Publications

ANNUAL REPORT 2021

Period under review January 1, 2021 – December 31, 2021.

You can download the complete annual report for 2021 here as an PDF document.

Summery

The National Agency for the Prevention of Torture carried out a total of 30 visits to resi dential care and nursing homes, to detention fa cilities operated by the Federal and Land Police, the customs authorities and the Federal Armed Forces, as well as to prisons and to one facility for child and youth psychiatry. A particular focus of the visits was put on facilities for forensic psychiatric detention/forensic psychiatry as well as on monitoring deportation procedures.

All of the visited facilities were affected by the impact of the COVID-19 pandemic. The National Agency adjusted its recommendations for dealing with the pandemic.3 During the visits, a special focus was placed on the measures taken to prevent infections, on the effects of such meas ures and on compensatory measures. To comple ment its own observations, the National Agency wrote to the facilities it had already visited, i.e. care facilities for the elderly and child and youth welfare facilities.

In forensic psychiatric detention facilities and in prisons, all newly admitted persons are initially segregated from other detainees by placing them in quarantine, in order to prevent infections from being brought in. In all the facilities visited, this was done by keeping the detainees or patients concerned largely isolated from the rest of the facility in single-occupancy cells/rooms. The dura tion of quarantine ranged from 2 to 14 days. The National Agency recommends that quarantine measures should be kept as short as possible based on medical necessity. In addition, in several visited prisons the National Agency recommended that increased support and care be provided to pris oners in quarantine. With regard to vaccination coverage among the staff of the facilities visited, the surveys showed that rates varied widely, ranging from 50% to 90%. Where necessary, these rates should be increased with a view to protecting the persons held in the facilities concerned. In the National Agency’s view, facilities are under an obligation to keep the re strictions imposed due to the pandemic at a low level and to compensate for them as best they can. This ap plies in particular to children and juveniles deprived of their liberty The information gathered as well as the recom mendations on how the pandemic should be dealt with are shown in tabular form in a separate chapter.4

Regarding the focus area of deportation, the National Agency observed that since the begin ning of the COVID-19 pandemic, there has been a significant increase in the number of deportees being collected at night. This includes families with children, resulting in the best interests of the children concerned being jeopardised and placing them at risk of trauma.

In many cases, the precondition for carrying out deportations was a negative test. However, test results were not always available at the time of arrival at the airport. In one case, for instance, when a test turned out to be positive during an ongoing deportation procedure from Frankfurt to Baku, the deportation of the person concerned was aborted, but the deportation of their contact person went ahead. In other cases, deportees re fused to take a COVID-19 test, which resulted in tests being carried out on them forcibly. The National Agency considers the use of direct physical force when carrying out COVID-19 tests (by tak ing nose or throat swabs or saliva samples) to pose a general risk as this may cause serious injuries to the persons concerned.

In the course of its visits in the focus area of forensic psychiatric detention/forensic psychiatry, the National Agency criticised over crowding in several facilities for forensic psychi atric detention. In many of the facilities visited, double-occupancy is standard practice, and there were even cases where three or four persons were accommodated in one room. This often results in disputes and stressful situations. To complement its visits, the National Agency conducted a survey regarding the occupancy rates of forensic psy chiatric detention facilities in all the Länder. In all the Länder, high occupancy rates of 94% and more were found. The forensic psychiatric de tention facilities of several Länder had occupancy rates of 100%, while five Länder reported rates of over 100% up to a maximum of 111%. This also re sults in a lower quality of treatment provided to patients. It should be ensured that the occupancy of patients’ rooms does not result in therapy be ing rendered more difficult and that patients’ privacy is guaranteed. The National Agency believes that, in the area of forensic psychiatric detention, single-occupancy should be prescribed by law as the general rule and should be implemented ac cordingly – as is the case in the prison system. With regard to several visited facilities, the National Agency called for the practice of night lock-up – which is done purely for organisational reasons – to be abandoned. In addition, the National Agency assessed whether the regulations on the ordering and implementation of physical restraints, as provided for under the Land legislation governing forensic psychiatric detention, are compatible with the requirements of the Federal Constitutional Court’s judgement of 24 July
2018.5 More than three years after the judgment was passed, the statutory provisions of Thuringia, Berlin, Lower Saxony and Saxony-Anhalt in particular still do not meet the constitutional requirements.

The National Agency also criticised the conditions of detention in the visited prisons. As the National Agency already found in 2017, the conditions of detention at Karlsruhe Prison violate the human dignity of prisoners, who are held in double-occupancy cells without separate toilets. The Baden-Württemberg Ministry of Justice and Migration could not commit to resolving this situation, although this is urgently required. In addition, the size of the cells at Karlsruhe Prison is below the minimum required for accommo dation to be humane; the same also applies to Landsberg am Lech Prison (Bavaria). As a result of overcrowding at Schwäbisch-Hall and Karlsruhe Prisons, the conditions of detention have deteriorated for all prisoners there. With regard to its visit to Tegel Prison, the National Agency recommends that the plans for the completely new construction of Division II should be imple mented swiftly. From the National Agency’s point of view, there are doubts as to whether the current building is suitable for housing prisoners. The National Agency frequently recommends that strip-searches should not be carried out routine ly or in the absence of case-specific suspicions. According to the Federal Constitutional Court, strip-searches involving a visual inspection of detainees’ genital area represent a severe interference with their general right of personality. The European Court of Human Rights also found that body searches carried out without specific cause constitute degrading treatment within the meaning of Article 3 of the European Convention on Human Rights.

It is encouraging that, following the visits to Straubing and Landsberg am Lech Prisons, the Bavarian State Ministry of Justice committed to adjusting the regulations regarding phone calls applicable to prisoners in the Bavarian prison system to match the standards applicable in the other Länder.

When visiting prisons, the National Agency frequently finds that the psychiatric care provided to mentally ill prisoners is insufficient. Due to the lack of adequate care, prisoners remain segregated or under physical restraint for a long time, during which certain conditions may further deteriorate while they remain untreated. The National Agency considers a comprehensive scientific investigation of this issue to be necessary.

In the National Agency’s view, a particular problem is posed by so-called swallowers’ toilets used in customs custody. In order to secure evidence, “body packers” – i.e. persons internally concealing small packages of drugs – who are taken into custody at the airport office of Frankfurt/Main Customs Investigation Office (Zollfahndungsamt Frankfurt a. M., ZFA) have to use a “swallowers’ toilet”, which is visible by staff, and are monitored throughout the process. However, there is no medical supervision during the custody period. “Body packer syndrome”, which occurs when ingested drug packages rupture, may quickly lead to the death of the person concerned. Unlike the Frankfurt office, the Munich Airport office of the Munich Customs Investigation Office (ZFA München), which was also visited, provides medical supervision in a clinic.

With regard to its visit to the custody facilities of Düsseldorf police headquarters, the National Agency once again recommended that physical restraints should not be used during police custody. The police forces of many Länder as well as the Federal Police already no longer use this practice. Generally, compliance with the Federal Constitutional Court’s requirements regarding physical restraints, such as one-on-one supervision by therapeutic or care staff, cannot be ensured in police custody.

With regard to one residential care and nursing home that the National Agency visited in Hesse, the Agency criticised, among other things, the fact that there would be considerable delays in the evacuation of immobile persons in the event of a fire due to the structural conditions of the facility.

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3
See Chapter III – COVID-19 pandemic.
4 Table 1 in Chapter III – COVID-19 pandemic.
5 Federal Constitutional Court, judgment of 24 July 2018, file no.: 2 BvR 309/15.

You can download the complete annual report for 2021 here as an PDF document.

ANNUAL REPORT 2020

Period under review 1 January 2020 – 31 December 2020

You can download the complete annual report for 2020 here as an PDF document.

Summary

The National Agency had to shift the focus of its activities in 2020 due to the COVID-19 pandemic, an issue which is addressed in the present report. The Agency tested a range of new approaches and working methods, some of which may be retained after the pandemic. In addition, this annual report features another change compared with previous years: The National Agency has published the most important aspects of its statements on draft legislation.
In the individual chapters, the following points are particularly noteworthy:
In the chapter General information about the National Agency, reference is made to the persistent criticism of the resources available to the National Agency. In this context, it should be pointed out that one of the posts at the Federal Agency, which is supposed to consist of two members, has been vacant for over a year.
In December 2020, the European Committee for the Prevention of Torture (CPT) visited Germany. While it has already been announced which sites were visited1, the report and Germany’s observations still need to be published. Before the visits, the National Agency informed the CPT of several shortcomings.
During the Schengen evaluation of Germany2, the lack of an effective mechanism for the monitoring of returns, as called for in the EU Return Directive, was criticised. The National Agency monitors deportations in accordance with its mandate from Article 4 of the OPCAT. However, due to its currently available resources, it cannot additionally take on the task of monitoring returns in line with the Return Directive.
Due to the Covid-19 pandemic, the National Agency carried out its visits amid special safety precautions. During the two waves of the pandemic and related lockdown measures, the members of the Agency temporarily suspended their visits. In order to obtain information regarding the impact of the pandemic at places where people are deprived of their liberty, the National Agency sent written enquiries to all competent Land and Federal Ministries as well as to individual institutions within their remit. The main result of their work during the pandemic is recommendations on how to deal with the coronavirus at places where people are deprived of their liberty. At many such locations, measures were taken to stop the virus from spreading. However, many of these safety measures involve serious restrictions on the fundamental rights of those concerned, sometimes with far-reaching consequences. Isolating detainees must be avoided or limited to as short a period as possible. Isolated individuals require intensive and proactive care.
Any restrictions must be compensated by new activities and opportunities for contact. However, not all Länder upheld these principles. The report contains specific recommendations regarding some types of facilities and draws attention to a few questionable practices.
The chapter Standards sets out the National Agency’s proven standards which are indispensable in ensuring that deprivations of liberty areexecuted in line with human rights principles. Forthe first time, standards will be formulated with regard to detention in facilities of the Federal Armed Forces.
The chapter Visits outlines the National Agency’s recommendations for specific facilities in 2020. The supervisory authorities of those facilities are obligated pursuant to Article 22 of the OPCAT to enter into a dialogue with the National Agency on possible implementation measures.
However, the need to implement these measures was not recognised in all cases. Even though the implementation of the National Agency's recommendations had been promised in many cases, two statements provided by supervisory authorities were inadequate in the view of the National Agency, which is why an additional response from the Agency was required following the visits to Schwalmstadt Prison in Hesse and Karlsruhe Prison in Baden-Württemberg.
After its visit to Karlsruhe Prison, the National Agency once again criticised the double occupancy of prison cells which, having a floor space of 8 square metres, are equipped with a bunk bed and toilet separated only by a partition. This means that prisoners at Karlsruhe Prison are forced to use the toilet in the presence of other individuals.
Sounds and smells can spread around the room.
These detention conditions are worrying and in violation of human dignity, as the National Agency had previously pointed out in 2017. Although this situation ought to be rectified immediately, such conditions are still implemented by a facility that falls under the responsibility of the Ministry of Justice of Baden Württemberg.
After its visit to Schwalmstadt Prison, the National Agency criticised, among other things, the fact that it was not possible to have private telephone conversations. Moreover, it is not clear to detainees in preventive detention whether someone is listening in on their telephone conversations. The monitoring of telephone conversations must be announced in advance in each and every case.
The National Agency has repeatedly noted cases during its past visits to forensic psychiatric clinics where individuals have been segregated for several months at a time in a separate room, for example at a forensic clinic in Thuringia. Insufficient social contact and constant isolation usually
have a negative impact on patients’ mental health.
As far as custody awaiting deportation is concerned, the National Agency is of the opinion that only specific (Land) legislation can sufficiently regulate its execution. This was also reiterated during the visit to the facility for custody awaiting deportation in Eichstätt, Bavaria. However, the Bavarian State Ministry of Justice is still opposed to implementing such legislation in the form of a Bavarian act on the execution of custody awaiting deportation. Moreover, in the view of the National Agency, the security measures taken in many facilities for custody awaiting deportation in Germany are not proportionate and do not indicate that the requirement to differentiate between preventive detention and a prison sentence has been implemented.
A considerable number of people were deported from Germany during the COVID-19 pandemic. As deportees have an increased risk of infection, the National Agency focussed on the implementation of measures to prevent the spread of the COVID-19 pandemic and related measures to protect the individuals concerned.
In the Agency’s view, deportation procedures should be suspended as long as a serious risk for deportees and the spread of the virus cannot be prevented.
During its visit to Essen Customs Investigation Office (Düsseldorf branch), the National Agency came across the particular problem of detaining body packers who have to use a “swallowers’ toilet”. In the National Agency's view, this impinges on their human dignity.
It had already become clear during the Agency’s visits that the Land legislators do not always comply with the requirements imposed by the Federal Constitutional Court. In this context, the National Agency welcomes the changes made to the Juvenile Prison Act and the Act on the Execution of Remand Detention in Schleswig-Holstein, which will align the provisions governing orders for strip-searches with the constitutionally required standard. During its visits, the National Agency criticised the fact that the legal situation in Thuringia (legislation on secure psychiatric detention [Maßregelvollzugsgesetz]) and in Lower Saxony (legislation concerning the execution of prison sentences [Strafvollzugsgesetz]) have – as far as the application of physical restraints is concerned – still not been adapted to meet the requirements established by the Federal Constitutional Court in its judgment on the issue of physical restraints of 2018. This means that there is currently no legal basis for the application of physical restraints that complies with the constitutional requirements. Neither the constitutionally prescribed requirement of a judicial decision, nor the application or definition of physical restraints have been regulated by law.
In its statements on draft legislation, the National agency frequently judged the rules governing the application and definition of physical restraints to be insufficient. The National Agency also has concerns about the provision of a draft legislative act from the Hesse Ministry of Justice which authorises the use of direct force to put masks on prisoners. This constitutes a serious interference for which a specific legal basis is required. However, the conditions for ordering and applying physical restraints were not included in the draft legislation.
In this last chapter, the National Agency will, for the first time, formulate legislative principles for its area of responsibility and will report on the twelve statements it issued on draft legislation in 2020.

1 Cf. www.coe.int/en/web/cpt/-/council-of-europe-anti-torture-committee-visits-germa-1 (retrieved on18 March 2021).

2 Schengen evaluation mechanism (Regulation (EU) No. 1053/2013 of 7 October 2013). The mechanism serves to verify the effective application of the Schengen acquis. See II 6.2.

You can download the complete annual report for 2020 here as an PDF document.