COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF AUSTRIA
The Committee against Torture this morning began its consideration of the third periodic report 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.
Ferdinand Trauttmansdorff, Ambassador at the Federal Ministry for Foreign Affairs of Austria, introduced the report, saying that the promotion and protection of human rights and the rule of law were important priorities of Austria’s policy on the domestic as well as on the international level. Within this policy, the implementation of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment was clearly of major importance. The new phenomenon of terrorism and organized crime and the ruthless methods of their perpetrators had developed a new stress for the justice systems around the world, and their executive branches that required a constant refining of the methods of preventing torture. Under the impression of the fight against terrorism, doubts had been raised about the absolute character of the prohibition of torture, and this made it clear that global efforts for the promotion of human rights and the prohibition of torture needed to continue.
Serving as Rapporteur for the report of Austria was Committee Expert Sayed Kassem Al-Masry, who said the delegation had raised a very interesting issue, which was the relationship between the events of 11 September 2001 and torture, as this was a very important issue, which was a potential danger to the whole system, as doubts about the absolute nature of the prohibition of torture were widespread, and it was feared that torture would be accepted unless the international community combined its efforts to reject this concept, otherwise, it would become an accepted practice. The numerous measures taken to attend to the views of the Committee and the other suggestions were appreciated, in particular that of the reorganization of the deportation process with special attention to human rights, and these measures were welcomed by the Committee.
Other Committee Experts raised questions on issues pertaining to, among other things, the imprisonment of juveniles and their access to education, their incarceration together with adults if this was determined to be in the best interest of the juvenile; reports of allegations of physical ill-treatment in order to extract confessions and what preventative measures had been taken in this regard; issues linked to medical examinations in prisons and the presence of a police officer; measures to monitor the occurrence of a variety of gender-based acts including sexual violence and why data on these acts was not available; circumstances under which female asylum seekers were interviewed and by whom; and a request for further information on the number of asylum-seekers and returnees, namely for the countries of origin of the latter.
Also representing the delegation of Austria were representatives of the Austrian Mission to the United Nations Office at Geneva, the Ministry of Justice, and the Ministry of the Interior.
The delegation will return to the Committee on Thursday, 17 November at 3 p.m. to provide its response to the questions raised this morning.
Austria is among the 140 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 10 a.m. on Thursday, 17 November, it will begin its review of the third periodic report of France (CAT/C/).
Report of Austria
The third periodic report of Austria says the commitment to the protection and promotion of human rights and fundamental freedoms has always been a fundamental principle of Austrian policy both in Austria and abroad. As one of the most essential elements of human rights, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment is thus of major relevance in this respect. Austria considers it very important to note that all acts that may be described as “torture” within the meaning of article 1 of the Convention were already punishable under the Austrian Penal Code prior to the ratification of the Convention.
The recommendation of the Committee against Torture regarding the punishment of torture in its previous recommendations has thus been fully complied with under Austrian criminal law. That the definitions of the offence in the Austrian Penal Code as they are normally used differ from the definition of torture in article 1, paragraph 1, of the Convention does not change this situation and is essentially due to the fact that from an overall perspective, the Austrian definition covers a wider range of criminal acts than the provisions of the Convention. Since the submission of the second periodic report, the relevant legal provisions guiding the Austrian police forces have been further developed, and the consideration of human rights issues by the police has become a firmly established process and essential element of securing the quality of their work. Fundamental rights and human rights and how they can be secured and implemented in legal practice also form an important element of the professional training of judges and public prosecutors.
As regards the administration of prisons, continuous efforts are being made to improve the detention and accommodation conditions, by reducing for example the number of prisoners per cell and creating more single cells. These efforts are facilitated by the fact that in the last several years, the number of prisoners in Austria has remained more or less stable. Special attention is currently being paid in court prisons to the treatment of inmates in acute and exceptional situations (extremely aggressive or mentally unstable) and to a professional crisis management strategy for such situations. The reform of the criminal investigation procedure (preliminary proceedings) which has been the subject matter of discussions for several years and has been prepared by the Federal Ministry of Justice, entered a concrete phase in April 2001 when a comprehensive bill of law was completed and sent to the competent bodies for general consultation.
Presentation of Report
FERDINAND TRAUTTMANSDORFF, Ambassador at the Federal Ministry for Foreign Affairs of Austria, said Austria attached great importance to the work of the Committee. The promotion and protection of human rights and the rule of law were important priorities of Austria’s policy on the domestic as well as on the international level. Within this policy, the implementation of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment was clearly of major importance. Austria was very much aware of the fact that the implementation of the policy had not become any easier compared with the situation at the time of the elaboration, the adoption and the ratification of the Convention against Torture. The new phenomenon of terrorism and organized crime and the ruthless methods of their perpetrators had developed a new stress for the justice systems around the world, and their executive branches that required a constant refining of the methods of preventing torture. The Committee had an important role not only in questioning States parties on the measures of implementation, but also in the field of dissemination of the norms against torture and of communicating methods and best practice.
Austria was no exception to the rule in today’s globalized world, Mr. Trauttmansdorff said. Constant vigilance was required in order to implement the norms of the Convention as uncompromisingly as the objectives of the constant and traditional Austrian policy in this field required. Austria’s public opinion was so sensitive in the field of excessive use of power by public officials in general and any kind of act of cruel, inhuman and degrading treatment or punishment in particular, that cases of misbehaviour reached a very high degree not only of national but also international visibility that could negatively distort the reality of Austrian efforts towards preventing any kind of misbehaviour falling under the scope of the Convention. Austria recognised that its efforts on the international level against the widespread practice of torture around the world had to be somewhat consistent with Austria’s efforts on the domestic level. The report reflected these efforts. Cooperation with the existing international monitoring and prevention mechanisms in the field of torture was therefore a matter of course for Austria.
In the first half of next year, Austria would take on the presidency of the European Union. In this context, it had ambitious plans in the human rights sector as a whole, and in the area of torture in particular. One of the human rights priorities during the presidency would clearly be the promotion of the European Union Guidelines on Torture. It would also continue its lobbying efforts on the Optional Protocol to the Convention. Until 11 September 2001, the prohibition of torture appeared to be almost self-evident, and a consensual goal for all. However, under the impression of the fight against terrorism, doubts had been raised about the absolute character of the prohibition of torture, and this made it clear that global efforts for the promotion of human rights and the prohibition of torture needed to continue. Austria was actively engaged domestically and internationally in furthering a policy that aimed at eradicating torture and other cruel, inhuman or degrading treatment or punishment worldwide.
Response by Delegation to Questions Sent to the State Party before the Meeting
On the definition of torture, Mr. Trauttmansdorff said there had been discussions in the Committee on whether this went far enough, and Austria was open to continuing this discussion, as it touched, to a large extent, upon the situation that, under the threat of new forms of terrorism and organized crime that took advantage of the developments of a globalized world, had put a new kind of stress on justice systems around the world. Politicians tended to react to these challenges and sometimes forgot the need to be careful regarding the maintenance of at least the basic rules that had been adopted by the world community and to accept these on a wide level. An encroachment of these was taking place to such an extent that they even contradicted what was accepted publicly.
Austria was very grateful that it had been spared the effects of international terrorism over recent years, and therefore could not speak for those countries that had been so affected, but on the other hand, Austria was facing the effects of organized crime, which came to a certain extent along with uncontrolled migratory movements. Therefore, it had to be very vigilant in this regard as far as the scope of the Convention was concerned, Mr. Trauttmansdorff said. Austria considered the best way of implementing the definition of torture was through the implementation of the Austrian Criminal Law. It believed that the definition of torture contained therein went beyond that of the Convention. Austrian criminal law provided a wider protection than was included in the wording of the Convention in several areas, including practice and jurisprudence on bodily harm, and ill-treatment.
On the rights of people in police custody and the maximum period of custody, Mr. Trauttmansdorff said that the right to access to a lawyer had been regulated by a decree in 2003, which said that suspects had the right to a lawyer when being interrogated by police, and should be informed of this right. Since the last report, Austria had undertaken a far-reaching reform of the Criminal Procedure Act, and it now incorporated this right into its provisions. Pursuant to these, the Police could decide that contact between a lawyer and his or her client could be monitored under certain situations involving threats, or reject the presence of a lawyer during interrogation if this appeared to be necessary in order not to impair evidence. Austria had developed an updated information sheet for those detained by the police. Whenever a suspect was arrested pursuant to a warrant, the issuing court had to be informed immediately, and the arrestee brought before the court within 48 hours. If no warrant was issued, the Public Prosecutor had to be informed immediately following arrest, and the arrestee brought before the competent court or prison within 48 hours.
If there was an infringement of the Criminal Code by a member of the police force, this could not be justified by the claim of following orders by a superior, Mr. Trauttmansdorff said. On gender-based breaches of the Convention, the Criminal Code included a number of provisions that took care of criminal acts falling under this, including sexual violence. Specific provisions were included regarding rape, sexual abuse, sexual assault of a defenceless person or person of limited mental ability, and abuse of a relationship of authority. There were also aggravating factors if a person was misusing a position of public authority.
On the detention of juveniles, Mr. Trauttmansdorff said that they were kept separate from adult detainees. When juveniles served prison sentences exceeding 18 months, they were kept in a special institution only for juveniles. Additional means had been put at the disposal of the Justice Ministry for justice administration and on places on police custody. There had recently been substantial efforts to increase the numbers of prison guards. There was constant pressure on the public sector to continue to provide resources on the financial and human level. On the issue of non-refoulement, when there were substantial grounds for believing that the person would be in danger of being subjected to torture, the Austrian public was very sensitive to this issue, and the existing provisions of Austria clearly prohibited extradition when there was reason to fear that the criminal proceedings in the requesting state did not or would not comply with the Convention on the Protection of Human Rights and Fundamental Freedoms.
On training for law-enforcement officials, the Austrian Government attached particular importance to this issue, and seminars and training on human rights formed a regular part of their work for judges and public prosecutors, Mr. Trauttmansdorff said. The treatment of detainees was given special importance, and topics treated included Inter-Cultural Competence. On restraining methods, a group had been set up which had evaluated means to restrain resisting persons, whilst taking experience into account. Compensation in Austria, according to long-term Court practice, was not granted in a way similar to that current in America with regards to immaterial damage, and sums were somewhat restricted. On the exclusion of evidence resulting from the application of torture, this was covered in a specific section of the Criminal Code. Health care in prisons was an area to which Austria attached high importance in order to improve and maintain the current situation. Austria had tried to introduce and maintain a strict practice on issuing visas and work permits in order to combat trafficking, and when victims entered Austria by legal or illegal means, Austria tried to help them to the greatest possible extent.
On Government measures to respond to terrorism and implementing safeguards in law and practice so that these did not affect human rights, Mr. Trauttmansdorff said that Austria had taken a number of measures at the national and international level to ensure that this was the case. On the national level, it had introduced three new indictable offences into the penal code on terrorism, including forming a terrorist group, terrorist offences, and financing a terrorist group, and these made the Austrian justice system applicable and better tuned to the new threats, thereby preventing that practices that encroached or undermined established international rules in the field be used.
Questions by Experts
SAYED KASSEM AL-MASRY, the Committee Expert serving as Rapporteur for the report of Austria, said Mr. Trauttmansdorff had raised a very interesting issue, which was the relationship between the events of 11 September 2001 and torture, as this was a very important issue, which was a potential danger to the whole system, as doubts about the absolute nature of the prohibition of torture were widespread, and it was feared that torture would be accepted unless the international community combined its efforts to reject this concept, otherwise it would become an accepted practice. The Committee therefore looked forward to Austria’s Presidency of the European Union in this context and that of the European Union Guidelines on Torture. The question of periodicity presented itself in this report, as the second periodic report had been due in 1992, and was submitted in 1998. The third report was due in 1996, and the Committee in its previous consideration of the second report requested the State party submit it by 2000, but it had not received it until 2003. Austria was not alone in this regard, but the usual excuses of financial and human constraints could not apply in the case of Austria.
The numerous measures taken to attend to the views of the Committee and the other suggestions were appreciated, in particular that of the reorganization of the deportation process with special attention to human rights, and these measures were welcomed by the Committee, Mr. Al-Masry said. The involvement of non-governmental organizations in the expulsion was also welcomed, as was their participation in the system as a whole. The decree of 2003 had regulated the right of access to a lawyer when being interrogated by the police, and this was welcomed, as was the development of the information sheet for detainees, which was available in 26 languages and contained the various rights of the detainee. There were many improvements in conditions of detention, Mr. Al-Masry said. On the criminalisation of trafficking in human beings, there had been a positive development, as it was now no longer limited to trafficking for prostitution, but for all forms of exploitation.
There was still a difference of opinion with regards to the definition of torture, Mr. Al-Masry said. The Austrian Criminal Code cited racism and xenophobia as an aggravating factor for an assessment of punishment; however, it was not clear whether the causing of suffering was also an aggravating factor. The Asylum Act which entered into force in 2004 was needed to correct a number of practical problems, but other changes had been cause for strong criticism from the United Nations and from NGOs, and this included the absence of a procedure for applications submitted at the land border with Switzerland and Liechtenstein. The Constitutional Court had been asked to review the constitutionality of several provisions of the new law, and further clarifications were required as to what the situation of this was. On the relationship between terrorism and torture, there was a tendency of some States to rely on diplomatic assurances that would allow them to deport or extradite persons to countries with questionable human rights records, and further clarification of the Austrian procedure on this was required.
Other Committee Experts also raised a series of questions and issues, including the imprisonment of juveniles and their access to education, their incarceration together with adults if this was determined to be in the best interest of the juvenile; the special regimes for juvenile detainees; reports of allegations of physical ill-treatment in order to extract confessions and what preventative measures had been taken in this regard; issues linked to medical examinations in prisons and the presence of a police officer; measures to monitor the occurrence of a variety of gender-based acts including sexual violence and why data on these acts was not available; circumstances under which female asylum seekers were interviewed and by whom; guidelines on body-cavity searches and other intrusive physical searches; and a request for further information on the number of asylum-seekers and returnees, namely for the countries of origin of the latter.
An Expert also commented on the quality of the report, and several thanked the Austrian delegation for providing an extensive written response to the list of issues.
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