Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
Germany’s Military Manual (1992) provides regarding aliens placed in assigned residence or internment: “It shall be possible to have the measures reconsidered by an appropriate court or administrative board.”
In 2010, in the DRC case, Germany’s Federal Court of Justice was called upon to decide whether to remand in pre-trial custody a national of the Democratic Republic of the Congo who had been living in Germany. The Court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organisation “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad.
The Court held:
4. The strong suspicion that the accused committed the aforementioned crime justifies in and of itself the continued pre-trial custody. …
Moreover, custody is justified by the existence of the danger of absconding and collusion …
6. The particular conditions necessary for extending pre-trial custody beyond the period of six months … are fulfilled. Because of particular difficulties faced by the investigations and due to their sizable scope, it has not yet been possible to reach a judgment and therefore the continuation of pre-trial custody is justified.
After the accused’s arrest, a number of investigations were conducted, some of which were extensive and time-intensive. The crimes were largely committed in the DRC and thus in a Central-African country. Their prosecution by the German criminal authorities required inter alia various investigative measures involving mutual assistance requests to foreign authorities. …
The continued pre-trial custody is not disproportionate to the crimes which the accused allegedly committed.
In 2005, in a reply to a question by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, wrote:
Does the Federal Government adhere to the view of the previous government that detaining human beings for years, as for example in Guantánamo Bay, in prisons in Afghanistan and at further unknown places, without an independent judicial decision on the deprivation of liberty[,] without possibilities to defend themselves, without assistance of a lawyer, and without an independent judicial trial, is incompatible with the recognized rules of international law and the international covenants to which also the United States have acceded, and what will the Federal Government do to protect at least German nationals from such detention and treatment?
The position of the Federal Government regarding the questions you addressed is unchanged. It is also known to the Government of the United States.