1.
The Government of the Federal Republic of Germany herewith submits
the second periodic report in accordance with article 19, paragraph
1, of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.
2.
The Convention entered into legal force in the entire State
territory of Germany on 1 November 1990 after Reunification.
The initial report was submitted to the Committee in 1992.
3.
The structure of this supplementary report is in line with the
general guidelines for the form and contents of periodic reports
which are to be submitted by the States party under article
19 of the Convention (CAT/C/14).
4.
The report is restricted to the developments and events which
have taken place since the initial report was submitted, to
which reference is made in other respects. The general description
of Germany contained in the core document should also be referred
to, especially the part on the general legal framework within
which human rights are protected.
5.
The Federal Republic of Germany has placed its identification
with human rights and the inviolability of human dignity as
supreme values at the peak of its Constitution, the Basic Law.
Thus, torture is abhorred under constitutional law as one of
the most serious attacks on human dignity conceivable. For persons
in State detention, this is given concrete form by article 104,
paragraph 1, second sentence, of the Basic Law, which provides
that detained persons may not be subjected to mental or physical
ill-treatment. An advanced, flexible system of legal remedies
and appeals ensures effective control of officeholders, since
any person may have recourse to the courts in cases of actual
or even only alleged violations of the prohibition of torture.
6.
Adherence to the prohibition of torture in Germany is subject
to international control. Germany is a signatory State to the
European Convention for the Protection of Human Rights and Fundamental
Freedoms dated 4 November 1950. Under article 3 of this Convention,
no one is to be subjected to torture or to inhumane or degrading
treatment or punishment. From the outset, the Federal Republic
of Germany subjected itself to the competence of the European
Commission for Human Rights to receive and examine applications
(art. 25), as well as the jurisdiction of the European Court
of Human Rights (art. 46). With effect as of 1 November 1994,
the Ninth Protocol to the Convention entered into force for
Germany which, inter alia, also enables the applicant
himself or herself to call upon the Court. To date, no cases
of a violation of article 3 of the Convention by Germany has
been ascertained.
7.
Germany is also a party to the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment
dated 26 November 1987. In the context of the programme of regular
visits by the European Committee for the Prevention of Torture
(CPT) which exists under this Convention, a delegation visited
Germany between 8 and 20 December 1991. In its report dated
October 1992 (annex 1a), (The annexes referred to in the present
report can be consulted in the files of the United Nations Centre
for Human Rights) the Committee found that no accusations of
torture had been submitted to the delegation in the establishments
which they had visited and that there were no other indications
of torture in Germany. The CPT listed a series of recommendations,
comments and requests for information. With its statement on
the report (annex 1b) and the forwarding of the information
asked for by the Committee, and in a follow-up report, the Federal
Government availed itself of the opportunity to continue the
dialogue with the CPT which had started during the visit. It
also consented to the publication of the Committee's report,
together with the Government's response. During the period between
14 and 26 April 1996, the CPT delegation visited Germany once
again. The report concerning this visit is not yet available.
INFORMATION ON NEW MEASURES AND NEW DEVELOPMENTS
RELATING TO THE IMPLEMENTATION OF THE CONVENTION
Article 2
8.
As was stated in detail in the initial report, and in presenting
the report, domestic implementation of article 2 is ensured,
inter alia, by provisions contained in the Criminal Code
(Strafgesetzbuch [StGB]).
9.
Section 340 of the Criminal Code, concerning bodily harm committed
in office, is one of the most important of these provisions.
In the Act on the Suppression of Crime (Verbrechensbekämpfungsgesetz)
dated 28 October 1994, which was also a reaction to the increase
in xenophobic attacks in Germany, the punishment threatened
in the criminal provisions relating to bodily harm were tightened
up. In the course of these amendments, the maximum sentences
provided for in section 340 of the Criminal Code were also increased
and the cross-references contained in this provision adjusted
in line with the amendments to the general offences of bodily
harm. The provision now reads:
"Section 340
"(1) A public
official who commits, or permits to be committed, bodily
harm during the exercise of his duties, or in connection
herewith, shall be punished by between three months' and
five years' imprisonment. In less serious cases, the punishment
shall be up to three years' imprisonment or a fine.
"(2) In cases
of dangerous bodily harm (section 223a), the punishment
shall be between six months' and five years' imprisonment,
in less serious cases up to five years' imprisonment or
a fine. In cases of particularly serious bodily harm coming
under section 225 subsection 1, the punishment shall be
imprisonment of not less than one year, in less serious
cases between six months' and five years' imprisonment.
In cases falling under section 225 subsection 2, the punishment
shall be imprisonment of not less than two years, in less
serious cases between three months' and five years' imprisonment."
10.
The provisions to which reference is made read as follows:
"Section 223a
"(1) If the bodily
harm has been perpetrated by means of a weapon, in particular
a knife or other dangerous implement, or by means of a treacherous
assault, or by several people jointly, or by means of treatment
endangering life, the punishment shall be between three
months' and five years' imprisonment.
"(2) The attempt
shall be punishable.
"Section 224
"(1) If the bodily
harm results in the victim losing an important limb, the
sight of one or both eyes, his hearing, speech or fertility,
or in substantial, lasting disfigurement, or in continuing
physical and/or mental deterioration, paralysis or mental
illness, the punishment shall be between one and five years'
imprisonment.
"(2) In less
serious cases the punishment shall be between three months'
and five years' imprisonment.
"Section 225
"(1) Anyone who
causes one of the consequences designated in section 224
subsection 1, at least recklessly, shall be punished by
between 1 and 10 years' imprisonment, in less serious cases
between 6 months' and 5 years' imprisonment.
"(2) Anyone who
intentionally or knowingly causes one of the consequences
designated in section 224 subsection 1 shall be punished
by between 2 and 10 years' imprisonment, in less serious
cases imprisonment from 1 to 5 years."
11.
No other legal amendments have been carried out since the first
report.
12.
As has already been mentioned in the introduction, the organs
of the European Convention on Human Rights have to date found
no case of a violation of the prohibition, as set out in article
3 of the Convention, of torture or inhuman or degrading treatment
or punishment by Germany. The case which was still pending with
the European Court of Human Rights at the time when the initial
report was presented has now been concluded. It was found that
Germany had not violated the Convention. The subject-matter
of the proceedings was the accusation that the applicant had
been ill-treated by the police whilst being apprehended. No
accusation of torture was made. In the view of the Court, the
facts which were determined did not lead to the conclusion that
the injuries which the applicant had suffered were the consequence
of the use of disproportionate force.
13.
In May 1995, Amnesty International submitted a report entitled
"Foreigners as victims - police ill-treatment in the Federal
Republic of Germany" discussing more than 70 of the incidents
of which the organization had become aware where in its view
German police officers had treated people in a disproportionate
and unjustified manner in exercising their duties or had subjected
detained persons to cruel, inhuman or degrading treatment or
punishment. In two cases the ill-treatment had allegedly been
so serious as to be equivalent to torture. These accusations
are given separate treatment in appendix I to this report.
Article 3
14.
The legal situation described in the initial report continues
to apply. In Germany, it is therefore still the case that no
alien may be deported to a State where there is a real danger
of his being subjected to torture or where he is wanted for
a criminal offence and the danger of the death penalty exists.
Article 4
15.
With the exception of section 340 of the Criminal Code, which
was already dealt with at article 2, the legal situation is
unchanged.
16.
According to the latest available criminal prosecution figures,
which only refer to the old Federal territory, i.e. the territory
of the Federal Republic of Germany prior to Unification, in
1993 there were 31 convictions in respect of bodily harm caused
in office (section 340 of the Criminal Code). The observation
made in the initial report should be repeated here that in practice
these are not typical cases of torture. Rather, the few convictions
also covered teachers who had exercised an unauthorized right
of chastisement on pupils. No convictions for extraction of
testimony under duress (section 343 of the Criminal Code) were
recorded in the statistics for 1993.
Articles 5 to 9
17.
The legal situation has not changed since the first report.
18.
It should be pointed out in this context that Germany supports
the work of the courts of the United Nations in respect of violations
of human rights, in particular in cases of torture. The Federal
Government considers international criminal jurisdiction to
be necessary everywhere where adequate criminal prosecution
is not ensured at national level.
19.
Germany therefore helped to initiate the decision to set up
the International Criminal Tribunal for the Former Yugoslavia,
which opened its doors in the autumn of 1993, and also makes
an internationally recognized, ongoing contribution to the practical
implementation of its work. Germany is one of the States which
have already adopted a separate statute on cooperation with
the Tribunal. On the basis of this Act, which entered into force
on 14 April 1995, close cooperation is ensured between the German
judicial authorities and the Tribunal. As well as executing
requests for mutual assistance from the Tribunal, this also
includes transferring suspects to the latter. This has already
taken place in one case at the request of the Tribunal.
20.
It is also worth mentioning the financial contribution made
by Germany to the International Criminal Tribunal for the Former
Yugoslavia. Because it pays its contributions on time, Germany
is de facto the second highest contributor to the United Nations
Protection Force budget after Japan (DM 544 million as of the
autumn of 1995), and has and will continue to help finance the
International Criminal Tribunal.
21.
In the light of the tragic events in Rwanda, the Federal Government
also supported the setting up of a separate ad hoc tribunal
for that country by the Security Council. Following the election
of the judges by the General Assembly in May 1995, the Tribunal
was constituted on 27 June 1995 at The Hague. Germany, which
at present is not a permanent member of the United Nations Security
Council, is also, inter alia, supporting the Tribunal
in taking up its functions as soon as possible. In this context,
the Federal Government welcomes the fact that the Tribunal's
criminal prosecution authority has now started its work.
22.
Additionally, the Federal Government supports the project for
a United Nations permanent criminal tribunal. It is due primarily
to the initiative of Germany that the United Nations International
Law Commission has prepared a complete draft statute for a permanent
criminal tribunal. The Federal Government is in favour of finishing
the draft statute rapidly.
Article 10
23.
As was stated in the initial report, trainees for suitable professions
receive instruction regarding the prohibition of torture.
24.
In accordance with the division of competences contained in
the Basic Law, training of the groups of individuals listed
in article 1 is incumbent partly on the Federation and partly
on the Länder. Both the Federation and the Länder are making
continuous efforts to improve training in line with the aims
contained in article 10.
25.
In police work, insufficient preparation for particularly difficult
situations, such as work in certain high-tension areas in the
drugs scene, increases the danger of the police behaving incorrectly.
This also applies to contact with foreigners, especially where
ethnic conflicts from home countries are transferred to Germany
or if foreigners are hardly able to speak German. In the light
of this, and as a reaction to individual cases of unlawful conduct
by police officers (see appendix I to this report for more details
on this), the Länder have scrutinized the general training plans
and the training courses for police officers, and where necessary
have adapted them to the increased demands faced by police officers
today. Training in conflict avoidance and conflict-solving,
as well as improving police officers' communication skills,
is being given even more emphasis than previously, in particular
in training for police officers working in acute problem areas
or in special functions. There is also an increase in contacts
with ethnic and social minorities and fringe groups, and the
organizations representing their interests, in order to achieve
a better understanding of their situation and their conduct.
26.
Several measures undertaken by one Federal Land, which was particularly
accused of incorrect behaviour by its police, are exemplary
and by no means definitive. In this Land, several projects in
the future training of police officers, in particular in units
which are stationed in social flashpoints, are being carried
out under the responsibility of agencies which are outside the
police force. Three projects are being carried out with academic
support in connection with one selected police station each.
On the basis of an examination of the situation in the station
and the area for which it is responsible, taking several weeks,
in particular in the light of conflicts between various ethnic
groups, special one-week training courses were designed in order
to train officers to deal with people in extreme situations.
Furthermore, a series of seminars is being organized to improve
officers' abilities in the areas of communication and coping
with stress, which is intended to help to defuse potential conflict
situations.
27.
In October 1994, Working Group II of the Conference of Ministers
of the Interior proposed a research project which was to be
concerned with specific causes and manifestations of racism
and xenophobia in the police. The results of this research project
have now been published and exonerates the police forces from
the accusation of widespread xenophobia. Although there is no
systematic pattern of xenophobic attacks by the police, individual
cases may have occurred. It is, however, possible to identify
structures which increase the danger of prejudices and xenophobic
attacks. At the same time, in recent years there have been a
large number of training initiatives aimed at better preparing
police officers for contact with individuals of foreign origin
and for the suppression of xenophobic crime.
28.
In the area of prison staff training, it should be mentioned
that in the new Federal Länder, prior to accession to the Federal
Republic of Germany, it was not ensured that sentences were
executed in accordance with the rule of law. Training of prison
staff is still under particular scrutiny there. These Länder
are now training their prison staff in accordance with the training
provided in the old Federal Länder. Brandenburg, Saxony and
Thuringia have now issued Training and Examination Codes which
largely correspond to the provisions which apply in the old
Federal Länder. In the other Länder, regulations on this matter
are presently being drawn up. In part, the old Länder still
offer assistance in training and further training.
Article 11
29.
The details stated in the initial report with regard to the
general system, which serves to examine the effect of the existing
provisions, remain effective.
30.
Detailed scrutiny of the measures carried out to protect persons
in police custody against ill-treatment took place, for instance,
in the statement of the Federal Government concerning the 1992
report of the European Committee for the Prevention of Torture
in the light of the recommendations made by the Commission.
In this respect, reference should also be made to the reactions
to the accusations of ill-treatment by police officers dealt
with in appendix 1.
Articles 12 and 13
31.
The legal situation described in the initial report continues
to apply.
Article 14
32.
The observations made in the initial report are still valid.
Furthermore, reference should be made to the following points:
Victim
Compensation Act
33.
The Act on Compensation for Victims of Violent Acts - Victim
Compensation Act (Opferentschädigungsgesetz - OEG) in
the version dated 7 January 1985, lastly amended by the Act
of 21 July 1993, imposes a duty on the State to provide maintenance
for victims of intentionally committed violent acts. The Act
therefore also covers torture. That said, no such cases have
yet been reported to the competent authorities. It is irrelevant
to the award of compensation whether the offender acted as a
private individual or was actually or allegedly exercising a
State duty.
34.
The aim of this Act is to compensate for the health and economic
consequences of bodily harm caused by violent acts. Separate
compensation from the State is ensured, going beyond that of
the general social security systems and welfare. The extent
of the benefits awarded under the Act are in line with the Act
on Maintenance of Victims of War dated 22 January 1982 -Federal
Maintenance Act (Gesetz über die Versorgung der Opfer des
Krieges -Bundesversorgungsgesetz), lastly amended by the
Act of 15 December 1995, which governs maintenance of those
injured in war and of their surviving dependants and, under
the social law on compensation, also applies to benefits awarded
to other groups of individuals (such as those injured in performing
military or alternative service, and those injured by inoculations,
and their surviving dependants). It is characteristic of this
benefit system that the benefit is awarded as various individual
benefits in accordance with the extent and seriousness of the
consequences of the damage and the need of the individual, and
that in cases of serious damage it can therefore total a considerable
amount which is equivalent in principle to full compensation
for the damage to health. Damages for pain and suffering may,
however, not be claimed under the Victim Compensation Act. By
means of the Second Amending Act to the Victim Compensation
Act dated 21 July 1993, further groups of aliens who are lawfully
resident in Germany and are victims in the meaning of the Victim
Compensation Act have a right to compensation payments retroactively
to 1 July 1990. The extent of the payments in such cases corresponds
to the duration of lawful residence in Germany. Aliens who have
already lived in Germany for more than three years may claim
all the individual benefits provided for in the Act. The Act
is implemented by the authorities of the Länder. The benefits
are granted on request.
First
Act on the Abrogation of Injustice committed by the SED (Socialist
Unity Party of Germany)
35.
This Act is primarily intended to abrogate the injustice committed
by the criminal justice system in the former German Democratic
Republic. It is a part of the effort to deal with the past of
the German Democratic Republic. It is not possible to undo past
injustices, but the Federal Government could not and did not
wish to accept the results of this injustice.
36.
The Act offers both financial compensation and maintenance benefits
to those who were worst affected under the unjust SED regime
by deprivation of liberty which was not in line with the rule
of law. This is in addition to rehabilitation. These payments
are made on condition of the deprivation of liberty having been
incompatible with major principles of the rule of law. They
also benefit individuals who suffered long-term damage to their
health because of the strict conditions of detention in the
internment camps of the Soviet military force in the Soviet
Occupation Zone/German Democratic Republic or in German Democratic
Republic prisons, including damage caused by torture.
37.
According to the Act, financial compensation of DM 300 is paid
for each month of wrongly suffered deprivation of liberty. Additional
financial compensation of DM 250 for each month of detention
which was begun is paid to applicants who remained in the former
German Democratic Republic after their release for long-term
disadvantages suffered as a result of detention (discrimination
in work and in social life). Furthermore, individuals in particular
need may be awarded further financial support the extent of
which is determined on an individual basis in accordance with
the nature and the extent of the economic damage done (presently
up to DM 8,000 per year). In connection with article 14 of the
Convention, it should be pointed out that there is a regulation
according to which all victims whose health suffered during
detention receive maintenance in accordance with the Federal
Maintenance Act (Bundesversorgungsgesetz). This includes,
inter alia, disability pensions, payment for loss of
earnings and health care. Surviving dependants may also receive
benefits in accordance with the Federal Maintenance Act.
38.
In the new Federal Länder, roughly 142,000 requests for rehabilitation
under criminal law were filed between 1990 and December 1995,
of which roughly 132,000 cases had been dealt with by 31 December
1995. Compensation for lost capital and support payments amounting
to roughly DM 625 million had been paid out by the Federation
and the Länder by 1995 under the Criminal Law Rehabilitation
Act.
Treatment
centre for victims of torture
39.
Beyond its duties under article 14 of the Convention, the Federal
Government supports rehabilitation for victims of torture who
come to Germany as refugees. Thus, the Federation provides DM
900,000 per year towards the work of the treatment centre for
victims of torture in Berlin, where counselling and physical
and social therapy are offered, involving a large amount of
staffing and time. In 1993, a total of 212 persons were treated
at this centre.
Voluntary
fund for victims of torture
40.
Finally, it should also be pointed out that Germany provided
the United Nations Voluntary Fund for Victims of Torture with
DM 180,000 per year in 1995 and 1996.
Article 15
41.
The information provided in the initial report applies with
regard to this article.
Article 16
42.
The legal situation described in the initial report largely
still applies. Attention is drawn to the tightening up of sentencing
in section 340 of the Criminal Code, which was already pointed
out in reference to article 2, which covers not only cases of
torture in the meaning of article 1 of the Convention, but also
applies to other manifestations of cruel, inhuman or degrading
treatment.
43.
With regard to the requirement stated in article 16, paragraph
1, first sentence, to comply also with the obligations contained
in articles 10, 11, 12 and 13 with regard to other manifestations
of cruel, inhuman or degrading treatment, please refer to the
information provided concerning those articles.
44.
Accusations have been levelled recently against Germany by non-governmental
organizations concerning the treatment of foreigners by the
police and conditions in detention awaiting deportation. Appendices
I and II to this report contain detailed statements on these
questions.
Appendices
I. ACCUSATIONS OF ILL-TREATMENT
BY THE POLICE
1.
The provisions contained in the initial report and in this follow-up
report designed to prevent torture and other cruel, inhuman
or degrading treatment or punishment apply to police officers
in the same way as to all other German officeholders. Police
work in particular entails a considerable potential for conflict,
so that police officers are particularly frequently faced with
the decision of whether and to what extent the use of force
is suitable.
2.
In recent years, accusations have been forthcoming from various
quarters that German police officers had used excessive force
when making arrests, especially against foreigners, or that
they had ill-treated them in police custody. Thus, in one report
Amnesty International speaks of 70 cases reported to the organization
between January 1992 and March 1995.
3.
When the initial report was presented in 1992, there was already
talk of two cases of alleged ill-treatment by German police
officers. In accordance with its wishes, the Committee was later
informed of the course and the results of the investigations.
Further cases were the subject-matter of inquiries made by the
Special Rapporteur of the Commission on Human Rights with regard
to torture, the Special Rapporteur on contemporary forms of
racism, racial discrimination, xenophobia and related intolerance,
and the Special Rapporteur on extrajudicial, summary or arbitrary
executions. The Federal Government has provided detailed answers
to all inquiries and has made comprehensive observations regarding
the cases which were submitted.
4.
Domestically, among other bodies, the Domestic Affairs Committee
of the German Federal Parliament, the Permanent Conference of
the Interior Ministers and Senators of the Länder, as well as
the Conference of Ministers of Justice of the Länder, have discussed
the accusations. The Länder in question have also made observations
to Amnesty International regarding the cases described. In addition,
in one Land a Parliamentary Committee of Investigation has been
established.
5.
The Federal Government is also taking the accusations very seriously
and has investigated them in cooperation with the competent
Länder. In doing so, it found that investigations had been initiated
in all cases which had been reported. Of the 20 cases which
were listed in the AI report, 8 were terminated when the proceedings
were discontinued by the public prosecution office, and one
was terminated by the court which had jurisdiction, when refused
to initiate main proceedings on the basis of the charge filed
by the public prosecution office. One set of proceedings ended
with an acquittal. In one other set of proceedings a conviction
was handed down. Four sets are still pending with the court,
whilst in five sets the public prosecution office is still investigating.
In particular, the two sets of proceedings in respect of which
Amnesty International speaks of ill-treatment equivalent to
torture have not been concluded. In the case which ended in
a conviction, the disciplinary proceedings which were initiated
are still pending. In the case where the court which has jurisdiction
refused to initiate the main proceedings on the basis of the
charge filed by the public prosecution office, the victim was
awarded compensation by the civil courts because of the injuries
suffered. Criminal prosecution was not possible here because
it was not possible to prove which of the police officers concerned
had caused the victim's injuries. This point was not relevant
in the compensation proceedings, which were directed against
the Land in question.
6.
Mention should also be made here of the case of a 16-year-old
Kurd of Turkish origin who was found by the police affixing
posters for a Kurdish organization which is prohibited in Germany,
and was killed by a shot from the firearm of a police officer
who was trying to apprehend him. The public prosecution office
presumes that during the scuffle the police officer's pistol
slipped out of its holster and that he tripped whilst picking
it up. This is when the shot is said to have gone off which
killed the Kurdish juvenile. The public prosecutor filed charges
against the police officer for involuntary manslaughter, and
the main trial is expected to take place in the first half of
this year. The Federal Government has informed, among others,
the Special Rapporteur on extrajudicial, summary or arbitrary
executions of this case in detail.
7.
The investigations carried out into the accusations which have
been made have revealed on the whole that in cases where the
investigations in fact point to misconduct on the part of police
officers, they are unfortunate individual cases which cannot
be said to constitute a general trend.
8.
In the future, too, each individual suspicious case will be
investigated with the necessary care and attention and, where
required, punishment will be imposed. Misconduct and attacks
by police officers in the course of their duties are prosecuted
by the public prosecution authorities, even where the suspicion
is minimal. Against the background of the incidents which have
been described and the corresponding recommendations made by
Amnesty International, the Federal Government has scrutinized
the provisions under current criminal law and the law of criminal
procedure. In doing so, it has come to the conclusion that the
law as it stands properly guarantees that the public prosecution
offices act comprehensively where there is sufficient suspicion
of ill-treatment of individuals by police officers. In accordance
with section 152, subsection 2, and section 160, subsection
1, of the Code of Criminal Procedure (Strafprozeßordnung
- StPO), the public prosecution office is obligated to initiate
investigations and to prosecute as soon as it becomes aware
of a suspicion that a criminal offence has been committed, i.e.
of ill-treatment by police officers. This ensures that when
it hears of ill-treatment by police officers the public prosecution
office is immediately obligated to investigate all aspects of
the offence. A public prosecutor who, in contravention of the
principles of truth and justice, for instance fails to prosecute
a crime would be guilty of being an accessory after the fact
whilst in office (section 258 a of the Criminal Code). If the
public prosecution office does not head the investigation itself,
the investigation is in part carried out by a police office
in another district.
9.
Some of the Federal Länder concerned have taken the incidents
which have been described as a reason to develop their training
and further training programmes. The information provided under
article 10 should be referred to in this respect.
II. TREATMENT OF ALIENS IN DETENTION
AWAITING DEPORTATION
1.
Various accusations have been levelled recently at Germany regarding
the treatment of aliens in detention awaiting deportation.
A. Legal basis for deportation
2.
Deportation is governed by sections 49 et seq. of the Act on
the Entry and Residence of Aliens on Federal Territory - Aliens
Act (Gesetz über die Einreise und den Aufenthalt von Ausländern
im Bundesgebiet - Ausländergesetz -AuslG) dated 9
July 1990, last amended by the Act of 28 October 1994. The full
text of these provisions is provided in annex 2.
3.
Deportation is understood to be the coercive enforcement of
the exit of an alien. In accordance with section 49, subsection
1, of the Aliens Act, in conjunction with section 42 of the
same Act, it is dependent on:
(a)
The alien being obligated to leave Germany;
(b)
This obligation to leave the country being enforceable; and
(c)
There being no guarantee that this obligation will be fulfilled
voluntarily, or if it appears necessary for reasons of public
security and good order for the exit to be supervised.
4.
Deportation generally requires a warning to have been issued
in advance and a date set for departure (section 50, subsection
1, of the Aliens Act).
5.
Because of the division of competences contained in the Basic
Law (art. 83), the Länder are competent for carrying out deportations.
B. Legal basis for detention awaiting deportation
6.
If an alien's duty to leave is enforceable, as a rule he or
she is to be taken into detention awaiting deportation if the
reasons for detention apply which are contained in section 57,
subsection 2, Nos. 1 through 5, of the Aliens Act. These are:
(a)
If the alien's duty to leave the country is enforceable because
of illegal entry;
(b)
If the period to exit has expired and the alien has changed
his or her address without reporting the change;
(c)
If he or she was not found at a time announced for deportation;
(d)
If in the past he or she has evaded deportation by other means;
or
(e)
If a justified suspicion exists that he or she wishes to evade
deportation in the future.
7.
Detention awaiting deportation of an alien who is to be deported
is conditional on an order by a judge. The Land immigration
authority responsible for deportation has merely a corresponding
right to make a request. Detention awaiting deportation may
initially be ordered for a maximum period of up to six months.
It may be extended by a maximum of 12 months only in cases where
the alien prevents his or her deportation by, for instance,
delaying the issuance of documents needed for the journey home
by intentionally providing false information regarding identity
or origin (section 57, subsection 3, of the Aliens Act).
8.
In accordance with section 57, subsection 2, third sentence,
of the Aliens Act detention awaiting deportation may not be
ordered if it is established that deportation cannot be carried
out within the following three months for reasons not brought
about by the alien. It is also not permissible to order detention
awaiting deportation if the alien has been granted residence
in Germany on the basis of provisions under asylum law. A legal
amendment is, however, presently being prepared - a draft bill
from the Federal Council is presently before the German Federal
Parliament to the effect that under certain circumstances detention
awaiting deportation may be continued or ordered even if an
asylum application has been filed.
9.
If for legal, humanitarian or political reasons it is not possible
or desirable for deportation to be executed, the alien is to
be granted temporary suspension of deportation. In such a case
the immigration authority will not request detention awaiting
deportation, and certainly no judge will order such detention.
C. Duration of detention awaiting deportation
10.
In practice, the duration of detention awaiting deportation
generally depends on the time needed to obtain documents allowing
the person to travel home. Other difficulties occur when aliens
have destroyed their documents or provide no information, or
incorrect information, regarding their identity or origin. Careful,
and hence possibly time-consuming, scrutiny by the consulates
of the destination country are a consequence of the aliens'
own conduct. As a rule, however, the statutory maximum of 18
months is normally not used up by any means, even in such cases.
D. Conditions of detention
11.
Because of the above-mentioned division of competences contained
in article 83 of the Basic Law, conditions of detention are
a matter for the Länder. In most Länder, detention awaiting
deportation is executed in prisons, in sections which are separate
from other convicts and remand prisoners. Conditions of detention
here are largely identical to those imposed on other inmates
to the extent that this is compatible with the nature of detention
awaiting deportation. In this way, it is also ensured that prison
officers are available who are suitably qualified to deal with
persons who have been deprived of their liberty. The officers
are particularly experienced with regard to the multiplicity
of religious, cultural and linguistic particularities of foreign
inmates. In principle, persons in detention awaiting deportation
have at their disposal assistance, treatment and care to the
same extent as all other inmates, unless the purpose and character
of detention awaiting deportation make this impossible. Several
Länder have created separate institutions for detention awaiting
deportation which are specifically designed to cope with the
needs of such detainees and which make it possible for care
to be even more specific. Where complaints were reported by
detained persons with regard to the conditions of detention,
these have been consistently investigated. Where they have proven
to be substantiated in individual cases, remedies were created
without delay.
E. Deaths in detention awaiting deportation
12.
The accusations against Germany were also caused by isolated
cases where people died in detention awaiting deportation. The
Federal Government takes these incidents seriously and investigates
them in conjunction with the Länder, which are responsible for
detention awaiting deportation. It has been revealed that during
the period of the report 11 persons have died in such detention.
One person died of natural causes, and there were 10 cases of
suicide. The public prosecution office initiated proceedings
to investigate the deaths with regard to all of the cases. There
were, however, no indications of criminal conduct or of violations
of official duties by those providing supervision.
13.
There was more publicity concerning the case of a Nigerian who
died in August 1994 at Frankfurt/Main Airport while being deported
immediately before his aeroplane to Nigeria was due to take
off. After a total of five unsuccessful attempts to deport him,
which he had emphatically resisted in each case, a further attempt
was to be made on that day to return him to Nigeria. Because
he had once more offered considerable physical resistance, the
doctor accompanying him had given him a sedative injection.
He died shortly afterwards. Two independent post mortems showed
that from a medical point of view the sudden death by heart
failure was caused by a previously unknown, serious heart disease,
probably ultimately set off by the extreme emotional stress
he underwent at the time of the deportation. The investigation
into this case has now been concluded. The proceedings initiated
in respect of officers of the Federal Border Guard were discontinued
because there was not sufficient suspicion of a criminal offence
having been committed. A charge of failure to provide assistance
was filed in October 1995 with Frankfurt/Main local court against
the emergency doctor who treated him. A decision has not yet
been taken in respect of the opening of the main trail. The
Federal Government has reported on this matter in detail to
the Special Rapporteur on extrajudicial, summary or arbitrary
executions.