The positive atmosphere highlighted during
the 2013 visit appeared to have given way to a
fundamentally restrictive attitude during the
follow-up visit. The National Agency sees a risk
that fundamental rights may be violated without
any factual basis for doing so. Furthermore, the
conditions in which individuals awaiting
deportation were held were generally similar to
those found in the prison system.
Furthermore, it should be possible for
detainees awaiting deportation to make
meaningful use of their time. This can include
access to common rooms, prayer rooms and
kitchens where detainees can prepare their own
meals.
The need for structural security measures
should also be reconsidered in light of plans to
expand the facility for custody awaiting
deportation. It should be ensured that detention
conditions differ more significantly from those
found in prison, and that the restrictions
imposed on detainees awaiting deportation are
kept to an absolute minimum. Furthermore, the
available premises should be made accessible for
a longer period of time each day, and additional
facilities should be made available to keep the
detainees occupied.
Custody pending deportation should differ
significantly from the execution of a prison
62
sentence. Any restrictive measures must be
necessary and proportionate in each individual
case. In addition, staff members’ insecurities in
dealing with the detainees ought to be taken
seriously. The issue could be addressed, for
example, by providing factual information and
developing a clear strategy for individual risk
assessment. This could help to raise staff
confidence and prevent disproportionate
restrictions to the rights of detainees awaiting
deportation.
2.2.14 – Proportionality of measures
restricting fundamental rights
At the Büren detention centre for persons
required to leave the country (UfA Büren), staff
repeatedly informed the visiting delegation that
the facility’s demographic – and therefore its
atmosphere – had changed significantly in recent
years. They stated that the detainees awaiting
deportation increasingly comprised criminal
offenders and persons posing a threat to public
safety (Gefährder). At the same time, the facility’s
management explained that the facility did not
always receive comprehensive information
concerning the background of the individuals
being held there. For this reason, they added, it
was often difficult to carry out a risk assessment.
2.2.15 – Confidentiality of medical
consultations
Where communication issues arise during the
initial medical examination or during other
doctor-patient consultations at the facility for
custody awaiting deportation in Darmstadt, a
member of staff or detainee is summoned to act
as an interpreter. In addition, the head of the
facility stated that the facility’s social worker is
always present during medical consultations. For
reasons of confidentiality, as well as to ensure
the correct translation of technical terms and
subject matter, translations must always be
performed by a professional interpreter. In
addition, detainees awaiting deportation should
have the possibility of engaging in medical
consultations without the presence of a third
party, provided there are no security concerns
that would preclude this.
With reference to the need to ensure security
and order, stricter rules were imposed in the
facility. For example, in contrast to the
delegation’s observations during its visit in 2013,
the detainees awaiting deportation were not only
locked up at night, but also during the day
between the hours of 7 a.m. and 2 p.m.
Furthermore, their movements during out-ofcell time were also restricted. For example, they
were also locked in the common rooms during
this time. Based on the documents sent to the
National Agency, the number of special security
measures was remarkably high compared to
other facilities for custody awaiting deportation.
2.2.16 – Access to the law
Several of the detainees awaiting deportation
in Darmstadt criticised the lack of possibilities
for obtaining legal assistance. In response, the
62
Opinion of Advocate General Yves Bot of 30/04/2014, file
no: C-473/13, C-574/13 and C-474/13
59
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