2 – CUSTODY AWAITING DEPORTATION AND CUSTODY TO SECURE DEPARTURE In 2017, the National Agency visited the Hamburg facility for custody to secure departure and the Eichstätt facility for custody awaiting deportation. Both facilities had opened just a few months prior to the visits. The Hamburg facility is responsible for enforcing custody to secure departure as stipulated by the newly created section 62b of the Residence Act [Aufenthaltsgesetz], which states that a foreigner may, under certain circumstances, be placed in custody by judicial order for the purpose of ensuring that the deportation can be carried out. The Hamburg facility for custody to secure departure is the first facility of its kind in Germany. In addition custody to secure departure, the Hamburg facility also enforces custody awaiting deportation. Custody to secure departure differs from custody awaiting deportation on account of the newly created statutory framework and its associated legal preconditions, such as the maximum period of detention. However, the two types of custody are also similar in many ways, such as the type of detainees, the particular circumstances of those facing deportation and the special challenges the custody facilities must overcome. For this reason, the same fundamental standards are taken as a basis for the assessment of detention conditions. 2.2 – FINDINGS AND RECOMMENDATIONS The visited facilities were given recommendations on the following main topics: 2.2.1 – Legal basis At the time of the visits, neither Bavaria nor Hamburg had established a specific legal basis for the enforcement of custody awaiting deportation or custody to secure departure. The Federal Constitutional Court has ruled that “any interference with basic rights which goes beyond a per se deprivation of liberty must, regardless of any good or even compelling factual reasons for it, have its own underlying legal basis which sufficiently specifies the 54 necessary conditions for interference”. Both of the visited facilities took special security measures, such as holding the detainees in specially secured rooms free from potentially dangerous objects. The detention conditions of persons in custody awaiting deportation and custody to secure departure 55 must differ from those of sentenced prisoners. A specific legal basis must be established for the enforcement of custody awaiting deportation and custody to secure departure. 2.2.2 – Physical restraint 2.1 – POSITIVE EXAMPLES In the Hamburg facility for custody to secure departure, the application of physical restraint is possible via a strap-based system. Psychical 56 restraints are applied by the facility’s staff who – other than a brief instruction – have no relevant professional training or experience in carrying out security measures of this nature. Furthermore, the facility does not have any specific forms with which to document the security measure to the necessary extent. The use of physical restraint constitutes a serious interference with a person’s liberty, and also presents a serious risk of injury. Physical restraints must therefore be subject to special requirements such as the appropriate and correct application of a strapbased system. A person under physical restraint must The National Agency highlighted several positive examples during its visits. In the Hamburg facility for custody awaiting departure, for example, detainees awaiting departure are generally permitted to use their own mobile phone. They also have access to free WiFi. Furthermore, the generous daily visitation rights are particularly worthy of note. Another particular positive was the availability of two psychologists in the Eichstätt facility for custody awaiting deportation. Generally speaking, there is a considerable need for psychological care in such facilities, as the immigration detainees have frequently undergone traumatic experiences while fleeing their country of origin, and their deportation back there is often accompanied by feelings of fear and anxiety. 54 Federal Constitutional Court, judgment of 31/05/2006, 2 BvR 1673/04, NJW 2006, 2093 (2093). 55 Cf. Article 16 para. 1 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008. 56 See chapter II. 4.4 – “Physical restraint”. 43