TOPICS 1 – SPOTLIGHT ON CUSTODY PENDING DEPORTATION The focus of the National Agency’s activities in 2013 was on custody pending deportation and forced returns by air. Enforcement of custody pending deportation falls within the remit of the ministries of the interior of the Länder. Nevertheless, only Berlin, Brandenburg and Rhineland-Palatinate have specialised facilities for enforcing custody pending deportation. In the other Länder this form of detention is enforced in prisons by way of administrative assistance rendered by the ministries of justice. In the period under review the Joint Commission visited a total of nine facilities enforcing custody pending deportation, including the three aforementioned specialised facilities and predeportation detention wings in prisons. The facility responsible for enforcing custody pending deportation in Berlin-Köpenick was visited for the second time as part of a follow-up visit. In addition, the Joint Commission together with the Federal Agency visited a reception centre for foreigners at Frankfurt Airport where people are placed during the airport procedure or in preparation for their forced return. Information requested from the Länder revealed that there were a total of 6,781 detainees awaiting deportation in Germany in 2011, including 87 below the age of 18. In 2012 there were still a total of 5,748 detainees awaiting deportation, including 55 below the age of 18. The number of detainees awaiting deportation dropped again in 2013 to 4,812, including 8 only 15 below the age of 18. The National Agency welcomes this downward trend when it comes to the ordering of custody pending deportation. obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.” This rule was implemented in German law by means of section 62a of the Residence Act: “As a general principle, custody awaiting deportation shall be enforced in specialised detention facilities. If a Land has no specialised detention facilities, custody awaiting deportation may be enforced in other custodial institutions in that Land; in such cases the persons in detention awaiting deportation shall be accommodated separately from prisoners serving criminal sentences. If several members of a family are detained, they shall be accommodated separately from other detainees awaiting deportation. They shall be guaranteed adequate privacy.” It is a matter of contention whether the wording of the Return Directive supports the enforcement of custody pending deportation in prisons where a particular Land does not have any specialised detention facilities. The Federal Court of Justice dealt with the lawfulness of the enforcement of custody pending deportation in prison accommodation in its decision of 11 July 2013 and set the following question before the European Court of Justice for a preliminary ruling: “Does Article 16 para. 1 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348/98) also result in a Member State being obliged to enforce custody pending deportation in specialised detention facilities even if such facilities are available in only some of the Member State’s federal substructures but 9 not in others?” The European Court of Justice has not yet issued its ruling on this matter. However, in the meantime numerous German courts have addressed the question, with many holding the opinion that enforcement of custody pending deportation in prisons is not compatible with Directive 2008/115/EC, since the wording refers to the Member State as a 10 whole and not to its federal substructures. In Bavaria, custody pending deportation was provisionally relocated to Mühldorf am Inn Prison in 1.1 – DISPUTED LEGAL BASIS Custody pending deportation is not ordered following the commission of a criminal offence, but solely serves the preparation and safeguarding of deportation. Pursuant to Directive 2008/115/EC of the European Parliament and of the Council (Return Directive), detainees awaiting deportation must therefore be placed in specialised detention facilities. Article 16 para. 1 of the Return Directive sets out that: “Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is 9 Federal Court of Justice, decision of 11 July 2013, file no. V ZB 40/11 See Nuremberg-Fürth Regional Court, decision of 25 September 2013, file no. 18 T 8112/13; Görlitz Regional Court, decision of 23 October 2013, file no. 2 T 102/13; Dresden Regional Court, decision of 12 November 2013, file no. 2 T 821/13 10 8 Several Länder chose not to separately record the number of detainees below the age of 18 in 2012 and 2013. 21