4 November 2011
The Committee against Torture this morning began its consideration of the fifth periodic report submitted by Germany on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Almut Wittling-Vogel, Head of the Directorate for International and European Law at the Federal Ministry of Justice, said that the report covered three principal areas: conditions of detention pending deportation, the use of evidence obtained through ill-treatment or torture conducted abroad, and the involuntary medical treatment of mentally-handicapped persons. She said that Germany regarded the concluding observations of the treaty bodies as a very careful account of areas needing attention, and would earnestly endeavour to comply with recommendations. Reforms already taken included ratification of the Optional Protocol of the Convention, establishment of a National Agency for the Prevention of Torture and a Joint Commission of the Länder for the Prevention of Torture, and adoption of a new method of collating statistics. The Head of the new Joint Commission of the Länder for the Prevention of Torture then introduced to the Committee various reforms implemented in prison and detention facilities, and to the treatment of detainees.
Claudio Grossman, Chairperson and Committee Expert who served as Rapporteur for the report of Germany, thanked the delegation for their informative presentation and welcomed the ratification of the Optional Protocol. He then referred to instances of death and allegations of ill-treatment raised by persons belonging to ethnic minorities held in police custody, and asked for clarification of that. Mr. Grossman also raised issues including trafficking of persons, forced surgery on inter-sex children, provisions for asylum seekers and forced return of foreign nationals.
Other Committee Experts raised questions about the training of medical and other personnel working with asylum seekers and detainees, particularly on identifying signs of torture or ill-treatment, and also about the training of private security personnel on the Convention. Issues including preventative detention and the right of appeal by asylum seekers were also highlighted, and the rights of inter-sex children was returned to, as was alleged excessive use of force by police when dealing with protestors. Experts also questioned whether the resources available to the new agencies on the prevention of torture were sufficient.
The delegation from Germany included representatives from the Ministry of Justice, the National Agency for the Prevention of Torture, the Joint Commission of the Länder for the Prevention of Torture, the Ministry of Finance, the Ministry of the Interior, the Federal Office for Migration and Refugees, the Prison Committee of the Länder and the Permanent Mission of Germany to the United Nations Office at Geneva.
The Committee will next meet in public at 3 p.m. on Friday, 4 November when it will hear the response of Paraguay to questions raised yesterday by the Committee. It will hear the response of Germany to the questions raised on Tuesday, 8 November at 3 p.m.
Report of Germany
The fifth periodic report of Germany (CAT/C/DEU/5) notes that the period under review covers the years 2004 to 2008. The Federal Republic of Germany has placed the inviolability of human dignity and its commitment to human rights as supreme values right at the peak of its constitution. Thus torture is constitutionally outlawed as one of the most serious offences against human dignity conceivable. In Germany, all conceivable cases of torture or other cruel, inhuman or degrading treatment or punishment are covered by a number of concrete criminal provisions. As well as general criminal law, reference is hereby in particular made to the Code of Crimes against International Law, which entered into force in 2002 and which adopts the definitions of crimes in the Rome Statute of the International Criminal Court of 17 July 1998 (genocide, crimes against humanity and war crimes). The Optional Protocol to the Convention against Torture entered into force for Germany on 3 January 2009.
Several cases and debates on torture have arisen in Germany in the past few years, and the report deals with them. One example is that on 18 December 2006 the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and the Special Rapporteur on the question of torture, jointly asked Germany to take all measures necessary to hold those people criminally responsible who were allegedly accountable within the headquarters of the United States European Command for the illegal transfer of six suspected terrorists from Bosnia-Herzegovina to Guantánamo. In addition, the Special Rapporteur requested that Germany ensure that neither German authorities nor German territory can be used to illegally transfer persons in violation of human rights conventions signed by Germany.
The generalized debate on torture developed into a very emotional and widely discussed public and media debate in 2002 following the case of D and a threat of torture by the Frankfurt Police. The Government therefore felt the need to enlarge on the case in the report. On 27 September 2002, a law student, G kidnapped and murdered an 11-year-old boy. Under the investigation proceedings instituted by Frankfurt am Main police, the then accused, G, was questioned on 1 October 2002, during which he was threatened by the police with pain if he did not reveal the boy’s whereabouts. A Detective Officer, E, slapped G and shook him so hard that his head hit the wall once. After ten minutes G. revealed the child’s precise whereabouts. He was then driven to a pond, where the boy’s corpse was discovered. The Deputy Chief of Frankfurt Police, D, said that the purpose of threatening G with pain was to save the boy’s life, as at that point the police were worried the boy would die from starvation and exposure. Ultimately G. was sentenced to life imprisonment for murder. The officer was found guilty of unlawful compulsion by a public official, fined, and removed from his position. The Deputy Chief (D) was found guilty of subordination to unlawful compulsion by a public official, fined and removed from his position. Finally both the sentencing Court and the Federal Government re-affirmed the absolute prohibition against inflicting violence or threatening to inflict violence on an accused, and firmly rejected the justification of violence in an emergency.
Presentation of the Report
HANNS H SCHUMACHER, Permanent Representative of Germany to the United Nations Office at Geneva, said that as the new Permanent Representative of Germany it was an honour that his first official function was to deliver the fifth periodic report to the Committee against Torture, and introduced his delegation who would present the report.
ALMUT WITTLING-VOGEL, Head of the Directorate for International and European Law at the Federal Ministry of Justice, said that the first topic of the report was detention pending deportation, as conditions of detention had raised concern among the Committee. Germany realized that persons awaiting deportation were in a difficult and vulnerable position. German law was clear on the use of evidence obtained through ill-treatment abroad, such evidence should not be used in criminal proceedings and no public prosecutor could rest his case on a statement obtained through torture or ill-treatment. However just an allegation of ill-treatment was not enough to exclude testimony from the outset; a court must decide whether such allegations were sufficiently sound to exclude the testimony. Ms. Wittling-Vogel specified that involuntary treatment of mentally-handicapped persons only happened in very serious cases in which no treatment would mean serious danger for the handicapped person or for other persons. Germany concluded that such involuntary treatment did not violate the Convention.
Germany regarded the concluding observations of the treaty bodies as a very careful account of areas needing attention, and would earnestly endeavour to comply with recommendations. Germany had attempted to remedy the situation of unsatisfactory statistics by adopting the catalogues of criteria in which, for instance, alleged violations by police officers were entered into statistics. However, changing the statistics-gathering process took time and was complicated. Unfortunately as the reforms only took place in 2010, no statistics gathered under the new rules were available yet. The Committee’s new reporting system was welcomed, as it would provide a more focused dialogue on up-to-date matters. The plan to present questions a year before the dialogue, so a State party had a year to compile replies, would also be welcomed, as this year Germany only had nine weeks to make replies to the written questions. The Committee would have noticed that in 2008 Germany ratified the Optional Protocol, and had established a National Agency for the Prevention of Torture and a Joint Commission of the Länder for the Prevention of Torture. The heads of those new agencies would now address the Committee.
PROFESSOR HANSJORG GEIGER, Chairman of the Joint Commission of the Länder for the Prevention of Torture (former Secretary of Justice), said the new agency was founded around two years ago and had been operative for a year. The budget was €300,000 per year, and there were three staff positions. The Commission monitored facilities throughout Germany including prisons, deportation and detention centres, Lander police stations, psychiatric clinics, aid organizations for children and youth and care homes. Within one year the Commission had visited 18 facilities, including prisons, police stations, a forensic psychiatric unit and a deportation centre.
No evidence of torture, cruel, inhumane or degrading treatment had been found whatsoever. However areas that could be improved had been identified and recommendations had been made. For example, the Commission paid attention to the ‘specially secured cells’ in prisons, where psychiatric and possibly violent prisoners were put to calm down. Normally they could not wear their prison clothes, so the Commission demanded that those prisoners were able to wear paper clothing that covered their bodies and was anti-flammable. Secondly, that if the room was under video surveillance that the toilet area was blurred out so that no details of the person’s body could be seen, and that metal handcuffs were not used for restraint. All measures taken should be documented separately for later assessment. Prisoners and detainees did not have enough opportunities to work, and sometimes there was not enough light and fresh air, due to security screens. Over-population had been seen, with two persons in a single cell. Leisure time facilities were found to be insufficient, medical and psychiatric care was sometimes inadequate, and because prisoners often came from various cultures the Commission called for separation walls in the showers for privacy, more daylight, washable mattresses, and very importantly, sufficient protection against fire. The Commission had called for rights to be given to detainees immediately, and to be available in various languages for non-German speakers.
KLAUS LANGE-LEHNGUT, Honorary Director of the Federal Agency for the Prevention of Torture (former Warden of Berlin-Tegel Prison), said that there were no federal prisons in Germany, they were all Länder prisons. As a former prisoner warden he could understand the issues from a different perspective. Reforms already implemented included ensuring that all detention rooms had daylight, blankets, pillows and mattresses, and that night lights were installed. Old methods of restraint had now been abolished. Staff had been trained on dealing with persons, especially detainees, who were in very difficult circumstances. Mr. Lange-Lehngut said he believed the new proposals would lead to best practice being established in prisons and detention centres.
Questions from Committee Experts
CLAUDIO GROSSMAN, Chairperson and Committee Expert who served as Rapporteur for the report of Germany, thanked the delegation for their informative presentation and welcomed the ratification of the Optional Protocol. Mr. Grossman first asked the delegation what steps the State party had taken to adopt a comprehensive definition of torture which was in full conformity with the Convention? What measures had Germany taken to prevent trafficking of persons, as the Committee had figures alleging 15,000 persons had been trafficked through Germany. Were those figures true? Trafficking of persons was a form of slavery. What did Germany do to encourage victims of trafficking to come forward and talk about their situation?
There had been instances of death and allegations of ill-treatment by persons of ethnic minority held in police custody. Did the delegation have statistics on the number of detainees who belonged to ethnic minorities, and how many of those had allegedly experienced ill-treatment in detention?
Could the State party comment on the forced return of ethnic minorities to their country of origin, particularly Syria and Kosovo? How many foreign nationals had been forcibly returned under bilateral agreements? Furthermore, what monitoring took place of forcible removals at international airports in Germany?
Mr. Grossman raised the situation of inter-sexual children, whose gender and genitals did not conform to either male or female ‘norms’. He said that those children were often forced to undergo surgery on their genitals to make them conform to either male or female genitalia, often involving removal or mutilation of, for example, the clitoris or gonads. Both the children and their parents were not properly informed of the procedures involved. Were medical persons being trained on sexual and physical diversity, as well as the need to inform parents of the consequences of unnecessary surgery on their children’s genitalia?
What plans were in place to provide more resources to the new National Agency for the Prevention of Torture, and thus the success of its mandate?
Was female genital mutilation considered torture in Germany? On a more general point, Mr. Grossman commented that the Committee’s remit included asking questions about issues concerning women, children and ethnic minorities. The Committee against Torture did not only deal with cases of white men. Germany could not claim that issues about women should be dealt with by the Committee on the Elimination of Discrimination against Women, and issues about children by the Committee on the Rights of the Child. Treaty bodies did not work that way.
Did the State party have statistics on why asylum was granted tr refugees, for instance on gender, age and nationality? What right of appeal did asylum seekers have? The State Party was awaiting the outcome of an European Union report on subjecting minors to the ‘accelerated airport procedure’ of accepting or deporting asylum seekers, but what was Germany’s position on asylum seekers who were minors?
MYNRA KLEOPAS, Committee Expert who served as Co-Rapporteur for the report of Germany, said that due to time constraints she would not refer to the positive developments, but would ask about the capabilities of the National Agency for the Prevention of Torture, that with its limited budget and staff resources was tremendously handicapped in carrying out its task in the most populated country in Europe. Furthermore Ms. Kleopas was concerned that the Commission pre-announced monitoring visits to prisons, a day in advance, instead of giving no pre-warning whatsoever.
Were medical and other personnel who worked with detainees and asylum seekers trained under the Istanbul Protocol on identifying signs of torture? Around 70 per cent of refugees or asylum seekers arriving in Germany had suffered previous trauma, either from torture, war experiences or other previous events that had happened to them? Furthermore, were those detainees examined at the earliest possible moment, so victims of torture or degrading treatment could be helped and rehabilitated as soon as possible?
Ms. Kleopas noted with pleasure that corporal punishment and degrading treatment of children in schools and by parents was illegal and punishable by law. What awareness-raising campaigns had there been on that legislation, and what training on teaching positive forms of education for children had taken place?
Non-governmental organizations, including Amnesty International, had made allegations of police using excessive force, especially in public demonstrations. Alleged perpetrators were not able to be identified, as in Germany police were not obliged to wear their identification numbers on their uniforms. Did the State party intend to make police officers wear identification badges in the course of their duties? An Expert noted with regret that there was no training for private security personnel on the Convention against Torture, could the delegation please clarify why?
Were there any plans to revise, discuss and analyse the medical practice of early determination of sex in inter-sex children? The current practice was based on the relief of establishing an identity, that if a child was surgically changed to look like a girl, she would then develop into a girl. New research has established that that was not necessarily the case. Furthermore, what constituted consent in German law, particularly in medical cases involving surgery to an individual’s sexual organs?
An Expert asked for data on preventative measures taken by the police involving racist behaviour towards Jews, Muslims, Roma and other ethnicities. Was there any information about the case of the so-called ‘Caliph of Cologne’, where was that individual currently being held and how was he monitored?
An Expert congratulated Germany on the amount of concrete information provided in the reports and written statements. His questions concerned the detention system; the first was about the fact that preventative detention could last for over 20 years. What were the reasons for such long periods, and would it be possible to hear specific cases?
An Expert referred to the Committee on the Elimination of Discrimination against Women’s concerns about violence towards migrant women, and asked what strategies were in place to combat that violence? Also was there a possibility to separate juvenile girls in prison from adult women?
Concluding Remarks by the Head of Delegation
HANNS H SCHUMACHER, Permanent Representative of Germany to the United Nations Office at Geneva, said that he was very impressed by the degree of expertise expressed in the questions of the Committee. He thanked the large numbers of members of civil society and non-governmental organizations present at the meeting, and assured them that their reports were widening the Government’s view and adding to the reform process. Nothing was perfect in the world and accordingly nothing was perfect in Germany, but he hoped the delegation would be able to provide satisfactory answers next Tuesday.
For use of the information media; not an official record