M.S. v. Germany

The author of the communication is M.S., a national of Germany. He claims to be the victim of violations by the State Party of articles 5, 9, 12 and 13 of the Convention. The Optional Protocol entered into force for the State Party on 26 March 2009. The author is not represented by counsel.

In September 2006, the author, who has autism, applied to the German authorities for recognition of a “higher degree of disability” and of fulfilment of the criteria for registration under the “G”, “B”, “H” and “RF” disability card codes, which would entitle him to travelrelated benefits, including being accompanied by another person free of charge on public transportation. On 1 February 2007, the Office of Family and Social Affairs in Chemnitz recognized that the author was “heavily disabled” but rejected his application. On 21 September 2007, the Saxony State Office for Family and Social Affairs upheld that decision.

On an unspecified date, the author submitted an appeal to Chemnitz Court of Social Affairs. In a letter of 7 June 2011, the Court informed the author that it would set a date for a hearing. On 9 June 2011, the author answered that such a hearing should be accessible to him and transmitted a certificate from a physician specialized in autism. In a letter of 28 June 2011, the Court informed him that the hearing would take place on 28 July 2011, that he had the right to attend it in person or to be represented and that the Court might reach a decision in absentia. The Court ordered that an expert opinion be obtained. According to the author, the Court did not make the hearing accessible to him. On 28 July 2011, the Court rejected the author’s petition for disability entitlements, based on the documents at its disposal. In its decision, the Court stated that the author had not appeared at the hearing but did not refer to his request for an accessible hearing.

In a decision of 19 December 2012, Saxony Regional Social Court upheld the decision of Chemnitz Court of Social Affairs based on the documents before it. Saxony Regional Social Court had appointed an autism expert to draft a medical report but, according to the author, the examination was not made accessible to him, and the Court held that he had not cooperated. His accessibility requirements were therefore not documented. The author appealed to the Federal Social Court, which, on 14 November 2013, remanded the case to Saxony Regional Social Court on the grounds that the latter had insufficiently justified its refusal to grant his application for an accessible assessment of his disability.

On 24 June 2014, Saxony Regional Social Court again rejected the author’s request for an accessible examination by an expert. Nevertheless, on an unspecified date, the Court agreed to organize an accessible examination. The report on the examination stated that the author had been diagnosed with an autism spectrum disorder and that his ability to participate in society, including in public meetings, was severely impacted. On 17 May 2017, following the resignation of his attorney-at-law, the author requested that the oral proceedings be made accessible by conducting them remotely, in writing, over the Internet over a period of several weeks, in a manner similar to an online forum. The Court thereupon obtained an opinion from the central information technology service of the Saxony State judiciary concerning the possible technical requirements for such hearings and, in letters of 24 and 31 May 2017, explained to the author the principles of oral proceedings under section 124 (1) of the Social Courts Act and the possible technical procedure for the proceedings, including the possibilities of sending or appearing in the company of a representative, of the case being decided without oral proceedings or of him participating by video link. The Court noted that it had provided him with detailed, advance written information about the precise course of the oral proceedings, sent him the statement of the case, with submissions, 14 days in advance and notified him that the defendant’s representative would be absent. The author was provided with a laptop on his table to communicate with the panel exclusively in writing and a large screen was installed in front of the judges’ table on which they could read the author’s communications. The presiding judge had previously assured him that all communication with him would be in writing by means of printouts handed out to him. To avoid overtaxing the author’s concentration, it would not have been possible to go beyond questions relating to the facts and the legal appraisal. Having noted his documented inability to participate in judicial proceedings and that his “severe” communication impairment was exacerbated in stressful situations, the Court stated that it had thus accommodated him to the extent possible under procedural law, but that communication by online chat, for which he would not have to leave his home and during which the panel could not see him at all, would be blatantly contrary to the principles applicable to court hearings, including those of oral presentation, immediacy, open justice, the rule of law and open democracy. The Court stated that it had not addressed the question of Internet security or the author’s request to be able to see the panel without it seeing him. The Court also stated that extension of the oral proceedings over a period of weeks would be impossible under the rules of judicial procedure and be incompatible with the expanded timetabling of lay judges and the conduct of oral proceedings. However, the author considered that said adjustments would not render the hearing accessible to him, and did not attend the hearing. The Court consequently conducted oral proceedings on 6 June 2017 without the author and ordered the defendant to recognize that the degree of disability of the author was 70 per cent.

On an unspecified date, the author appealed to the Federal Social Court and applied for a court-appointed attorney. In a decision of 21 December 2017, the Court noted that he had objected to the fact that an oral hearing had been held in his absence, without the possibility of an online chat procedure over several weeks as he had suggested. The Court found that that raised the question of whether article 13 of the Convention granted persons with autism the right to an oral hearing in the form of an online chat. The Court noted that, unless otherwise provided, it made its decisions on the basis of an oral hearing pursuant to section 124 (1) of the Social Court Act, thereby upholding the principles of immediacy (Social Court Act, sect. 129), publicity (Social Court Act, sect. 61) and the right to a fair hearing (Basic Law for the Federal Republic of Germany, art. 103 (1), and Social Court Act, sect. 62). The Court noted that, during a hearing, communication with a person with a hearing or speech impairment was in accordance with the choice of the person, namely, orally, in writing or with the assistance of a person to be consulted by the court to facilitate communication. The Court noted that it must provide appropriate technical aids for oral and written communication. Furthermore, the Court recalled general procedural principles according to which courts must ensure effective communication with the parties to proceedings. The Court held that a legal representative did not appear of “fundamental importance” in the author’s case and that article 13 of the Convention and domestic law did not require the holding of an online chat procedure as the author had requested. The Court therefore rejected the author’s appeal.

On 22 March 2018, the Federal Social Court rejected the author’s request for legal representation, which is required in proceedings before the Federal Social Court, and rejected his complaint against denial of leave to appeal on points of law. The author challenged the rejection of his complaint before the Federal Constitutional Court and maintained his request for the appointment of a lawyer, particularly on the grounds that his right of access to court had been infringed. However, on 27 November 2018, the Federal Constitutional Court refused his appeal on the grounds that he had a right to representation by a third party.

The author claims a violation of his rights under article 13 of the Convention because, although the Federal Constitutional Court decided that he could be represented by a third party, the Federal Social Court refused to appoint him counsel. Moreover, an “unmotivated lawyer” would not be an adequate alternative to “direct access”. The author argues that his right of access to justice was therefore “ignored” and notes that the State Party may need to change its Constitution to grant equal access to justice to persons with autism.

The author claims that domestic judicial authorities have breached his rights under articles 5 (1), (2) and (3) and 9 of the Convention, as they failed to discuss his accessibility requirements in depth and precluded him from living independently and participating fully in all aspects of life given that they held that he could be represented even though he had no person of trust. According to the author, the Federal Constitutional Court argued that accessibility would be very difficult to realize in his case. The conditions set did not render the hearing accessible as he would have been precluded from thinking during the hearing and would have suffered. He argues that persons with autism require time to answer and a hearing of “some hours” would not be a solution. However, Saxony Regional Social Court ignored his explanations and required him to attend the hearing in person. The author did not have a lawyer as he did not know any lawyers who could communicate with him in an accessible way. According to the author, it was on these grounds that Saxony Regional Social Court rejected his appeal. He affirms that “traditions” in the State Party’s judicial system should be “rethought”.

Finally, the author claims that the State Party has violated his rights under article 12 of the Convention, given that the courts held that he could be represented by someone to speak for him, which constitutes a denial of his legal capacity. According to the author, the principle of oral communication means that jury members only consider oral submissions and cannot consider written submissions. Informal discussions often take place during court hearings, from which the author would be excluded. Moreover, some judges only ask questions orally and, if the relevant party is absent, the court will consider information to be missing.

In its observations dated 16 October 2019, the State Party submits that the communication is inadmissible as manifestly ill-founded under article 2 (e) of the Optional Protocol. The State Party notes that, in its decision dated 27 November 2018, the Federal Constitutional Court found that the decisions of the social courts were compatible with constitutional law in the light of article 13 of the Convention. According to the State Party, the decision of the Federal Constitutional Court, the form of the proceedings before Saxony Regional Social Court and the procedural provisions of the Social Courts Act meet the requirements of article 13 of the Convention. Effective accommodation was provided to the author to enable his direct participation in the court proceedings. According to the State Party, there is no violation of article 13 of the Convention, taking into account the author’s specific situation and the general form of social court proceedings in Germany.

The State Party notes that the Federal Constitutional Court had recourse to article 13 of the Convention in interpreting article 3 (3) of the Basic Law for the Federal Republic of Germany when it examined the constitutionality of the previous decisions. The requirements of said provision are also met if a party, instead of directly participating in the proceedings, is “pointed to” representation by a third party. The Federal Constitutional Court noted that the courts must devote particular effort to enabling parties to participate in oral proceedings, but that that obligation had limits, including as relating to transparency, immediacy and the efficient use of human resources and time. The Federal Constitutional Court found that the form of oral proceedings sought by the author conflicted with those principles. If, despite the arrangements offered to the author, a situation arose requiring an immediate response from the author, the proceedings could have been temporarily interrupted or adjourned.

The State Party submits that the form of the proceedings before Saxony Regional Social Court met the requirements of article 13 of the Convention. In such proceedings, no attorney is required. The author has not explained why he did not appoint a new attorney after the resignation of his first one. The social courts normally decide based on oral proceedings. Under section 103 of the Social Courts Act, the court examines the facts ex officio before the oral proceedings, and must determine all relevant circumstances, including those favourable to the author, who was thus able to address questions and observations to the court. There was therefore no significant impairment of the author’s right of access to justice. The Court offered to send him the written statement of the case 14 days in advance and did not force him to appear for oral proceedings. Instead, it offered him several alternatives and provided him with detailed information in advance.

Moreover, according to the State Party, the author did not incur any disadvantage by not appearing for the oral hearing. His written submissions were considered, and the decision would have been the same if he had been present. The State Party argues that the author was not seeking accessible oral proceedings, but written ones, which was precisely what happened in the case at hand. The State Party disagrees with the author’s argument that Saxony Regional Social Court required him to appear in person or that it dismissed his appeal because he did not appear for the oral proceedings, noting that the social court procedure does not provide for the possibility of issuing a default judgment.

The State Party argues, additionally, that the provisions of its Social Courts Act and the Courts Constitution Act satisfy the requirements of article 13 of the Convention with regard to the participation of persons with disabilities. Under section 124 (1) of the Social Courts Act, the social courts usually decide based on oral proceedings. Given the importance of oral proceedings, a decision without oral proceedings is only admissible in exceptional cases provided for by law. The Social Courts Act allows for the courts to decide without oral proceedings if the parties so consent (sect. 124 (2)) or with audiovisual transmission from another location (sect. 110 (a)). Section 202 of the Act incorporates sections 186 and 191 (a) of the Courts Constitution Act, which stipulate that communication with a person with a hearing or speech impairment is conducted, in accordance with their choice, orally, in writing or with the assistance of a communication facilitator. The court must inform the person of their right to make this choice and must provide suitable technical communication aids. In all other respects, the general procedural principles apply. Finally, the Social Courts Act provides for the possibility of a party being represented or having recourse to an adviser in oral proceedings. The Social Courts Act thus makes diverse and sufficient provision for persons with disabilities to have access to justice on an equal basis with others. However, the Act does not provide for an online chat arrangement over an extended period, as the author had requested, as this is incompatible with relevant principles.

The State Party also submits that the author’s claims under articles 5, 9 and 12 of the Convention are manifestly ill-founded. Article 5 of the Convention corresponds in substance to article 3 of the Basic Law for the Federal Republic of Germany, of which no violation was established. As the author was not denied access to justice, there has been no breach of article 13 and therefore no discrimination under article 5 of the Convention. Moreover, physical accessibility of court buildings is not in question in the case at hand. A major revision of the Act on Equal Opportunities for Persons with Disabilities was enacted to implement the Convention, including by removing or preventing discrimination against persons with disabilities, ensuring equal participation and enabling persons with disabilities to live a selfdetermined life. Individual Länder enact substantively equal legislation at their own level. Further, it is undisputable that the author was recognized as a person before the law. Access to support with a view to exercising legal capacity correlates directly to the right of access to justice.

In his comments dated 17 November 2019, the author argues that he never requested a specific form of communication but only gave examples of accessible structures. However, the courts were unwilling to discuss with him and did not propose solutions that were actually accessible, noting his documented inability to participate in public events. The author disagrees with the notion that an online chat arrangement would be contrary to the principles cited by the State Party. According to him, it is not reasonable to refuse this kind of communication, which is easy to realize and requires only flexibility in work structures.

The author argues that the importance attributed to the spoken word and immediacy in courtrooms, where oral hearings usually form the basis of decisions, is discriminatory to persons with autism, whose behaviour is often misinterpreted. He claims that this led the Federal Constitutional Court to “silence” him. An online forum would have allowed for more immediate communication. Moreover, the Federal Constitutional Court neglected to consider that many persons with autism do not have a person of trust who can participate in an oral hearing. The author had difficulties with his lawyer, who did not communicate with him in an accessible way. Moreover, after his lawyer resigned, the Federal Social Court rejected his request to be appointed a new lawyer.

The author claims that a court decision without an oral hearing would not have resulted in equal access to justice as it would have precluded his free choice to participate in this part of the proceedings and an additional chance to communicate with Saxony Regional Social Court was refused to him. Having read the case summary sent to him by it, the author responded that a lot more communication was needed and proposed that the oral hearing take the form of an online forum in an “open-ended format”. Having access to the case description beforehand did not compensate for the lack of an accessible hearing.

The author argues that, if the format of an oral hearing accessible to him is incompatible with the timetabling of lay judges, the system should be changed to accommodate exceptions. Lay judges should be able to handle a structure such as an Internet forum. A specific portal could be created by the domestic authorities.

In its observations dated 17 February 2020, the State Party argues that the courts acknowledged and accommodated the author’s wishes to the greatest extent possible. The author has misconstrued the role of the courts and parties: there is no provision for discussion of procedural choices as, ultimately, because of their presiding role, the courts must decide alone on such issues. The form and organization of court proceedings are laid down by law and the courts are not free to decide on them.

The State Party observes that the Federal Constitutional Court held that there was no constitutional requirement to comply with the author’s wishes and that it confirmed the opinion of the Federal Social Court that, under article 3 (3), sentence 3, of the Basic Law for the Federal Republic of Germany, the courts must apply and interpret procedural rules so that a person with disabilities has the ability to participate on an equal basis with other parties. However, this does not mean that oral hearings can be organized without regard to the rights and interests of other parties or to court organization.

The State Party reiterates that effective accommodation was provided to the author to enable his direct participation in the court proceedings, that he was able to express his views fully without relying on oral proceedings or the online chat that he had requested and that there was no violation of article 13 of the Convention. The arrangement requested by the author would not have given him any advantage over written proceedings. Communication with the court in written form over an extended period, as requested by the author, was possible in the present case as the author was free to make submissions to the court, which has an ex officio obligation to investigate. The author did not incur any disadvantage by not appearing for the oral proceedings as his written submissions were considered and the decision would have been the same had he been present. Possibilities to proceed without an oral hearing or with a representative or adviser and/or audiovisual transmission were also open to the author. The State Party reiterates that what the author sought were written rather than oral proceedings. The State Party notes that the right to be heard does not require oral proceedings but, if oral proceedings are held, they must satisfy certain requirements.³ This right means that parties to proceedings must be consulted and can express their views and be heard before the case is decided. Moreover, the decision may only be based on facts on which the parties have been able to express their views (Social Courts Act, sect. 128 (2)). Constitutional law merely specifies that the right to a hearing must be granted in accordance with the law. It follows from article 103 (1) of the Basic Law for the Federal Republic of Germany that procedural law and individual court proceedings must ensure the right to a hearing to a degree sufficient to grant effective legal protection and must give the parties the opportunity to assert themselves with factual and legal arguments in the proceedings. How the right to be heard is implemented in detail is left to legislative drafting.⁴ Section 124 (1) of the Social Courts Act gives the parties the right to appear and be heard in oral proceedings. In the author’s case, Saxony Regional Social Court held an oral hearing, but neither of the parties participated.

3. The parties shall be granted a right to be heard before every decision; the hearing may be conducted in writing or electronically (Social Courts Act, sect. 62). ↩
4. Federal Constitutional Court, Case No. 1 BvR 496/00, Decision, 23 June 2004. ↩

Under the immediacy principle, the courts must establish the facts of the case to the extent possible. The proceedings and evidence-taking must therefore usually take place before the adjudicating court. The State Party argues that the immediacy principle does not require communication by online chat as the author requested. Concerning the author’s difficulties with finding a lawyer who could communicate in an accessible way, the State Party observes that, in regional social court proceedings, no attorney is required. In Federal Social Court proceedings, an attorney is required, and the Court may appoint an attorney under section 78b (1) of the Code of Civil Procedure. The Federal Social Court refused this in the author’s case, which was without prospect of success independently of his communication requirements. Even if an attorney had been assigned, the Federal Social Court would have rejected his complaint against denial of leave to appeal on grounds of inadmissibility. There was therefore no unequal treatment. Regarding the author’s argument that the timetabling system of lay judges should change to accommodate exceptions, the State Party argues that such amendments and wholesale changes in court organization are neither possible nor necessary. The Federal Constitutional Court found that the form of oral proceedings sought by the author conflicted with the principles of transparency, immediacy and concentration of proceedings. The State Party notes that the rule of law principle does not create a right to oral proceedings in accordance with the author’s wishes, which were neither legally nor practically feasible.

In his comments dated 11 April 2020, 28 June 2020, 11 January 2022, 17 October 2022 and 26 March 2023, the author argues that the domestic authorities’ response to the coronavirus disease (COVID-19) pandemic showed to what extent accommodation could be made, including hearings by means of videoconferencing software, but that, by contrast, accessibility for persons with disabilities is still often lacking. With additional “time-shifting”, this would have been a solution for the author’s case.

The author argues that, following the submission of his communication, the German Tax Office commenced an investigation into two legal entities that he leads, which are selforganized inclusive housing projects for persons with autism, and warned him that it would consider the projects as commercial companies. The author requested that the procedure be made accessible, but this was “nearly ignored”. According to the author, the Tax Office was “destroying” the projects and leading persons with autism to commit suicide. The author considers that this constitutes a reprisal for his submission of the communication to the Committee. He informed the Tax Office of the communication, but it did not reply. On 26 March 2023, the author filed a complaint regarding a possible reprisal against his inclusive housing projects to the Tax Office.

In its observations dated 7 September 2023, the State Party notes that the author’s additional comments do not concern the subject of the communication and do not affect the determination of the merits. The State Party therefore refers to its previous observations.

In his additional comments dated 13 September 2025, the author emphasizes that Saxony Regional Social Court’s refusal to organize an online chat prevented it from clarifying the facts and precluded him from having a “higher-quality conversation” with the Court. According to the author, those two elements are usually made available to persons without disabilities. The author argues that the Federal Constitutional Court, in its decision, states that persons with disabilities can be required to be represented by others if it is too difficult for them to participate in the court hearing.

Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 70 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee notes that the State Party submits that the communication is inadmissible as manifestly ill-founded under article 2 (e) of the Optional Protocol, as all domestic decisions concerning the author and the relevant procedural provisions of the Social Courts Act meet the requirements of the Convention. The Committee notes that the author’s claims largely concern the alleged insufficiency of procedural accommodation provided to him in relation to the oral hearing held by Saxony Regional Social Court. The Committee notes, in particular, the author’s claim that he should have been allowed access to the Court by means of an online forum. The Committee recalls that, according to principle 3 of the International Principles and Guidelines on Access to Justice for Persons with Disabilities, accommodation encompasses all the necessary and appropriate modifications and adjustments needed in a particular case, including intermediaries or facilitators, procedural adjustments and modifications, adjustments to the environment and communication support, to ensure access to justice for persons with disabilities. Moreover, procedural accommodation is not limited by undue hardship. The Committee also recalls that the phrase “on an equal basis with others” means, on the one hand, that persons with disabilities will not be granted more or fewer rights or benefits than the general population, and, on the other hand, that States Parties are required to take concrete, specific measures to achieve de facto equality for persons with disabilities to ensure that they can in fact enjoy all human rights and fundamental freedoms.⁵

5. General comment No. 6 (2018), para. 17l; and Köck v. Austria (CRPD/C/26/D/50/2018), para. 7.4. ↩

The Committee considers, however, that the author has insufficiently substantiated that the refusal to hold a hearing in the form of an online forum constituted a violation of his right of effective access to justice on an equal basis with others. The Committee considers that, insofar as the accommodation proposed by Saxony Regional Social Court in terms of modifications to the oral hearing was insufficient to meet his requirements, the author has not substantiated that it was contrary to his right of effective access to justice on an equal basis with others for the Court to offer to decide without oral hearing but rather based on the parties’ written submissions or, given the author’s disagreement with this, to hold the oral hearing without either of the parties. According to the State Party, the right to be heard in domestic law does not require oral proceedings, but if oral proceedings are held, they must satisfy certain requirements, and there is no provision in domestic law for oral hearings in the form of an online forum. In this regard, the Committee considers that the author has not substantiated that it was arbitrary for the courts to hold that the specific accommodation sought by the author was incompatible with these requirements, including transparency, immediacy and efficient use of human resources and time, in the interests of ensuring the proper administration of justice. The Committee also considers that the author has not substantiated that the Federal Constitutional Court required him to be represented because of his disability. The Committee further considers that, insofar as the author complains of retaliation, he has not provided any information to substantiate the existence of a link between his submission of the present communication and the investigation into the housing projects that he leads.

The Committee recalls that it is generally for the courts of States Parties to the Convention to evaluate facts and evidence or the application of domestic law in a particular case, unless it is found that the proceedings before the domestic courts or the evaluation were clearly arbitrary or amounted to a denial of justice.⁶ In the present case, the Committee considers that the author has failed to substantiate, for purposes of admissibility, that the decisions by the domestic courts were arbitrary or constituted a denial of justice. Accordingly, the Committee finds that the communication is inadmissible under article 2 (e) of the Optional Protocol.

6. Sabadie v. France (CRPD/C/29/D/52/2018), para. 10.4; Sahlin v. Sweden (CRPD/C/23/D/45/2018), para. 8.6; Jungelin v. Sweden (CRPD/C/12/D/5/2011), para. 10.5; L.M.L. v. United Kingdom of Great Britain and Northern Ireland (CRPD/C/17/D/27/2015), para. 6.3; M.Y. v. Sweden (CRPD/C/24/D/49/2018), para. 6.6; F.O.F. v. Brazil (CRPD/C/23/D/40/2017), para. 8.7; R.I. v. Ecuador (CRPD/C/22/D/25/2014), para. 11.17; A.F. v. Italy (CRPD/C/13/D/9/2012), para. 8.4; and Bacher v. Austria (CRPD/C/19/D/26/2014), para. 9.7. ↩

The Committee therefore decides: (a) That the communication is inadmissible under article 2 (e) of the Optional Protocol;