitable campaigns, informational events and materials sponsored or made available by the Federation, the Länder, the municipalities, and many groups and organizations within society.

- In order to effectively implement the Council of Europe's youth campaign against racism, xenophobia, anti-Semitism and intolerance, Germany has established a coordination office which coordinates and supports the measures at the federal, Land and local levels.

- The handling of such topics in school instruction has been improved.

- Socio-educational work with Juveniles who are susceptible to or exhibit such behaviour has been greatly broadened and intensified, not least by means of a large-scale federal programme "Action Programme against Aggression and Violence" in the new Lander.

- The manner of reporting in the (electronic) media has sharply changed, so that young

The Federation finances numerous pilot projects in the area of vocationally oriented youth social work which are designed to further the integration of alien children and juveniles and prevent or reduce hostility towards aliens.

Just a few examples of these pilot projects are the projects in

- Frankfurt am Main ("Mädchentreff"; brings together girls, 80% of whom are migrants);

- Gelsenkirchen ("Interkulturelle Jugendwerkstatt"-, intercultural youth workshop; target
- Hamburg ("Bille-Insel", target group: girls of all nationalities who are particularly socially disadvantaged),

- Cologne ("Nippesmuseum"; works together with centers for aliens; target group: alien children and juveniles);

- Völklingen ("Berufsorientierte und sozialpädagogische Förderung von Mädchen ausländischer Herkunft"- vocationally oriented and socio-educational assistance for girls of foreign origin; target group: alien girls, children, juveniles and migrants of any age).

The pilot projects are implemented within the framework of the Federal Child and Youth Plan.
One purpose of the Plan is to help members of the younger generation in Germany and Europe grow closer together and to facilitate the integration of aliens living in Germany.


The Federal Child and Youth Plan does not distinguish between alien and German children and juveniles but instead focuses without distinction on all children and juveniles whose customary place of residence is in Germany.

Recent developments have confirmed the effectiveness of the measures that have been undertaken. In the past two years there has been a marked decline in the number of xenophobic crimes.

General principles
(Arts. 2, 3, 6 and 12 of the Convention)


12. Please provide clarification as to how the principle of non-discrimination is interpreted in relation to the rights of refugee and asylum-seeking children and their enjoyment of the rights guaranteed under the Convention, including with regard to health and family reunification.


The entry of minors is governed by the same provisions of aliens legislation pertinent to the entry of adults.

If in an individual case there are no grounds for asylum or no grounds for a night to stay under aliens legislation, as a matter of principle arrangements are to be made for the child to be returned to his or her country of origin.

Minors who are refugees do not have a general night to immigrate to Join their families. Rather, the right of dependents to subsequently immigrate is governed by the general provisions on immigration of aliens joining family members which are laid down in sections 17 seq. of the Aliens Act (AuslG).

Subsequent immigration of dependents on the basis of section 22 of the Aliens Act in conjunction with section 17 of the Act can in particular be contemplated in those cases in which such action is necessary to avoid extraordinary hardship.


The Federal Republic of Germany grants refugee children and asylum-seeking children suitable protection and humanitarian aid. Unaccompanied asylum-seekers under the age of 16, for example, are assigned a procedures curator who assists the children and accompanies them through the asylum procedures. Single alien minor children are accommodated and cared for Just like German children in children's homes and establishments for juveniles.

Sections 3 and 4 of the Act on Benefits for Asylum-Seekers (Asylbewerberleistungsgesetz and
section 120 of the Federal Social Assistance Act (BSHG) guarantee asylum-seekers and refugee
children the necessities for health care and personal hygiene as well as medical and dental
treatment. Furthermore, section 4 III of the Act on Benefits for Asylum-Seekers ensures medical care including officially recommended inoculations and medically advisable preventive check-ups.


In general, it can also be said in respect of the phrase "to the maximum extent of ... available resources" in article 4 of the Convention that due account is taken of the special situation and needs of children within the framework of the provisions of the Federal Social Assistance Act, the Act on Benefits for Asylum-Seekers and the pertinent ordinances that have been issued.


Furthermore, all children and juveniles who have entered the country unaccompanied, irrespective of their residence status under the law on aliens, are entitled to receive the forms of socio-educational assistance stipulated in Book Eight of the Social Code - Child and Youth Services -(SGB VIII) which may be necessary and, namely, to the same extent as German children and juveniles. When unaccompanied minors enter the Federal Republic of Germany, the Youth Welfare Office at the place of entry, as soon as it has been called in by the competent border authorities, or at that place where the minor registers with the Youth Welfare Office, determines whether and, if so, what measures are appropriate and necessary to protect the minor.


Within the framework of family reunification, as a matter of principle the swiftest possible return of a child to the care and custody of his or her parents is generally in his or her best interests. The return of the child to the country of his or her nationality is rarely fraught with legal problems once the identity of the child and the parents has been clarified. Insofar as the parents do not live in the country of their nationality, an expedited transfer of the child to join the parents is usually called for. Immigration of the parents to Join the child is only advisable in exceptional circumstances, for instance if the residence status of the parents in the third country is uncertain or the subsequent immigration of the child into that country has been permanently denied and if family reunification in the country of origin - due to the parents' status as refugees or for other important reasons - is either legally impossible or cannot reasonably be expected of them.


If the parents are deceased or can no longer be located, it is generally recommended that the child be repatriated and reintegrated into his or her extended family in his or her country of origin and thus into his or her familiar social and cultural environment.
General principles
(Arts. 2, 3, 6 and 12 of the Convention)


13. Please provide further details of the ways in which "the best interests of the child" are taken into consideration in judicial and administrative procedures, including within the asylum process and the administration of juvenile justice system. In addition, please elaborate further on the application of the rights of the child, in particular the principle of the best interests of the child, within family life.

In proceedings before the family courts and guardianship courts, insofar as they concern children, the following precautions have been taken to ensure that the best interests of the child are taken into consideration in such proceedings:

- In many cases provision has been made for institution of the proceedings ex officio. It is thus in particular possible to react to suggestions by the affected child himself or by the Youth Welfare Office; an application by the legal representative, who may perhaps represent interests other than those of the child, is not required in these cases.

- In some cases the child himself is entitled to rights to apply on his or her own account, conjoined with the status of being a party to the proceedings (for example under section 1748 of the Civil Code; substitution of the consent of a parent to adoption).

- In family court and guardianship court proceedings, the court determines the facts of the case ex officio (section 12 of the Non-Contentious Legal Proceedings Act [FGG]) and also has the option of requesting expertise ex officio. Contrary to the situation in civil proceedings, the court is not dependent on corresponding initiatives by the parties to the proceedings.

- In proceedings of significance to the child, especially insofar as they concern the right of care and custody, the court is obligated to hear the children concerned (sections 50 b and 55 c of the Non-Contentious Legal Proceedings Act). Children must be heard in proceedings concerning their care and custody and care for their property if the affections, ties or wishes of the child are of significance for the decision or if it appears advisable, in the interests of determining the facts of the case, for the court to obtain a first-hand impression of the child. In matters pertaining to care and custody, children age 14 or older must always be heard. The hearing serves to both clarify the facts of the case and ensure that the child affected by the decision is granted a hearing in accordance with the law.


- In certain proceedings of significance to the child which are specified under the law (sections 49 and 49 a of the Non-Contentious Legal Proceedings Act: for example, withdrawal of parental custody, personal access to the child, adoption, decision concerning parental custody in cases of separation and divorce) the court is obligated to hear the Youth Welfare Office.


- In family and guardianship proceedings, insofar as these concern their person, children over the age of 14 have an independent right of complaint without the involvement of their legal representative (section 59 of the Non-Contentious Legal Proceedings Act).


- In certain cases other persons who have a legitimate interest in the discharge of a matter in guardianship proceedings are also entitled to extensive rights of complaint which can be exercised in the interest of the children concerned (section 57 of the Non-Contentious Legal Proceedings Act).

The draft of a bill to reform the law of parent and child pursues the goal of improving the rights of the child and furthering the well-being of the child in the best possible manner. This applies to all areas of the law of parent and child - the law of descent, the law of care, custody and access, the law of maintenance, the law on the right to bear a name and on adoption, and the law of procedure. Differences under the law between children born in and out of wedlock are to be eliminated to the greatest extent possible.


In administrative proceedings, minors who under civil law have only limited capacity to enter into legal transactions are then deemed to have capacity to act pursuant to section 12, subs. 1, no. 2 of the Administrative Procedure Act (VwVfG) if in respect of the subject-matter of the administrative proceedings they have legal capacity under civil law or capacity to act pursuant to public law regulations.


The regulations conferring minors corresponding rights are many and varied, ranging from the right to decide at the age of 14 whether to participate in religious instruction to the night exercisable no earlier than six months prior to attaining the age of 18 to submit applications and avail oneself of legal remedies in military enlistment proceedings and in proceedings concerning recognition as a conscientious objector.


When drafting the numerous regulations conceding minors rights under public law, legislators gave priority to the minor's need for protection. Accordingly, in cases of doubt the minor's capacity to act in an administrative proceeding is to be denied if this serves his or her need for protection and, conversely, to be affirmed if, for example, this is necessary vis-à-vis his or her legal representative. A minor's capacity to act is therefore usually established at an earlier age in cases in which a highly personal decision is to be taken, for instance one concerning the practice of religion, whether the juvenile wishes to refuse to render military service involving armed combat, or whether the minor wishes to receive social benefits. A minor can submit a corresponding application for social benefits as early as the age of 15 (section 6 of Book One of the Social Code - SGB I).


Finally, when recognizing minors' capacity to act in the various kinds of administrative
proceedings it must also be determined whether they possess the necessary maturity and sense of responsibility.

In regard to the best interests of the child in asylum proceedings, reference s made to the
response to Question 12.


General principles
(Arts. 2, 3, 6 and 12 of the Convention)


14. Please provide more information on the procedures which exist for children to lodge complaints concerning the abuse of their rights.




Reference is made to the response to Question 13 (first, second and sixth indentations). Insofar as children over the age of 14 exercise their right of complaint in family and guardianship matters, they have the status of a party in complaint proceedings.


Pursuant to the rulings of the Federal Constitutional Court, children can also be holders of basic rights. Once a special curator has been appointed, they therefore have the right to file a complaint of unconstitutionality on their own account.
Civil rights and freedoms
(Arts. 7, 8, 13-17 and 37 (a) of the Convention)


15. What concrete steps have been taken to protect children, including those who are victims of abuse, from harmful exposure in the mass media?




No specific press law measures have been undertaken by the Federation to protect children, especially victims of abuse, from exposure in publications of the mass media. State intervention in the form of instructions and orders to this effect is inadmissible because the Basic Law (GG) guarantees that the media shall be free of state influence. However, the freedoms and rights laid down in article 5, para. 1 of the Basic Law are subject to limitations embodied, inter alia, in statutory provisions for the protection of young persons and the citizen's right to personal respect (article 5, para. 2 of the Basic Law).


In criminal actions concerning sexual abuse of children, the personal rights of the children involved are safeguarded to the greatest extent possible in both the investigation proceedings and the criminal proceedings, and the children are protected from the public section 172, no. 4 of the Courts Constitution Act (Gerichtsverfassungsgesetz), for instance, stipulates that the public can be excluded when a person under the age of 16 is questioned. Pursuant to section 171 b, subs. 2 of the Courts Constitution Act the court is obligated, if the witness so requests, to exclude the public when circumstances from the personal life of the witness are brought up and public discussion thereof would violate interests warranting protection.


By the way, it is pointed out in this context that the mass media have of their own accord established bodies which also address the issues of protection of young persons and the safeguarding of personal rights. The German Press Council supported by four major press organizations (publishers and Journalists), in No. 8 of the Press Code, obligates the press to respect the private life and personal sphere of the individual. Accordingly, the personal rights of victims of criminal acts must be respected. There is generally no justification for the publication of names. The public's interest in information must always be weighed up against the personal rights of the individual involved.

No. 11 of the Publicistic Principles (Press Code) drawn up by the German Press Council, for example, stipulates the following: "The press must refrain from an excessively sensational presentation of violence and brutality. Reporting must take due account of the need to protect young persons." The guidelines for this principle state, inter alia:



No. 13.2 of the "Guidelines for Publishers and Journalists" goes on to state the following: "Legitimate public interest does not justify sensationalism."


Specific regulations for television and radio entered into force on 1 August 1994. Pursuant to section subs. 1, No. 5 of the Interstate Agreement on the Restructuring of Broadcasting, broadcasts are unlawful if they:

... portray people who are dying, or who are or have been exposed to severe physical or emotional distress, in a manner that violates human dignity and [if they] transmit five coverage of an event without there being any overriding justifiable interest in precisely this form of reporting; any consent thereto shall be irrelevant.

Family environment and alternative cire
(Arts. 5, 18, paras. 1 and 2, 9, 10, 27, para. 4, 20, 21, 11,
19, 39, and 25 of the Convention)

16. In light of articles 19 and 39 of the Convention and information contained in, inter alia, paras. 163-185 of the report, please provide details of the proposals being considered and, if available, the results of the research being undertaken in relation to the issue of child victims of abuse within the family.


The expertise mentioned in para, 185, No. 2 (p. 64, 11), para.3 of the German report) has meanwhile been completed. The results have been published under the title "Zur Situation kindlicher Zeugen vor Gericht" (The Situation of Child Witnesses in Court) as a publication in the series "Recht" (Law) of the Federal Ministry of Justice. The Federal Ministry of Justice has meanwhile commissioned the Institute for Forensic Psychiatry of the Free University of Berlin to conduct another research project in which the stress on children in criminal proceedings is to be examined in detail and suggestions are to be made for more gentle conduct of criminal proceedings in which children must testify as victims (especially as victims of sexual crimes). It is expected that the initial results of this expertise will be available in the summer of 1996.


Furthermore, the Federal Ministry of Justice has drafted a bill providing for the revision of the elements constituting the crime of kidnapping of a minor (section 235 STGB). The purpose of the revision is to improve the provisions of criminal law for the protection of children against kidnapping. It applies above all to the following groups of cases:

- kidnapping of a child under the age of 14 by a third party who is not a family member (father or mother, for example);

- abduction of a child out of the country and the withholding of said child abroad;

- threats to the undisturbed physical and emotional development of the child;

- profit-motivated traffic in children.
Basic health and welfare
(Arts. 6, para. 2, 23, 24, 26, and 18, para. 3,
27, paras. 1-3 of the Convention)


17. Please provide more information on:

- the occurrence and treatment of HIV infection among children as well as measures to prevent AIDS;

- the occurrence and treatment of ecological diseases among children.



A synoptic analysis and extrapolation of the data available as of the end of June 1995 on the epidemiology of HIV and AIDS yields the following picture:


HIV infections:

Total number (estimate) of persons infected since the beginning of the epidemic 50,000 - 60,000
There of children under the age of 13 approximately 500 (1%)


AIDS cases:

Total number reported since 1982 13,241
Thereof children under the age of 13 98 (0.7%)



Preventive measures

Children who are at risk, HIV-Infected or suffering from AIDS, as well as their parents and persons responsible for their care, have a special need for counselling, care and support.

The fact that the AIDS problem complex also frequently arises in pediatrics but, on the other
hand, that no suitable support structures were available prompted the Ministry of Health to underwrite a pilot project "AIDS and Children" in 1987.

Within the framework of this pilot project, clinical research, in-patient treatment, and out-patient medical, psychosocial and nursing care were closely intertwined. The purpose of the project was to study the disease and its progression, develop diagnostic methods and therapeutic concepts, and observe the epidemiological development of AIDS in children. It revealed that in the long run, HIV-Infected children in the Federal Republic develop full-blown AIDS at a comparatively later age than children in other countries, a fact which is also attributed to the psychosocial care
enable to children and their families. It also revealed that the probability of the disease being transmitted from a mother to her unborn child is considerably lower than originally presumed, namely about 15%. The psychosocial focus of the project was to develop optimal forms of care for both family and child. Regional assistance measures were designed to enable the children to remain with their families. If this was not possible, suitable nursing personnel were sought. A central consulting office was established in Berlin for this purpose. Pediatricians, gynecologists, psychologists, social workers, and auxiliary and nursing staff collaborated on this pilot project, most of the more than 40 staff positions were financed by the Länder. The Federation, however, will make additional funds available through the end of 1995 for completion of research work.


Occurrence and treatment of ecological diseases among children


Examinations of schoolchildren have yielded indications that the incidence of psychosomatic
laments such as headaches and nervousness are on the rise. Children's difficulties in coping with the demands placed on them as well as conflicts within the family, at school and in their free time have been cited as possible causes.

There are also indications that certain illnesses such as asthma and allergic skin reactions are
occurring with increasing frequency. At the present time it is not possible to conclusively establish a connection between this higher incidence and environmental pollution.


The Federal Government has created the preconditions for closely observing correlations between illness and the environment. The nine early-detection check-ups offered by the statutory health insurance funds for children up to the age of six likewise serve this purpose.

Preventive health care is taking on ever-greater importance. The Federal Centre for Health Education, which falls within the purview of the Federal Ministry of Health, offers suitable informational materials that are comprehensible to the general public. The media for health education in the family, information on child health, health education in schools, education on the dangers of substance abuse, nutritional information and AIDS education are constantly being updated.


The Children's Cancer Registry in Mainz has conducted epidemiological studies utilizing the data collected since its founding in 1980. It has not yet been possible to establish a clear connection between specific forms of environmental pollution and the incidence of cancers in children.

Education, leisure and cultural activities
(Arts. 28, 29 and 31 of the Convention)


18. In view of the recent adoption by the General Assembly of resolution 49/184 proclaiming the United Nations Decade of Human Rights Education, has the Government considered the possibility of using this opportunity to adapt school curricula to include education about the Convention?




Both the Länder and the Standing Conference of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany - through the Standing Treaty Commission of the Länder for the Assessment and Approval of International Treaties - dealt with the content of the Convention within the framework of the ratification procedure.


At the level of the Standing Conference of the Ministers of Education and Cultural Affairs, activities and resolutions serving to further the objectives of the Convention were undertaken or, respectively, adopted in a number of the areas addressed in the Convention, such as media education, human rights education, health education, special education, and measures pertinent to the position of the pupil in school. Both the Convention and the activities and resolutions pertaining to its content are implemented by the Länder on their own responsibility.

Special protection measures
(Arts. 22, 30, 32-40 of the Convention)


19. What measures have been undertaken to ensure that asylum-seeking children, especially those above the age of 15, are provided with child specific care? In addition, what measures are taken to avoid asylum-seeking children being kept in custody while awaiting deportation? In this connection, what rules, regulations or guidelines exist to ensure that detention is used only as a measure of last resort and for the shortest appropriate period of time, as provided for in article 37(b) of the Convention? What mechanisms exist to monitor such detention?


Pursuant to section 6, subs. 2 and 4 of Book Eight of the Social Code, in conjunction with international conventions (such as the Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of minors), unaccompanied minors who are refugees are also entitled to youth services. These services, in particular socio-educational assistance, are always oriented towards the specific situation of the individual child or juvenile in need. A threat to the well-being of a child is thus averted, for instance when the social, psychosocial or individual socialization situation of the minor is such that concrete specifiable detrimental consequences will probably result. Socio-educational provision for children with problems within the meaning of Book Eight of the Social Code must generally then be made by the Youth Welfare Office when "proper education and upbringing for the good of the child or young person" cannot be ensured (section 27 of Book Eight of the Social Code).

Unaccompanied asylum-seekers under the age of 16 are not obligated to live in reception centers (section 47, subs. 2, sentence 1 in conjunction with section 14, subs. 2, no. 3 of the Asylum Procedure Act [Asylverfahrensgesetz]). The guardian/ curator usually applies for socio-educational provision for such children at the locally competent Youth Welfare Office.

In general, initial care for unaccompanied minor aliens is ensured pursuant to section 42 of Book Eight of the Social Code. Thereafter, as a rule, unaccompanied refugees under the age of 16 -after the appointed guardian/curator has applied for socio-educational provision at the Youth Welfare Office - are cared for in foster families, in establishments providing full-time care, or in supervised living groups, depending on the individual needs of the minor in question.

Aspects of initial care to be provided within the framework of youth services, in addition to satisfaction of basic material needs, include comprehensive socio-educational care, assistance in handling formalities required by authorities and in clarifying what kinds of subsequent assistance are suitable and necessary, provision for schooling, and inclusion in training and employment measures.


Not until asylum applications have been turned down unappealably must alien children and juveniles, as soon as they are enforceably required to leave the country, reckon with measures to terminate their stay in the country. In the case of younger children who have been entrusted to caregivers, the issuing of an order directing them to be taken into custody awaiting deportation is out of the question in the first place. In other cases involving minors, particular care is taken to observe the principle of reasonableness.

Special protection measures
(Arts. 22, 30, 32-40 of the Convention)


20. With reference to the contents of paras. 181 and 182 of the report, please provide
further information regarding the possible need for a comprehensive re-examination and in revision of the entire law on juvenile delinquency.

In the Federal Republic of Germany, criminal law relating to young people largely complies with the so-called Peking rules, the "Standard minimum rules for the administration of juvenile Justice".

The German Youth Courts Act (JGG) dates from the year 1953. Over time, it has been adapted to the circumstances prevalent today in the domain of criminal law, as well as to developments in criminal policy. The last reform took place in 1990, by means of which a number of results of criminological research were implemented in the Act. Thus feasible non-custodial responses available to the courts, such as care orders, social training courses and settlements between offenders and victims, were included in this statute. Moreover, the Act was amended in order to reduce the occurrence of the imposition of custodial sanctions such as brief detention and youth custody. Finally, the position of the youth services was made stronger Within the framework of the jurisdiction of the Youth Courts.

Because, however, only portions of the Youth Courts Act were amended in the 1990 reform, there are a number of dogmatic and systematic problems concerned with the application of the law.

From the point of view of the Federal Government, it is furthermore necessary to limit the imposition of detention on remand and youth custody (up to a maximum of ten years), which is also possible in respect of juveniles.

With regard to criminal proceedings relating to young persons, consideration is being given to improving collaboration on the part of defense counsel and, for instance, to providing for obligatory defense counsel in all cases in which a sanction is to be expected involving deprivation of liberty. Furthermore, the option to appeal, which is already available, is to be examined and possibly amended in order to enable juveniles to file both appeals on points of fact and law (Berufung) and appeals on points of law only (Revision).

Although the present practice in the Jurisdiction of the Youth Courts is for more than 60% of all
investigation proceedings which are initiated and where a charge could be brought to be
concluded informally by means of diversion, there is also a need for legislative action in this respect since the legal criteria for a decision by means of diversion are not sufficiently regulated and the decisions still lie too much within the discretion of the public prosecutors and judges.

The collaboration of the youth services in the area of the jurisdiction of the Youth Courts must also be examined. The Federal Government is attempting to strengthen the position of the youth services within proceedings before the Youth Courts and to make available to them more extensive and autonomous responses to delinquent conduct.

Finally, data protection provisions are presently still under preparation which take the constitutional situation into account to a greater degree than was previously the case.
Special protection measures
(Arts. 22, 30, 32-40 of the Convention)


21. Please provide detailed information on the number and ace of children deprived of in their liberty as well as the reasons for and the length of their deprivation of liberty.

According to the latest national statistics, on 31 November 1994, 823 juveniles (aged 14 to 18) were in detention on remand.

At that time, 4,567 inmates were serving within the youth imprisonment system. It is not possible at present to give the exact number of those under 18 years of age serving youth custody since there is no further categorization of age groups in youth imprisonment. According to the
summaries provided by the Länder, approximately 10% are juveniles under 18 years of age. The rest of the young people serving within the youth imprisonment system are adolescents (18 to 21 years of age) and persons sentenced to youth custody who are already older than 21 years of age.

With regard to the duration of detention and the criminal offenses forming the basis for incarceration in the case of persons sentenced to youth custody, it is only possible to give information valid as of 31 March 1991, the date of the sample. At that time, 288 inmates under 18 years of age were serving within the youth imprisonment system. In total, the following numbers of persons were incarcerated:

Sentence of up to 6 months custody 14

6 to 9 months 41
9 months to 1 year 49
1 to 2 years 124
2 to 5 years 53
5 to 10 years 4
Indefinite duration 3


The main categories of offenses were as follows:

Theft and misappropriation 159
Robbery, black-mail, and attack
and robbery against motorists 77
Other criminal offenses against
persons other than in traffic 20
Criminal offenses against sexual
self-determination 7

It is unlikely that major changes have since occurred in the crime structure described for the date of the sample.

Special protection measures
(Arts. 22, 30, 32-40 of the Convention)


22. Please provide further information on the implementation of article 40, para. 4 of the Convention, particularly as regards the programmes developed as an alternative to imprisonment for children and the functioning of such programmes and the measures taken to ensure, in the light of article 39 of the Convention, the physical and psychological recovery and social reintegration of children who have committed an offence. In this connection, please provide further clarification as to the meaning of the term "re-education of juveniles" which is mentioned in parts. 99 and 103 of the report.


In the practice of the Youth Courts in the Federal Republic of Germany, approximately 6% of formal sanctions are imposed as youth custody that is to be enforced. The overwhelming number of these convictions are in the area of 6 months to 1 1/2 years, although the possibility of early release is available after 1/3 of the sentence has been served.

As a rule, youth custody in the form of imprisonment is imposed only in respect of the most serious criminal offenses. The lion's share of formal convictions entail custodial sanctions. These consist largely of formal warnings, fines, and educational measures such as care orders, community service instructions, social training courses and settlements between offenders and victims.

In addition, it should be emphasized that more than 60% of investigation proceedings which are
initiated in respect of juveniles are not formally concluded by means of formal court proceedings, but rather informally by measures of diversion. Sanctions involving deprivation of liberty are not admissible in the context of this informal conclusion.

The area of work of the youth services is being increasingly changed and extended on the basis of new criminological knowledge and social conditions as well as the pedagogical and legislative consequences arising from these. Solving pedagogical and social problems, especially in the case of juveniles who are socially disadvantaged (in a number of respects), assisting in the decriminalization of juveniles and creating alternatives to measures involving deprivation of liberty are the main areas of activity of the youth services and of the Youth Court services.


An important point of emphasis in the Youth Court services lies in the creation of sufficient, clearly flexible non-custodial socio-educational assistance and options (for young offenders). These options may be initiated or implemented by the Youth Court services themselves. Non-custodial socio-educational options in response to criminal conduct should only be considered here in respect of juveniles who have offended repeatedly and who cannot be influenced through other options offered by the youth services. Both the danger of excessively caring for or patronizing the person concerned, as well as the prevention of the services provided by the Youth Court services becoming ever more overwhelming, must be borne in mind at every stage.


The main areas of activity of the Youth Court services are:

- guarantee of care by a person;

- collaboration in application of measures of diversion;

- implementation of settlements between offenders and victims;

- collaboration in the creation of a wide spectrum of services provided by the youth services;

- assumption of care (care helpers):

- implementation of social group work (social training courses),

- provision of help in avoiding detention;

- provision of intensive care during the serving of punishment, as well as assistance with reintegration;

- participation in the planning of the youth services (networking of resources);

- provision of debt counselling.


Which aspect of the above list is to be accorded priority depends on the actual situation of individual juvenile in his or her particular social circumstances.

The following descriptions of the areas of activity of the Youth Court services are for the most part brief summaries. Local implementation additionally requires a detailed discussion of the existing concepts, results of experience and research reports, which then need to be adapted to local circumstances in individual cases.

Care of juveniles

Juveniles are best able to attain the alms to which they aspire (as well as the modes of conduct expected of them by society) and are more receptive to assistance if they can rely on a personal relationship. This kind of care needs to be extended to cover the environment in which the juveniles live, going beyond the realm of court criminal proceedings. Both aspects are covered and furthered by both the spirit and the wording of the Child and Youth Services Act. It must be ensured that juveniles are cared for while serving custodial measures which have been ordered (detention on remand and imprisonment subsequent to conviction, as well as brief detention) and that they receive assistance upon their release from detention if this is not afforded by other bodies. Provision of care must be ensured after this period as well if the young person so wishes.

Collaboration in diversion


Diversion is understood to mean discontinuation of the proceedings instead of a charge (diversion in the public prosecution office), or instead of conviction (diversion by a judge), when there is sufficient evidence for a charge and the preconditions for court proceedings to go ahead have been met. In such cases, diversion is frequently linked with compensation or a settlement between the offender and the victim, as well as with the provision of youth services and with non-custodial measures.

In order to avoid formal proceedings, but also when formal proceedings have already been initiated, the Youth Court services are to consider it their duty within the meaning of the concept of diversion to:

- use educational options or initiate a settlement between the offender and the victim, in spite of a charge having been filed and also in the case of simplified and expedited proceedings, in order to make the main trial dispensable;


- aim for discontinuation of the main trial, with and without conditions; and


- intensify the use of non-custodial options, such as care orders or social group work, in order to avoid sentencing to measures involving deprivation of liberty such as detention and youth custody.


Detention on remand - assistance in avoiding detention and care during detention


Intensive offenders and recidivists are detained more frequently because they offend more often. In the case of threatened or enforced detention on remand, the Youth Court services must detail the educational possibilities in the non-custodial sphere to the court and the public prosecution office and present them as an alternative to detention on remand, arrange for their implementation, and, where appropriate, carry them out themselves. There is already an urgent need for this because the conditions for the development of juveniles in incarceration are not suited to have a positive influence on their conduct.

Hence it follows that the priority for the Youth Court services must be to prevent imminent incarceration of juveniles and adolescents or to achieve exemption from imprisonment as soon as possible. In so doing it serves its educational function of introducing the social and educational aspects into the proceedings as a whole at as early a stage as possible.
With the First Amending Act to the Youth Courts Act (Erstes Änderungsgesetz zum Jugendgerichtsgesetz), a number of provisions were inserted in the Youth Courts Act which were aimed at avoiding detention wherever possible:

- abolition of indefinite youth custody;

- section 38, subs. 2, sentence 1 of the Youth Courts Act: expedited reporting in cases of detention on remand in respect of juveniles;

- section 68 of the Youth Courts Act: appointment of defense counsel in cases of enforcement of detention on remand in respect of juveniles;

- section 71, subs. 2 of the Youth Courts Act: accommodation in a home run by the youth seances;

- section 71, subs. 2, sentence 3 of the Youth Courts Act: implementation of temporary accommodation to conform to the rules under which the youth services are provided;

- section 72, subs. 1 and 2 of the Youth Courts Act: special request procedure and duty to provide grounds when ordering detention on remand in respect of juveniles;

- section 72, subs. 2 of the Youth Courts Act: grounds for exclusion of detention on remand in the case of those under the age of 16;

- section 87 of the Youth Courts Act: extension of the possibilities for avoiding enforcement of detention:

- section 88 of the Youth Courts Act: improved care after release from detention.



Options offered by the youth services and instructions/conditions

In the First Amending Act to the Youth Courts Act, the instructions pursuant to section 10 of the Youth Courts Act were extended considerably. The instructions in criminal proceedings relating to juveniles were included in the Act with the intention of replacing measures involving deprivation of liberty with non-custodial measures. Already in the initial phase, this approach led in several regions to a noticeable reduction in detention and youth custody.

Care helpers

Care helpers offer non-custodial educational assistance for frequent offenders, multiple persons who have offended several times, and recidivists on a medium and long-term basis. Such assistance should not be proposed and ordered in respect of small-scale offenders. "Care helpers" are provided for both in section 30 of Book Eight of the Social Code and in section 10, no. 5 of the Youth Courts Act. Beyond this, the "Intensive individual socio-educational care" offered by the youth services pursuant to section 35 of Book Eight of the Social Code can also be utilized as an option for juveniles who are particularly difficult to reach.


Social group work

Social group work is understood to mean intensive non-custodial work targeted at specific groups
of juveniles. This option offers a wide structural scope (e.g. no specific time-limit for the completion of work; social learning instead of training). As in the case of the assistance offered by the care helper, social group work is unsuitable for those who commit small-scale crime. The principle of proportionality must be adhered to here as well.


Settlement between offenders and victims


The First Amending Act to the Youth Courts Act specifies settlement between offenders and victims as an instruction pursuant to section 10 of the Youth Courts Act. By virtue of its inherent function of creating legal and social peace, settlement between offenders and victims may make a major contribution to a change in criminal law practice. Those concerned take the initiative major themselves and try, through action of their own, to resolve the conflict that has arisen without recourse to a court.


Community service

Community service may be imposed both as an instruction from a judge and as a condition. It is intended to serve as a constructive, somewhat indirect means of compensating for a wrong which has been inflicted. Work may also be carried out on weekends and in the context of projects, campaigns or events (for instance in the context of environmental protection or neighbourhood assistance).

The educational concept in criminal law relating to juveniles is one which is the subject of much
controversy. In the Youth Courts Act it has the function of a guiding and interpreting concept characterizing the entire proceedings and the sanctioning practice. Its purpose is to make possible responses which aim to enable young people to lead a life free of criminal punishment.
Improvements in their personal and social circumstances are both the means and the goal of educational endeavors.

The meaning of the expression "re-education of the juveniles who have been charged" in
paragraph 99 of the report is that so-called linked proceedings, in other words, those in which juveniles stand charged together with adults, may be held in camera if it is feared that the stigmatizing effect on the juvenile would be too great, and hence counterproductive in regard to
his or her socio-educational furtherance, if the proceedings were to be held openly.

In paragraph 103 of the report, the concept of re-education is addressed in connection with youth
custody. In this context, it should be ensured that deprivation of liberty also serves educational purposes. This does not mean that the duration of the punishment may for educational reasons be extended in excess of the extent of guilt. What should be ensured is that due account is taken of educational arguments in favour of imposing imprisonment which is less serious than the punishment which would correspond with the guilt. Beyond this, it should be clearly established that imprisonment does not serve as retribution for a wrong which has been committed, but rather that deprivation of liberty is structured in such a way that the juvenile is able to receive educational support.
Special protection measures
(Arts. 22, 30, 32-40 of the Convention)


23. With reference to paras. 187-189 of the report, please provide further information on the proposed reform of the "execution of sentences" passed by youth courts and of the it execution of pre-trial detention" of juveniles as well as the reasons which led to the need for this reform.



For the reasons stated in the initial report, there is an urgent need for a statutory provision on youth imprisonment. The considerable encroachments on the basic rights of inmates which are entailed by deprivation of liberty continue to be in need of an unambiguous statutory foundation. Thus far, statutory provisions governing youth imprisonment have been contained in only a few fundamental and organizational provisions of the Youth Courts Act and of the Prison Act (Strafvollzugsgesetz). Most of the circumstances determining what life in prison is like, by contrast, were regulated on in 1977 by the Länder, who are competent for the implementation of imprisonment and the framework in which it is enforced, by means of the "National Administrative Rules concerning the Youth Imprisonment System" (VVJug), which are oriented along the lines of the Prison Act. The same is true of the enforcement of detention on remand in respect of juveniles and adolescents. Here, too, there are only a small number of fundamental provisions in the Youth Courts Act and the Code of Criminal Procedure (StPO), while everyday life in prison is largely regulated by means of national administrative provisions in the form of the "Code on the Enforcement of Detention on Remand" (Untersuchungshaftvollzugsordnung).


The requirements of prison life structured in such a way as to meet the needs of juveniles are to be taken into account by the adoption of a Youth Prison Act (Jugendstrafvollzugsgesetz) as well special provisions for detention on remand imposed in juveniles and adolescents.


In view of the educational deficiencies of young inmates and their inability - which has recently become increasingly more evident - to cope with everyday problems other than by means of violence, the main aim of the intended reform is to increase the educational emphasis of the prison system and thereby to enable young inmates in the future to lead a life free of crime. The teaching of ethical norms and values, improved educational and vocational training opportunities, as well as social training should help young inmates gain an insight into the damaging nature of their actions and enable them in the future to live responsible and meanings lives. The creation of a statutory foundation for enforcement of custody in accommodation groups - a form of communal life in small groups that avoids the danger of isolation and, as a stage on which to practice social behaviour, complies with the educational concept of the youth imprisonment system - is also to contribute to the realization of this goal.
Special protection measures
(Arts. 22, 30, 32-40 of the Convention)


24. Please provide information on the results of any evaluation of the effectiveness of the measures taken to combat the sexual exploitation of foreign children by Germany abroad (paras. 174-176 of the report).


Because of the relatively short period of time which has elapsed since the 27th Amending Act to the Criminal Code (27. Straf-rechtsänderungsgesetz) entered into force, it has not yet been possible to gather sufficient experience in mutual assistance in this area with the states in question for a conclusive assessment to be made. Previous cooperation in other areas of criminal law does, however, allow one to hope for positive developments in cooperation in the prosecution of child sex tourism under criminal law.

©1996-2001
Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland