UNTC

Declarations and Reservations

(Unless otherwise indicated, the declarations and reservations were made upon ratification, accession or succession.)

Germany

Declarations:

“Article 16

The prohibition of return shall only apply if the person concerned faces a real risk of being subjected to enforced disappearance.

Regarding Art. 17 (2) (f)

Under German law it is guaranteed that deprivation of liberty is only lawful if it has been ordered by a court or – in exceptional cases – subsequently authorized by a court. Article 104 para. 2 of the Basic Law (Grundgesetz) expressly provides: ‘Only a judge may rule upon the permissibility or continuation of any deprivation of liberty. If such a deprivation is not based on a judicial order, a judicial decision shall be obtained without delay’. Article 104 para. 3 of the Basic Law provides that a person who has been provisionally arrested on suspicion of having committed a criminal offence ‘shall be brought before a judge no later than the day following the arrest’.

In the event that a person is being held arbitrarily in contravention of Article 104 of the Basic Law, anyone can bring about a judicial decision leading to that person’s release by applying to the competent Local Court for his/her immediate release. If the person concerned has been detained beyond the time limit permissible under the Basic Law, the court has to order that person’s release pursuant to section 128 (2), first sentence, of the Code of Criminal Procedure (Strafprozessordnung, StPO).

Article 17 para. 3

In the case of an involuntary placement of sick persons by a custodian or a person having power of attorney, the information required under letters (a) to (h) is known to the court which authorizes the placement. The court can ascertain the information required under letters (a) to (h) at any time through the custodian or person having power of attorney; the information is then included in the

case-file. This information is also to be regarded as records within the meaning of article 17 para. 3.

Regarding Article 18

Under German law, all persons with a legitimate interest are entitled to obtain information from the court files. The restrictions provided for in German law for the protection of the interests of the person concerned or for safeguarding the criminal proceedings are permissible pursuant to Article 20 para. 1 of the Convention.

Regarding Article 24 para. 4

It is clarified that the envisaged provision on reparation and compensation does not abrogate the principle of state immunity.”

Objections

(Unless otherwise indicated, the objections were made
upon ratification, accession or succession.)


Germany Germany 13 January 2021 With regard to the reservation made by Oman upon accession: The Government of the Federal Republic of Germany has carefully examined the reservation made by the Government of the Sultanate of Oman on June 12, 2020 to Article 33 of the International Convention of December 20, 2006 for the Protection of All Persons from Enforced Disappearance (hereinafter referred to as “the International Convention”). (i) It notes that undertakings by the Committee on Enforced Disappearances (hereinafter referred to as the “the Committee”) under Article 33 of the International Convention are not conditional upon a general recognition of the Committee’s competence by the State party. Rather, its competence under that provision is related to the elucidation of allegations of serious violations of the Convention, based on reliable information received by the Committee. Article 33, paragraphs 2 and 4, clarify that the Committee may carry out the measures referred to in paragraph 1 only if it reaches agreement with the State Party concerned on a case-by-case basis. The Committee must also seek the consent of the State Party to take measures under Article 33, even if the State party has generally accepted the Committee’s competence under Articles 31 and 32. However, just as in the case of the conduct of measures under Article 34, the competence of the Committee under Article 33 cannot be excluded as a matter of principle. (ii) The reservation made by the Government of the Sultanate of Oman is inadmissible under article 19(c) of the Vienna Convention on the Law of Treaties because it is incompatible with the object and purpose of the treaty. The object and purpose of the International Convention is to give the Committee, in cases of suspicion, based on reliable information, of a serious violation of the International Convention, the competence, with the consent of the State party to request on a case-by-case basis one or more members of the Committee to undertake a visit and to report to the Committee on the visit, in order to enable the Committee to communicate observations and recommendations to the State party concerned on the basis of the information obtained. By not recognizing the competence of the Committee, which is inherent in the International Convention, the Government of the Sultanate of Oman is unduly restricting the Committee’s competence, which exists as a matter of principle under Article 33 of the International Convention. (iii) The Government of the Federal Republic of Germany objects to the reservation to Article 33 of the International Convention.

Germany

13 January 2021

With regard to the reservation made by Oman upon accession:

The Government of the Federal Republic of Germany has carefully examined the reservation made by the Government of the Sultanate of Oman on June 12, 2020 to Article 33 of the International Convention of December 20, 2006 for the Protection of All Persons from Enforced Disappearance (hereinafter referred to as “the International Convention”).

(i) It notes that undertakings by the Committee on Enforced Disappearances (hereinafter referred to as the “the Committee”) under Article 33 of the International Convention are not conditional upon a general recognition of the Committee’s competence by the State party. Rather, its competence under that provision is related to the elucidation of allegations of serious violations of the Convention, based on reliable information received by the Committee. Article 33, paragraphs 2 and 4, clarify that the Committee may carry out the measures referred to in paragraph 1 only if it reaches agreement with the State Party concerned on a case-by-case basis.

The Committee must also seek the consent of the State Party to take measures under Article 33, even if the State party has generally accepted the Committee’s competence under Articles 31 and 32. However, just as in the case of the conduct of measures under Article 34, the competence of the Committee under Article 33 cannot be excluded as a matter of principle.

(ii) The reservation made by the Government of the Sultanate of Oman is inadmissible under article 19(c) of the Vienna Convention on the Law of Treaties because it is incompatible with the object and purpose of the treaty. The object and purpose of the International Convention is to give the Committee, in cases of suspicion, based on reliable information, of a serious violation of the International Convention, the competence, with the consent of the State party to request on a case-by-case basis one or more members of the Committee to undertake a visit and to report to the Committee on the visit, in order to enable the Committee to communicate observations and recommendations to the State party concerned on the basis of the information obtained. By not recognizing the competence of the Committee, which is inherent in the International Convention, the Government of the Sultanate of Oman is unduly restricting the Committee’s competence, which exists as a matter of principle under Article 33 of the International Convention.

(iii) The Government of the Federal Republic of Germany objects to the reservation to Article 33 of the International Convention.

Declarations recognizing the competence of the Committee under articles 31 and 32

(Unless otherwise indicated, the declarations were made upon ratification, accession or succession.)

Germany

Article 31

In accordance with Article 31 of the International Convention for the Protection of all Persons from Enforced Disappearance (CED) of 20 December 2006, the Federal Republic of Germany declares that it recognizes the competence of the Committee on Enforced Disappearances to receive and consider communications from or on behalf of individuals subject to the jurisdiction of the Federal Republic of Germany claiming to be victims of a violation of provisions of this Convention by the Federal Republic of Germany.

Article 32

In accordance with Article 32 of the International Convention for the Protection of all Persons from Enforced Disappearance (CED) of 20 December 2006, the Federal Republic of Germany declares that it recognizes the competence of the Committee on Enforced Disappearances to receive and consider communications in which a State Party claims that the Federal Republic of Germany is not fulfilling its obligations under this Convention.