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11 November 1999
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HR/CAT/99/32
11 November 1999
COMMITTEE AGAINST TORTURE ISSUES CONCLUSIONS OF MALTA
Committee Continues Consideration of Report of Austria
The Committee against Torture this afternoon presented its conclusions and recommendations concerning the report of Malta. It also heard responses to questions it posed Wednesday to Austria about its report on how the country is implementing the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
In its conclusions and recommendations to Malta, the Committee welcomed the improvement of correctional facilities, in particular, arrangements for housing illegal immigrants. It was pleased to learn that asylum seekers would be supervised by the police instead of special forces. It also made note of the fact that Malta ratified the 1957 European Convention on Extradition. Expanded human rights training at police academies was appreciated by the Committee, as was the anticipated Asylum Act, which will be presented to Parliament and would include, among other things, the removal of the geographical exception to asylum seekers, and the appointment of a commissioner to decide asylum cases.
The committee recommended that the Government of Malta ensure that the envisaged Asylum Act be consistent with the provisions of the Constitution. It wished to see Malta ensure that victims of torture are not discouraged from lodging a complaint through the use of intimidation tactics or threats. The Committee also suggested that submission of the next periodic report should be delayed until December 2000.
Also this afternoon, the Committee heard the responses to the questions it posed to Austria yesterday. Austrian delegation members Wolf Szymanski and Roland Miklav said that, although torture was not itself defined as s crime under Austria’s domestic laws, all forms of torture and all forms of participation were clearly punishable under law, therefore leaving the country in compliance with the Convention.
The Committee will reconvene on Friday, 12 November at 10 a.m. to consider the third periodic report of Peru.
Conclusions and Recommendation to Malta
In its conclusions and recommendations to Malta, the Committee welcomed the following developments: the improvement of correctional facilities, in particular, arrangements for housing illegal immigrants; entrusting the supervision of asylum seekers to the normal police instead of the Special Assignment Group; the ratification of the 1957 European Convention on Extradition; the inclusion of human rights in the training of the police academy; the expected presentation to Parliament of the Asylum Act which includes: the removal of the geographical exception to asylum seekers; a commissioner appointed to decide asylum cases; the right to appeal the Commissioner's decision ; and the fact that asylum seekers cannot be deported before a final decision was taken on their case.
The committee recommended that: the State party ensure that the envisaged Asylum Act be consistent with the provisions of the Constitution; the State party should ensure that victims of torture are not dissuaded from lodging a complaint through the use of intimidation tactics or threats; the next periodic report due in October 1999 be submitted in December 2000.
Responses from Austria
WOLF SZYMANSKI AND ROLAND MIKLAV, members of the Austrian delegation, divided up their responses according to questions posed by Committee members about criminal law and about police law.
They apologized for the delay in the report to the Committee, which was due to a number of factors. They also said that while it would have been preferable to have more statistics in the report, many were not available. In the future, they said, the Committee's guidelines will certainly be followed.
Concerning Article 4, which stated that all acts of torture be criminal offenses, this obligation was fully implemented by Austria's criminal law. It fell under the provision of “injury of any kind or harm to one's health”. This included various forms of assault and homicide under the Austrian criminal code. The code also provided for persons suffering from mental assault. All forms of torture and all forms of participation were clearly punishable under Austrian law, and as such, Austria conformed to the Convention.
Addressing what they called the judicial points of the Committee’s questions, they said Austria implemented new legal provisions regarding detention in 1993. This had led to a significant reduction in the number of detainees, primarily because of the reduction in time a person spends in detention. The first court order must be issued within 48 hours after arrest on the basis of a decision by a judge, and is valid for two weeks only. The first continuation can only be for one month, and after, for only two months. Every decision must have legal counsel, and the first possibility was a lawyer of the defendant’s choice. Failing that, Austria had an elaborate legal aid system. There was an absolute limit for detention which is six months.
A judge could not order total isolation. A defense counsel always had access to a prisoner. Restrictions on access to the defendant were bound to the grounds of danger of collusion, such as intimidating witnesses or endangering the finding of truth. One form of restriction was that contact between the lawyer and the detainee is limited by the presence of a judge. This was restricted to two weeks after the detention and could rarely be extended for up to two months, based on the danger of collusion.
The problem of police filing counter-charges had slowed in the past 10 years, since then prosecutors have been instructed not to pursue the cases without clear reasons to do so.
Austria, they said, excluded evidence collected as a result of torture. A comprehensive renewal of pre-trail procedure was drafted and it expressly mentioned the exclusion of evidence clause.
Answering a question from Dr. Sorensen about why there was only a reference to physical integrity of the person and not also the psychological integrity of the person, they said police had to protect both the physical and the psychological integrity of the person.
Regarding detainees, the Constitutional law on the protection of the freedom of persons stated that a person deprived of his freedom had the right to inform a person in confidence for legal assistance. The information given to the detainee was contained on an information sheet which a detainee had to sign.
In general, detention concerning expulsion could last up to six months. The law called for the Ministry of the Interior to provide statistics about detention. Each year the statistics on police actions were presented to Parliament. Complaints had not dropped, they said; the law seemed to have incited people to make more complaints. Disciplinary action against the police was independent. The prohibition of torture was integral to police training, they added.
Referring to the case of Mr. Marcus Omafuma, a Nigerian national who died after having tape placed over his mouth when he tried to shout at and bite police officers as he was being expelled to Nigeria. An investigation was carried out quickly, and the three officers were removed the next week. The judicial authorities now had the case, and they would decide if there would be a trial. Since then, the Ministry of the Interior had taken a number of initiatives, including informing officers how to carry out an expulsion. The use of celotape was no longer allowed. A committee had been established to safeguard human rights; it had met and made recommendations about expulsions of aliens by planes. The Minister of the Interior said he would follow up on these recommendations and state publicly if he wasn't going to follow one of the recommendations.
Comments on the report
BENT SORENSEN, the rapporteur to the report, asked where in the law were the police instructed to protect the psychological, as well as the physical, well-being of the person? If the psychological element was not specifically mentioned, the torturer may think he could do anything as long as he didn't cause physical harm.
ALEXANDER YAKOVLEV, co-rapporteur to the report, said that watering down the definition of torture by including it with other crimes was not acceptable. The State should be responsible for acts of torture so it was important to separate it out as a crime.
HR/CAT/99/32
11 November 1999
COMMITTEE AGAINST TORTURE ISSUES CONCLUSIONS OF MALTA
Committee Continues Consideration of Report of Austria
The Committee against Torture this afternoon presented its conclusions and recommendations concerning the report of Malta. It also heard responses to questions it posed Wednesday to Austria about its report on how the country is implementing the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
In its conclusions and recommendations to Malta, the Committee welcomed the improvement of correctional facilities, in particular, arrangements for housing illegal immigrants. It was pleased to learn that asylum seekers would be supervised by the police instead of special forces. It also made note of the fact that Malta ratified the 1957 European Convention on Extradition. Expanded human rights training at police academies was appreciated by the Committee, as was the anticipated Asylum Act, which will be presented to Parliament and would include, among other things, the removal of the geographical exception to asylum seekers, and the appointment of a commissioner to decide asylum cases.
The committee recommended that the Government of Malta ensure that the envisaged Asylum Act be consistent with the provisions of the Constitution. It wished to see Malta ensure that victims of torture are not discouraged from lodging a complaint through the use of intimidation tactics or threats. The Committee also suggested that submission of the next periodic report should be delayed until December 2000.
Also this afternoon, the Committee heard the responses to the questions it posed to Austria yesterday. Austrian delegation members Wolf Szymanski and Roland Miklav said that, although torture was not itself defined as s crime under Austria’s domestic laws, all forms of torture and all forms of participation were clearly punishable under law, therefore leaving the country in compliance with the Convention.
The Committee will reconvene on Friday, 12 November at 10 a.m. to consider the third periodic report of Peru.
Conclusions and Recommendation to Malta
In its conclusions and recommendations to Malta, the Committee welcomed the following developments: the improvement of correctional facilities, in particular, arrangements for housing illegal immigrants; entrusting the supervision of asylum seekers to the normal police instead of the Special Assignment Group; the ratification of the 1957 European Convention on Extradition; the inclusion of human rights in the training of the police academy; the expected presentation to Parliament of the Asylum Act which includes: the removal of the geographical exception to asylum seekers; a commissioner appointed to decide asylum cases; the right to appeal the Commissioner's decision ; and the fact that asylum seekers cannot be deported before a final decision was taken on their case.
The committee recommended that: the State party ensure that the envisaged Asylum Act be consistent with the provisions of the Constitution; the State party should ensure that victims of torture are not dissuaded from lodging a complaint through the use of intimidation tactics or threats; the next periodic report due in October 1999 be submitted in December 2000.
Responses from Austria
WOLF SZYMANSKI AND ROLAND MIKLAV, members of the Austrian delegation, divided up their responses according to questions posed by Committee members about criminal law and about police law.
They apologized for the delay in the report to the Committee, which was due to a number of factors. They also said that while it would have been preferable to have more statistics in the report, many were not available. In the future, they said, the Committee's guidelines will certainly be followed.
Concerning Article 4, which stated that all acts of torture be criminal offenses, this obligation was fully implemented by Austria's criminal law. It fell under the provision of “injury of any kind or harm to one's health”. This included various forms of assault and homicide under the Austrian criminal code. The code also provided for persons suffering from mental assault. All forms of torture and all forms of participation were clearly punishable under Austrian law, and as such, Austria conformed to the Convention.
Addressing what they called the judicial points of the Committee’s questions, they said Austria implemented new legal provisions regarding detention in 1993. This had led to a significant reduction in the number of detainees, primarily because of the reduction in time a person spends in detention. The first court order must be issued within 48 hours after arrest on the basis of a decision by a judge, and is valid for two weeks only. The first continuation can only be for one month, and after, for only two months. Every decision must have legal counsel, and the first possibility was a lawyer of the defendant’s choice. Failing that, Austria had an elaborate legal aid system. There was an absolute limit for detention which is six months.
A judge could not order total isolation. A defense counsel always had access to a prisoner. Restrictions on access to the defendant were bound to the grounds of danger of collusion, such as intimidating witnesses or endangering the finding of truth. One form of restriction was that contact between the lawyer and the detainee is limited by the presence of a judge. This was restricted to two weeks after the detention and could rarely be extended for up to two months, based on the danger of collusion.
The problem of police filing counter-charges had slowed in the past 10 years, since then prosecutors have been instructed not to pursue the cases without clear reasons to do so.
Austria, they said, excluded evidence collected as a result of torture. A comprehensive renewal of pre-trail procedure was drafted and it expressly mentioned the exclusion of evidence clause.
Answering a question from Dr. Sorensen about why there was only a reference to physical integrity of the person and not also the psychological integrity of the person, they said police had to protect both the physical and the psychological integrity of the person.
Regarding detainees, the Constitutional law on the protection of the freedom of persons stated that a person deprived of his freedom had the right to inform a person in confidence for legal assistance. The information given to the detainee was contained on an information sheet which a detainee had to sign.
In general, detention concerning expulsion could last up to six months. The law called for the Ministry of the Interior to provide statistics about detention. Each year the statistics on police actions were presented to Parliament. Complaints had not dropped, they said; the law seemed to have incited people to make more complaints. Disciplinary action against the police was independent. The prohibition of torture was integral to police training, they added.
Referring to the case of Mr. Marcus Omafuma, a Nigerian national who died after having tape placed over his mouth when he tried to shout at and bite police officers as he was being expelled to Nigeria. An investigation was carried out quickly, and the three officers were removed the next week. The judicial authorities now had the case, and they would decide if there would be a trial. Since then, the Ministry of the Interior had taken a number of initiatives, including informing officers how to carry out an expulsion. The use of celotape was no longer allowed. A committee had been established to safeguard human rights; it had met and made recommendations about expulsions of aliens by planes. The Minister of the Interior said he would follow up on these recommendations and state publicly if he wasn't going to follow one of the recommendations.
Comments on the report
BENT SORENSEN, the rapporteur to the report, asked where in the law were the police instructed to protect the psychological, as well as the physical, well-being of the person? If the psychological element was not specifically mentioned, the torturer may think he could do anything as long as he didn't cause physical harm.
ALEXANDER YAKOVLEV, co-rapporteur to the report, said that watering down the definition of torture by including it with other crimes was not acceptable. The State should be responsible for acts of torture so it was important to separate it out as a crime.