Article 3 of the Constitution ("Basic Law") establishes the fundamental principle of equality before the law and provides that no one may be disadvantaged or favored on the basis of sex, parentage, race, language, homeland or origin, faith or religious or political opinions. Article 9.2 provides for the banning of associations, the purposes of which conflict with criminal laws or which are directed against the constitutional order or the concept of international understanding

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Article 3 of the Constitution ("Basic Law") establishes the fundamental principle of equality before the law and provides that no one may be disadvantaged or favored on the basis of sex, parentage, race, language, homeland or origin, faith or religious or political opinions. Article 9.2 provides for the banning of associations, the purposes of which conflict with criminal laws or which are directed against the constitutional order or the concept of international understanding

The Basic Law, however, makes some distinctions between universal human rights and citizen rights. Whereas Article 1 lays down the inviolability and protection of human dignity (and from this follows the entitlement of all people to the basic rights of liberty, equality, and religious freedom) and Article 3 provides furthermore the basic principle of equality, subsequent articles on freedom of assembly (Article 8), association (Article 9) and profession (Article 12) as well as on freedom of movement (Article 11) and prohibition of extradition (Article 16) are reserved exclusively for German citizens. Some critical observers consider this restriction of fundamental rights for German citizens only incompatible with Articles 2 and 3.

The constitutional anti-discrimination clauses are supported by the provisions of the Criminal Code which contains very comprehensive provisions sanctioning hate speech and the approval, denial or playing down of the genocide committed under the National Socialist regime (Section 130). Such crimes committed via the medium of the internet may be prosecuted. Moreover the Criminal Code complements Constitutional legislation prohibiting certain associations and parties by penalizing the continuation of their activities (Sections 84 and 85). The dissemination of propaganda and use of the symbols of unconstitutional organizations is also prohibited. (Section 86).

In case of murder or manslaughter, the Federal Supreme Court regards racism as an aggravating motive (Section 211). The Criminal Code also penalizes the crime of genocide (Section 220a).

The Federal Civil Services Code (Bundesbeamtergesetz), Section 8.1 and the Works Constitution Act (Betriebsverfassungsgesetz) prohibit "differentiation" on the basis of, amongst other grounds, religion, nationality and origin.

Germany signed the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of 1966 in 1969 with the view that its existing legal framework provided enough protection against discrimination in the public and private sphere, even though there is no specific legislation concerning discrimination on the grounds of racial or ethnic origin.

Over recent years, Germany has taken a number of steps which are relevant to combating racism and discrimination, including ratification of several important international legal instruments, amendments to citizenship legislation to facilitate the acquisition of citizenship by long-term residents and children born in Germany and measures to improve the enforcement of criminal legislation aimed at racist and anti-semitic crimes.

Although the principle of non-discrimination is contained in different laws and regulations dealing with specific aspects of civil and administrative law, there is a lack of specific anti-discrimination legislation at the federal level against racial discrimination in key fields of public life, such as housing, education, health, employment and the provision of goods and services. Specific anti-discrimination has been drafted and is planned to be adopted in accordance with EU standards on anti-discrimination.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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