Committee against Torture hears response of Austria

MORNING

6 Mai 2010

The Committee against Torture this morning heard the response of Austria to questions raised by Committee Experts on the combined fourth and fifth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Wednesday, 5 May, the delegation, which was led by Helmut Tichy, Ambassador and Legal Adviser at the Austrian Federal Ministry for European and International Affairs, confirmed once again, with regard to diplomatic assurances, that any concern that a person to be extradited might be subject to torture or ill-treatment could not be compensated by diplomatic assurances. There were no cases where a person had been deported or extradited from Austria on the basis of diplomatic assurances where there was a fear of such treatment. Concerning extraordinary renditions and secret detentions, Austria had consistently expressed the view that the fight against terrorism had to be conducted in strict accord with international human rights standards and international humanitarian law. Austria had participated in all the efforts of the Council of Europe to clarify that matter with regard to detainees and transport by air, and there had been no negative mention of Austria in the Council of Europe reports. Moreover, the European Parliament had said there was no doubt that Austria had not been involved in such extraordinary renditions.

Regarding procedural safeguards for detainees, the delegation noted that every detained person had to be informed prior to interrogation of the offence for which they were being held, the right to remain silent, and the right to consult with counsel prior to the interrogation. An information sheet for detainees, which was available in 50 different languages, was handed out to all those detained and set out their rights. Moreover, since November 2008 there was a Stand-By Legal Counselling Service. Every Criminal Investigation Department was obliged to mention the availability of that Service, and provide a copy of the handout explaining their activities and assistance they provided, including a hotline number. According to the guidelines for the Austrian Bar Association, if a detainee in police custody requested the presence of standby counsel, that counsellor had to present himself at the police station within three hours from that contact.

The Committee will submit its conclusions and recommendations on the report of Austria towards the end of the session on Friday, 14 May.

As one of the 146 States parties to the Convention against Torture, Austria is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes this afternoon at 3 p.m., it will consider the replies of Yemen (CAT/C/YEM/CO/2/Add.1) to the Committee's provisional concluding observations on the second periodic report of Yemen, which was reviewed in the absence of a delegation.

Response of Austria

Responding to a series of questions raised by Committee Experts on Wednesday, 5 May, the delegation of Austria confirmed once again, with regard to diplomatic assurances, that any concern that a person to be extradited might be subject to torture or ill-treatment could not be compensated by diplomatic assurances. There were no cases where a person had been deported or extradited from Austria on the basis of diplomatic assurances where there was a fear of such treatment.

Concerning extraordinary renditions and secret detentions, the delegation emphasized that Austria had consistently expressed the view that the fight against terrorism had to be conducted in strict accord with international human rights standards and international humanitarian law. Austria had participated in all the efforts of the Council of Europe to clarify that matter with regard to detainees and transport by air, and there had been no negative mention of Austria in the Council of Europe reports. Moreover, the European Parliament had said there was no doubt that Austria had not been involved in such extraordinary renditions.

On the issue of trafficking in children, the Austrian laws and human trafficking bodies did have a particular focus on that issue. Child victims of trafficking had access to legal assistance and the services of the youth welfare institutions. Austria was also actively involved in campaigns against sex tourism, in conjunction with the non-governmental organization End Child Prostitution, Child Pornography and the Trafficking of Children (ECPAT) and the Body Shop. Unaccompanied minors could request asylum, and Austrian regulations provided for special protections for such asylum-seekers, who were granted an automatic initial stay in the country of six months.

Concerning racism, racial discrimination, xenophobia and related intolerance, the delegation noted that a bill had been adopted by the Austrian Parliament in April 2010, which amended the relevant law on commission of hate crimes. The amendments aimed at transposing the provisions of the European Convention on Human Rights, in accord with the positions of the European Commission against Racism and Intolerance, as well as the recommendations of the Committee on the Elimination of Racial Discrimination with regard to the Convention on the Elimination of All Forms of Racial Discrimination. The new provision would in particular get rid of limitations on the acts concerned and would cover all hostile acts against groups defined by race, language, religion or belief, descent, national origin, age or sexual orientation, among others. It also prohibited the stirring up of hatred among such groups, in accordance with article four of the United Nations Convention on the Elimination of Racism.

Regarding procedural safeguards for detainees, the delegation noted that every detained person had to be informed prior to interrogation of the offence for which they were being held, the right to remain silent, and the right to consult with counsel prior to the interrogation. An information sheet for detainees, which was available in 50 different languages, was handed out to all those detained and set out their rights. (A copy in English was provided to members of the Committee.)

Since November 2008 there was a Stand-By Legal Counselling Service. Every Criminal Investigation Department was obliged to mention the availability of that Service, and provide a copy of the handout explaining their activities and assistance they provided, including a hotline number. (A copy of that handout was provided in English.) According to the guidelines for the Austrian Bar Association, if a detainee in police custody requested the presence of standby counsel, that counsellor had to present himself at the police station within three hours from that contact.

Minors received special protections in legal proceedings, the delegation said, and the right to presence of counsel during interrogations was never restricted. A person of trust was also to be present at interrogations of juveniles, unless a counsel was already present. The Government took all efforts to ensure that juveniles were detained only as a last resort and that was reflected by statistics: while juveniles committed 20 per cent of all crimes, juvenile detainees made up only 5 per cent of cases. While detention of juveniles was the exception, prison sentences for minors were a very rare exception.

Intervention centres against domestic violence had been set up in all provinces, the delegation said. To give an idea of concrete numbers, 6,600 persons had received a "go away" order by the police in 2008.

With regard to crimes of extremism and racial hatred, the rate of convictions for acts of hostility against various groups from 2005 to 2008 was between 18 and 32, while the number of convictions had only been between 3 and 11 for that same time period. However, it was hoped that that rate would increase with the entry into force of the new amendment to the hate crimes law, which greatly expanded the scope of the crimes sanctioned.

With regard to allegations that Austria did not do enough to prosecute war criminals, the delegation would just note that, between 1945 and 1955, 2,000 persons had been convicted of war crimes in Austria. Of those, 341 had received long prison sentences; 29 had received life sentences; and 43 had been sentenced to death (with 30 of those sentences having been carried out).

On the issue of caged beds, their use had been prohibited in the prisons. In psychiatric facilities the number of such beds had been greatly reduced, the delegation said. While the practice had not been completely prohibited in psychiatric institutions, it had been so limited by case law – where it was established that it could only be used in extreme cases as a last resort – that the use of such beds was increasingly rare.

To reduce the incidence of violence among inmates, particularly violent inmates were kept in solitary confinement. In cells in which there were several inmates, attempts were made to ensure that inmates that might be likely to fight were kept apart, for example, if they were from ethnic or national backgrounds that might lead to clashes. There were no separate statistics on sexual violence among inmates, but such acts were not frequent. However, in 2008, there had been 216 cases of violence among inmates, and in 2009 there had been 153 cases. So there was a positive trend there.

There were 8,500 prisoners in Austria, and there was no problem of overcrowding in Austria's prisons (i.e. among convicted prisoners). In contrast, there was an overcrowding problem in holding facilities for detainees.

As for cases of death in Austrian penitentiaries, the delegation wished to clarify the situation, in particular with regard to the six cases cited by the Committee Chairperson. In the case of the prisoner who was run over by a train, in August 2009, that prisoner had escaped and had then committed suicide by throwing himself under a train. In the first suffocation death, the prisoner had committed suicide by putting a plastic bag over his head and sealing it; the second such death was a prisoner that had choked on his own vomit. The gunshot death was a case in which a suspect had been shot by a policeman in the course of the arrest. The suspect had then died subsequently in prison. The drowning death occurred in a bath, where the inmate suffered from a circulation disorder. The death by falling out of the window had, obviously, occurred outside of the prison, where the windows were barred. That female prisoner had escaped from prison and had subsequently committed suicide at home by throwing herself from the window.

There had been 10 cases of suicide in Austrian prisons. To combat suicides, a "traffic light" system for assessing prisoners at risk was established. Guidelines for prisoners at risk of suicide meant that they could not be kept in solitary confinement, for example.

With regard to the use of Tasers, the X26 gun which was now being used again in Austrian penitentiaries had been cleared for use following a study. The Taser had been used from 2005 to 2008 in Austrian prisons. Then its use was suspended owing to incidents in Canada, which had led to the then-Austrian Justice Minister to temporarily prohibit their further use. She then commissioned a detailed study on the use of that device, which had concluded that the use of Tasers was permissible. Since its reintroduction in 2009, the Taser had not actually been used in the prisons, but the threat of its use had been sufficient for preventive purposes. Tasers could only be used in Austrian Prisons in situations where use of a lethal weapon was justified under law. Much money had been spent on training in the use of that weapon and the Tasers now incorporated a video camera device so such use would be documented, if used.

The asylum procedure in Austria was carried out in accordance with United Nations Refugee Agency best practice. In 2008, there were 12,841 asylum applications. Of those, 706 involved unaccompanied minors, and 1,264 cases which, in accordance with the Dublin II agreement, Austria was not competent for deportation of the asylum-seekers but another country. For 2009 and the first quarter of 2010, statistics were also available, and were provided to the Committee in writing. Medical examinations were available for asylum-seekers in accommodation centres. If the asylum-seekers claimed they were victims of torture, special doctors were brought in for an examination.

The Asylum Court was a specialized administrative court and its rulings were subject to review by the Constitutional Court. The Constitutional Court could nullify a decision that it felt was incorrect and send it back for reconsideration, or could directly grant the right to asylum by the applicant.

Turning to gender-specific asylum grounds, the delegation said that, according to around 15 decisions over the past years, asylum had been granted to women who were under threat of female genital mutilation, forced marriages and forced prostitution. In addition, a woman asylum-seeker from Afghanistan had been granted asylum last year on the basis of the fact that she lived alone and was Western oriented in her lifestyle which would subject her to threats to her physical security and integrity, including rape or other infringements of her rights, and that she would not be able to freely move about in public.

Questions by Committee Experts

LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Rapporteur for the Report of Austria, said one of his major concerns regarded changes in perceptions regarding racism, racial discrimination, xenophobia and related intolerance in political discourse and the need not to use that discourse to provoke torture and other cruel, inhuman or degrading treatment or punishment. Another concern was the need for more rigorous statistical data. For example, the delegation had acknowledged today that there were no statistics on sexual violence in prisons. That was needed, including breakdowns in statistics by gender, race and others.

Mr. Gallegos said a remaining issue that had gone unanswered was that of compensation, and he hoped that such answers would be provided in writing.

On specific cases, he would appreciate an answer on the outcome of the case of the Afro-American professor who had been visiting Vienna and had been mistaken for a drug dealer and beaten by the police.

Finally, with regard to the national human rights institution, Mr. Gallegos encouraged Austria to take measures to ensure that the Ombudsman's Board was raised from a category B to a category A institution according to international standards, in order to afford proper protections and recourse for those who had suffered human rights violations.

CLAUDIO GROSSMAN, the Committee Chairperson serving as Co-Rapporteur for the Report of Austria, asked for more precision with regard to restrictions on access to lawyers by detainees. What was meant by "serious" cases? He asked for specific examples of such cases and in how many such cases there had been an appeal.

Mr. Grossman also wanted particular details on two specific cases (Bakary J. and Cheibani Wague), as well as the case reported on in The New York Times (Mike B.).

Committee Experts then made additional comments and raised some additional concerns, including whether an assessment of the suicide prevention measures taken in prisons had been successful.

Response by Delegation

Responding to additional questions raised, the delegation of Austria replied that, with regard to the case reported on by the New York Times, in which plainclothes detectives had thought they had identified a drug dealer who bore a striking resemblance to the American professor, that the person in question had not realized what was going on, as the police were in plain clothes, and he had put up strong resistance. In the course of the arrest, he had received bodily harm. The case was still pending, and the charges against the police were negligent bodily harm.

In the Bakary case of ill-treatment, it was quite clear that four officials had misbehaved. That case had been completely examined in court and all involved had been condemned. Bakary was to be deported and as he had resisted force was used. All four participating officers were sentenced. Three had been dismissed from service and one that had had lesser involvement was fined five months' salary. Those sentences were currently under review by the administrative court. The court had also awarded 3,000 euros in compensation. That award was, however, incorrect, as the officers acted in accordance with their duties. If they caused someone damage, it was the employer that would have to be sued, in this case the Republic of Austria. But Mr. Bakary had not filled a request to make such a filing.

In the Cheibani case, four policemen were acquitted and one convicted of the death by asphyxiation of the prisoner when he was being held on the ground. Following that case, the norms and standards for restraining prisoners were revised in the hope of preventing such cases in future.

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