Reservations and Declarations for Treaty No.210 - Council of Europe Convention on preventing and combating violence against women and domestic violence

Nature of declaration : Reservations
Status as of 18/11/2018

Germany

Reservation handed over by the State Secretary for Foreign Affairs of Germany to the Secretary General of the Council of Europe at the time of signature of the instrument, on 11 May 2011 - Or. Engl., confirmed and completed in a letter from the Federal Minister for Foreign Affairs of Germany, deposited with the instrument of ratification on 12 October 2017 - Or. Engl.

In accordance with Article 78, paragraph 2, of the Convention, the Federal Republic of Germany reserves the right not to apply the provisions laid down in Article 59, paragraphs 2 and 3, of the Convention.

The guidance contained in Article 59, paragraphs 1 and 2, regarding the residence status of victims of domestic violence is in principle enacted by Section 31 (1) and (2) of the German Residence Act (AufenthG). For example, Section 31 (2), second sentence, states that a spouse who is the victim of domestic violence shall be granted an independent right of residence, even if the stipulated requirement, i.e. three years of lawful marital cohabitation in the Federal territory, has not been met; provided that the provisions of Section 31 (2), second sentence, have been complied with, this spouse does not face deportation under German law. That said, the legislative content of Article 59, paragraph 2, is ambiguous. According to Paragraph 306 of the Explanatory Report, under the Convention, for victims who find themselves in situations where they face repatriation because expulsion proceedings have been initiated against their abusive and violent spouse or partner, Parties must take appropriate measures to ensure that these victims are given the possibility to obtain the suspension of expulsion proceedings against themselves and to apply for residence status on humanitarian grounds. However, German law does differentiate between residence for family reasons and humanitarian grounds; prerequisites for, and legal consequences of, these two residence permits differ. The contents of Section 31 (2) relate to residence permits for family reasons. Hence, Germany considers that, regarding the interpretation of Article 59, paragraph 2, uncertainties do exist, and furthermore considers that these could not be clarified during the negotiations or in the Explanatory Report. Therefore, in accordance with Article 59, paragraph 2, Germany continues to reserve the right not to apply Article 59, paragraph 2, as Germany asserted at the time of signature of the Convention.

[Note by the Secretariat: Period of validity of the reservation (Article 79 of the Convention): from 1 February 2018 to 1 February 2023.]
Period covered: 01/02/2018 -
Articles concerned : 59, 78

Reservation handed over by the State Secretary for Foreign Affairs of Germany to the Secretary General of the Council of Europe at the time of signature of the instrument, on 11 May 2011 - Or. Engl., confirmed and completed in a letter from the Federal Minister for Foreign Affairs of Germany, deposited with the instrument of ratification on 12 October 2017 - Or. Engl.

In accordance with Article 78, paragraph 2, of the Convention, the Federal Republic of Germany reserves the right not to apply the provisions laid down in Article 59, paragraphs 2 and 3, of the Convention.

Pursuant to Article 59, paragraph 3, Parties shall issue a renewable residence permit to victims whose stay is necessary owing to their personal situation or for the purpose of their co-operation in an investigation or criminal proceedings. Section 60a (2), second sentence, of the German Residence Act stipulates that the deportation of a foreigner who is a victim of a criminal offence shall be suspended if his or her temporary presence is required for testimony in connection with an investigation or with proceedings relating to a criminal offence. This provision has on a regular basis been proven sufficient for safeguarding criminal justice proceedings. In accordance with Article 78, paragraph 2, Germany continues to reserve the right not to apply Article 59, paragraph 3, as Germany asserted at the time of signature of the Convention.

[Note by the Secretariat: Period of validity of the reservation (Article 79 of the Convention): from 1 February 2018 to 1 February 2023.]
Period covered: 01/02/2018 -
Articles concerned : 59, 78

Reservation contained in a letter from the Federal Minister for Foreign Affairs of Germany, deposited with the instrument of ratification on 12 October 2017 - Or. Engl.

In accordance with Article 78, paragraph 2, of the Convention, the Federal Republic of Germany reserves the right to establish jurisdiction for offences committed abroad by persons who have their habitual residence in the territory of the Federal Republic of Germany (Article 44, paragraph 1.e) only pursuant to the conditions stipulated in Section 7(2) no.2 of the German Criminal Code.

German criminal law does not contain any provision that implements Article 44, paragraph 1.e, in its entirety, i.e. there is no provision pursuant to which offences committed abroad by foreigners or stateless persons who have their habitual residence in Germany are in principle always subject to German criminal law. The kinds of cases relevant in practice are covered by section 7(2) no.2 of the German Criminal Code, whereby German criminal law is applicable to offences committed abroad if the offender was a foreigner or stateless at the time of the offence and is discovered in Germany and, although the Extradition Act would permit extradition for such an offence, is not extradited. However, it is conceivable that exceptional cases may arise where such prerequisites are not met.

[Note by the Secretariat: Period of validity of the reservation (Article 79 of the Convention): from 1 February 2018 to 1 February 2023.]
Period covered: 01/02/2018 -
Articles concerned : 44, 78


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