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Germany / Arbitrary Detention: UN expert group’s warning on preventive detention and foreign detainees

BERLIN (5 October 2011) – The United Nations Working Group on Arbitrary Detention today expressed its concern* to the German Government on the system of preventive detention where persons continue to be deprived of their liberty after they have served their sentence because they represent a ‘danger to society.’ It also drew attention to “the significantly disproportionate number of foreign detainees or Germans of foreign origin” in the country’s jails.

At the end of its first official visit to Germany, the UN expert body urged the authorities “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.”

During its visits to German detention facilities, the Working Group interviewed several detainees under the preventive detention regime and found that retroactive provisions present serious problems that can result in indefinite detention of convicts. This was further supported by interviews with officials in federal and state ministries, prosecutors, prison officials and judges.

“Preventive detention violates the ban on retroactive criminal punishment in international law, particularly when this punishment was not foreseen in a convict’s sentence,” said Mr. El Hadji Malick Sow, who currently chairs the Group.

Another member of the Group, Mr. Mads Andenas, further raised the issue that preventive detention being used in cases of persons considered to have social disorders would not be in conformity with national and international human rights standards.

The expert body also noted the high percentage of foreign detainees or Germans of foreign origin in the detention facilities it visited. “The detention of foreigners due to 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,” said Ms. Shaheen Sardar Ali, of the Working Group. She further urged that immigration detainees should be kept in centres designated for such purposes and not in prisons.

The UN independent experts noted, nonetheless, several good practices in Germany such as the establishment in Hamburg of an independent special commission for investigation of police officers in cases of alleged misconduct or alleged ill-treatment. The removal of the obligation to report the identity of children of irregular immigrants receiving emergency medical treatment by teachers and hospital authorities is also a positive change in the law.

The Working Group visited detention facilities and held meetings with federal and state authorities in Berlin, Hamburg, Karlsruhe and Stuttgart. It also met with members of civil society organizations. It held confidential interviews with 69 detainees in various detention centres.

The Working Group will present the full report on its visit to the Human Rights Council in March 2012.

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 Group’s Chair-Rapporteur is Mr. El Hadji Malick sow (Senegal). The other members are Mr. Mads Andenas (Norway), Ms. Shaheen Sardar Ali (Pakistan), Mr. Roberto Garretón (Chile) and Mr. Vladimir Tochilovsky (Ukraine).

(*) Check the Working Group’s preliminary observations and recommendations: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11470&LangID=E

Learn more on the mandate and activities of the Working Group at: http://www2.ohchr.org/english/issues/detention/index.htm

OHCHR Country Page – Germany: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/DEIndex.aspx

For more information and media requests, please contact Mr. Miguel de la Lama, Secretary of the Working Group on Arbitrary Detention (Tel. +41 79 444 71 52 / email: mdelalama@ohchr.org) or write to wgad@ohchr.org.

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