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Interior Minister Dr. Wolfgang Schäuble

Interior Ministry of the Federal Republic of Germany

Alt-Moabit 101D

10559 Berlin

 

Dear Minister Schäuble,

I am writing to express Human Rights Watch's profound concern at the German government's intention to endorse formally the use of diplomatic assurances in the regulations governing the Residence Act. 

It is our understanding that the current draft of the Administrative Regulations for the Residence Act (which regulates the entry, stay and economic activity of foreigners in Germany)[i] explicitly states that the Federal Interior Ministry shall examine the possibility of obtaining diplomatic assurances in order to expel terrorism suspects who would otherwise be protected from deportation (that is, physical removal) in accordance with section 60 of the Residence Act.[ii]  

While the draft regulations also relate to the EU Freedom of Movement Act and the Central Aliens Register Act, the provisions on the use of diplomatic assurances apply only to the Residence Act.

Section 60 of the Residence Act currently prohibits the deportation of an individual to a country where he or she faces a concrete danger of torture (section 60.2), the death penalty (section 60.3), a substantial concrete danger to life and limb or liberty (section 60.7), or when the deportation would be inadmissible under the terms of the European Convention on Human Rights.  In cases where such assurances can be obtained, the regulations stipulate that compliance by the responsible authorities in the receiving state (state of destination) must be guaranteed (section 60.2.3). 

Human Rights Watch opposes the use of diplomatic assurances against torture and ill-treatment in any case where there is an acknowledged risk of such abuse upon return. Diplomatic assurances are inherently unreliable from governments in states where torture and ill-treatment are systematic or widespread or where particular groups are routinely targeted for such abuse, and do not ameliorate a person's risk of abuse on return. Our opposition to the use of diplomatic assurances has been echoed by the United Nations special rapporteurs on torture and on counter-terrorism and human rights, the Council of Europe commissioner for human rights, and the former United Nations high commissioner for human rights, among other international human rights experts.

We urge you to strike the reference to the use of diplomatic assurances from the Administrative Regulations and affirm the principled position that Germany will not seek to effect any transfers based on diplomatic assurances against torture or ill-treatment.

Germany's Legal Obligations under National and International Law

The German government's obligations in relation to torture and ill-treatment are clear. 

Under the European Convention on Human Rights and Fundamental Freedoms (ECHR, article 3), the United Nations Convention Against Torture (CAT, article 3), and the International Covenant on Civil and Political Rights (ICCPR, article 7), each of which Germany has signed and ratified, torture and ill-treatment are prohibited, and no person can be transferred to a country where he or she is at risk of torture or ill-treatment (the nonrefoulement obligation). The ban on torture and refoulement is absolute. It applies to all persons without consideration of their status or alleged crimes, and irrespective of the nature of the transfer, including extradition, expulsion, deportation and rendition.

The non-refoulement principle is enshrined in German law: the 2004 Residence Act (Aufenthaltsgesetz) explicitly forbids deportation (physical removal) "to a state in which a concrete danger exists of...torture" (section 60.2) and where there exists "a substantial concrete danger to life and limb or liberty" upon return (section 60.7). 

The prohibition of refoulement in the Residence Act does not apply to expulsion orders or extradition requests. In extradition cases, the courts are nonetheless required to take into account the risk of torture and other human rights abuse when considering requests to extradite, and the German government must abide by court decisions. Expulsion orders are administrative decisions that entail the loss of legal status and the requirement to leave the country rather than the physical removal of a person from Germany. 

The recent jurisprudence of the European Court of Human Rights has reaffirmed the absolute ban on sending people to countries where they are at risk of torture and ill-treatment, irrespective of whether assurances against such abuse are sought or obtained from the receiving state. In the February 2008 judgment in the case of Saadi v. Italy (which concerned the forced removal of a terrorism suspect to Tunisia), a unanimous Grand Chamber reaffirmed the absolute nature of ECHR article 3.

The Saadi judgment addressed the issue of diplomatic assurances and whether a state's duty not to deport where there is a risk of torture or ill-treatment can be mitigated by promises of humane treatment from the state to which the individual is to be returned. The Grand Chamber held that such assurances do not automatically offset an existing risk, emphasizing "that the existence of domestic laws and accession to treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where . . . reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention."[iii]

The court also concluded that even if more specific assurances were secured, the court would still evaluate them on a case-by-case basis to determine whether the "assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention." In practice, once such a risk has been established, the court has never found assurances capable of displacing it.[iv]

On April 24, 2008, the European Court ruled in the case of Ismoilov v. Russia that the extradition of 12 Uzbeks from Russia to Uzbekistan would violate article 3 of the Convention despite the diplomatic assurances against torture provided by the Uzbek authorities. The court noted that diplomatic assurances were rejected in Saadi and in the landmark 1996 case of Chahal v. UK for a deportation to the Punjab region of India, where torture abuses were endemic and persistent. It concluded: "Given that the practice of torture in Uzbekistan is described by reputable international experts as systematic . . . the Court is not persuaded that the assurances from the Uzbek authorities offered a reliable guarantee against the risk of ill-treatment."[v]

Germany's Use of Diplomatic Assurances

Human Rights Watch is aware of several cases in which German authorities have sought diplomatic assurances against torture and ill-treatment.  In October 2004, the government of Germany extradited Metin Kaplan to Turkey on the basis of diplomatic assurances.  In May 2003 a German court had halted Kaplan's extradition based on human rights concerns, including the insufficiency of diplomatic assurances against torture and unfair trial given by Turkish authorities.  In response to the judgment, the German authorities sought enhanced assurances from the Turkish Foreign and Justice Ministries that Kaplan would receive a fair trial upon return, paving the way for the October 2004 extradition.

In June 2005 Kaplan was sentenced to life in prison in Turkey for plotting to overthrow Turkey's secular system with his Cologne-based extremist group, the Union of Islamic Communities, also known as "Hilafet Devleti" (Caliphate State). A Turkish Appeals Court unanimously overturned that verdict in November 2005, finding the trial unfair due to procedural deficiencies and inadequate investigation.[vi] According to Kaplan's lawyer, Husnu Tuna, the cleric was convicted on the basis of evidence from an earlier case in which there was forensic medical evidence indicating that many of the defendants were subjected to torture.[vii]  

Kaplan was retried, and convicted anew to life in prison in October 2008.  At this writing, his appeal to the Turkish Court of Cassation is still pending.

The Germany government sought diplomatic assurances from Turkey again in May 2006 in order to extradite Hasan Atmaca, a Turkish national.  A year later, in May 2007, the Darmstadt Administrative Court ruled that Atmaca, who is wanted in Turkey on charges of activities in favor of the Kurdistan Workers Party, should be granted refugee status and should not be transferred to Turkey.  An appeal lodged by the Federal Office for Migration and Refugees against that decision is still pending. German authorities have said they will not approve the extradition until the asylum procedure is concluded.  German asylum law does not prohibit the extradition of recognized refugees, however.

In the meantime, the European Court of Human Rights issued interim measures on Atmaca's behalf in October 2008, and his complaint against Germany citing article 3 of the European Convention is still pending. 

The Administrative Court in Duesseldorf, North Rhine-Westphalia, ruled in March 2009 that a Tunisian man (name withheld) suspected of ties to terrorism could not be deported to Tunisia despite the diplomatic assurances obtained from authorities in that country.[viii] The mayor of Bochum, X's place of residence, ordered his expulsion in March 2006 for alleged support to an association linked to terrorism and for constituting a danger to the free democratic basic order of the German state (section 54.5 and 5a of the Residence Act).  In September 2007, the Federal Office for Migration and Refugees rejected X's April 2006 application for asylum and determined that there were no impediments to his deportation to Tunisia, largely on the basis of oral assurances received from the Tunisian government that X's human rights would be respected upon return.  A criminal investigation into alleged membership in a terrorist organization abroad, launched in late March 2006, was dropped in May 2007 due to lack of evidence.

The March 2009 Duesseldorf Administrative Court ruling concluded that the diplomatic assurances from Tunisia-"not legally binding...and by nature hardly trustworthy or verifiable"-would not protect X against torture or ill-treatment.[ix]  In the face of independent assessments of the risk of torture upon return to Tunisia, the Court granted X protection against deportation under articles 60.2 and 60.7 of the Residence Act. 

In a January 2009 ruling, the same Duesseldorf court had preemptively dismissed the possibility that diplomatic assurances could enable the deportation of a Jordanian terrorism suspect to his country of origin, and granted the applicant protection from deportation under article 60.2 of the Residence Act.[x]  German authorities had not sought such assurances from Jordan in this case. 

Human Rights Watch is concerned that an endorsement of diplomatic assurances in the Administrative Regulations represents a formalization of the practice by authorities in Germany. To date, authorities have sought diplomatic assurances on a case by case basis. We are concerned that with the adoption of the regulations their use may become the rule in national security removals. Although the regulations are not binding on the courts, their existence may add to the weight given to assurances by the courts when assessing the risk of torture in deportation cases. 

We are also concerned that the regulations may serve to encourage other states to adopt diplomatic assurances as a means of removing national security suspects at risk of torture on return. In that context we note that Germany has already made reference to its use of diplomatic assurances in a recent reply to the European Commission on laws and fundamental rights in the fight against terrorism.[xi]  The adoption of the guidelines risks setting a negative example within the European Union.

The jurisprudence of the European Court, the weight of German court rulings, and international human rights experts all point to the same conclusion: diplomatic assurances are an inadequate safeguard against an acknowledged risk of torture. By enacting regulations enshrining their use, Germany risks breaching its international human rights obligations and exposing those subject to removal to the risk of torture.  We therefore urge you to strike the reference to the use of these assurances from the Administrative Regulations governing the Residence Act. 

Sincerely,

Holly Cartner
Executive Director                                           
Europe and Central Asia Division                              



Marianne Heuwagen
Director
Berlin Office

Cc:

Manfred Nowak, UN Special Rapporteur on Torture
Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe

Martin Scheinin, UN Special Rapporteur on Human Rights and Counterterrorism


[i] Draft Administrative Regulations for the Residence Act, the EU Freedom of Movement Act and the Central Aliens Register Act (Verwaltungsvorschriften zum Aufenthaltsgesetz, zum Freizügigkeitsgesetz/EU und zum Ausländerzentralregistergesetz), June 18, 2009 version.

[ii] Administrative Regulations, section 60.0.4.8. 

[iii] Saadi v. Italy, Application No. 37201/06, Grand Chamber judgment of 28 February 2008, http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=829510... (accessed June 23, 2009), para. 147.

[iv] Ibid., para. 148.

[v] Ismoilov v. Russia, Application No. 2947/06, judgment of April 24, 2008,   http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A... (accessed September 30, 2008), para. 127. The Grand Chamber of the European Court of Human Rights rejected to reexamine the judgment.   

[vi] "Turkey Overturns Life Sentence against ‘Caliph of Cologne,'" Agence France-Presse, November 30, 2005. 

[vii] Email communication from Husnu Tana, Metin Kaplan's lawyer, to Human Rights Watch, March 2, 2006.

[viii] Verwaltungsgericht Duesseldorf, 11 K 4716/07.A, March 4, 2009.

[ix] Ibid., p. 18.

[x] Verwaltungsgericht Duesseldorf, 21 K 3263/07.A, January 16, 2009.

[xi] European Commission, Commission Staff Working Document, "Synthesis of the replies from the Member States to the Questionnaire on criminal law, administrative law/procedural law and fundamental rights in the fight against terrorism," SEC (2009) 225 final, http://ec.europa.eu/justice_home/doc_centre/terrorism/docs/sec_2009_225_... (accessed July 6, 2009).

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