Distr.

GENERAL

CAT/C/SR.329
14 May 1998


Original: ENGLISH
Summary record of the public part of the 329th meeting : Germany. 14/05/98.
CAT/C/SR.329. (Summary Record)

Convention Abbreviation: CAT
COMMITTEE AGAINST TORTURE

Twentieth session

SUMMARY RECORD OF THE PUBLIC PART*
OF THE 329th MEETING

Held at the Palais des Nations, Geneva,
on Monday, 11 May 1998, at 3 p.m.

Chairman: Mr. BURNS


CONTENTS

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (continued)

Second periodic report of Germany (continued)

* The summary record of the closed part of the meeting appears as document SR.329/Add.1.


This record is subject to correction.


The meeting was called to order at 3 p.m.

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (agenda item 7) (continued)

Second periodic report of Germany (continued) (CAT/C/29/Add.2)

1. At the invitation of the Chairman, the delegation of Germany resumed their places at the Committee table.

2. Mrs. VOELSKOW-THIES (Germany) said that the Basic Law forbade the infliction of any bodily or mental harm on anyone incarcerated. Article 1 of the Convention could be compared to sections 340 and 343 of the Criminal Code, according to which torture had to have been committed by either a public official or an official, which was basically the same thing. The one difference between the Convention and German law was that while the former defined torture by what the victim suffered, which was passive, the latter referred to active causation of suffering, whether physical ill-treatment, harm to health, threat or use of force or mental torture. She did not see any difference between the two as to the definitions of the purpose of torture.

3. Mr. MAUER (Germany) said that the Code of Criminal Procedure prohibited the use of tainted evidence and evidence obtained by certain methods, without any exceptions, even if the person concerned agreed to such methods. The basic premise was that a confession must not be obtained as a result of fatigue, medication, torture, deception or hypnosis. Coercion could be used only if the criminal procedure actually so stipulated. The threat of using a prohibited measure, and the illegal advantages to be gained therefrom, were prohibited as well, even if the person concerned agreed to its employment. When such interrogation methods were applied despite the prohibition, confessions so obtained could not be used. Furthermore, the use of tainted evidence automatically entitled the person to file an appeal, which frequently led to quashing the original sentence and to an acquittal. What was important was that both the sentence and the findings of the original court were annulled, along with all findings that could be traced back to unlawful methods of interrogation. The question whether the prohibition against the use of tainted evidence could also be applied to remote or consequential evidence, however, was hotly debated. Arguments against the use of such evidence included the fact that it was impossible to determine with certainty whether a confession extracted from a witness could not have been obtained in a legal manner.

4. In answer to questions concerning custody, the police had to let detainees see a magistrate without undue delay, and at the very latest the day after arrest. That did not mean that the police could simply wait until the next day, although certain conflicts of competence might warrant delays. There were organizational measures that had to be taken to ensure that detainees were brought before a magistrate as quickly as possible. In addition, detainees had a right to see a lawyer immediately and to be informed of that right, together with the reasons for their detention, during their initial interrogation. If they were not so informed, no confession they made could be used against them. The same applied if the detainee's attempts to reach legal counsel were frustrated by the police. To ensure that nobody could vanish without trace, a member of the detainee's family or a person close to him must be informed of the detention, whether or not he wished anyone to be told. There were no special provisions concerning the right of foreign detainees to remain silent, but it was not always possible immediately after an arrest to conduct an interrogation in the detainee's language. The courts had to ensure that an interpreter was present, and no interrogation could take place without one. If the magistrate understood the detainee's language, he must inform him of his rights in that language.

5. Regarding the response of general prosecutors to allegations of ill-treatment by the police of detainees and other persons, under the Code of Criminal Procedure there was an obligation to investigate criminal offences and observe due process, and there were no limits on that principle. Inquiries must be continued until such time as the general prosecutor was reasonably sure either that the police authorities would have to be charged, or that the accusation was groundless. The alleged perpetrator had to be interrogated. Usually, general prosecutors had the possibility of transferring detainees to different police stations or prosecutors, which they did whenever there was evidence that the prosecutor assigned was not conducting the inquiry with due diligence. Prosecutors had no objection to that regulation, as it was in line with their concern to dispel any suspicion of collusion.

6. The person alleging ill-treatment could not himself take on the role of prosecutor or accuser, but if the prosecution clearly indicated that there would be no complaint he could turn directly to the general prosecutor and have the matter brought before a district court.

7. The principle of proportionality must be observed at all times and was constitutionally guaranteed. Measures deemed disproportionate either to the gravity of the act or to the kind of punishment it carried were prohibited, and pre-trial detention was not allowed if the accused was not strongly suspected of the act or if detention was disproportionate to its gravity.

8. Mr. GROHMANN (Germany) noted that the question had been raised of whether the general prosecutor and the police were not basically "on the same side of the fence" when it came to investigating allegations of ill-treatment by police. In 1995, 16,000 persons had been the subject of investigations but only 2,000 had been brought before a court. That was a very sensitive area, as even the slightest suspicion could lead to someone being taken into custody, and it must be ascertained whether that was being done illegally. There was some disparity between the number of cases ultimately brought to court and the number of persons taken into custody. Only 15 per cent of those accused of punishable acts were actually prosecuted.

9. As to how many of the complaints filed between 1995 and 1997 concerned ill-treatment by the police, there was no central pooling of such data, which must be considered separately for each Land. In Hessen, for example, in 1995, 120 persons had been deprived of their liberty, 260 police officers and departments had been the subject of investigations, and 11,000 persons had been subjected to blood and alcohol tests. That same year in Hessen, 240 police officers had been accused of ill-treatment, but proceedings against 190 of them had been terminated, while some cases were still pending. In all, 6 police officers had been convicted.

10. Regarding the events in the Hamburg police department, about 1,200 cases were being investigated for possible disciplinary measures, but many of those cases were documented with only one piece of paper, and such evidence could not necessarily be trusted. Changes were being introduced in Hamburg: all complaints were being centrally pooled and examined in order to identify problem cases as quickly as possible. An office had been set up specifically to deal with such cases. The idea was to avoid any police office investigating cases involving its own officers.

11. Regarding how police officers could be identified, in principle all the Länder had rules requiring officers to identify themselves on sight, or later if that was not possible. The rule on the use of name badges had been changed, and police officers could now choose whether to identify themselves by their badges. The idea was to protect them from possible retaliation against themselves or their families. Discussions were continuing within the Länder as to whether those regulations should be changed.

12. The report on xenophobia and racism commissioned by the Police Academy had been produced by a social science research group at the University of Triers, and then discussed by the Conference of Interior Ministers, which had set up a subcommittee on criminal prosecution to draw the appropriate conclusions. The police chiefs of the various Länder had been represented on that subcommittee, whose 1997 report was available and had been submitted to the Länder for implementation. There were three main topics: organization and personnel; leadership and continuing training; and education. Emphasis was laid on coping with stress, and guidelines were to be drawn up in each Land on police responsibility and respect for basic human rights. The report had concluded that some infringements were more than just isolated cases, but that police officers often worked under stress. Recommended solutions included rotation, discussion of problems and counselling. Leaders had to be trained as well, and would be selected on the basis of how well they coped with stress. Measures were needed to identify mistakes before any damage was done, and when mistakes were found the necessary investigations must be instituted.

13. Training and continuing education were provided in criminal, procedural and civil law, sociology, psychology and professional ethics. Although the curriculum varied between the Länder, in all of them it included conflict training and crisis management, which was even a part of basic training, lasting from three to five days.

14. Mr. SCHNIGULA said that the Ministry of Justice held responsibility for matters relating to custody, imprisonment and deportation, and that its approach was based on the primacy of individual rights over security considerations. The procedure governing criminal proceedings was laid down in article 104 of the Basic Law. Anybody taken into custody was immediately given a 10-page brochure in German and, where appropriate, in one of 23 national languages into which it had been translated, outlining detainee's rights and responsibilities. Priority was given to protecting persons in custody from ill-treatment and to guaranteeing contact with relatives and with legal counsel, appointed where necessary. The provision of the Vienna Convention requiring that any foreign national taken into custody must be permitted to contact his embassy was applicable whether or not the country of origin had acceded to the Convention. Detainees also had access to the petition committee of Parliament, which reviewed cases regularly and expeditiously. The courts could also be petitioned, and complaints submitted to ministries, which must follow them up. A prisoner's ombudsman, himself a prisoner, could discuss complaints by inmates with the prison director or with the appropriate parliamentary commission.

15. The detailed statistics requested regarding prisoners would be provided later. Meanwhile, by way of example, the total prison population of 80 per 1,000 citizens compared favourably with the proportion in the United States of America of 600 prisoners to every 100,000 citizens. Thirty-nine individuals were serving prison sentences for offences committed in office, of which no more than five related to torture.

16. Mr. SCHMÄINS, in response to Mr. Zupancic's question on the transposition into national legislation of article 3, paragraph 1 of the Convention, said that under article 53 of the Aliens Act, no alien could be deported where there was a real danger of his being subjected to torture. The administrative courts examined such cases very thoroughly. The asylum law stated that if an asylum application had been filed, deportation could not be ordered before it had been processed; where no application had been submitted, the case must be throughly investigated before a deportation order could be issued. Appeals could be lodged in court against decisions by the Ministry of Foreign Affairs or the Office of Foreigners.

17. The circumstances of the 10 suicides of individuals awaiting deportation had been very thoroughly investigated in 1996 by the appropriate parliamentary bodies and by the Public Prosecutor's Office, which had concluded that no criminal conduct or dereliction of official duties had occurred. While every case of suicide was extremely serious, the numbers should be seen in proportion to the total of 32,000 deportation cases pending, and the 19,700 individuals in detention awaiting deportation. Furthermore, it was not known whether the suicides were motivated by their impending deportation.

18. No figures were available regarding Mr. Yu's question on compensation to individuals who had been subjected to ill-treatment by members of the police. With the exception of claims under the Victim Compensation Act, it was irrelevant whether complainants were legally resident in Germany.

19. Mrs. MÄDRICH said that six inquiries had been conducted into the death of the Nigerian national in question and outside experts had been consulted. The case against the doctor had been dropped when a settlement had been agreed with the victim's brother of payment of DM 5,000 to Amnesty International. The court had ruled on the police ill-treatment case on 22 September 1993, rejecting the applicant's compensation claim for injury allegedly sustained when police had ordered her to pull over after going through a red light. The alcohol content in her blood had registered in excess of the legal limit when she had finally been stopped and breathalysed. The European Court of Human Rights had upheld the ruling of the German court that it was not possible to ascertain whether the applicant had injured herself while avoiding arrest or whether she had been ill-treated by the police.

20. Mrs. VOELSKOW-THIES informed Mr. Sørensen that the Ministry of Health would obtain information on the human rights content of training courses for doctors and nurses, which would be forwarded at the earliest opportunity. A brochure on the lines suggested by Mr. Sørensen would certainly be published, and would draw attention to the celebration on 26 June. In addition, an appropriate frank might be designed for use by post offices, and a press release on the event would be issued.

21. Mr. HÖYNCK explained that Germany's contribution to the United Nations Voluntary Fund for Victim of Torture was relatively modest because Germany had also made sizeable contributions to other United Nations funds, such as the Trust Fund for Human Rights Field Operations, which included torture among their concerns.

The public part of the meeting was adjourned at 4 p.m.
and resumed at 5.05 p.m.

22. Mr. ZUPANCIC (Country Rapporteur) read out the conclusions and recommendations of the Committee concerning the second periodic report of Germany:


A. Introduction


B. Positive aspects


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


D. Subjects of concern


E. Recommendations

23. Mr. HÖYNCK (Germany) said that he wished to examine the conclusions and recommendations carefully before responding in detail. His first impression, however, was that further discussion would have clarified misunderstandings on some issues and enhanced the credibility of the recommendations.

24. The delegation of Germany withdrew.


The public part of the meeting rose at 5.20 p.m.

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