Germany’s deportees cannot be held in prisons, ECJ rules

The European Court of Justice in Luxembourg. 2010 [Gwenael Piaser/Flickr]

The European Court of Justice declares German public prosecutors are not independent when prosecuting cases. [Gwenael Piaser/Flickr] [Gwenael Piaser/Flickr]

Third country citizens awaiting deportation must be detained separately from regular prisoners, the European Court of Justice ruled on Thursday (17 July), rejecting detention practices in several of Germany’s Länder. EURACTIV Germany reports.

In almost half of Germany’s federal states (Länder), individuals facing deportation are detained in regular prison facilities. But after a ruling by the European Court of Justice (ECJ) in Luxembourg on Thursday (17 July), such treatment has been deemed a violation of EU law.

“Many of the federal Länder have ignored EU legal requirements and have treated the innocent like criminals”, said Heiko Habbe, policy officer at Germany’s Jesuit Refugee Service.

In Germany, it is the responsibility of the Länder to organise the detention of illegal residents from third countries. If a region does not have any special detention facilities for refugees, the latter were often held in regular prisons.

Complaints in the case were filed by a Syrian woman, a Vietnamese woman and a Moroccan man, who were all detained in different prisons pending their deportation from Germany.

But according to the ECJ, this violates a guideline issued by the EU in 2008 stating that “detention shall take place as a rule in specialised detention facilities.”

Detention in normal prisons can only occur, the guideline states, if member states “cannot provide accommodation in a specialised detention facility.”  In this case, the member states must ensure that citizens from third countries are held separately from regular convicts.

But after yesterday’s judgement, it has become clear. “A member state cannot rely on the fact that there are no specialised facilities in a part of its territory to justify detaining third-country nationals in prison pending their removal,” the Court’s press release says.

If one of the Länder does not have special detention centres at its disposal, the potential deportees must be transferred to a different part of the country where special facilities are located.

This even applies if the affected third country national accepts accommodation in a regular jail, which was the case for the woman from Vietnam.

Ruling was “past due”

“Instead of focusing on new and expensive detention facilities for pending deportees, alternatives to detention should be defined,” said Habbe.

Meanwhile, Marei Pelzer, legal expert at PRO ASYL, called for the immediate release of detained refugees. “The scandal that this detention occurred for years in clear view, must come to an end immediately,” said Pelzer.

Birgit Sippel, internal affairs spokeswoman for the S&D Group in the European Parliament, welcomed the ruling.

“Finally, the Court is putting a stop to this inhumane practice. [Such a ruling] was past due,” she said.

It is completely unacceptable, Sippel commented, that people awaiting deportation are locked up like criminals. “Irregular immigrants are no convicts.”

Since 1999, the EU has been working to create a Common European Asylum System to deal with immigration for political or humanitarian reasons.

New EU rules have now been agreed, setting out common standards and co-operation to ensure that asylum-seekers are treated equally in an open and fair system – wherever they apply.

But EU countries rejected a European Commission proposal for more shared responsibility in dealing with asylum requests and that immigrants arriving in the countries with a disproportionate share should be relocated to other EU member states.

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