CAT/C/DEU/CO/5
common standards and procedures in Member States for returning illegally staying thirdcountry nationals which regulates detention pending deportation as a means of last resort.
The Committee is particularly concerned at the lack of procedure in a number of Länder for
identification of vulnerable asylum-seekers, such as traumatized refugees or
unaccompanied minors, given the absence of mandatory medical checks on arrival in
detention, with the exception of checks on tuberculosis, and systematic checks for mental
illnesses or traumatization. The Committee is further concerned by the lack of adequate
accommodation for detained asylum-seekers separate from remand prisoners, especially for
women awaiting deportation (arts. 11 and 16).
The Committee urges the State party to:
(a)
Limit the number of detained asylum-seekers, including those who are
the subject in “Dublin cases”, and the duration of their detention pending return,
while observing the European Union Directive 2008/115/EC;
(b)
Ensure mandatory medical checks and systematic examination of mental
illnesses or traumatization of all asylum-seekers including the “Dublin cases” by
independent and qualified health professionals upon arrival in all Länder detention
facilities;
(c)
Provide a medical and psychological examination and report by a
specially trained independent health expert when the signs of torture or
traumatization have been detected during the personal interviews by asylum
authorities; and
(d)
Provide adequate accommodation for detained asylum-seekers separate
from remand prisoners in all detention facilities, particularly for women awaiting
deportation.
Diplomatic assurances
25.
The Committee notes the March 2009 Düsseldorf Administrative Court’s judgement
as confirmed by Higher Administrative Court of North Rhine-Westphalia of May 2010 in
the case of a Tunisian man, considered a national security threat by the Government of
Germany, who could not be deported to Tunisia despite diplomatic assurances as the
diplomatic assurances have been considered “not legally binding …and by nature hardly
trustworthy or verifiable”. It also notes the practice by the High Regional Courts in regard
of evaluation of the requests for extradition in the light of all available information,
including the incidents of torture and ill-treatment. The Committee further takes note of the
State party’s assertion that no diplomatic assurances have been accepted since 2007;
however, according to the State party “the possibility to accept diplomatic assurances in
cases of extraditions still exists in appropriate and exceptional cases, in particular where the
risk of torture or ill-treatment is only of general nature”. The Committee is also concerned
at the reports that regulations implementing the Resident Act that aims at controlling the
entry, residence and employment of foreigners in Germany provide for the use of
diplomatic assurances in national security deportations carried out by the Federal Ministry
of the Interior, as well as the lack of updated information on whether the diplomatic
assurances have been applied in this context (arts. 3 and 14).
The Committee recommends that the State party refrain from seeking and accepting
diplomatic assurances, both in the context of extradition and deportation, from the
State where there are substantial grounds for believing that a person would be at risk
of torture or ill-treatment upon return to the State concerned, as such assurances may
not ensure that an individual would not be subjected to torture or ill-treatment if
returned, even in cases where post-return monitoring mechanisms are put in place.
8