d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention and limits arrests to those caught in the act of committing a crime or called for by order of a judicial authority; however, police at times did not respect this prohibition. The law provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court.

ROLE OF THE POLICE AND SECURITY APPARATUS

The federal police force, operating under the Ministry of Public Security, is primarily an investigative entity and plays a minor role in routine law enforcement. Most police forces are under the control of the states. There are two distinct units within the state police forces: the civil police, which performs an investigative role, and the military police, charged with maintaining law and order. Despite its name, the military police does not report to the Ministry of Defense. The law mandates that special police courts exercise jurisdiction over state military police except those charged with “willful crimes against life,” primarily homicide. Police personnel often were responsible for investigating charges of torture and excessive force carried out by fellow officers, although independent investigations increased. Delays in the special military police courts allowed many cases to expire due to statutes of limitations.

Civilian authorities generally maintained effective control over security forces, and the government has mechanisms in place to investigate and punish abuse and corruption; however, impunity and a lack of accountability for security forces was a problem. In October the Ombudsman’s Office of the Rio de Janeiro Public Defender published the report Favela Circuit for Rights, which documented the complaints from the city’s favela residents of home invasion, robbery, destruction of personal property, and sexual assault perpetrated by law enforcement officials under the jurisdiction of the federal public security intervention that began in the state in March. A survey released in August conducted by the Ombudsman’s Office of the Sao Paulo Military Police showed the use of excessive force in 74 percent of civilian deaths caused by the military police in 2017. The agency analyzed 756 of the 940 deaths due to police intervention in 2017, which represented 80 percent of the total.

In Rio de Janeiro’s favelas, so-called militia groups, often composed of off-duty and former law enforcement officers, reportedly took policing into their own hands. Many militia groups intimidated residents and conducted illegal activities such as extorting protection money and providing pirated utility services. The groups also exploited activities related to the real estate market and the sale of drugs and arms.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

Officials must advise persons of their rights at the time of arrest or before taking them into custody for interrogation. The law prohibits use of force during an arrest unless the suspect attempts to escape or resists arrest. According to human rights observers, some detainees complained of physical abuse while being taken into police custody.

Authorities generally respected the constitutional right to a prompt judicial determination of the legality of detention. Detainees were informed promptly of the charges against them. The law permits provisional detention for up to five days under specified conditions during an investigation, but a judge may extend this period. A judge may also order temporary detention for an additional five days for processing. Preventive detention for an initial period of 15 days is permitted if police suspect a detainee may flee the area. Defendants arrested in the act of committing a crime must be charged within 30 days of arrest. Other defendants must be charged within 45 days, although this period may be extended. In cases involving heinous crimes, torture, drug trafficking, and terrorism, pretrial detention could last 30 days with the option to extend for an additional 30 days. Often the period for charging defendants had to be extended because of court backlogs. The law does not provide for a maximum period for pretrial detention, which is decided on a case-by-case basis. Bail was available for most crimes, and defendants facing charges for all but the most serious crimes have the right to a bail hearing. Prison authorities generally allowed detainees prompt access to a lawyer. Indigent detainees have the right to a lawyer provided by the state. Detainees had prompt access to family members. If detainees are convicted, time in detention before trial is subtracted from their sentences.

Pretrial Detention: Approximately 40 percent of prisoners nationwide were in prison provisionally (without a sentence from a judge), according to former minister of justice Alexandre de Moraes. A study conducted by the Ministry of Justice’s National Penitentiary Department found that more than half of the pretrial detainees in 17 states had been held in pretrial detention for more than 90 days. The study found 100 percent of pretrial detainees in Sergipe State, 91 percent in Alagoas State, 84 percent in Parana State, and 74 percent in Amazonas State had been held for more than 90 days.

d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons

The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation, and the government generally respected these rights. The National Committee for Refugees cooperated with the Office of the UN High Commissioner for Refugees and other humanitarian organizations in providing protection and assistance to refugees, asylum seekers, and other persons of concern.

PROTECTION OF REFUGEES

Access to Asylum: The law provides for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees. By law refugees are provided official documentation, access to legal protection, and access to public services. The migration law signed by President Temer in May 2017 went into effect in November 2017, with implementing regulations developed during 2018. The law codifies protections for asylum claimants but overall made few changes to existing practices. It creates a new humanitarian visa as well as a new residency status that serves as an alternative to refugee claims for some categories of regional migrants, particularly from Venezuela.

During the year increasing numbers of Venezuelan economic migrants, asylum seekers, and refugees arrived in Roraima State in the north. As of August, 75,000 Venezuelans had applied for asylum or temporary residency in Brazil. The influx of Venezuelans into the small state of Roraima aggravated relations between local residents and the migrants and refugees, leading to some incidents of violence. On August 18, an anti-Venezuelan riot broke out in the border town of Pacaraima after a group of Venezuelans allegedly assaulted a local restaurant owner. While no deaths were reported, 1,200 Venezuelans were temporarily forced to return to their country.

The law provides criminal penalties for conviction of corruption by officials and stipulates civil penalties for corruption committed by Brazilian citizens or entities overseas. There were numerous reports of corruption at various levels of government, and delays in judicial proceedings against persons accused of corruption were common, often due to constitutional protections from prosecution for sitting members of Congress and government ministers. This often resulted in de facto impunity for those responsible.

Corruption: The investigation of the Petrobras state oil company embezzlement scandal (Operation Carwash, or Lava Jato), which began in 2014, continued and led to arrests and convictions of money launderers and major construction contractors and also to the investigation, indictment, and conviction of politicians across the political class. Information gained through collaboration and plea bargains with suspects launched a widening net of new investigations. Through October courts handed down 215 convictions related to the investigations, including that of former president Luiz Inacio “Lula” da Silva.

On November 29, federal police agents arrested Rio de Janeiro Governor Luiz Fernando Pezao on charges of corruption and money laundering. He allegedly received $40 million in bribes from 2007 to 2015, while serving as the vice governor to former governor Sergio Cabral, who was in prison serving a 14-year sentence for corruption and money laundering connected to Operation Carwash.

Financial Disclosure: Public officials are subject to financial disclosure laws, and officials generally complied with these provisions. Not all asset declarations are made public, but federal employees’ salaries and payment information are posted online and can be searched by name.

d. Arbitrary Arrest or Detention

The constitution prohibits arbitrary arrest and detention, and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements.

On May 15, Bavaria’s parliament expanded police powers. The law now enables the police to take preventive actions against an “impending danger.” Critics argued this gives Bavarian police the power to intervene even before an offense has taken place and may expand their surveillance power. In May the Social Democratic Party (SPD) sued to block the law in federal and state courts. In September the Greens, the Left, and the Free Democratic Party (FDP) formed an alliance and sued in the Federal Constitutional Court to block the law. The case was continuing at year’s end.

ROLE OF THE POLICE AND SECURITY APPARATUS

Responsibility for internal and border security is shared by the police forces of the 16 states, the Federal Criminal Police Office (BKA), and the federal police. The states’ police forces report to their respective interior ministries; the federal police forces report to the Federal Ministry of the Interior. The Federal Office for the Protection of the Constitution (FOPC) and the state offices for the protection of the constitution (OPCs) are responsible for gathering intelligence on threats to domestic order and certain other security functions. The FOPC reports to the Federal Ministry of the Interior, and the OPCs report to their respective state ministries of the interior. Civilian authorities maintained effective control over the police forces in all 16 states, as well as the BKA, the federal police, and the OPCs. The government has effective mechanisms to investigate and punish abuse, and there was a review of police behavior in Bonn following the 2017 G20 protests in Hamburg. There were no reports of impunity involving security forces during the year. The nongovernmental organization (NGO) Amnesty International Germany noted there is no nationwide requirement for police to wear identity badges. While police are not required to wear identity badges in North Rhine-Westphalia, they are required to wear badges in the states of Berlin, Brandenburg, Hamburg, and Saxony-Anhalt, as are riot police in the states of Rhineland-Palatinate, Hesse, Bremen, Schleswig-Holstein, Mecklenburg-West Pomerania, and Thuringia.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

Authorities must have a warrant issued by a judicial authority to arrest an individual. Police may also arrest individuals they apprehend in the act of committing a crime or if they have strong reason to suspect the individual intends to commit a crime. The constitution requires authorities to bring a suspect before a judicial officer before the end of the day following the arrest. The judge must inform the suspect of the reasons for his or her detention and provide the suspect with an opportunity to object. The court must then either issue an arrest warrant stating the grounds for continued detention or order the individual’s release. Authorities generally respected these rights.

Although bail exists, judges usually released individuals awaiting trial without requiring bail. Bail is only required in cases where a court determines that the suspect poses a flight risk. In such cases authorities may deny bail and hold detainees for the duration of the investigation and subsequent trial, subject to judicial review. The courts credit time spent in pretrial custody toward any eventual sentence. If a court acquits an incarcerated defendant, the government must compensate the defendant for financial losses as well as for “moral prejudice” due to his or her incarceration.

Detainees have the right to consult with an attorney of their choice, and the government provides an attorney at public expense if detainees demonstrate financial need. The law entitles a detainee to request access to a lawyer at any time including prior to any police questioning, and authorities must inform suspects of their right to consult an attorney before questioning begins.

d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons

The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation; the government generally respected these rights. The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, or other persons of concern.

Abuse of Migrants, Refugees, and Stateless Persons: Authorities in various states continued to detain for up to 18 months some asylum seekers whose applications were rejected pending their deportation. Courts permit authorities also to deport rejected asylum seekers without advance notification. Authorities could only detain asylum seekers, refugees, and migrants awaiting deportation to a country within the EU under the Dublin III regulation if there was evidence they posed a flight risk. In March authorities were holding 82 rejected asylum seekers pending deportation.

The government deported asylum seekers while their applications were pending review. One Uighur had an asylum hearing scheduled for the day he was returned to China, but state-level officials stated they did not receive a notification fax from the Federal Office for Migration and Refugees (BAMF) (see below, Refoulement). On August 13-15, the Council of Europe’s Committee to Prevent Torture monitored treatment of unsuccessful asylum seekers during a charter flight returning them to Afghanistan.

Assaults on refugees, asylum seekers, and migrants; and attacks on government-provided asylum homes continued during the first half of the year. In February a man stabbed three refugees in the city of Heilbronn, Baden-Wuerttemberg. The attack severely injured a 25-year-old Iraqi man, and the other two men sustained minor injuries. In June prosecutors charged the suspect with attempted murder.

In-country Movement: Authorities issued three types of travel documents to stateless individuals, those with refugee and asylum status, and foreigners without travel documents. Stateless individuals received a “travel document for the stateless.” Those with recognized refugee and asylum status received a “travel document for refugees.” Foreigners from non-EU countries received a “travel document for foreigners” if they did not have a passport or identity document and could not obtain a passport from their country of origin.

Several states had an assigned residence rule requiring refugees with recognized asylum status to live within a specific city for a period of three years. As of April the states of Bavaria, Baden-Wuerttemberg, Hesse, North Rhine-Westphalia, Saarland, Saxony, and Saxony-Anhalt implemented the residence rule. Local authorities who supported the rule stated it facilitated integration and enabled authorities to plan for increased infrastructure needs, such as schools. In September the administrative court in Muenster, North Rhine-Westphalia, ruled that, while North Rhine-Westphalia could require those with recognized refugee status to live within the state, it could not require them to live in a specific city.

PROTECTION OF REFUGEES

Refoulement: In August, Bavarian authorities deported a 22-year-old Uighur man to China (see above Abuse of Refugees, Migrants, and Stateless Persons) prior to his asylum hearing. The asylum seeker’s lawyer was unable to establish contact with his client following his deportation and feared that Chinese authorities had detained him. In December the Ministry of Foreign Affairs confirmed the Uighur man had been arrested in China, and that they were working to have him returned to Germany.

In June the government lifted its deportation ban for Afghanistan, and three states began deportations to that country. Previous federal policy only permitted deportations of convicted criminals and those deemed a security risk. In August, 700 demonstrators in Munich protested the policy change. NGOs including Amnesty International criticized the policy as a breach of the principle of refoulement.

Access to Asylum: The law provides for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees. The country faced the task of integrating approximately 1.3 million asylum seekers, refugees, and migrants who arrived between 2015 and 2017 as well as an additional 110,324 who requested asylum during the first six months of the year. The heavy influx of asylum seekers, refugees, and migrants taxed the country’s infrastructure and resources.

The NGO Pro Asyl criticized the “airport procedure” for asylum seekers who arrive at the country’s airports. Authorities stated the airport procedure was used only in less complex cases, and that more complex asylum cases were referred for processing through regular BAMF channels. Authorities maintained that only persons coming from countries that the government identified as “safe”–the member states of the European Union, as well as Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia–and those without valid identification documents could be considered via the “fast track procedure.” The “fast track procedure” enabled BAMF to decide on asylum applications within a two-day period, during which asylum applicants were detained at the airport. If authorities denied the application, the applicant had the right to appeal. Appeals were processed within two weeks, during which the applicant was detained at the airport. If the appeal was denied, authorities deported the applicant. The NGO Fluechtlingsrat Berlin criticized a similar “fast track” or “direct” procedure applied to some asylum seekers in Berlin. The organization claimed asylum applicants were not provided with sufficient time and access to legal counsel.

In April, BAMF suspended the head of its Bremen branch amid allegations the official improperly approved up to 2,000 asylum applications. According to media reports, the official colluded with three lawyers and a translator between 2013 and 2017 to divert Yazidi applicants to Bremen. In May the Chief Public Prosecutor in Nuremberg announced an investigation of BAMF President Jutta Cordt for failing to prevent the practices in Bremen. The Federal Court of Auditors is currently auditing BAMF, and the allegations prompted a large-scale internal BAMF review of 2018 asylum cases.

In August the government resumed issuance of family reunification visas for those with subsidiary protection, a measure suspended in late 2016. The government is authorized to approve reunification visas for up to 1,000 family members per month–defined as spouses, minor children, or parents–of individuals who have subsidiary protection.

In February a Yazidi woman with refugee status living in Schwaebisch Gmuend (Baden-Wuerttemberg) reportedly encountered the ISIS member who tortured and raped her in Iraq in 2014. The case raised concerns about the government’s ability to protect refugees and screen migrants for ties to ISIS and other terror groups. The woman reported the case to the police, who opened an investigation. Police stated, however, that they were unable to locate the perpetrator, who was not registered as a refugee or resident in Baden-Wuerttemberg. The woman reported she felt unsafe, and she returned to Iraq. In June the federal attorney general’s office in Karlsruhe opened an investigation in the case, which continued at year’s end. The Baden-Wuerttemberg interior ministry’s spokesperson reported there were seven reports of Yazidi women encountering their attackers in Germany, one of which was found to be unsubstantiated.

Safe Country of Origin/Transit: The country adheres to the EU’s Dublin III regulation, which permits authorities to turn back or deport individuals who entered the country through the “safe countries of transit,” which include the EU member states, Switzerland, Norway, Iceland, and Liechtenstein. The government did not return asylum seekers to Syria. The government defines “safe countries of origin” to include Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, Serbia, and EU states. The NGO Pro Asyl pointed out that refugees who under the Dublin III regulation fell into another EU state’s responsibility but could not be returned to that country, often remained in a legal grey zone. They were not allowed to work or participate in integration measures including German language classes.

Employment: Persons with recognized asylum status were able to access the labor market without restriction; asylum seekers whose applications were pending were generally not allowed to work during their first three months after applying for asylum. According to the Federal Employment Agency, approximately 482,000 refugees were unemployed as of July. Refugees and asylum seekers faced several hurdles in obtaining employment, including lengthy review times for previous qualifications, lack of official certificates and degrees, and limited German language skills.

The law excludes asylum seekers from countries considered “safe countries of origin” and unsuccessful asylum seekers who cannot be returned to the country through which they first entered the area covered by the Dublin III regulation from certain refugee integration measures, such as language courses and access to employment opportunities. The government did not permit asylum seekers and persons with a protected status from “safe countries of origin” to work if they applied for asylum after August 2015.

Access to Basic Services: State officials retain decision-making authority on how to house asylum seekers, refugees, and migrants, and whether to provide allowances or other benefits.

Pro Asyl criticized a refugee center in Manching, Bavaria, that was converted into a “transit center” in May. The center housed more than 1,000 refugees and could process asylum applicants in one location from start to finish. Critics claimed the center’s isolated location in an industrial area and a policy that did not allow NGOs to access the center made it difficult for refugees to seek legal counsel and enroll in education and language programs.

Several states, including Berlin, Brandenburg Bremen, Hamburg, Schleswig-Holstein, and Thuringia, provided medical insurance cards for asylum seekers. The insurance cards allow asylum seekers to visit any doctor of their choice without prior approval by authorities. In other states asylum seekers received a card only after 15 months, and community authorities had to grant permits to asylum seekers before they could consult a doctor. The welfare organization Diakonie, however, criticized the medical insurance card system, which only enabled asylum seekers to access emergency treatment. Local communities and private groups sometimes provided supplemental health care.

Durable Solutions: The government accepted for resettlement and facilitated the local integration (including naturalization) of refugees who had already fled their countries of origin, particularly for refugees belonging to vulnerable groups. Such groups included women with children, refugees with disabilities, victims of trafficking in persons, and victims of torture or rape. Authorities granted residence permits to long-term migrants, asylum seekers, refugees, and migrants who could not return to their countries of origin.

The government assisted with the safe and voluntary return to their homes of asylum seekers, refugees, and migrants. In the first half of the year, authorities provided financial assistance to 1,500 individuals to facilitate voluntary returns to their country of origin. Beneficiaries were either rejected asylum seekers or foreigners without valid identification. The number of voluntary return beneficiaries decreased during the year, which BAMF attributed to the overall decrease in asylum seekers in the country.

The government also offered a return bonus of 800 to 1,200 euros ($920 to $1,380) per person to asylum seekers whose applications are pending but who are unlikely to have their applications approved. Among others, refugees from Iraq and Afghanistan extensively used the program.

Temporary Protection: The government provides two forms of temporary protection–subsidiary and humanitarian–for individuals who may not qualify as refugees. In the first six months of the year, the government extended subsidiary protection to 15,542 persons. This status is usually granted if a person does not qualify for refugee or asylum status but might face severe danger in his or her country of origin due to war or conflict. During the same period, 6,639 individuals were granted humanitarian protection. Humanitarian protection is granted if a person does not qualify for any form of protected status, but there are other humanitarian reasons the person cannot return to his or her country of origin (for example, unavailability of medical treatment in their country of origin for a health condition). Both forms of temporary protection are granted for one year and may be extended. After five years a person under subsidiary or humanitarian protection can apply for an unlimited residency status if he or she earns enough money to be independent of public assistance and has a good command of German.

STATELESS PERSONS

UNHCR reported 13,458 stateless persons in the country at the end of 2017. Some of these persons lost their previous citizenship when the Soviet Union collapsed or Yugoslavia disintegrated. Others were Palestinians from Lebanon and Syria whom the government registered as stateless.

Laws and policies provide stateless persons the opportunity to gain citizenship on a nondiscriminatory basis. Stateless persons may apply for citizenship after six years of residence. Producing sufficient evidence to establish statelessness could often be difficult, however, because the burden of proof is on the applicant. Authorities generally protected stateless persons from deportation to their country of origin or usual residence if they faced a threat of political persecution there.

The law provides criminal penalties for corruption by officials, and the government generally implemented the law effectively. There were isolated reports of government corruption during the year.

Corruption: On February 28, Bundestag member Marcus Held (SPD) resigned as mayor of Oppenheim in Rhineland-Palatinate after he was charged with corruption. Mainz prosecutors investigated Held for embezzlement and bribery pertaining to irregular real estate dealings in Oppenheim. The Bundestag lifted Held’s immunity in July and November 2017. As of September, Held was still a member of the Bundestag, but he went on medical leave in January, and at year’s end his seat was inactive.

Financial Disclosure: Members of state and federal parliaments are subject to financial disclosure laws that require them to publish their earnings from outside employment. Sanctions for noncompliance range from an administrative fine to as much as half of a parliamentarian’s annual salary. Appointed officials are subject to the public disclosure rules for civil servants, who must disclose outside activities and earnings. If the remuneration exceeds certain limits, which vary by grade, the employee must transfer the excess to the employing agency. Under the federal disciplinary law, sanctions for noncomplying officials include financial penalties, reprimand, or dismissal.