Several German states lock up refugees awaiting deportation in regular jails. It's a practice the European Court of Justice ruled illegal, forcing the states to find housing for people they will kick out of the country.
A Vietnamese woman fled to Germany in 2012, was arrested in Bavaria and put in jail. She was held almost four months in Nuremberg prison, awaiting her deportation, and filed a complaint about being held in the same building as criminals. The regional court rejected her complaint, but after the woman had already been deported, her case reached Germany's Federal Court of Justice.
Judges there passed the case on to the European Court of Justice (ECJ), which has made its decision on Thursday (17.07.2014) and ruled that deportees must not be held in regular prisons. Germany now has to move refugees awaiting their deportation from jails to specialized facilities with less strict security measures.
Broad interpretation of the law
Long before the court issued its decision, refugee aid organizations like Pro Asyl and the Jesuit Refugee Service renounced the practice of locking up deportees with criminals. Their disapproval goes back to an EU guideline from 2008.
One of the points in the guideline details where EU member-states must hold their deportees, "Detention shall take place as a rule in specialized detention facilities." It further states that holding deportees in normal jails is only acceptable "where a Member State cannot provide accommodation in a specialized detention facility." Germany does in fact have such specialized facilities in states like Berlin, Brandenburg or Rhineland-Palatinate.
The guideline is very clear, Marei Pelzer, law expert with Pro Asyl, told DW. "But Germany simply flouted it, applying it to each state individually. We consider that a clear violation of the law, because a German state is not the same as an EU member-state."
U-turn in Bavaria
In 2011, roughly 6,500 deportees were detained in Germany. They are held an average of 30 days, according to Pelzer. Nine states all over Germany put the refugees in the same jails as convicts, because they do not have specialized detention facilities.
One of these states was Bavaria. But when the Vietnamese refugee woman's case was sent to the EJC, Bavaria changed the practice. Since the beginning of this year, the state has held deportees in separate facilities.
Locked up like criminals
Pelzer appreciates the change, because to her, holding deportees in one prison with criminals is unacceptable.
"Those are real prisons with high security levels," she said. "The problem is that they aren't held as a punishment, only to make sure they don't evade deportation. That's why their detention should offer many more freedoms."
But regular jails have a lot of rules that cannot be bent: "No cell phones are allowed, for example," Pelzer said.
Yves Bot, advocate general at the European Court of Justice, also criticized Germany's detention practice well before the court's decision on Thursday.
Same jail, different treatment
One of the German states that now has to move deportees is North Rhine-Westphalia. Germany's most heavily populated state holds refugees awaiting their deportation in a prison in the town of Büren. At the beginning of July, 32 deportees were detained there.
"They are away from the regular convicts in their own separate area," Detlef Feige, spokesperson for North Rhine-Westphalia's Justice Ministry, told DW. He said that deportees were treated very differently from the jail's regular inmates: "They don't wear prison uniforms, they can walk the hallways and they have more leisure activities available to them."
He also pointed to decisions by North Rhine-Westphalia's regional court that deemed the detention in Büren prison legal.
The deportees still need to be moved to a separate facility after the ECJ's decision - and it has to happen fast. "European law takes precedence over other law and needs to be implemented immediately," Marei Pelzer from Pro Asyl said. "There's no leeway for Germany."