Concluding observations of the Committee against Torture : Germany. 05/11/1998.
A/53/44,paras.179-195. (Concluding Observations/Comments)

Convention Abbreviation: CAT
COMMITTEE AGAINST TORTURE
Twentieth session
4 - 22 May 1998



Concluding observations of the Committee against Torture

Germany


179. The Committee considered the second periodic report of Germany (CAT/C/29/Add.2) at its 328th and 329th meetings, on 11 May 1998 (CAT/C/SR.328 and 329), and adopted the following conclusions and recommendations.

1. Introduction

180. Germany signed the Convention on 13 October 1986 and deposited its instrument of ratification on 1 October 1990. The Convention entered into force in Germany on 31 October 1990. Upon ratification Germany made declarations concerning its understanding of article 3 of the Convention and the presumptive concordance of German law with the Convention. Germany has not declared in favour of articles 21 and 22. Both the initial report submitted by Germany on 9 March 1992 and the present second periodic report submitted on 17 December 1996 were prepared in accordance with article 19 of the Convention and in accordance with the general guidelines concerning the form and content of reports. The second periodic report covers the period from 9 March 1992 to 17 December 1996. Important information concerning the State party is also included in the basic document prepared by Germany on 8 August 1996.

2. Positive aspects

181. The Committee is encouraged by the fact that the Domestic Affairs Committee of the German Federal Parliament, the Permanent Conference of the Interior Ministers and Senators of the Länder and the Conference of Ministers of Justice of the Länder have addressed Amnesty International’s report on the 70 alleged cases of police ill-treatment, especially against foreigners, between January 1992 and March 1995.

182. The Committee is satisfied that no cases of torture within the strict meaning of article 1 of the Convention have been reported, and that tainted evidence has not been reported as having been used in any judicial proceedings.

183. The Committee is encouraged by the establishment of 12 torture rehabilitation centres and welcomes the fact that the German Government contributes to the United Nations Voluntary Fund for Victims of Torture.

3. Factors and difficulties impeding the application of the provisions of the Convention

184. The Committee is aware of the State party’s problems with the integration and management of large numbers of refugees and other minorities of non-German descent and of the problems deriving from the State party’s attempts to maintain fair and equitable asylum and immigration procedures.

4. Subjects of concern

185. The Committee is concerned that the precise definition of torture, as contained in article 1 of the Convention, has still not been integrated into the German legal order. While section 340 of the German Criminal Code and the Act on the Suppression of Crime, dated 28 October 1994, would seem to cover most incidents of torture, statistical coverage of the incidence of torture, aggravated forms of torture with specific intent (dolus specialis) and incidents causing severe mental pain or suffering (“mental torture” insofar as not covered by article 343 of the German Penal Code) are not covered by current legislative provisions, as required by the Convention. Likewise, it is not absolutely clear that all exculpation by justification and superior order is categorically excluded as required by the Convention.

186. The Committee is concerned at the large number of reports of police ill-treatment, mostly in the context of arrest, received from domestic and international non-governmental organizations in recent years, as well as at the conclusions of the study entitled “The police and foreigners” commissioned by the Conference of Ministers of Internal Affairs in 1994 and presented in February 1996, to the effect that police abuse of foreigners represents more than “just a few isolated cases”.

187. The Committee is concerned about the incidents of suicide of persons in detention while awaiting deportation.

188. The Committee is particularly concerned about the apparently low rate of prosecution and conviction in the alleged incidents of ill-treatment by the police, especially of people of foreign descent.

189. The Committee is concerned at the existence of certain open-ended legal provisions permitting, under certain circumstances, the discretionary but significant reduction of the legal guarantees of those detained by the police, such as provisions permitting the police in certain cases to refuse permission to someone detained at a police station to notify a relative of his arrest. Likewise, references to “the principle of proportionality”, unless with respect to specific and binding decisions of the German courts, may lead to arbitrary reductions in such guarantees.

5. Recommendations

190. The Committee recommends that the State party adopt the precise definition of the crime of torture foreseen by the Convention and integrate it into the internal German legal order (art. 4, para. 2, of the Convention).

191. The Committee requests the German Government to envisage the possibility of making the necessary declarations so that Germany is bound by articles 21 and 22 of the Convention.

192. The Committee recommends that both internal disciplinary measures against offending police officers and the external prosecutorial and judicial measures be significantly strengthened to ensure that in future all police officers accused of ill-treatment of domestic and foreign nationals alike are brought to justice. In order to ensure that in cases of alleged ill-treatment by police officers such conduct is open to the fullest scrutiny, the Committee recommends, without prejudice to ordinary State procedures, that German criminal procedures be open to subsidiary prosecution by the victims of ill-treatment and that adherence procedures (Adhäsionsprozesse) and civil procedures for damages be made more widely applicable and possible. Adequate legal assistance by competent German legal counsel should be made available. Furthermore, the length of the investigation of complaints of police ill-treatment should be shortened.

193. The Committee recommends that further legislative attention be paid to the strict enforcement of article 15 of the Convention and that all evidence obtained directly or indirectly by torture be strictly prevented from reaching the cognizance of the deciding judges in all judicial proceedings.

194. The Committee recommends that police and immigration officers of all ranks, as well as medical personnel, receive compulsory training concerning human rights in general and especially concerning the Convention against Torture; in view of the fact that most reports of ill-treatment come from foreigners, the Committee recommends that these officers also receive compulsory training in the areas of conflict management and ethnic minorities.

195. The Committee further recommends that Germany continue its efforts to ensure that all detainees, at the outset of their custody, be given a form in a language they understand, outlining their rights, including the right to be informed of the reason for their arrest, to contact a relative and a lawyer of their choice, to submit a complaint about their treatment and to receive medical assistance.

196. In order to make future judicial proceedings against those suspected of ill-treatment possible, police officers should be required to wear a form of personal identification that would make them identifiable to those who allege ill-treatment.


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