Working Group on Arbitrary Detention statement upon conclusion of its mission to Germany (26 September- 5 October 2011)

The United Nations Working Group on Arbitrary Detention conducted a country mission to Germany from 26 September to 5 October 2011, following an invitation from the Government. The delegation was headed by myself, Mr. El Hadji Malick Sow (from Senegal) as Chair-Rapporteur of the Working Group, and composed of Ms. Shaheen Sardar Ali, Vice-Chair of the Working Group (from Pakistan) and Mr. Mads Andenas (from Norway). Accompanying the delegation were two members of the Working Group’s Secretariat from the Office of the United Nations High Commissioner for Human Rights in Geneva.

Firstly, I would like to thank the Government for extending an invitation to the Working Group to visit and for doing so, immediately after the Working Group requested the invitation. We are also thankful for the full cooperation given to us throughout the various stages of the visit. The Working Group wishes to also thank various representatives from the German civil society including human rights defenders, lawyers, representatives of Churches and non-governmental organizations, for the information and assistance they provided.

The Working Group benefited from various meetings held with federal and state authorities in Berlin, Hamburg, Karlsruhe and Stuttgart. It met with senior authorities from the Executive, Legislative and Judicial branches of the State, including the Secretary of State at the Federal Foreign Office, Mrs. Birgit Grundmann; the Federal Government Commissioner for Human Rights Policy and Humanitarian Aid, Mr. Markus Löning, and other officials representing the Federal Foreign Office; the Parliamentary State Secretary in the Federal Ministry of the Interior, Mr. Ole Schröder; officials representing the Ministry of Justice; the Federal Ministry of Labour and Social Affairs and the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth.

In Berlin, the Working Group was also received by representatives of the Local Court of Berlin Tiergarten; by Dr. Ernst, a judge at the Higher Regional Court and by representatives of the Senate Department for the Interior and the Sport. It also met the President of the Federal Police Regional Office; officials from the Ministry of Defence and with Mrs. Beate Rudolf and staff of the German Institute for Human Rights.

In the States of Baden-Wurtenberg, the Working Group met with Judges of the Federal Constitutional Court in Karlsruhe, including Professor Dr. Andreas L. Paulus and Dr. Erik Goetze. It also met with  the Presiding Judge of the Federal Court of Justice, Justice Sost-Scheible and Federal Judge Professor, Dr. Sander. In Stuttgart, it met with the Presiding Judge of the Local Court, Justice Brigitte Legler and Judge Mr. Gerhard Gauch.

In Hamburg, the Working Group met with the Presiding Judge of the Regional Superior Court, Mrs. Sibylle Umlauf; with the Crown Prosecutor Mr. Holger Lund and Senior Public Prosecutor Janhenning Kuhn; with the State Secretary of the Senate Department of Justice and Gender Equality, Mr. Ralf Kleindiek; with Senior Public Prosecutor Dr. Eva Maria Ogiermann and lawyer Mr. Jonas Finke; with Mr. Stefan Lengefeld and other representatives of the Senate Department of Health and Consumer Protection; with officials representing the Senate Department for the Interior and Sport and with Police authorities.. The Working Group also held a meeting with representatives of the Hamburg Association of Defence Lawyers.

The Working Group visited the following detention facilities in Berlin: the Police Station at Berlin’s main rail station; the Moabit Remand Prison and the Köpenick Centre for persons detained pending deportation. In Hamburg; the Remand Prison (UHA) and Fülsbuttel Prison and in Karlsruhe, the Psychiatric Centre Northern Baden.In Stuttgart, the Working Group visited the Penal Institution Schwäbisch Gmünd (JVA). It held confidential interviews with 69 detainees in these detention centres.

The Working Group would like to note that during its meetings with various categories of detainees (including pre-trial and sentenced), it did not receive any complaint of ill treatment against detention facility personnel or police officials. However, several interlocutors it met acknowledged that further guarantees are necessary to deal with the problem of ill treatment particularly through the establishment of independent commissions of enquiries.

The Working Group thanks the Government for the cooperation extended during its mission. It has been impressed by the openness, sincerity and honesty of its various institutions and the manner in which they gave us access to persons in detention; to courts and police stations.

With regard to its findings, the Working Group would also like, to commend the Government for the positive efforts it has made, particularly through legislative reforms, to improve the situation of deprivation of liberty in Germany. The Working Group observed that all detainees it met expressed they had good relationship with detention facility staff. The   infrastructure of detention facilities all conformed to international standards.

The Working Group was also informed of a number of important initiatives regarding collaboration between the police and education departments to respond to the underlying factors impacting on criminality. This inter-agency approach to address socio-economic causes of offences and offending behaviour and its impact to date in reducing crime is of vital importance and one that may be disseminated and shared beyond Germany. The Working Group would like to seek further information in this regard and recommend wide replication.

The Working Group notes that human rights are protected in Germany by an independent and impartial court system with assistance from active non-governmental organizations. Among the good practices it observed is the establishment in Hamburg of an independent special commission for investigation of police officers in cases of alleged misconduct or alleged ill-treatment. The abrogation of the obligation of head teachers and hospital authorities to report the identity of children of irregular immigrants receiving emergency medical treatment is also a positive change.

Notwithstanding these positive achievements, the Working Group would like raise the following issues for the attention of the Government.

The Working Group is impressed by the active constitutional dialogue over human rights that take place in the German legislative and judicial process. However, it notes that new legislation such as the Therapieunterbringungsgesetz (the Act forcibly detaining patients for therapeutic treatment) raises some concerns. This legislation provides for detaining people in closed institutions when this is ‘necessary.’ Pressure on psychiatric diagnostics with the uncertainty as to what constitutes a mental disturbance in medicine and in law and questionable prospects of treatment or Therapie in instances where there are no recognized treatment are issues that need attention and clarity.

The Working Group also points out that the compliance with international and European human rights standards now depend on the way in which the German Constitutional Court’s judgments are followed up, in the first instance in legislation. It has been explained to us that this depends both on action by federal and state (Bundesländer) legislators, and have been appraised of the work this far, including the conclusions reached at a conference of the ministers of justice at both levels the week before our visit commenced.  The compliance with the German Constitution, and with international and European human rights standards, requires that the Constitutional Courts requirements to the standards of the detention regime are followed, in particular so that the conditions satisfy the proportionality requirements by becoming different from the ordinary prison regime. The Council of Europe procedures for implementation of judgments, new cases before international courts and other human rights bodies and further international monitoring will continue to contribute to this process. The follow up of this Working Group’s report on this visit, may continue to be of assistance in this process.

The Working Group’s visits to prisons in three different German states or Bundesländer have highlighted the challenges in making the regime or conditions of detention clearly different from the normal prison conditions. During its visit the Working Group paid particular attention to the question of subsequent preventive detention and was able to interview to several detainees, particularly in Hamburg Fülsbuttel Prison. These persons have already served their sentences but are held, deprived of their liberty because it is estimated that they continue to represent a danger for society. In some cases, the possibility of subsequent preventive detention was foreseen in their initial sentencing. In other cases, preventive detention has been applied retroactively. The detainees interviewed in mixed prison and detention institutions showed skepticism as to the prospect of achieving a different regime. The Working Group was also informed that out of the estimated total number of prisoners of 70,000; 10,864 are in remand  detention, including an estimated 400 juvenile.

In the course of the Working Group’s visits, it was also provided with support for the contention that preventive detention was being used in cases of social disorder that would not satisfy the statutory requirements and those of the Constitutional Court or Bundesverfassungsgericht. In one instance a woman who had completed a medium length sentence was kept in preventive detention as she was suffering from a social disorder. Her conditions were less attractive than for other inmates serving criminal sentences, and there did not seem to be prospects or specific procedures initiated for her release. This is one of the types of cases where the compliance with the constitutional and international requirements will require monitoring.

The Working Group also raises the issue of retroactivity.  Article 11(2) of the Universal Declaration provides that ‘(n)or shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed’. Article 15(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.’

It is clear from the European Court’s decisions that the German legislation and practice violated the ban on retroactive criminal punishment in European and international law. Yet, the retroactive provisions on preventive detention were recognized as highly problematic in all our meetings with government legal officials in federal and state ministries, prosecutors, prison officials and judges. This does not make it less of a concern that it took so many years and decisions by the European Court to set this issue right. This is a fundamental rights issue that should not depend on European or international supervision to be set right.

The Working Group notes that the Constitutional Court has maintained that the German constitutional concept of punishment does not follow that of international human rights law as expressed by the European Court, a view that we also support. Here the European Court’s interpretation of the European Convention is giving effect to international law according to which preventive detention is a penalty for which a strict ban on retroactivity applies. The Working Group recognizes the practical problems of declaring that the German legislation was in violation of the German ban on retroactive penalties, for instance with the release of detainees.

The solution found by the German Constitutional Court, invoking legitimate expectations instead of the ban on retroactivity, avoided automatic releases but requires a review of the terms and conditions of the individual detentions. The Working Group’s concern here is that the solution gives less effect to the ban on retroactive penalties in international law than that in German law. The Working Group is not concerned with the interpretation of the German Constitution as such which is for the Constitutional Court. It remains problematic that German law gives less effective remedies for the ban on retroactive penalties under international law than under the German Constitution.

The German Constitutional Court has in its May 2011 judgment set out a mechanism for the compliance with the European Court’s decision on retroactivity. This also has to be given effect to, and the time limit set by the Constitutional Court requires swift action.

The Working Group visited first instance courts and interviewed judges, prosecutors, defence advocates, police, detainees and prisoners. One issue of concern is the use of restraints as handcuffs and shackling in remand hearings. The general proportionality test applied seems to be in conformity with fair trial and other relevant international standards. The issue of concern is the uneven application of restraints, with clear differences between the local courts that the Working Group has visited. The Working Group will in the first instance recommend that the use of restrains is monitored. This may provide assistance at different levels, also for the judges that have to apply the relevant proportionality test.

Another area of interest and concern for the Working Group is the phenomenon of significantly disproportionate foreign detainees or Germans of foreign origin. Detention Centre figures offered to the Working Group during its visit to various detention institutions supports this. (In Berlin, we were advised that 45 per cent of detainees were foreigners from 55 different nationalities; in Stuttgart, 30 per cent of inmates were foreigners; in court hearing attended, three of five juveniles were foreigners; in holding cells at the court on the day, all were foreigners; in Hamburg, of 404 remand detainees, out of 249 were of non-German origin).

The disproportionately high numbers of foreigners in detention raises a number of important questions from a socio-legal perspective. Looking at possible causes and factors impacting on this profile of the detained population, it may be due to the residence and immigration laws in the country; vulnerable socio-economic position of the group; lack of language skills, social support and so on. Factors impacting on who is to be held in pre-trial detention also impact adversely on foreigners as one of the deciding factors here is whether the detainee has any links including friends and family to hold him in the city/country and hence not jump pre-trial bail or release. Here the judicial system works against foreigners as it is easily argued that they have no ties to the city/town/country and may disappear. Hence the large numbers of foreigners in pre-trial detention.

Not being in possession of a valid visa or such visa being expired is a criminal offence in and of itself. Therefore the foreigners who are held incur detention, due not to committing a criminal offence but to the fact of not having valid papers for being in Germany.

Similarly, the Working Group notes that when a foreigner is detained for a petty theft or other offence it becomes aggravated due to them being migrants of irregular status.

We are concerned that migrants are more prone to being detained and arrested due to the very fact of being foreign which becomes a huge disadvantage. Persons awaiting deportation is a further category of foreigners held in detention. We are informed that many foreigners are held awaiting deportation which may extend up to 18 months after which they have to be released on a “tolerated status” (Duldung) as that is the maximum time they may be held. This “tolerated status” is a short-term category which leaves those beneficiaries vulnerable to be deported any time.

The governmental institutions for law and order and justice appear to be cognisant of the problem. Migrants and persons of non-German origin tend to live as groups in neighbourhoods that have other migrants. Since these normally constitute some of the most socio-economically vulnerable parts of towns and cities, it is important to try and integrate them into wider society by conscientising them of their rights and obligations, the legal and judicial system and opening up chances for better social mobility. The Working Group is advised that the Police are collaborating with schools and other institutions to achieve this goal. The Working Group would be interested in more information regarding these initiatives throughout the country and any reviews of such programmes. Good social policy is an effective method of crime prevention. We have been advised that 10-15 per cent of police officers are of non-German origin from 40 different nationalities (Hamburg Police).

With regard to the illegal entry of foreigners to Germany being penalised by the law, detention of those for illegal border crossing, coupled with harsh sentencing, raises again the issue of proportionality and how this needs to be carefully addressed and remedied by the Government. It also provides further examples of situations where alternatives to detention can be used.

Another issue of concern is the “fast-track” procedure at airports, particularly in Frankfurt Airport. Persons requesting political asylum are not admitted into German territory until the Federal Office for Migration and Refugees made a decision within 48 hours. According to information received by the Working Group, if the application for political asylum is rejected, the applicant has only three days to appeal to the Administrative Court. This period is not sufficient to allow the applicant to prepare his or her appeal. The Working Group also notes that unaccompanied children aged 16 and 17 have gone through asylum procedures as adults, without the assistance of a guardian.

Concerning the transfer of deportees the Working Group considers there needs to be clarity about which European Union State is responsible for asylum claims when transfer happens. Often people are transferred for deportation purposes, against their will to countries that may not be their country of origin. The Working Group considers that an individual risk assessment should be requested to process forcible returns. The risk of persecution and discrimination in countries of origin should also be conscientiously evaluated. This evaluation should include consideration of essential economic and social rights, such as access to health care, to education, and housing
The Working Group also notes that immigration detainees, particularly in Hamburg, should be accommodated in centres specifically designated for that purpose and not in prisons.

Given that its mandate covers the protection of asylum seekers, immigrants and refugees against arbitrary deprivation of liberty, the Working Group requests the Government to ensure that the rights of these individuals are protected in accordance with international human rights standards. It requests the Government to ensure individual procedural guarantees are granted to individuals immediately upon their detention and should particularly give attention to issues such as interpretation, legal counselling and provision of information such as the right to seek asylum. Detention should also be used as a last resort and applied in exceptional cases, for a clearly specified reason and for the shortest possible duration.

We encourage the Government to continue in its efforts to ensure that its institutional and legal framework regarding deprivation of liberty fully conforms to the human rights standards enshrined in its legislation and in international human rights standards.

These are our preliminary observations at the end of our visit. A final report on the visit will be presented to the Human Rights Council at a session of the Human Rights Council in 2012. In its report, the Working Group will submit several recommendations to the Government.

We invite the Government to consider the issues that we have raised this morning.

Thank you very much.
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* El Hadji Malick Sow is from Senegal and has been the Chair-Rapporteur of the Working Group since 2009.
The former Commission on Human Rights established the five-member Working Group in 1991 to investigate allegations of arbitrary deprivation of liberty. Its mandate was extended in 1997 to cover the issue of administrative custody of immigrants and asylum-seekers. The other two members are Mr. Roberto Garretón (from Chile) and Mr. Vladimir Tochilovsky (from Ukraine).

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