Committee against Torture begins examination of report of Austria

MORNING

5 May 2010

The Committee against Torture this morning began its consideration of the combined fourth and fifth periodic reports of Austria on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Helmut Tichy, Ambassador and Legal Adviser at the Austrian Federal Ministry for European and International Affairs, noted that the prohibition of all forms of torture and ill-treatment were part of Austria's constitutional, criminal and administrative law and that Austria had comprehensive mechanisms and procedures to monitor compliance with its human rights obligations and international human rights standards.

Turning to new developments, Mr. Tichy pointed out that the current work programme of the Government explicitly referred to recommendations of the Committee and envisaged a number of legal amendments relevant to the Convention against Torture. They concerned, in particular, the inclusion of a specific penal provision on torture into the Austrian Criminal Code and the creation of specific penal provisions implementing the penal provisions of the Rome Statute of the International Criminal Court concerning crimes against humanity and war crimes. The drafting of those new provisions was well under way. Additionally, a national preventive mechanism, as the main prerequisite for the ratification of the Optional Protocol to the Convention, would be established, and the legislative drafting for that mechanism would be concluded in the second half of 2010. Furthermore, the amendment of the Code of Criminal Procedure, which had entered into force on 1 January 2008, had led to a significant improvement concerning the transparency and independence of investigations.

Serving as Rapporteur for the report of Austria, Committee Expert Luis Gallegos Chiriboga raised a number of issues, including if Austria would consider establishing a full fledged legal aid programme for those being held in police custody; what measures had been taken to ensure that juveniles were not questioned by police without the presence of a lawyer or a family member; and safeguards for persons with disabilities, for example, the abolition of coercive medical measures linked to the treatment of such persons. He also highlighted that several instances, including the European Parliament, had reported that Austrian territory had been used for the practice of extraordinary renditions and asked for an answer from Austria on that issue.

Claudio Grossman, the Committee Chairperson serving as Co-Rapporteur for the report, asked for further details about restrictions on the right of a detainee to consult a lawyer; whether there had been an attempt to standardize interrogation techniques of suspects; and whether medical staff were trained on the Istanbul Protocol. He was particularly concerned by a high rate of suicides among Austrian prisoners and over the deaths of detainees; a number of the causes of death of prisoners seemed to call for more explanation, including deaths by suffocation, drowning, being run over by a train, gunshot wounds, and having fallen from a window.

Also representing the delegation of Austria were Christian Strohal, the Permanent Representative of Austria to the United Nations Office at Geneva and members of the Permanent Mission in Geneva, as well as representatives from the Federal Ministry for Justice, the Federal Chancellery, the Ministry of the Interior, and the Federal Ministry for European and International Affairs.

The delegation will return to the Committee at 10 a.m. on Thursday, 6 May, to provide its responses to the questions raised today.

Austria is among the 146 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 3 p.m. this afternoon, it will hear the responses of Liechtenstein to questions put by Experts on the morning of Tuesday, 4 May.

Report of Austria

The combined fourth and fifth periodic report of Austria (CAT/C/AUT/4-5) notes that, over the last two decades, dialogue and cooperation with the Committee against Torture and its regional sister institution, the European Committee for the Prevention of Torture, have contributed to an enhancement of Austria’s human rights standards as regards criminal procedure, measures of detention, and other coercion measures by State organs. The European Committee last visited Austria from 15 to 25 February 2009, and consideration of its last report, of 2004, has led to a thorough re-examination of regulations and policies in the fields concerned by the Austrian Authorities. Among new developments, Austria signed the Optional Protocol to the Convention against Torture on 25 September 2003. The programme of the previous national Government, whose term of office extended from January 2007 until December 2008, contained a commitment to ratify the Optional Protocol and create a national preventive mechanism. Between 2004 and 2007, the Austrian Federal Ministry for Foreign Affairs organized two conferences, and the Human Rights Advisory Board at the Federal Ministry of the Interior organized one conference on the Optional Protocol and options for a national preventive mechanism. Those conferences involved representatives from Austria’s competent Government departments, the Ombudsman Office, the Human Rights Advisory Board, the Federal Provinces, civil society and academics. Due to early national elections on 28 September 2008, it had not been possible to implement the commitment of the Government programme. Following the elections, on 2 December 2008, a new Government was sworn in whose programme reaffirms the commitment regarding the Optional Protocol.

Furthermore, the new Government’s programme contains the following commitments which are relevant to Austria’s obligations under the Convention: to increase the proportion of women in the national police force; to increase the proportion of persons with a migrant background in the national police force; to professionalize further the training of all staff of the Interior Department; to clarify, by means of legislation, the relation between asylum procedures and extradition procedures in case they concern one and the same person; to improve care and supervision in prisons, especially with respect to juvenile inmates, by increasing the number of prison staff in relation to the increased number of inmates and rendering their employment more effective; and to further strengthen the legal position of crime victims. This entails securing priority of their compensation claims before enforcement of fines and (certain) other rights of the State treasury; to expand the scope of the existing fundamental rights complaint with the Supreme Court beyond the fundamental right to liberty and security to encompass other fundamental rights; to amend the Penal Code in order to incorporate obligations deriving from the Rome Statute of the International Criminal Court regarding crimes against humanity and war crimes; to incorporate a definition of torture into the Penal Code and to amend provisions regarding the penal law protection from torture in implementation of a recommendation made by the Committee against Torture; and to make penal law protection from racism and xenophobia more effective, by amending the provision regarding incitement in the Penal Code and by widening the circle of protected groups and persons.

Presentation of Report

HELMUT TICHY, Ambassador and Legal Adviser at the Austrian Federal Ministry for European and International Affairs, began by underlining Austria's full dedication to the promotion and protection of human rights and the rule of law, which constituted priorities of its domestic and foreign policy. The Austrian Government therefore attached great importance to the full compliance with its international human rights obligations, especially the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

Mr. Tichy noted that the foregoing policy was based on a comprehensive legal framework: legal provisions on the prohibition of all forms of torture and ill-treatment were part of Austria's constitutional, criminal and administrative law. Austria also had comprehensive mechanisms and procedures to monitor compliance with its human rights obligations and international human rights standards.

Most recently, on 23 February 2010, the Austrian Government had adopted its "Pledges and Commitments" relating to Austria's candidature for membership in the Human Rights Council for the period 2011 to 2014. Those included the commitment to ratify the Optional Protocol to the Convention against Torture and the International Convention for the Protection of All Persons from Enforced Disappearance, as well as the inclusion of a specific penal provision on torture in the Austrian Criminal Code.

The absolute prohibition of torture was also reflected in Austria's approach to combating terrorism, and Austria remained convinced that efforts to combat terrorism had to be carried out in full compliance with international human rights standards and the rule of law, Mr. Tichy added.

Austria had always strongly supported international initiatives to combat torture, and in particular the mandate of the United Nations Special Rapporteur on torture. In that connection, Mr. Tichy highlighted that Austria had issued a standing invitation to all Special Procedures of the Human Rights Council and it supported, domestically and internationally, policies aimed at preventing and eradicating torture and ill-treatment. Moreover, Austria fully cooperated with international and regional monitoring mechanisms in this field, in particular with the United Nations human rights treaty bodies and the mechanisms of the Council of Europe, in particular the European Committee for the Prevention of Torture and the European Commission against Racism and Intolerance. Last year, the European Committee and the European Commission had, respectively, undertaken their fifth and fourth visits to Austria.

Turning to new developments following up on Austria's response to the Committee's list of issues, Mr. Tichy pointed out that the current work programme of the Government explicitly referred to recommendations of the Committee and envisaged a number of legal amendments relevant to the Convention against Torture. They concerned, in particular, the inclusion of a specific penal provision on torture into the Austrian Criminal Code and the creation of specific penal provisions implementing the penal provisions of the Rome Statute of the International Criminal Court concerning crimes against humanity and war crimes. The drafting of those new provisions was well under way. Additionally, a national preventive mechanism, as the main prerequisite for the ratification of the Optional Protocol to the Convention, would be established, and the legislative drafting for that mechanism would be concluded in the second half of 2010. It was envisaged to mandate the Austrian Ombudsman's Board with the monitoring task and to incorporate the existing Human Rights Advisory Board and its commissions into the new structure.

Turning to responses to specific questions submitted by the Committee, concerning the concept of "open concept" for pre-deportation detention centres for foreigners, Mr. Tichy explained that substantial structural improvement was being undertaken, with the aim of a strict separation of persons pending deportation from persons detained on the basis of a criminal sentence. As a first step, the construction of a modern pre-deportation detention centre for up to 220 persons was planned at Vordernberg in Styria. The start of construction was envisaged for Spring 2011. The "open concept" would be realized according to international standards, paying attention to the needs of persons pending deportation and guaranteeing them free disposition [sic] over their daily schedule.

With regard to allegations of ill-treatment against law enforcement officials, Mr. Tichy reiterated that there had always been a clear "zero tolerance" policy regarding any form of torture and other cruel, inhuman or degrading treatment or punishment. Notwithstanding all the Government's efforts, unfortunately there were still some individual cases of ill-treatment. However, all allegations against members of the security authorities had to be investigated promptly, effectively and impartially.

In that connection, Mr. Tichy observed that the amendment of the Code of Criminal Procedure, which had entered into force on 1 January 2008, had led to a significant improvement concerning the transparency and independence of investigations. Implementing those new rules, on 6 November 2009 the Federal Minister of Justice had issued a decree concerning the responsibilities and procedures for cases of allegations of ill-treatment. The aim of the new laws and regulations was to exclude any appearance of bias during the investigations and to clarify suspicions of ill-treatment against members of the security authorities and security services and officers of the penitentiary system.

The Austrian Authorities put great emphasis on awareness-raising and training programmes for law enforcement officials, judges and public prosecutors in order to maintain their high human rights standards throughout their practical implementation. Law enforcement officials were specially trained with regard to prevention of torture. Awareness-raising on that subject was a mandatory component of both basic trainings and advanced courses for police staff, judges, public prosecutors and the like. Those training programmes had been in existence for many years and had been constantly improved based on recommendations from this Committee, the European Committee and the European Commission against Racism and Intolerance, as well as from the Human Rights Advisory Board.

Among human rights training courses for the police, Mr. Tichy singled out a project that aimed to highlight the role of the police as a human rights protection organization. That modern understanding had influenced the self-perception of the police services, the management of human resources, the organizational structures and the operational procedures. On the basis of that new approach, the Federal Ministry of the Interior had established a new training course called "POLICE.(EM)POWERS.HUMAN.RIGHTS", with the aim of conveying those principles to the police in a systematic approach.

Questions Raised by Committee Experts

LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Rapporteur for the Report of Austria, wondered, with regard to the information that the crime of torture would soon be incorporated in the Austrian Criminal Code, whether the definition would contain all the elements as set out in the Convention?

Among others, Mr. Gallegos wondered how violence was monitored in detention centres; and if Austria would consider establishing a full fledged legal aid programme for those being held in police custody, as had been recommended by the European Committee for the Prevention of Torture. Moreover, could the delegation explain the concrete measures already taken to ensure that juveniles were not questioned by police without the presence of a lawyer or family member?

In relation to non-refoulement obligations, Mr. Gallegos asked for further clarification about the use of diplomatic assurances in the context of returns. According to Austria's written replies, in 2009, 28 preliminary investigations had been initiated for alleged abuse by law enforcement officers reported by asylum-seekers. Proceedings had been dismissed in 16 cases and discontinued in 1, while proceedings were pending in 11 cases. The delegation was asked to provide an update on the disposition of those cases.

Mr. Gallegos was further concerned about safeguards for persons with disabilities, for example, the abolition of coercive medical measures linked to the treatment of such persons?

Mr. Gallegos emphasized the Committee's concern about issues of violence against women and domestic violence, which were clearly cases of ill-treatment that fell under the Committee's competence. In that context, he was concerned, in particular, about safeguards for asylum-seeking women and children. Was there a clear adoption of a gender perspective in the national action plan for migrants, for example?

Concerning protections for vulnerable groups, such as the Roma, Mr. Gallegos asked what measures were taken to prevent arrests, questioning or investigation on the basis of physical appearance? He further asked for a breakdown of complaints brought against law enforcement officials by race, colour, descent and national or ethnic origin.

Finally, a number of instances, including the European Parliament, had reported that Austrian territory had been used for the practice of extraordinary renditions. Mr. Gallegos wanted an answer from Austria on this issue. This was linked to the position of Austria on diplomatic assurances.

CLAUDIO GROSSMAN, the Committee Chairperson serving as Co-Rapporteur for the Report, asked for further details about restrictions on the right of a detainee to consult a lawyer, as the report set out that "defence counsel may be put under surveillance and be restricted to the granting of a power of attorney and a short and general legal consultation ... to prevent interference in ongoing investigations or corruption of evidence". Any restrictions to detainees’ basic rights were of concern, so he asked for further details on those exceptions and examples.

In its written replies, Austria had noted that its Code of Criminal Procedure ruled out testimony to the detriment of the defendant obtained in interrogations by torture, or if the interrogation had been carried out exerting "other inadmissible forms of influence on free will" or using "inadmissible interrogation methods". In that connection, Mr. Grossman asked what were considered to be inadmissible influence to the free will of detainees and what were inadmissible interrogation methods? Had there been an attempt to standardize interrogation techniques? What guidelines were applicable?

On training, Mr. Grossman asked if medical staff were trained on the Istanbul Protocol, which helped to establish whether torture had been committed.

A further concern voiced by Mr. Grossman was a high rate of suicides among Austrian prisoners. Similarly, with regard to deaths of detainees, what medical services were available to detainees and what did the Government do to ensure that their medical condition was taken into consideration?

Moreover, a number of the causes of death of prisoners appeared to call for further explanation, including deaths by suffocation, drowning, being run over by a train, gunshot wounds, and having fallen from a window.

Mr. Grossman cited a number of specific cases where convictions of abuse or ill-treatment against law enforcement agents had been found. It appeared to him that the perpetrators had received penalties that were too light in comparison with the gravity of the crimes committed and that the compensation granted to victims was way too low.

Other issues raised by Mr. Grossman concerned prison overcrowding and measures to correct that and the situation of detainees on hunger strike.

Other Committee Experts asked questions related to extradition procedures; whether a decision by the tribunal that decided on asylum cases could be appealed; a lack of clarity in the obligation that, for interrogations without a lawyer, an audio "or" visual recording of the interrogation had to be made "if possible"; what specialized law enforcement units or personnel there were for handling violence against women and domestic violence cases; the use of caged beds or "net beds" in psychiatric hospitals; information sessions or training for professional staff involved in child care and social services; and complaints mechanisms for persons in institutional care.

Further concerns raised by Experts included the use of Taser guns, and the fact that an expert group was carrying out a study on the use of Tasers in prisons; and how the Human Rights Advisory Board coordinated with the Ministry of Justice and the Ministry of the Interior, including if the Advisory Board had a monitoring role with regard to those two ministries.

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