COMMITTEE AGAINST TORTURE HEARS RESPONSE OF AUSTRIA

The Committee against Torture this afternoon heard the response of Austria to questions raised by Committee Experts on the third 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, 16 November, the delegation, which was led by Ferdinand Trauttmansdorff, Ambassador at the Federal Ministry for Foreign Affairs of Austria, said the absolute prohibition of torture enshrined in the Constitution of Austria was considered as fundamental. The Human Rights Advisory Board had been set up at the constitutional level in 1999, and its role was to advise the Minister of the Interior on human rights. Its members formed groups and committees to examine police conduct on the spot with regards to its legality.

On the definition of torture, the delegation said the offences contained in the criminal code not only completely covered the obligation to criminalize torture, but went far beyond the definition of the Convention. There were many obligations under international law to cover certain forms of behaviour. Austria believed that its situation was clearly in conformity with the Convention. It was pointed out that while the Convention limits torture to the infliction of severe suffering, this specification of "severe" was not required in Austrian law.

The Committee will submit its conclusions and recommendations on the report of Austria towards the end of the session on Friday, 25 November.

As one of the 140 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 at 10 a.m. on Friday, 18 November, it is scheduled to take up the initial report of the Democratic Republic of the Congo (CAT/C/37/Add.6)

Response of Austria

Responding to a series of questions raised by the Committee Experts on Wednesday, 16 November, the delegation of Austria said with regard to the periodicity of the report, a pertinent criticism made by the Experts would be taken into account in future. On the further training of police officers and administrative officials, the delegation said one significant factor for examination in a state based on the rule of law was without a doubt the subsequent monitoring by an independent judicial system, and training in particular was a significant factor in consciousness-raising and promotion for the respect of human rights. In-service training, for which the Ministry of the Interior had set up a specific Academy, constituted a significant element. Courses and seminars, some of which were compulsory for police officers, had been set up by the Academy, and they were of course counted as working hours. Human rights were a specific part of the content of the courses.

The Human Rights Advisory Board had been set up at the constitutional level in 1999, and its role was to advise the Minister of the Interior on human rights. Its members formed groups and committees to examine police conduct on the spot with regards to its legality. They were increasingly being asked by the Minister of the Interior to accompany special interventions. It also created feedback which was incorporated in training ordinances. On refoulement, this was done by two types of authority, but in the same manner, depending on whether the foreigner had filed an asylum application in Austria or not, the delegation said. A negative asylum decision had to be accompanied by an order for deportation. If the asylum-seeker could not be returned to their country, then they could not be deported, and the person was granted limited stay in Austria, stipulating a request for asylum had been made. If this had not been made, then the Alien Police had to make the decision.

Concerning interrogation of persons and access to a lawyer and whether a person could be interrogated without the presence of a lawyer, unless the arrival of the lawyer would lead to an unreasonable extension of the period of detention, a lawyer was awaited. The other circumstance in which a lawyer was not awaited was if the interview would then be negated in purpose, but this constituted an exceptional case. The law on asylum and on aliens’ rights would be replaced by completely new laws, which would come into force in January 2006. The current proceeding with regards to the asylum process was that once the original case was examined, an appeal was not necessarily given suspensive effect. In response to a question concerning deportation for all asylum-seekers, filing an application for asylum in Austria was not a reason for deportation-detention, on the contrary, whilst the proceedings were pending, applicants could not be held in detention, the delegation said.

With regard to a question on the overlap between Aliens Law and Asylum Law, this was a difficult issue, but the new law would resolve the situation, the delegation said. Austrian law covered all foreigners who required protection within the territory. All Austrian States and the Federation had been applying a contract to this effect since 1 May 2004, including Carinthia, and this was as a Constitutional Contract. On the case of the death of a deportee, the officers involved had been permanently removed from their positions in this process, and would no longer be deployed in the area of forcible deportation, and were currently employed in other areas. Regarding training and deportation, special training courses were employed for the exercise of certain functions, following the previous tragic event, training courses for police officers and deportation officers had been amended as a result.

Everything was being done to ensure that juveniles were only interrogated after their parents had been informed, and that took place as immediately as possible. Juveniles were a special group, and required special protection, the delegation said, and part and parcel of this was correct conduct when handling them. Austrian police officers and officials naturally adopted such correct conduct. Criminal law covered a broad range of offences which applied to officials if they were to mistreat a juvenile, and if there was the slightest suspicion that such conduct had taken place, there was a separate special department which investigated such matters. The interrogation of female asylum seekers was to be done by female officers if the reason for the asylum application was a violation of the right of sexual determination, the delegation said. Deportations were ideally supposed to take place to the country of origin.

On the definition of torture, the delegation said the offences contained in the criminal code not only completely covered the obligation to criminalize torture, but went far beyond the definition of the Convention. There were many obligations under international law to cover certain forms of behaviour. Austria believed that its situation was clearly in conformity with the Convention. It was pointed out that while the Convention limited torture to the infliction of severe suffering, this specification of "severe" was not required in Austrian law. Another question on substantive criminal law concerned the aggravating factor of racist motive. The Criminal Code contained the expression that racist or xenophobic or other particularly reprehensible motives formed an aggravating factor in sentencing.

With regards to terrorist cases, there was no specific Austrian legislative initiative in this regard, and no special procedures were provided for terrorist suspects, and they were treated as normal criminals. The absolute prohibition of torture enshrined in the Constitution was considered as fundamental. According to the available information, no case of extradition had taken place where the basis of the extradition was terrorist offences. If there were such a case, it would have to be decided by the courts. In addition, the Criminal Code contained a provision on cases in which there was an obligation to prosecute under international law, there was a reciprocal provision according to which it was an obligation to prosecute under domestic law. On allegations that confessions extracted by torture had been used in criminal cases, the delegation said this was forbidden under Austrian law. In the case of any such ill-treatment, there was a reporting system which should ensure that this was immediately reported, not only if the person concerned complained, but if bodily harm was observed by the investigating judge or the remand prison.

On the competence of the Ministry of Justice, concerning juveniles, according to Austrian law, these should be separated from adults in penal conditions. Only 3 per cent of the penal population were juveniles, aged between 14 and 18. There was a second category, young adults, between 18 and 21, and sometimes the two groups were kept together, but never in the same cell. Any adult kept together with the juveniles would be an exceptional one, with no criminal record, and able to influence the juveniles in a positive way. The situation had improved over the last years, the prison population had stabilised, and the delegation said it was hoped that it would even decrease. Penal staff would increase. Medical examinations were covered by an instruction by the Ministry of Justice that all prisoners were to be examined out of the sight and hearing of non-medical staff, with certain exceptions, one for security reasons, the other if the doctor requested that staff be present.

There were no statistics on sexual violence in custodial care, the delegation said. There were very few cases, and each had to be reported to the Federal Ministry of Justice and to the Public Prosecutor. The consequences were criminal proceedings and/or disciplinary measures, the delegation said. There number of female staff in the prisons was increasing.

SAYED KASSEM AL-MASRY, the Committee Expert serving as Rapporteur for the report of Austria, thanked the delegation for the extensive and informative replies to the questions. Some issues still required clarification, notably the case linked to the Amnesty International report that said that there was video footage of the incident which took place on 16 July 2003, which showed the restraining of a person, and that no-one took measures to resuscitate him once it was realised he was not breathing. The apparent deficiencies in police training were made evident in this case. The question would still be hanging in the minds of the Committee regarding the very lenient sentence that was handed down, and Mr. Al-Masry asked whether this sentence would be appealed, as there could be an element of racism.

On the definition of torture, there was nothing in the Convention that prevented any country from having a wider application of the Convention, but providing all elements of the Convention were reflected in national law, this was accepted. On the issue of access to a lawyer, the delegation had said that this could be impeded if the presence of the lawyer would impede the investigation, and Mr. Al-Masry said he thought this was the whole point of having a lawyer present, and asked if the right to remain silent was recognised, and who decided to abrogate the presence of the lawyer.

Another Expert then raised a final issue, namely the need to record police interrogations.

Responding briefly, the delegation said regarding the presence of a lawyer during interrogation and whether or not they were allowed to be present, a misunderstanding must have been caused: a lawyer always had to be called if the person so wished. In some exceptional cases, the interrogation could however start before the lawyer arrived, and this was the case if some of the results of the interrogation could be difficult to achieve were the lawyer to be waited for. Even if no expulsion took place, every detainee complaining of a medical problem was given a medical examination. Such an examination also took place in the 24 hours before deportation. On video recording, police authorities had a local, regional experiment, which had been unsuccessful for a number of reasons.

For use of the information media; not an official record

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