HUMAN RIGHTS COMMITTEE CONSIDERS FOURTH PERIODIC REPORT OF AUSTRIA
The Human Rights Committee has considered the fourth periodic report of Austria on how that State Party is fulfilling its obligations under the International Covenant on Civil and Political Rights.
Presenting the report, Ingrid Seiss-Scherz, Head of Delegation and Deputy Director General of the Directorate of the Legal Service in the Federal Chancellery, said Austria was convinced that continuous dialogue with principal human rights organs was a key factor in maintaining already high standards of human rights protection in the country. Austrian authorities had consulted widely with civil society representatives in the process of reforming constitutional laws. The Constitution was an extensive if often scattered set of legal provisions. Even though the International Covenant on Civil and Political Rights was not considered self-executing by the Austrian legislature, the substance of protection as set out in the Covenant was fully guaranteed throughout the Austrian legal system.
In preliminary concluding observations, Rafael Rivas Posada, Committee Chairperson, said continuing areas of concern had been highlighted: institutional aspects of the Ombudsmen’s Council and their independence; lack of proportion of women representation in certain walks of public life; the need to investigate cases of incitement to racial hatred and discrimination, some involving politicians and the media; and interpretation of the character and effects of decisions based on the Optional Protocol.
Committee experts raised questions about whether Austrian legislation covered all obligations under the Covenant; who appointed the three Ombudspersons, and for how long; the lack of figures on human trafficking and ill treatment in police or prison services; and clarification about the decreasing number of asylum applications and on progress with the backlog.
The Committee reviewed the report over two meetings and will issue it concluding observations and recommendations towards the end of the session on 2 November.
Austria is one of the 160 States parties to the International Covenant on Civil and Political Rights and is obligated to submit periodic reports on implementation of the provisions of the Covenant. It is also one of the 109 signatories of the Optional Protocol to the Covenant, which provides for confidential consideration of communications from individuals who claim to be victims of violations of any rights proclaimed by the Covenant.
The Austrian delegation, which presented the report, included representatives from the Directorate of Legal Services of the Federal Chancellery, the National Equality Body, and Federal Ministries of Justice, the Interior, and Arts and Culture, as well as representatives of the Permanent Mission of Austria to the United Nations Office at Geneva.
The Committee will meet at 10 a.m. on Monday, 22 October, when it is scheduled to consider the fifth periodic report of Costa Rica (CCPR/C/CRI/5).
Report of Austria
The fourth periodic report of Austria (CCPR/C/AUT/4) notes that new Federal laws have been enacted on statements obtained under torture, and on launching investigations into allegations of torture or ill treatment. It contains details of measures implemented to counter violence against women, exploitation (including sexual exploitation), and slavery. On personal freedoms, it describes provisions of the Aliens Act regarding pre-deportation centers, and the Aliens Police Act which covers trafficking in human beings and relevant sanctions and punishments. The report describes the Criminal Procedural Codes governing pre-trial detention, and the right to humane treatment of detainees.
The report also outlines provisions for asylum seekers under amendments to the Asylum Act, and gives figures on numbers of asylum seekers. There are detailed measures on refusal of entry for aliens, as well as expulsion criteria and measures for aliens without residence title. The report covers provisions and amendments to equal treatment legislation and the reform of the system of public ombudsmen. It also details developments in the Penal Code articles that cover incitement to hatred and use of offensive language, enforcement of the law prohibiting National Socialist activities, and multiracial awareness-raising in schools.
Presentation of the Report
INGRID SIESS-SCHERZ, Head of Delegation and Deputy Director General of the Directorate of the Legal Service in the Federal Chancellery of Austria, introducing the report, said Austria was convinced that continuous dialogue with principal human rights organs was a key factor in maintaining already high standards of human rights protection in the country. The current work programme of the Government was aiming to bring out about constitutional reform that would, among other things, set up a two-tier court system, reform the provincial courts system and establish an asylum court to help reduce the backlog of asylum applications.
Legal experts were drafting acts to improve the legal situation of same-sex partnerships, due to enter into force in 2008, Ms. Siess-Scherz said.
The report of the Council of Europe Commissioner for Human Rights had been transferred to the Expert Group on constitutional reform, and alignment with his recommendations and UN and Council of Europe treaty bodies was envisaged.
Austrian authorities had consulted widely with civil society representatives in the process of reforming constitutional laws, Ms. Siess Scherz said. The state report on the Framework Convention on the Protection of National Minorities was mentioned as an example of the cooperative approach.
The current Austrian Constitution was an extensive if often scattered set of legal provisions. Even though the International Covenant on Civil and Political Rights was not considered self-executing by the Austrian legislature, the substance of protection as set out in the Covenant was fully guaranteed throughout the Austrian legal system. Nevetherless, current constitutional reform processes enabled possible gaps to be identified.
Replies of the Government of Austria to Written Questions
Constitutional and Legal Framework within which the Covenant and Optional Protocol are Implemented
In response to questions prepared by Committee Experts and sent to the State party in advance, the delegation of Austria said the measures within the Covenant were substantially guaranteed within the Austrian legal system. The European Convention on Human Rights had constitutional status, and through it no lacunae were thought to exist in the coverage of Covenant articles. Courts had to apply Austrian law in conformity with the European Convention on Human Rights and international law.
In 2004 the amendment of the Equal Treatment Act reformed the Ombudsmans’ institutions, the delegation said. In 2005/6, over 3,000 complaints to the Ombudsman on Equality of Employment covered, inter alia, equal pay, sexual harassment and job access. The Ombudsman on Equality Regardless of Ethnic Origin, Religion, Age, and Sexual Orientation had received over 900 complaints on housing, employment access and others, mainly focused on age and race discrimination. The delegation provided a detailed breakdown of statistics and the handling of requests and counseling cases by the Ombudsman.
There was no plan to establish an independent human rights institution, but a preventive agency as defined by the Optional Protocol was envisaged. Work was in progress on negotiating this new board’s conformity with the Paris Principles.
Equal Rights of Men and Women
Discrimination and racism were important themes in Austria, the delegation said. The Security Academy had occupied itself with training and awareness of executive and administrative officials. A structural concept of human rights education had been developed in recent years. It included the Anti-Defamation League seminar programme “A World of Difference”, aiming to spread awareness of otherness. Programmes were concerned with proper handling of ethnic groups and compulsory courses were in place covering psychology, professional ethics and conflict management, among others. There were special programmes to enable police services to manage relations with ethnic groups in the context of human rights. Training took account of risks of aggression in police custody. There were rules to prevent language discrimination distributed to all administrative officials, and awareness-raising as to the power of language in the context of discrimination. Any offences of mistreatment were prosecuted.
On equality on representation, there were nine male and five female ministers in the executive, and equality of representation in federal and provincial government was good, reaching parity in Vienna. In the public service there were 9 women and 60 men in senior civil service posts. Government was accountable to the legislature on equality of representation. In some sectors, there were positive discrimination measures to assist in promoting equality. In the judiciary there were 48.4 percent women in January 2007 and a similar proportion of prosecutors and judges were women.
There were two Equal Treatment Commissions, one for the private and one for the public sector, to deal with complaints, the delegation said. But compensation in the case of Commission findings in favour of the complainant were a problem. Courts had no obligation to send their judgments to specialized institutions and very often there was no information about judgments at courts. The situation was however starting to improve.
Right to Life and Prohibition of Torture and Cruel, Inhuman or Degrading Treatment of Prisoners
Austria had no statistics on cases of torture or ill treatment of detainees. There was no precise mechanism for collecting them, the delegation said.
On training of judges and prosecutors, the delegation described legal training in law schools, including anti-racism training. Continuous training for existing prosecutors was extensive and voluntary. High percentages of judges and prosecutors took part. The Supreme Court President had recently run a programme for Supreme Court judges focused specifically on human rights protection.
On alleged torture and ill treatment, a new codification of the Criminal Procedural Law was soon to come into force stating that proof obtained under torture or unauthorised influence was not admissible in court. Complaints of ill treatment were investigated by courts only, and allegations had to be conveyed to independent human rights authorities.
The United Nations Civilian Police officer charged with mistreating an ethnic Albanian detainee while serving in Kosovo was sentenced to three years’ in prison. The final outcome at the appeals’ court was not yet known. The Austrian judiciary’s position was for now largely dependent on the stance of the Kosovo authorities on the pursuit of the proceedings.
Juveniles (14-18 years) in detention totaled 163, a rather low figure. They were legally required to be separated from adult prisoners at night, and in certain cases of vulnerable detainees, also during the day, though daytime contact was generally viewed as a positive thing for the juvenile prisoner. Juveniles had more exercise time than adults, and one hour per day fresh-air exercise was a requirement.
There had been much progress in pre-deportation detention of foreign nationals. Pre-deportation detainees were unfortunately not kept in purpose-built centers but rather in adapted prison or police holding facilities. There was a maximum of six per cell. Single detention was used only by request of the detainee or for medical or similar reasons, or sometimes for disciplinary reasons. Contacts with families were allowed, and women with children were enabled to keep their children with them if requested, and specially adapted child-friendly rooms with showers were available for them. There was normally separation of men from women and adults from minors. There were however successful pilot projects in Vienna to accommodate families together on the same floor and it was hoped to extend this.
The authorities tried to use open-area detention centers and were fully aware of the need to ensure detainees did not feel like they were being kept in punitive detention, the delegation added. Newspapers, television and other facilities were permitted to ensure a more humane atmosphere. A new purpose-built centre was planned for up to 250 people, likely to be open in two years. Forcible deportation was a last resort, used only by enforcement order. An extensive network of non-governmental organizations existed to facilitate voluntary return, and provided support and orientation. There were alternatives to detention for pre-deportees, such as registration and official monitoring not involving the deprivation of liberty. Cases were looked at individually to assess whether these less severe measures could be used to carry out a deportation order and to ensure speedy resolution of a deportation case.
Elimination of Slavery and Servitude
On human trafficking, Austrian statistics did not record figures or reasons for trafficking, but a National Action Plan against trafficking was adopted by parliament along with a Federal Task Force. Numerous Ministries were involved depending on the competencies required. There would be a national coordinator starting in 2008 to improve efficiency.
Oral questions by Committee Experts
Experts raised a wide range of issues on constitutional provisions, discrimination and gender equality, police attitudes and mistreatment of detainees, data collection and other matters. One said the report was several years late, a regrettable delay, but nonetheless a comprehensive document.
Another Expert was not wholly convinced that Austrian legislation covered all obligations under the Covenant. Compatibility with the European Convention was noted but there were a number of articles under the Covenant that exceeded provisions of the European Convention. The Committee was concerned that there had been difficulties in follow-up on violations of the Covenant in Austria. While the Committee’s views were not as binding as a European Court ruling, they were not without legal consequence. The status of the Covenant in Austrian law remained unclear.
Statistics concerning the Ombudspersons’ offices were useful, but who appointed the three ombudspersons, and for how long? What precise restructuring was proposed under the new measures?
Another Expert queried the methods by which treaties were ratified in Austria. It appeared that the Covenant had no legal status in Austria and could not therefore be invoked. Was it true that Austria felt there may be a conflict between the Austrian Constitution and the International Covenant on Civil and Political Rights, and had resisted incorporation into law? Did courts in Austria have an obligation to interpret and apply laws using the Covenant? It appeared the Covenant could not have indirect effect on legal judgments. Provisions for invoking the Covenant, if they existed under Austrian law, were most unclear. Was it possible to obtain compensation for breaches of the Covenant?
An Expert was impressed by the anti-discrimination training for police services. Persons of African descent were mentioned in relation to police training initiatives, but there had been no reference to Roma. He asked for numbers of complaints against police officers in terms of racial discrimination, and the outcomes.
The same Expert noted the terrible situation in Upper Austria, Carinthia and other provinces where women’s participation in government was well below 20 percent. Was there a plan to use open competition in appointments of senior public servants? Discrimination claims in private contracts and conduct of the Federal authorities may be based on sexual orientation, gender, age, disability, ethnic origin, etc. but was the same full range applied in the procurement of goods and services? He asked for a clearer statement regarding possible disability discrimination in terms of facilitating recourse to the Commission itself as opposed to resorting to out of court settlements.
The lack of figures on trafficking was a concern. It seemed this was essential to any national strategy to combat trafficking. Why were there problems obtaining statistics? It seemed odd that the Ministry of Foreign Affairs was in charge of the National Plan. Did this detract from a properly domestic focus in the strategy?
Lack of statistics on ill treatment in police or prison services was of concern and Austria was urged to find ways to measure these. Lack of legal aid and the length of time allowed before suspects were allowed access to a lawyer were surprising. An Expert wondered whether the phenomenon of torture or ill treatment was being swept under the carpet. There was no definition of torture, for example, and this would be essential in order to track related violations.
Individual cases were mentioned: a seven month suspended sentence given to a policeman after violent mistreatment and failure to resusciate a Mauritanian detainee; beatings resulting in minor penalties; suspicious findings in the case of an Iranian taken in for a minor traffic infringement. These raised serious questions about police attitudes.
Another Expert added that the Committee on Prevention of Torture had expressed concern at the numbers of complaints. It would have been useful to have some cases illustrated and outcomes evaluated during the debate.
Responses of the Delegation to Oral Questions
Responding to some of the questions, the delegation explained the background to ratification of the European Convention on Human Rights and the matter of incorporation into constitutional or non-constitutional law. The Constitutional Court made very few decisions in which the European Convention was relied upon by an applicant. There had been a history of problems acknowledging the State’s international legal obligations, and conflict with Strasbourg rulings. However, in civil courts, judges had to ensure that judgments complied with national law and were in harmony with international law.
Concerning the appointment of the Ombudspersons, they were elected by Parliament, the delegation said. Ombudspersons were free to act independently and the possibility of a completely independent Ombudsperson’s authority was under consideration.
On the independent human rights advisory body, it had been determined that such a body should be created in accordance with the Optional Protocol to the Convention against Torture and the Paris Principles. As yet, the expert group had not finished deliberations on its establishment. Austria was conscious of the need for it to be independent.
Regarding equal representation in provincial administration, there were less encouraging figures in some provinces. The delegation said there had been no effort to measure gender representation in political parties. There were numerous “soft laws”, including educational and mentoring programmes, to facilitate and enhance gender equality.
Regarding the National Equality Body’s (the offices of the three Ombudspersons) relatively low numbers of counseling cases, the delegation said people generally preferred not to go to court and claims were usually resolved through dialogue, often with compensation. Outcomes might not be officially recorded.
Concerning the Roma, the delegation said that there was constant feedback to the executive on behaviour of law enforcement personnel. There did not seem to be any need to train officers in the handling of Roma people, but the authorities remained receptive. Every man applying to join the law enforcement services had to undergo tests and these were designed to weed out those with prejudices or inappropriate attitudes.
In 2006 there were 2,077 complaints against police officers over misconduct, ill treatment, bias or other actions causing the officer to be investigated. Different administrative sections of the police carried out investigations against members of a given unit. Criminal and disciplinary proceedings were both allowed, the latter being interrupted as and when the former began. The Civil Service law described duties and obligations and established codes of practice. Breach of service rules could lead to disciplinary sanctions. Criminal convictions led automatically to suspension from the service.
On detention and access to legal support, arrested persons were advised of their rights on arrest (with a leaflet available now in 27 different languages). Arrested persons had to be told of their offence and their right to contact family members and defence counsel, and the right not to make a statement. During interrogation, suspects were allowed to have a lawyer present. Legal helplines were accessible from police stations. If after seven days in the care of a provisional public lawyer the detainee was not freed, legal counsel or legal aid attorneys if appropriate could be hired.
Regarding residence permits for humanitarian reasons, the delegation said hundreds of these were granted each year, though without specifying whether the victim was a victim of sexual abuse or human trafficking.
The Austrian Constitution had a definition of torture based on the European Convention on Human Rights. It referred to serious infringement of lawful interrogation methods, for example giving false information about the consequences of not answering a question.
The delegation had been asked to explain more clearly the conviction of the police officer in the Kosovo case. The delegation said the situation of the officer sentenced in 2003, in absentia, whose case was awaiting the appeal court ruling, was dependent on the termination of proceedings in Kosovo. The officer had been suspended on two-thirds pay pending conclusion of the proceedings.
Replies of the Government of Austria to Written Questions Prepared by the Committee Experts and Received by the State Party in Advance
Expulsion of Aliens
There were certain measures (the file note system) for accelerated deportation of asylum seekers if circumstances so merited. This was only allowed if it was in the public interest to expedite the procedure. No legal action could be taken on the basis of a file note, which was a purely administrative provision. The usual appeal options were open.
Rejection of appeals for asylum without an appeal having suspensive effect were also aimed at expediting expulsions, the delegation said. Suspensive effect could only be granted under certain rules, notably if the foreigner concerned would imperil the rights of the subject granted by the European Convention on Human Rights. The delegation provided statistics showing numbers of appeals and numbers of cases granted suspensive effect.
Residence bans were described as non-punitive measures. There was no penal consequence and no danger of double jeopardy. Compliance with the European Convention on Human Rights’ Article 8 was required, and the principle of proportionality was taken into account.
Right to a Fair Trial
Reimbursement of costs in the case of legal aid was described by the delegation, and some statistics given.
On reduced delays in administrative court hearings, there was progress but the average time was still too long (average 20 months).
The Code of Criminal Procedure provided explicitly for a requirement to expedite proceedings. Government authorities were required to keep custody periods as short as possible. The person had a right to discontinue proceedings under certain legal circumstances (e.g. the offence is deemed not to be a punishable offence, or current duration and scope of preliminary proceedings do not justify continuation).
Freedom of Religion
Austria had no strict separation of Church and State. It had extensively integrated other religious communities in the country. These might not have special legal status as churches, but they could apply for a number of different classes of legal entity. The historical situation meant that the law on religious minorities had not been revised. In 1998 new provisions were established offering religious communities the chance to apply for legal status. Not all of them did. The problems surrounding allegedly too strict legal registration procedures on religious organizations should be seen in the context of the historical evolution of Austrian statutes, the development and growth of religious minorities over recent years, and the relatively new provisions of the Religious Communities Act.
On measures taken to combat violence against Jews, Muslims and other minorities, the delegation said the security authorities could invoke criminal law in extreme cases, and the Federal Office for Combating Terrorism also participated in police training. There was close cooperation with non-governmental organizations on training and further training among teachers, etc.
Freedom of Opinion and Expression; Incitement to Racial Hatred
The delegation explained low convictions under the law penalizing incitement to racial and religious hatred (9 convictions and 2 acquittals in 2006; 4 convictions and 3 acquittals in 2007). The facts were that incitement followed by violence would lead to prosecution under a different set of laws.
Rights of Persons belonging to Minorities
After the 2001 Constitutional Court judgment, there were attempts to devise new ordinances and amendments to tackle the problems concerning bi-lingual roadsigns in Carinthia, the delegation said. The Federal authorities had facilitated negotiation between opposing sides of the debate and there had been considerable progress and conciliation. A book had been jointly produced by the parties and this would hopefully have a beneficial impact on resolving the matter. There had been progress also on facilitating use of the Slovenian language.
There was considerable interest in minority languages among the population. Language courses were provided. Additional instruction in the mother tongue was available to minority groups. Vienna schools participated in numerous national and European-wide programmes to encourage German speakers to take an interest in minority languages. Romani speakers (outside Bürgenland) were chiefly found in Vienna and Romani was an additional school subject there.
Dissemination of Information relating to the Covenant
At the Federal level, and with NGO and Ministerial input, there had been initiatives to compile information on the Covenant and circulate awareness among competent authorities, the delegation said.
Oral Questions from Committee Experts
An Expert asked for clarification and confirmation on the decreasing number of asylum applications and on progress with the backlog. He also wondered why the number of detained asylum seekers was on the increase. Did they have access to legal counsel? What was the policy on family reunification? It had been reported that not all female asylum seekers were seen by female interpreters or other female professional visitors.
An Expert commented on the compensation system in relation to the Equality Body. It seemed to be handled on an ad-hoc basis. Were there plans to be more systematic?
An Expert asked what the situation was today in Carinthia: were bi-lingual road signs in place? On linguistic rights for the Slovenian minority, had administrative officials been trained in the language or was the aim merely to facilitate contact between them and the Slovenian speakers? Was it difficult to reach children in schools where it was planned to provide mother tongue language teaching?
An Expert was interested in follow-up on police violence and the punishment of perpetrators in given cases.
There were questions from Experts also on rights to privacy, granting of licenses to private operators in broadcasting, and other matters. The Austrian Government had been criticized by a European Committee for trying to stifle criticism by journalists. Was this criticism justified?
The entitlement of religious organizations to practice freedom of religion was welcomed but what were the precise principles on which registration was granted? What freedoms did registered groups have that unregistered groups did not have? Experts remarked that a ten-year probationary period for registered religious organizations was extremely unusual.
On anti-Semitism, an Expert asked if cases could be brought ex proprio moto? She asked for recent figures on National Socialist activity, and comments on an upsurge in anti-Jewish rhetoric since the war in Lebanon.
Further Responses by the Delegation
The delegation said it would try to answer the questions posed, and others would be tackled in written responses.
The legal questions on the street signs in Carinthia were very complicated. The delegation was unable to give figures on the numbers of signs. On language courses, personnel from the administration authorities in the Länder concerned went to private schools and were reimbursed the cost.
On asylum and immigration matters, the delegation said there were 22,461 asylum applications in 2005, and 13,349 in 2006 – approximately 40 percent lower. But the delegation was unable to explain the decrease in numbers. Certain political events in the world often led to increase in asylum applications from certain nationalities but decreases were less easily explained. In 2006 the applications came mainly from (in descending order) Serbia, Russian Federation, Moldavia, Afghanistan and Turkey. This year Russian nationals were mostly of Chechenian origin. The delegation gave numbers of proceedings under way, numbers of appeals, and related statistics. Each and every application was processed but it was important to realize that an applicant could submit more than one application per year, so numbers of applications were higher than numbers of seekers.
Under the Dublin arrangements, not all asylum seekers were kept in deportation custody. Austria believed there was sufficient access to legal aid but there were also NGOs and Federally funded support schemes, and family reunification programmes could be taken. Asylum seekers were offered the chance to be interrogated by female officers, though some did not exercise this right.
Concluding Remarks
RAFAEL RIVA POSADA Chairperson of the Human Rights Committee, in his preliminary concluding remarks, said he hoped the State Party would be able to present its report on time in future. Continuing areas of concern had been highlighted: institutional aspects of the Ombudsmen’s Council and their independence; lack of proportion of women representation in certain walks of public life; the need to investigate cases of incitement to racial hatred and discrimination, some involving politicians and the media; and interpretation of the character and effects of decisions based on the Optional Protocol.
INGRID SIESS-SCHERZ, Head of Delegation, in concluding remarks, promised to deliver written responses within the time window and to convey the Committee’s views to respective political authorities. She looked forward to continued constructive dialogue.
For use of the information media; not an official record
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