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International Project of the Public Union “For Human Rights”

The Decline of Europe

PreviousNext The Decline of Europe — Part IV. Challenges in penitentiary, law enforcement and judicial systems of Germany, drawbacks in the legislative practice

Part IV. Challenges in penitentiary, law enforcement and judicial systems of Germany, drawbacks in the legislative practice

Main page Choice of Germany as the initial monitoring country Background “On the Crisis of Liberal Values and Multiculturalism in Europe” Objectives, character and methodology of monitoring Part I. Crisis of multiculturalism Part II. Corruption Part III. Violation of freedom of expression Part IV. Challenges in penitentiary, law enforcement and judicial systems of Germany, drawbacks in the legislative practice Part V. Unwarranted use of force when dispersing actions of protest Part VI. Observance of human rights in the system of education of Germany Conclusion The Public Union “For Human Rights”

For some time past, there are numerous problems within a judicial and penitentiary system and legislative practice of Germany. The number of complaints from Germany to the European Court of Human Rights has recently increased substantially and so have legal proceedings gained by applicants whose rights had been infringed by German courts. The most spread were complaints about delayed trials. Thus, complaints lodged by German citizens made up 51percent of total claims. In 2010 alone, Germany had 26 times been found guilty by the ECHR in violating fundamental rights and freedoms largely arising from refusal of justice bodies to release grave criminals convicted on high crime charges after serving their sentence, since their release posed a threat to society. The court obliged German lawmakers to revise these regulations. 

An outrageous fact is also a sentence of the German Constitution Court that decisions of the European Court of Human Rights are not obligatory for German courts.

A great scandal in Germany was a disgraceful decision of Bundestag, which, despite protests of the public and the opposition, as well as the position of international organizations, adopted on November 12, 2009 by majority of ruling coalition’s votes a Law of Federal Criminal Police Office authorizing to carry on online searches without court decision, as well as video- and audio-supervision of houses of innocent citizens.

There are also serious problems in the penitentiary system of Germany. Thus, the Federal commission of Germany to control tortures has regularly charged in 2011-2012 the Berlin authorities with improper upkeep of prisoners, particularly, in deportation prison. Of special concern was a deportation prison in Frankfurt, a former Gestapo prison during the Nazi rule. Horrific terms of upkeep in this prison where deportation-sentenced immigrants were kept caused a particular anxiety of the public opinion and civil society of the country. It was countless appeals, criticism and demands to terminate this prison upon recommendation of the Ministry of Public Health of Germany that urged the Frankfurt authorities in 2005 to close this prison. In this connection, the problems of brutal treatment and bad conditions in prisons of Germany cause harsh criticism of international organizations, specifically, Amnesty International, which in 2010 made a special report on inhuman treatment in places of temporary detention and submitted its recommendations to the government of Germany. Many of them remained unfulfilled.

Conditions of detention in prisons

It should be noted that the Federal Commission against Tortures of Germany regularly attends prisons with the purpose to draw attention at existing violations and develops proposals for their eliminiation. The Commission regularly reports back to the Bundestag, parliaments of  States (land), federal and State (land) governments. Thus, members of the Commission pointed out that cells in places of interim detention are located too far from official rooms or premises of the prison administration. Prisoners cannot draw jailer’s attention to their urgent needs, which, as viewed by Commission members, may result in violence among prisoners and suicide attempts if the prison administration fails to timely respond to their appeals.

In the opinion of the Commission, the deportation prison is not a place where prisoners serve their sentences but an institution designed to ensure deportation of foreign citizens illegally residing on the territory of Germany. However, the report makes a reservation that the building and conditions of detention in it are, to a greater degree, reminiscent of the true prison, far from being the model one. In particular, unsatisfactory were conditions in cells, care for persons inclined for suicide, and their medical treatment. This notwithstanding, a Senate’s internal affairs department is not in a hurry to implement reforms and change the situation.

The case of Oury Jalloh

On 7 January 2005, Oury Jalloh,  an asylum-seeker from Sierra Leone who escaped harassments in his home country and travelled to Germany, burned to death, after having been tied to a bed in a cell at Dessau police station in Saxony-Anhalt. Oury Jalloh was arrested on the morning of 7 January 2005 for allegedly harassing four women when he asked to use their mobile phones, despite having a mobile phone in his hand. According to the four women, he appeared to be very drunk and could hardly stand. When two police officers asked for his passport, Oury Jalloh started shouting at them. According to the police officers it was not possible to establish Oury Jalloh's identity; therefore he was apprehended and taken to Dessau police station.

At the police station, the officers called a doctor. When the doctor arrived, he noticed that Oury Jalloh had consumed drugs as well as alcohol. He took a blood sample which indicated a blood alcohol level of 2.98 per mille, along with traces of cannabis and cocaine. Despite this, the doctor declared that Oury Jalloh could be taken into custody and recommended that he be restrained in order that he not injure himself. The two police officers then searched Oury Jalloh for dangerous items and took him to a cell in the basement in which he was tied to a flame resistant mattress with his arms and legs outstretched. His hands and feet were tied with restraints that were locked by keys to mountings that were fixed to the mattress at the bottom and at the sides of the mattress. He was still able to move his arms but not able to sit up.

According to the CPT Standards, a person deprived of their liberty who needs to be physically restrained should be kept under constant and adequate supervision. Furthermore, instruments of restraint should be removed at the earliest possible opportunity; they should never be applied, nor should their application be prolonged, as a punishment. Finally, a record should be kept of every instance of the use of force against persons deprived of their liberty. Contrary to these standards, Oury Jalloh was left alone in the cell located in the basement of the police station. The cell was connected by intercom to the office of the duty police officer. However, this officer turned down the volume of the intercom after Oury Jalloh was placed in the cell because he felt disturbed by the shouting of Oury Jalloh while talking on the phone. Only when his colleague insisted did he turn up the volume again.

The judgment of the Dessau regional court established that despite being tied down Oury Jalloh was able to grab a lighter from his pocket and set fire to the mattress. The court was convinced that it was possible for Oury Jalloh to tear the flame-resistant cover off the mattress and set fire to the inner foam plastic. The court was also convinced that Oury Jalloh had used a lighter to set fire to the mattress; however, it was not able to establish how he got hold of the lighter even though he had been searched for dangerous items before being brought to the cell.

At about 12 noon the fire alarm went off for the first time in the duty officer’s office. The duty officer turned off the alarm because he thought it was not functioning correctly but 10 seconds later it went off again. The duty officer called his superior officer to inform him about the fire alarm. Once again, the police officer turned it off, grabbed the keys of the cell and started running there. He then ran back to fetch the keys to unlock the ankle restraints.

After that he ran to the office of another police officer to ask him to accompany him. By the time they reached the cell, there was already so much smoke that it would have been too Unknown Assailant: During the oral proceedings in relation to this case, police officers made contradictory statements about whether there had been a fire-extinguisher close to the cell. At least one of the police officers ran to his private car to fetch a fire resistant blanket. The Dessau Regional Court concluded that Oury Jalloh died from heat inhalation within two minutes after the outbreak of the fire.

Amnesty International is gravely concerned that Oury Jalloh was left alone in a cell while physically restrained, that the police failed to regularly monitor his safety and well-being, and ignored the initial fire alarm warning them that he was in danger. Amnesty International is also concerned that elements of racial discrimination may have affected the manner in which Oury Jalloh was treated by the police. It was the German branch of the Amnesty International that investigated the case.

Position of Amnesty International

This organization is gravely concerned that Oury Jalloh was kept in the cell without due supervision, physically restrained in his movements and that the police made no regular control over his security and ignored early alarm signals. The Amnesty Organization is also concerned that the racial factor has probably affected police’s treatment with the prisoner. On January 7, 2005, when the policeman called a doctor to analyze prisoner’s blood, there was a telephone conversation between them, of which it may be concluded that the policemen had racial prejudices in respect of Oury Jalloh.

During the oral investigation at a regional court of Dessau, the policemen apologized to using prejudiced phrases in respect of the prisoner. The Amnesty International was informed by a chief of police of Dessau that his department declined from services of the doctor above. No trainings related to the ban on racial discrimination with Dessau policemen have been held since Jalloh died.

Tortures and cruel treatment

According to the Amnesty International, numerous facts of bad treatment with prisoners, including abuses by police in all 16 lands of the country, were established in German prisons. The said incidents took place during arrests and subsequent forwarding of detainees to police stations, including those having been detained in the course of demonstrations before/after football matches. Notwithstanding the German legislation prohibits law enforcement bodies to treat prisoners badly or use tortures.  According to ,  Criminal Code of Germany (section 340, paragraph 1) “an official torturing or inflicting bodily injures to a prisoner when discharging his official duties is subjected to punishment in the form of imprisonment for a term of three months to five years.”

Since January 1, 2009 the German authorities started to run the statistics of criminal investigation on tortures and brutal treatment at police stations. However, this statistics lacks information on investigation of facts on tortures and brutal treatment, bodily injures made by policemen to those under interrogation.

In December 2008, the German branch of the Amnesty International made an inquiry to the Interior and Justice Ministries of Germany, including respective Ministries of all 16 lands on provision of information about the number of complaints against police actions due to bodily injures, use of threats and physical coercion, as well as the number of investigations against policemen, the number of trials and, finally, the number of policemen jailed for crimes having been committed in the course of their official duties for the period of 2006-2008. 

In fact, law enforcement bodies of Germany refused to give complete information to inquiries made. 15 Ministries of Justice responded to inquires of human rights activists, of which just 7 provided “dosed” information. Replies of the Ministries were related to changes made into the procedure obliging the judicial authorities to collect appropriate data arising from complaints, preliminary investigations and sentences in respect of policemen since January 1, 2009. The data provided by appropriate Ministries of seven German lands included complaints against officials and structures in charge of criminal cases unrelated to bad treatment. On the basis of these data, one could not draw a conclusion concerning the number of complaints on bad treatment with detainees at police stations. Out of 7 lands, it was Berlin and Saxony lands that provided specific figures regarding complaints against policemen due to bodily injuries inflicted by them.

In 2007, there were 278 facts of criminal investigation of police actions in Berlin regarding bodily injures in the course of discharging official duties by police (figures for 2006 made up 234); as for 2008, the figures stood up at 548. The Berlin authorities explained the growth of criminal investigations in 2008 as being due to the fact that serious corrections were made in the methods of statistical analysis. Thus, 21 persons were convicted in Berlin, 2006 for bodily injures;13 – in 2007.

The Ministry of Justice of Saxony informed about 52 criminal investigation due to tortures in police stations in 2004; about 85 investigations in 2005; 68 – in 2006; 120 in 2007. Note that the figure stood at 81 in 2008. The analysis of insufficient statistical data of the Ministry of Justice of Germany led to an unfavorable conclusion: investigations in respect of policemen bodily injures were terminated without legal proceedings. However, the data of the German branch of the Amnesty International are contrary to official data. As viewed by Alexander Bosch, employee of the Berlin office of this organization, the number of complaints about brutal treatment of policemen is much higher than figures indicated in official reports of the Interior Ministry and the Ministry of Justice. Besides, against recommendations of the International Committee against Tortures the German Police Institutions consider complaints only after a victim files a complaint against actions of police officers.

However, a special investigation of the Berlin branch of the amnesty international held in 2011 revealed that a great quantity of victims are apprehensive of retaliatory measures of policemen or believe that their complaints are useless. Some victims who suffered from tortures told the Amnesty International German branch that their complaints would not be satisfied; even worse it would cause retaliatory acts from police who may accuse complainants of resisting law enforcement bodies. Materials of the special investigation of the Amnesty International say that “the case of “C” is an eloquent testimony to the fact that people fear complaining against policemen. Note that “C” took part in a demonstration and was arrested by policemen for refusing to obey an order to leave a place of the demonstration. In his view, during the arrest several policemen twisted his arms, following which he had hematoma in his right eye. He added that he had not lodged any complaint because he was confident in its uselessness, even worse he feared that the police would take retaliatory actions against him and could charge him with resisting law enforcement bodies.

Indeed, in some cases the police took retaliatory measures against victims, as was with the case of “JM”. On January 11 2008, “JM” submitted a complaint against actions of policemen of the land Westphalia when three policemen bodily injured him while discharging their official duties. He also submitted a medical certificate about numerous bruises and abrasions. In reply, the federal police put forward a counter claim against “JM” for resisting actions of law enforcement bodies on January 15.

On March 13, 2008 in the course of investigation of the false claim against “JM” regarding his alleged resistance to actions of policemen, he was called to the federal police department and interrogated in respect of three officers who injured him. Following the domestic investigation, the federal police resolved that the said officers acted in compliance with the law. On October 23 2008, a local court of the town Wuppertal found “JM” not guilty. The court declared that the police evidence is unfounded. The judge came to the conclusion that a statement of the policemen about non-injuring “JM” ran contrary to the truth due to numerous hematomas. Besides, the judge pointed out that a bruise on his neck came as a result of kicks with boots due to brutal treatment of the policemen.

In February 25, 2009, the policemen were first interrogated in connection with charges against them. As a result, they gave evidence. On March 3, 2009, the investigation was discontinued for lack of facts. On March 16, 2009, “JM” lodged one more complaint due to discontinuation of his case. On April 29, 2009, the Procurator General rejected his complaint on the grounds that even if police evidence were groundless in some parts, it, nevertheless was founded in the fact that the three policemen had to apply force against “JM” who allegedly showed excessive aggressiveness. The procurator general ignored other evidence.

The case of Victor Zayets, or “anonymous policemen”

The case of the well known biathlonist Sergey Zayets who fell prey to police arbitrariness in the town of Wurzburg is one more trait to the violation of human rights in the leading state of the European Union. Having returned home, S.Zayets discovered unknown persons in police uniform taking   plate number off his car. Zayets tried to identify a reason of the search but instead he was beaten by police, had his head wounded, while the police immediately left the scene of the incident.

For a long time, S.Zayets had undergone a course of medical treatment at a hospital. Subsequently he was charged by the prosecutor’s office with attacking policemen. In identical case: a special police detachment of the town Gummersbach invaded an apartment of elderly settler 62 year old George Scharf, and beat him to the loss of consciousness. As a result, G.Scharf became disabled and had to appeal to the well-known German TV-radio company WDR. A grandiose scandal broke out, following which the police presented its apologies to him. However, none of the policemen who applied violence against the pensioner was punished.

Position of Amnesty International

The organization believes that the German authorities failed to comply, in full degree, its commitments and ensure immediate, independent, impartial and all-round investigation of the facts under pursuant to standards of the international law. The amnesty international is concerned that the existing system, within the framework of which the police is carrying on the criminal investigation under prosecutor’s office control, does not guarantee immediate, impartial, independent and all-round investigation of all cases arising from the infringement of human rights by police forces. The organization is concerned that violations of this sort are conducive to the climate of impunity and thus undermine the trust of the public to the German legislation which says that everyone, including police, cannot stand above the law.

Hence, the amnesty international calls the German authorities to take necessary steps and improve the situation in this sphere. In particular, the organization calls the authorities to show greater activity in creating independent structures responsible for consideration of the violation of the existing legislation by police, according to the recommendations of the CE commissariat for Human Rights.

Position of CE Commissariat for Human Rights

Most governments of the German lands do not provide the population with information about presenting complaints about tortures and brutal treatment in police stations. In its recommendations regarding complaints against actions of police the Commissariat stressed that information about complaint procedures should be provided by all police stations without any further delay. In some cases, the facts of brutal treatment, including the use of force in the course of police’ dispersing the demonstrations, cannot be established due to lack of a supposed wrongdoer.

Position of  the UN Committee against Tortures

The UN Committee against Tortures noted in its final observations over Germany’s compliance with provisions of the Convention against Tortures in 2004 as saying that “accusations of criminal nature were put forward by law enforcement bodies due to the use of punishment against persons claiming the brutal treatment on the part of law enforcement bodies”.

In its recommendations the Committee called Germany “to take all necessary measures to settle complaints at actions of law enforcement bodies without any further delay in order to avoid possible counter-action in the form impunity including cases counter claims.

As a whole, international organizations came to the conclusion that tortures and brutal treatment in respect of prisoners, particular, political refugees, are widely applied by German police during discharge of its official duties. Against the recommendations of the international enforcement organizations, no video-audio supervision over prisoners in places of interim detention have so far been arranged. The international organization are confident that in their everyday activity, the German law enforcement bodies do not observe standards of deferential attitude to rights and freedoms both of German citizens and immigrants. Of particular concern are nationalistic “racial” prejudices of policemen who display particular aggression against representatives of other peoples especially from countries – non-members of the European expanse.

The international human rights organizations also dissatisfied with the lack of appropriate investigation of the facts of serious infringement of human rights by law-enforcement bodies, including deaths of prisoners in prisons, murders, tortures and other inhuman and humiliating actions, as well as racism.

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