SPOTLIGHT ON CUSTODY PENDING DEPORTATION 12 Committee of Ministers of the Council of Europe, in the opinion of the Joint Commission the following standards should be established pertaining to the enforcement of custody pending deportation: work in this area and they should both be culturally sensitive and aware of the specific problems associated with custody pending deportation. In addition, those employed in the enforcement of custody pending deportation should have the relevant language skills and various cultural backgrounds. Supervision could prove useful. Legal basis A separate legal basis should be created for the enforcement of custody pending deportation which is tailored to this specific form of detention. It should also include an appeals procedure. Each detainee awaiting deportation must undergo an initial medical examination. It must be ensured that trauma and other mental illnesses are reliably diagnosed when detainees begin their period in detention. For that reason, the resolution of the 114th German Medical Assembly in 2011 included the call for “sick and traumatised detainees awaiting deportation to be examined at the beginning of their period custody pending deportation by specially 13 trained doctors.” A professional interpreter should always be involved in the initial examination where language difficulties arise. For reasons of confidentiality, using other detainees as interpreters is inappropriate. The facility should also ensure that where there are relevant indications a psychologist or a psychiatrist visits the person in question, immediately if need be. Legal advice Detainees awaiting deportation should be able to have the lawfulness of the custody pending deportation order issued against them subject to legal review. To that end they first need to be given comprehensive information about available legal remedies, and that information must be provided in a language they can readily understand. Since those affected are usually not familiar with the German legal system and may have difficulties, for example, making contact with non-governmental organisations or with lawyers while in the detention facility, they are especially reliant on help in asserting their rights. In some cases the Joint Commission found that detainees awaiting deportation were not clear about why they were in detention. In such cases the question arises of whether they were given sufficient information during the court proceedings. Children and juveniles under the age of 18 In line with the UN Convention on the Rights of the Child, when taking the decision to place children and juveniles under the age of 18 in custody, priority must be given to the child’s or juvenile’s best interests. There are fundamental concerns as to whether placing minors together with adult detainees awaiting deportation is in the child’s or juvenile’s best interests. Given that those in custody pending detention generally find the situation particularly stressful, there is, for example, an increased risk of self-harm or suicide. This can lead to traumatisation especially in minors or it can exacerbate existing traumas when they witness such incidents or resistance against the enforcement of others’ forced return. Therefore, minors should as a matter of principle not be placed in custody pending deportation but, where necessary, in facilities of the youth services. Should minors who are placed in custody pending deportation be detained in a wing in a prison or youth detention facility, like adults in custody pending deportation, the spatial and qualitative distinction between custody pending deportation and the penal system must be guaranteed. Further, regardless of the type of detention ordered, minors in custody pending deportation should always receive targeted support from the specialist services. Admission meeting In addition to the initial medical examination an admission meeting should be held with each new person taken into custody pending deportation. Detainees should be told the reason for their being taken into custody and they should be given comprehensive information about their rights. As is the case during the initial medical examination, particular attention should be paid during the admission meeting to diagnosing mental illnesses, and, where indicated, a psychologist or psychiatrist should be called in. That is why the members of staff who are responsible for these meetings should have undergone specialist training so as to be able to diagnose trauma and other mental illnesses. Where language difficulties arise a professional interpreter should also be involved in the admission meeting. Staff Regardless of whether they are part of the general prison service or of a private security firm, staff employed in facilities enforcing custody pending deportation should be specially selected and trained to 12 Committee of Ministers of the Council of Europe, CM(2005)40 final 13 German Medical Council (2011), 114th German Medical Assembly, Resolution, p. 125 24