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Germany: “Banana Republic” or institutional racism? Impunity reigns over black death in custody by Katrin McGauran

01 July 2008

Examining the highly suspicious death in custody of Oury Jalloh, this article details the institutional and popular racism that allows abuses against refugees and migrants to occur in Germany

"For many of us, it is just as plausible that Oury Jalloh was seriously beaten by the police — which unfortunately occurs frequently — later to be burned: be it to kill him or be it to hide his death." [1]

In 2005, Statewatch reported on the death of Oury Jalloh, who burnt to death in a police cell in the German city of Dessau whilst he was handcuffed to a fire-proof mattress (see Statewatch Vol. 15 no 1). The public prosecutor only began investigating after public pressure and demands for an independent inquiry. A support campaign was formed by friends of Jalloh and anti-racist activists. The police claim that Oury Jalloh set fire to the mattress with a lighter that was overlooked when they searched him. The public prosecution service agrees with this version of events, but many anti-racist activists and friends of Jalloh do not. Alongside the obvious difficulty of committing suicide while shackled, there have been a series of inconsistencies in the evidence and in police officers' statements during the trial. Due to the lack of confidence in a comprehensive investigation and objective prosecution, an international jury of independent observers was formed to monitor the trial [2]. But despite the concerted efforts of campaigners and critical reports from trial monitors, many of whom are lawyers themselves, it appears that the responsible police officers will enjoy impunity.

Chronology of events

Oury Jalloh fled from Sierra Leone during the civil war via Guinea to Germany in 2000, where his application for asylum was rejected, although he was granted temporary (“tolerated”) status and housed in an asylum seekers home in Dessau. He was arrested on 7 January 2005 after two Dessau municipality employees called the police when Jalloh would not stop asking them to borrow their mobile phone. He was allegedly very drunk and was arrested. At the police station, a doctor took a blood sample which showed a high level of alcohol, but he certified Jalloh fit for detention. Officers searched him and then tied his hands and feet to a cell bed, a method of restraint only allowed if there is suspicion of self-harm, but otherwise classified as torture by the Council of Europe’s Committee for the Prevention of Torture. Officers justified this restraint method by arguing that Jalloh had banged his head against the wall. They say they checked on him every half an hour until 11.45pm without noticing any abnormalities. At midnight the cell's fire alarm went off, but it took Andreas Sch. 11 minutes to reach the cell, by which time it was full of smoke (it is these 11 minutes that the trial focuses on, as the court presumes suicide and the charge is negligence resulting in death). At around 12.35, fire fighters entered the cell and found Jalloh's charred body. The first post mortem examination could not establish the exact cause of death, but assumed that he died of heat shock, because his lungs did not show signs of smoke inhalation.

On 15 February 2005, the Dessau public prosecution presented the official version of events, in which Jalloh killed himself by setting alight the mattress with a lighter overlooked during his body search. Doubting this version of events, in April 2005 the "Oury Jalloh Remembrance Initiative” arranged a second post mortem examination of Jalloh's body, which found he had suffered a broken nose and a damaged middle ear. On 6 May 2005, the Dessau public prosecutor's office filed charges against two police officers. Police chief inspector Andreas Sch. was charged with bodily harm resulting in death and Officer Hans-Ulrich M. was charged with negligence resulting in death, because he allegedly failed to detect the lighter when searching Jalloh. Oury Jalloh's parents applied to become joint plaintiffs in the criminal proceedings, represented by two German lawyers. One lawyer demanded an x-ray of Jalloh's body, which the public prosecution refused. Therefore, the Oury Jalloh Remembrance Initiative assembled an international panel of prominent human rights activists from the UK, Germany and Africa to monitor the trial.

Almost two years after Jalloh's death, in January 2007, the 6th Criminal Division of the Dessau regional court submitted the charges in court. The trial started on 27 March 2007 and is expected to end in December 2008. In August 2008, the Oury Jalloh Initiative withdrew from what they describe as a "farcical" trial, arguing that the court's presumption of suicide does not allow for a full and independent investigation of what some believe might be murder.

The trial

The trial, including witness statements, joint plaintiffs' questions, defence reactions and the judge's conduct has been meticulously monitored by the trial monitoring group [3]. The injuries on Jalloh's body, identified at the second post mortem examination, and the events surrounding his death have not been established by the court due to inconsistencies in police statements. The police version of events is as follows: while Jalloh was locked up police officer Beate H. reported that she heard him complaining loudly over the intercom system, demanding to be released. She heard her colleagues check the cell at regular intervals. In between she visited him and tried to calm him down, but around 11pm the shouting increased. Back in the office, her colleague, and head of the patrolling police force, police chief inspector Andres S., turned down the intercom because he felt distracted while making a phone call, but Beate H. protested and turned it up again. Shortly after midnight, both reported hearing a ripple of liquid from the cell and shortly afterwards the cell's fire alarm went off. Both believed that this was a malfunction and according to Beate H., Andreas S. switched the alarm off twice. After switching the first alarm off, the fire alarm in the ventilation shaft went off.

At this point their evidence becomes unclear. In her first statement, Beate H. said that the fire alarm had been repaired in 2004 and had not shown any signs of malfunction since. She also observed that Andreas S. only went downstairs to check the cell after the alarm went off for a third time and then only after she urged him to do so. She has since retracted these statements and now claims Andreas S. went to the cell immediately, although when this was exactly she is not sure. Also, the statements by Gerhard M. and Andreas S. were initially in agreement when they stated that when they opened the cell door at ten minutes past midnight, the cell was full of smoke and they could not enter. But, when pressed at another hearing, Gerhard M. admitted he entered the cell but was unable to act: "I could not help him, it was impossible. I didn't have the keys [to the handcuffs]". The keys should have been with Andreas S., but according to Gerhard M's revised statement he was not there because he was "getting some air". If this version of events is true, Jalloh would have burned to death in front of Gerhard M's eyes. Then Andreas S. claimed that he made a phone call to his superior from the porter's office before arriving at the cell; Gerhard M., however, denies this.

More bizarre still are the different reconstructions that have been offered by the defence as to how Jalloh could have got a lighter into his cell. First they claimed that it had missed it during the police search. Later, presumably because the searching officer was charged with negligence resulting in death, an officer said that he noticed after the search that his lighter had gone missing. The statements of 30 police officers were contradictory throughout the trial which led Judge Manfred Steinhoff to shout "We don't live in a Banana Republic!"

But apart from conflicting statements - and the critical question of how a man who was shackled hand and foot to an inflammable mattress managed to set fire to it with a lighter that was not found when he was searched - there are more facts that indicate that the death of Jalloh was not self-inflicted:

The lighter with which Jalloh allegedly set fire to the mattress was not found in the cell during the first search by police on 10 January 2005, and only appeared on the evidence list a day later. The lighter showed little evidence of fire damage.

Several witnesses reported seeing a pool of unidentified liquid on the floor of the cell, and police officers reported hearing a ripple of liquid from the cell before the fire alarm went off.

The second post mortem examination revealed that Jalloh had a broken nose and damaged middle ear, whilst the first post mortem only noted that he had died from heat shock.

If Jalloh burned to death, it is unlikely that screams from the cell would have gone unnoticed, as it is connected to the police station offices through an intercom system.

Oury Jalloh's body was severely charred which does not fit with police claims that a fire started with a lighter would burn the body to such an extent.

The police 'lost' a CCTV video of the first crime scene investigation

All of these inconsistencies have led campaigners to point to the structural problem of impunity when it comes to black deaths in custody, which is commonly referred to as institutional racism.

Institutional racism and black deaths in police custody

In the late 1960s, Black Panther and civil rights activist Stokely Carmichael defined institutional racism as:

the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin.

This definition was adopted almost word for word by the UK’s MacPherson inquiry into the racist murder of black teenager, Stephen Lawrence, and the inadequate response to it by the police and judiciary. Despite copious evidence the courts failed to sentence the perpetrators and the police and media initially attempted to stigmatise Lawrence as a trouble-maker. A. Sivanandan, director of the UK-based Institute of Race Relations places emphasis on the interaction between institutional and individual racism when he defines institutional racism as:

that which, covertly or overtly, resides in the policies, procedures, operations and culture of public or private institutions - reinforcing individual prejudices and being reinforced by them in turn.

Institutional racism in relation to black deaths in custody frequently entails the depiction of the fatality as suicide, or down to ill-health, often drug-related. State representatives, such as the prosecution services, and sometimes doctors providing medical reports and journalists, invariably repeat police statements and fail to ask fundamental - often common sense - questions. Their response leads to silence: a silence which, firstly, permits the failure to ascertain accountability, (i.e. charges are seldom pressed or an investigation into the death is either not instigated or not thoroughly researched). Secondly, even if an investigation does take place, it allows for the prosecution to presume a self-inflicted death or, in a few cases, death by accident or negligent conduct.

In Germany, there has never been a black death as a result of contact with the authorities that has resulted in an investigation that reached the conclusion that the victim was murdered. Nor has an investigation concluded that institutional police racism can lead to black men being locked up in custody and being treated in a degrading and life-threatening manner. In fact, the word racism almost never appears as a contributing factor to a black death in custody. All of these indicators for the existence of institutional racism exist in the Oury Jalloh case: from Jalloh's arrest, his treatment by police during and after his arrest, the arguments for his incarceration, the circumstances surrounding his death, the ongoing trial, as well as the public response to wakes and demonstrations organised by various anti-racist initiatives.

1) The Arrest and detention

Two women reported that they were being harassed by a black man, (or as one of them referred to him during the trial, "the African"), creating a scenario in which the police seem to have a standard response. The likelihood that the police will not arrest this man is very low. At the second Black African Conference that took place in Dessau in January 2007, Cornelius Yufanyi, one of the spokespersons for the Jalloh Initiative and active in the African Refugee organisation, The Voice, reported: “More than half of the Africans sitting here have been in a police cell before, including me“[4]. When Jalloh's friend Mouctar Bah was asked during the trial whether Jalloh had any history with the police, Bah replied that he had never been arrested, but that all asylum seekers in the home where they lived together had regular contact with police because they are regularly stopped and searched in the streets and asked to produce identity documents [5].

Once at the scene, police arrested Jalloh, despite the fact that the women only reported feeling harassed, and that there had not been any physical contact. Jalloh, who was drunk, is said to have resisted arrest and the police forced him into their car and drove him to the police station. There they found Jalloh's identity papers and a certificate for an asylum seekers' temporary residency permit. At this point, the police could have released him awaiting a complaint by the two women. Yet they detained him on the spurious grounds that his papers were hard to decipher and needed to be verified.

2) The treatment of black people in custody

The police took Jalloh to a cell and handcuffed his hands and feet to a bed, reportedly because he struggled. However, his resistance was the result of an unwarranted incarceration (no crime had been committed or even reported), and he suffered torture (Jalloh was handcuffed in a stress position which has been declared a form of torture by the Council of Europe's Committee for the Prevention of Torture) [6]. At the trial, the only justification for this treatment was that Jalloh had banged his head against the wall: it could equally well be argued that this behaviour was the result of a police action, and not an indication of suicidal behaviour. Jalloh complained frequently about being shackled but was told by police officers that they would not release him. The officer in charge even turned down the intercom’s sound so as not to be disturbed by the sounds of distress whilst making phone calls.

Another common occurrence in the event of injury or death is the portrayal of the victim as dangerous and/or of unruly character. The questioning of Jalloh's friend Mouctar Bah during the trial, for example, revealed that statements he had made about Jalloh to the police were misconstrued. This was later explained by the absence of an interpreter during the interrogation. However, one finds it hard to believe that police officers did not have an ulterior motive when interpreting Mouctar Bah's reply to the question of whether Jalloh drank alcohol ("yes a little") as "he sometimes created problems when he drank". "I never said that", Bah complained during the court hearing [7].

3) The institutional response to black deaths in custody

The common response to a black death as a result of police action is the failure to prosecute or at best a slow response by the public prosecution service. In Oury Jalloh's case, it was only after sustained pressure that the prosecution pressed charges and then not for murder, but negligence. This decision was reached after the presentation of police evidence and not as the outcome of an independent investigation. It took another two years for the charges to be tested in court. A first medical report showed no signs of interference with the body, whilst a second independent examination did. An x-ray of Jalloh's body was rejected by the prosecution on the grounds it was unnecessary; this affirmed the suicide theory before the factual circumstances surrounding Jalloh's death, (which makes murder just as, if not even more, plausible than self-harm), had even been investigated.

It is, therefore, no surprise that the campaign for justice concludes:

Since Oury's murder, neither the court nor the State Prosecutor has shown any interest in discovering the truth behind the events in Dessau. Rather, the case has been plagued by two years of impediments, cover-ups and the refusal to cooperate with the lawyers of Oury's parents. For the recognition of the mother and father as co-plaintiffs in the case alone, the court required 17 and 15 months respectively to reach a decision.[8]

This statement echoes the frustration and hurt about the treatment of family and friends in a trial that should have been vigorously led by the public prosecution.

This brings us to another crucial indicator for the existence of institutional racism.

4) The response to justice campaigns and anti-racist initiatives

Racist attacks and deaths in Germany as a rule do not trigger a swift response from the authorities, such as the offering of condolences to the victim’s family or an admission of failure, whether institutional or political. It took the Dessau municipality until March 2007 to apologise to Oury Jalloh's mother for the death of her son, which was also when the mayor of Dessau issued his condolences. Furthermore, the authorities' response to the campaign for justice was negative. Trial observers were heavily policed in front of the court and regularly stopped and searched. In 2006, the local authorities ordered Mouctar Bah's Telecafé in Dessau to be closed and his commercial license revoked. According to Bah and anti-racist supporters, this was because the Telecafé is a place where Africans living in and around Dessau can meet. The authorities had tried to close the cafe before, arguing Bah had no license to sell food, which he did. His premises were searched and for a year the Halle Administrative Office had the case before them yet undertook no action. The campaign says Bah is being targeted for having publicly led the campaign for justice. The municipality's argument for closing his cafe confirms all of the racist stereotypes about Africans in Dessau: they allege Mouctar Bah tolerated people on his premises who sell drugs in a neighbouring park, but failed to produce any concrete evidence to support their allegations. All of Bah's appeals were unsuccessful. A joint press release (30.1.06) by anti-racist initiatives concludes:

The obvious collaboration between the different state agencies serves to deny any connection whatsoever between racism, the murder of Oury Jalloh, and the closing of Mouctar Bah's shop. Yet both the impunity in the case of the murder of Oury Jalloh and the closure of Mouctar Bah's store in Dessau in such a bureaucratic and silent manner - consistent with the times we are living in - clearly demonstrate cooperation between the different institutions and their attempts to cover-up the truth as to the death of Oury Jalloh and to break any resistance against such inhuman and undemocratic measures.[9]

5) Overt state racism - blind in the right eye

Institutional racism also manifests itself through the deliberate frustrating of attempts to prosecute race crimes. An instance was revealed in May 2007 when - shortly after the trial begin - Hans-Christoph Glombitza, the Dessau deputy chief of police was quoted telling three police officers responsible for fighting right-wing crime in Saxony-Anhalt, that the regional interior ministry, crime police and police departments were "not happy" with the rise in the reporting of (rather than the existence of) right-wing crime in the state. High crime figures would negatively impact on the population’s sense of security and inflict "sustainable damage to the reputation of our [regional] state". He told the three "not to see everything" and advised them: "there are ways to write reports slowly".

Glombitza’s advice came at a time when a Dessau anti-racist group had researched and recorded 168 incidents of right-wing extremist or racism in the region in 2007 alone [10]. The internal security service (Federal Office for the Protection of the Constitution) confirmed this picture: Saxony-Anhalt had the most crimes with a right-wing background per head. The highest rate was in Dessau, where right-wing crime had risen from 141 incidents in 2004, when the three officers started their job, to 238 in 2005 and 392 in 2006. It appears that racist and right-wing crimes were for the first time being tackled by the police and classified as such, rather than treated as regular crime and recorded as juvenile delinquency, a common occurrence in Germany. Steffen Andersch from the Dessau Civitas Network Point against the Right (Civitas-Netzwerkstelle gegen Rechts) says that the three officers’ "link[ed] criminal offences with their right-wing context", thereby increasing right-wing crime statistics. Apparently, this was not their superiors’ desired outcome and the officers were transferred, after which the number of right-wing crimes in the state was cut by almost half [11].

Embarrassing for Holger Hövelmann, (Social Democrat and regional interior minister of Saxony-Anhalt), was Glombitza's alleged reaction to the regional government's new attempt to fight right-wing crime with a campaign entitled "Do not ignore it!" When asked by the three officers how his advice “not to see everything” tallied with the government's campaign, Glombitza offered the explanation that it merely served party political purposes: "That's just for the gallery, don't take it seriously."

These are revealing statements, yet they have not led to even a reprimand. Although the Left Party in the regional parliament has said that it wants to investigate these statements, the interior minister stood behind its deputy chief of police. Indeed, it is not Glombitza who has to fear investigation; it is the three police officers who revealed his statements - they are being investigated for not reporting them to the police. When confronted with the allegation that the government's campaign was not meant to actually reduce crime, and that the three officers were transferred (and then suspended) in order to reduce the right-wing crime figures, Hövelmann offered an alternative explanation to explain the drop in race crimes: "Maybe the [government's] campaign has shown its first fruits" [ibid].

Also under investigation is Steffen Andersch from the anti-racist Network Point. He showed a picture of a local NPD politician at a public meeting on right-wing extremism. A police officer reported him for using a picture without the permission of the person represented. This politician was then invited to the police station and advised to initiate legal proceedings against Andersch for slander.

The three officers have in their turn have requested that the regional public prosecutor investigate the police department on suspicion of deliberately prosecuting innocent people. They also want an inquiry into the local public prosecutor for failing in his duty to prosecute a suspected crime, in this case the statements made by the deputy chief of police. All three have been served with gagging orders, and they are calling for public support, "because we want the truth to be uncovered". [12]

The attitudes of high-ranking officers and their apparent impunity would appear to be reflected at all levels of the force. A telephone conversation between a police chief inspector and defendant in the trial and the doctor on duty points to this being the rule rather than the exception. Andreas Sch. phoned the neurologist:

AS: "We need you"

Neurologist: "What have you got?"

AS: "A blood sample"

Neurologist: “I'll do it"

AS: "Yes, prick a black African"

Neurologist: "Oh shit, I can never find a vein with the dark-skinned ones"

AS: "Well, bring a special needle".

6) Overt public racism

Institutional racism is paralleled by individual prejudices, and racism has been a common public reaction to the campaign's demand for justice. Following Sivanandan's definition, overt racism is reinforced by the institutional racism observed above, which in turn reinforces the same.

Shortly after Jalloh's death and the demands for an investigation, the Magdeburg district chapter of the right-wing Nationaldemokratische Partei Deutschlands (NPD) began a slur campaign against the Initiative In Remembrance of Oury Jalloh, under the slogan: "An African burns himself and again the police are blamed". The NPD says Jalloh had been: "fed and supported by the German Volk, enjoyed medical care and all sorts of social support", and that "no one would have expected that Mr Asylum Seeker, with the help of a lighter he had stashed away, heats up the mattress within a few minutes to 350 degrees Celsius. After all, this temperature is too much even for a West African who is used to the heat” [13]. Local anti-racist initiatives have brought legal proceedings against the NPD on grounds of the denigration of the dead, incitement to hatred and slander.

Racist incidents continue. During a wake commemorating Jalloh, a participant noticed a stall at a nearby flea-market offering for sale a photograph of Adolf Hitler, showing the dictator in a cheering crowd of supporters [14]. A year later, at a silent march remembering Oury Jalloh in January 2008, an older man, observing the demonstrators, shouted "Sieg Heil" [15]. The Advice Centre for Victims of Right-Wing Violence (Beratungsstelle für Opfer rechter Gewalt) and Civitas-Network Point against the Right have initiated legal proceedings against unknown persons because of the hate mail they have received. Last but not least, a mobilisation video with a commentary by Mumia Abu Jamal, publicising a protest in August this year, shows a local man being interviewed about the case. He leaves no doubt as to his thoughts on black people: "I don't give a shit if he burnt to death", he says, "as far as I'm concerned the cell can be full next time" [16].

Conclusion

The facts presented above, contrary to Judge Steinhoff's assertion that Germany might show signs of becoming a “banana republic”, demonstrate that Germany’s criminal justice system is institutionally racist. The responses by the police, political parties and judiciary to the killing of Oury Jalloh have been similar in every comparable incident. For instance, when police shot 21-year-old, Dominique Koumadio, in the heart for refusing to put down his knife in Dortmund on 13 April 2006 or when refugee Mohammed Selah died at the age of 23, on 14 January 2007, after being denied basic medical treatment in Remscheid. On the same day that Oury Jalloh burned to death in the Dessau police cell, another black man died at the hands of the police; Layer Coned had chemicals forced down his throat by officers who were looking for the drugs he might have swallowed. He died, failing to come out of the coma that was induced by the police action. And it is not only black people who suffer from police abuse. At the same Dessau police station, under the leadership of Andreas Sch., and with the same doctor who certified the detainee fit for detention, Mario Bichtemann died after 15 hours of incarceration after receiving head injuries. An investigation into Andreas Sch. was dropped due to "difficulties in ascertaining the cause of events".

Again, the conclusions reached by the justice campaign may well be correct:

The General Public Prosecutor has already absolved the police of any criminal guilt. The justification: self-defence. Indeed, crimes by the police enjoy almost complete impunity, especially when those crimes are committed against refugees and migrants. Indeed, German police abuse refugees and migrants on a daily basis, and physical mistreatment is widespread, although punishment is rare - if it ever gets that far. In general, it is fair to say that the police force, just as society, is dominated by a racist, inhumane consensus that sees refugees and migrants in general as sub-human.[17]

Notes

[1] Initiative in Memory of Oury Jalloh, press release 14.6.05, Berlin/Dessau: http://thecaravan.org/node/298

[2] More detail on the composition of the monitoring group is available at http://de.wikipedia.org/wiki/Oury_Jalloh#cite_note-8

[3] http://initiativeouryjalloh.wordpress.com/presse/

[4] http://ouryjalloh.wordpress.com/newspressemitteilungen/

[5] See the trial reports on http://ouryjalloh.wordpress.com/

[6] Report to the German Government on the Visit to Germany Carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), from 20 November to 2 December 2005, adopted on 7 July 2006. CPT (2006) 36, Strasbourg, 28.7.06 http://www.bmj.de/files/-/2044/CPT%20Report%202006.pdf

[7] First trial day, 27.3.07 http://ouryjalloh.wordpress.com/2007/08/30/01-prozesstag/

[8] Call for observation of the Oury Jalloh Court Case, 19.3.07, http://no-racism.net/article/2022/

[9] Joint press release by the Refugee Initiative Dessau, the Anti-Racist Initiative Berlin (ARI), the Plataforma of Refugees and Migrants, and THE VOICE Refugee Forum, as part of the Initiative In Remembrance of Oury Jalloh, http://no-racism.net/article/1552/

[10] http://www.projektgegenpart.org/gp-chronik/front_content6f1f.html?idcat=92

[11] Süddeutsche Zeitung online, 16.10.07, http://www.sueddeutsche.de/deutschland/artikel/470/138188/5/

[12] Spiegel online, 7.7.2007, http://www.spiegel.de/politik/deutschland/0,1518,491935,00.html

[13] Chronicle of racist incidents in and around Dessau, 2.5.05 http://www.projektgegenpart.org/gp-chronik/front_content7c3a.html?client=1&lang=1&idcat=64&idart=478&m=&s=

[14] Ibid. 7.1.06, http://www.projektgegenpart.org/gp-chronik/front_content8f80.html?client=1&lang=1&idcat=76&idart=721&m=&s=

[15] Conference report by the trial monitoring group
http://ouryjalloh.wordpress.com/newspressemitteilungen/

[16] http://initiativeouryjalloh.wordpress.com/, 1.8.08

[17] http://no-racism.net/article/2022/, 19.3.07