AGONIZING WEEKS OF WAITING

 Detainees are often held in normal prisons, more than 30 percent are said to be in custody without a legal reason

Published in Süddeutsche Zeitung, 1^st July 2010, by Inga Rahmsdorf

The window in the cell is just a small slot high above on the wall. In order to look down into the courtyard, Kapil has to climb onto the upper bunk bed. A fence surrounds the asphalt square in front of the building. On a grass strip ducks take a sunbath. They are the only inhabitants living here voluntarily. Kapil is in prison for almost one year. He is not a criminal offender. The young man only had a dream of a better future. It ended as a nightmare in the biggest Bavarian penitentiary, in the middle of Munich.

One hour a day Kapil is permitted to go down to the yard. He spends 23 hours in his cell, together with three other men, sharing two bunk beds, a toilet in a closet and occasional card games. Kapil, which is not his real name, comes from India. He has been in prison for eleven months because he has no residence permit to live in Germany and is about to be deported.

A high wall surrounds the Stadelheim prison (Justizvollzugsanstalt Stadelheim) in Munich. Opposite the entrance gate you hear the sound of a lawn mower between family homes. Eight times Joachim Menzel pulls the big key out of his pocket; eight times he turns it in the lock; eight times the steal door slams shut behind him. To get from the street to Kamil's cell, the assistant governor of the prison must cross many doors and corridors. In the prison yard you can no longer hear any noises from outside. Inside and outside, these barriers separate the 1400 inmates of the prison from the world.

Most of them are remand prisoners and criminal offenders. 38 people, however, are detained because they have no residence permit, their asylum application was rejected or their visa expired. They have lived for some days, some years or even their whole life in Germany.

The exact number of people in detention is not recorded, although estimates speak of about 7000 a year. Some are detained for days, several months – and some for more than a year. German law permits detention for up to 18 months. Detention is often prolonged either because papers from the country of origin are lacking, embassies refuse to issue passports or German authorities take their time to handle the case.

On the third and fourth floor criminal offenders are detained, some of them having committed murder. They are all provided court-appointed legal counsel. Whoever is taken into pre-trial custody in Germany has the legal right to a lawyer, a key element of the German judicial system.

One floor below, on the second floor, is where foreigners awaiting deportation are held. Small, narrow iron doors line the corridor. In one of these cells Kapil waits. He has no legal counsellor. People in detention for deportation do not have the right to a lawyer. People in these situations are in a legal grey area within the German judicial system.

"The legal framework is very problematic from human rights perspective", says Bernhard Fricke. The protestant pastor works in the Berlin detention centre. Church representatives, refugee NGOs and committed lawyers are in most cases the only ones giving legal advice to detained foreigners. They also act as a control mechanism for what is happening behind the walls, since people who are about to be deported will not usually insist on their human rights or threaten the authorities with legal action.

The federal government is currently working on a law to implement EU standards for detention. In 2008 Brussels issued a directive on the topic, which has to be transposed into German law by the end of this year. Fundamentally, nothing will change. Immigration authorities can continue to deport a person without residence permit and detain him while deportation procedures are in progress. "The judges issue a detention order too quickly without taking into account each individual situation", criticizes Ludger Hillebrand from Jesuit Refugee Service in Berlin.

"About one third of the people detained for deportation are in prison contrary to law", says Peter Fahlbusch. Since 2002 the lawyer from Hannover pleaded on behalf of 630 detained clients in court. More than one-third of them where in prison unlawfully and were released after Fahlbusch launched an appeal. The Jesuit Refugee Service has similar experiences. Last year, the organisation paid a lawyer to defend the cases of 138 detainees – 119 of them where finally released.

"Imagine if one-third of all criminal offenders in Germany were in prison without legal justification – what a scandal that would be", Hillebrand says. “People detained for removal just have no lobby", says Fahlbusch. "In a law library you would find books on almost any kind of subject. Yet in deportation issues no one seems to be interested."

On the small wooden table in front of Kapil lies a package of tobacco. Smoking and card games are the only distractions during the long hours of waiting. Kapil wears prison clothing, blue trousers and a blue t-shirt. He knows neither how long he has to stay nor if and where he is going to be deported. Waiting is unlimited. Unlike the case of criminal offenders, there is no release date.

There is not much place between the two bunk beds and the wall. The four men sit on the small mattresses. "I came to Germany to live peacefully in a constitutional state", says a man from Russia. “Now I live locked behind bars”. Mobile phones and Internet are not permitted.

"For security reasons", Menzel says, "We cannot separate the people detained for deportation from the criminal offenders. We treat them alike." The migrants share the shower with the criminal offenders on the same floor. Once a month they can make a phone call. Twice a month they can receive visitors for half an hour. "More frequent is not possible", says Menzel, due to "lack of personnel. The prison is established for criminal offenders. People detained for removal have to be dealt with on the side", he says.

Living behind bars and being treated like a criminal without having committed a crime is a traumatic experience for most detainees. “I don't understand why I am locked in", says Kapil again and again.

Human rights organisations have long demanded that minors not be detained. But most regional states (Bundesländer) also detain young persons for deportation. In prisons, such as in Munich, they are often kept together with other young criminal offenders. "For their own protection", Menzel says "we don't accommodate them together with adults." There would be no room for a separate department. Instead, the minors detained for deportation are locked in with criminal offenders of the same age.

To improve migrants’ situation in detention, churches from all over Germany have demanded a strict separation from criminal offenders. Federal law regulates deportation, but executing it is left to the regional states (Länder). Just a few of them, like Berlin and Brandenburg are already separating detainees held for deportation and those serving a criminal sentence.

In the Berlin quarter of Köpenick, between allotment gardens and supermarkets, rises a fortress of walls and barbed wire. The prison accommodates only detainees who are to be removed; 71 of them held at the moment, and 200 policemen work here to guard them. "The number of detainees has decreased for many years", says governor Stephan Lengowski.

Unlike the Munich prison, detains here may use mobile phones, move freely on the floor and receive visitors on a daily basis. But the feeling of being locked in is present here as well. Detention leads to illness, as showed by a new study done by the Jesuit Refugee Service. Uncertainty, waiting without knowing for what, is one of the hardest factors detainees experience, according to pastoral counsellors serving in the centre. Most detainees are young people eager to work. Instead, they are doomed to inactivity.

On the ground floor of the Berlin detention centre there is a chapel. Paula sits quietly on her chair, her hands are trembling. The young Brazilian woman has been here for only three days. She can neither talk with the other detainees nor with the officers. Paula, which is not her real name, can only speak Portuguese. Communication problems are an additional burden for many detainees. Interpreters are rare. "I want to go back to Brazil", Paula says with a quiet, almost soundless voice and looks at the bars on the windows. But those who do not want to return voluntarily will not be released.

Outside the warm light of the evening sun is falling on the high walls with the watchtower and the barbed wire. For one hour Paula is just a participant in the prayer service – a small peace of normality before she is brought back to her cell.