8 November 2011
The Committee against Torture this afternoon heard the response of Germany to questions raised by Committee Experts on the 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 Friday 4 November, the delegation, led by Almut Wittling-Vogel, Head of the Directorate for International and European Law at the Federal Ministry of Justice, said that the Convention was directly applicable law in Germany and binding for all State authorities, and therefore so was the Convention’s definition of torture: therefore the State party did not consider it necessary to change legislation to make torture an explicit crime. Ms. Wittling-Vogel and other members of the delegation provided extensive information on various subjects, including legislation and processes for extradition and deportation of persons, use of diplomatic assurances in cases of extradition, anti-trafficking measures, including prosecution of perpetrators, the rights of inter-sexual persons, physical restraint used by the police and the identification of police officers, the training of officials who might work with persons who had suffered torture or ill-treatment, juvenile detention and provisions for unaccompanied foreign national minors and the issue of preventative detention.
The Committee will submit its conclusions and recommendations on the report of Germany at the end of the session on Friday, 25 November, 2011.
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 next public meeting will be at 10 a.m. on Wednesday, 9 November when it will begin consideration of the combined fourth and fifth periodic reports of Bulgaria (CAT/C/BGR/4-5).
Response from the Delegation
ALMUT WITTLING-VOGEL, Head of the Directorate for International and European Law at the Federal Ministry of Justice, said that the Convention was directly applicable law in Germany and binding for all State authorities. Therefore the definition of torture contained in the Convention was also applicable law. The State party did not consider it necessary to change legislation to make torture an explicit crime, especially considering it would be difficult to get a parliamentary majority on such a change.
Under the European Convention on Human Rights it was forbidden to deport a person into another State if they were at risk of torture there, and the same law applied to extradition. While it was not possible to give statistics on the application of the Convention regarding specific cases of prosecution under torture legislation, two examples were a 2005 ruling where a police officer was found accountable after threatening torture, and a civil ruling in 2011 of compensation after threat of torture.
A delegate referred to the Committee’s regret that there was no independent complaints office in Germany for allegations of ill-treatment by police, and said that was often criticized. Any allegation against police officers was investigated by police, but never by police officers from the same unit; it would be officers from a higher level in the hierarchy or a different location. The Government believed existing provisions were sufficient.
In general persons taken into custody were informed of their rights orally. Interpreters were provided if they did not speak German, and the Vienna Convention on detainees was always applied.
Germany extended universal jurisdiction to the crime of human trafficking, and the following offences committed abroad were considered criminal acts by Germany: trafficking for sexual exploitation; work exploitation; or assisting trafficking. The non-governmental organizations’ (NGOs) estimate of 15,000 cases per year could be neither denied nor confirmed by the Government, as it also referred to undetected cases. Police statistics showed that in 2010 there were 610 cases of persons trafficked for sexual exploitation, and 23 cases of persons trafficked for work exploitation. While it was probable that there was a ‘dark field’ of undetected cases, it was difficult to assess, as was the overall impact of police measures taken to combat the phenomenon. There were protective measures for victims of trafficking, such as witness protection programmes run by the police, cooperation programmes between police forces and counselling institutes, churches and other organizations. In June 2011 the International Organization for Migration, the United Nations Refugee Agency and the Federal Office for Refugees collectively began a programme for the identification and protection of victims of human trafficking who had applied for asylum.
A delegate said they could not answer the question on how many ethnic minorities were in prison, since in Germany no statistics were kept on ethnicity; only on nationality or citizenship. The reasons were that German ethnic minority citizens, such as the Sinti or Roma, indicated that they were against such information gathering. Also nobody could be forced to disclose they belonged to an ethnic minority, so such data collection could not be enforced. Finally such statistic gathering would recall National Socialist times, which would be a big and sensitive issue in Germany. While the Government knew it would be a useful statistic to have, and was following the debate on it, for the time being it was seen to be advantageous to not gather such statistics. A delegate did tell the Committee that from 2007 to 2009, 20 per cent of convictions were foreigners, but said that the question of nationality was a completely different one to that of belonging to a minority group. The question about racist motives of crimes committed against ethnic minorities could similarly not be answered as such statistics were not kept. The delegation regretted it could not give more information.
Following the shadow report provided by the Association of Inter-Sexual Persons, the Ethics Council was asked to provide a paper on inter-sexual persons, which triggered a procedure with the following steps: a national event on inter-sexuality was held in June 2011 followed by a questionnaire, online discourse and submission of comments on the subject by relevant persons involved, including inter-sexual persons and medical staff. Any kind of medical treatment was only permissible if there was effective consent by the concerned individual. The doctor had to completely explain the procedure and all related risks. If no consent was provided the treatment was illegal and damages would be paid. Exceptions were rare, but included cases of infants and small children, in which case the parents must give consent after being provided with comprehensive information. Operations conducted during childhood years had only come to light recently, that was why the Ethics Council was asked to provide new guidance on the subject.
There was no maximum five year sentence for offences related to torture for military personnel, they would be liable under the general Criminal Code just like everybody else.
Physical restraint had been abolished in the Federal Police, but for different reasons to those assumed by the Committee. The areas the Federal Police worked in meant it was not necessary for their operations to use physical restraint. The ‘normal’ State-level police had different tasks to fulfil, and could still use physical restraint. Uses of physical restraint were uncommon, and used only as a last resort. The medical care of persons under restraint was at all times assured.
It was difficult to give statistics on foreign nationals being returned, the granting of asylum and protection of refugees as those statistics were not necessarily taken or kept a long time; there was an enquiry on the issue before the Government and the resulting statistics would be forwarded to the Committee.
The position of Germany on unaccompanied minors, which was currently under discussion in the European Union, was to provide protection to minors. Even now all decisions about asylum applications by unaccompanied minors were taken by persons who were constantly undergoing special training, legal and cultural information.
The ‘Bridge Project’, was an active programme to return persons to Albania and Kosovo following the conflict. Germany also provided aid to young people who had started their education in Germany so they could continue their education at home, for example funding courses in Albanian, which they may no longer speak.
The Istanbul Protocol would be included in the training programmes of persons who might work with victims of torture from 2012. There was also training on dealing with minors, and persons who had been persecuted due to their gender. There were specialized training centres that provided the training.
Detention pending deportation was usually conducted in specialist detention centres separate from normal criminals, with separate leisure and visitor facilities. There was a strict separation in visitor traffic, etcetera, to detainees and to convicted criminals.
When all circumstances had been reviewed to find out if a person was a refugee both protection and asylum could be granted even if the circumstances had changed. The decision could also be repealed, although the individual could appeal. If the torture or the ill-treatment the person had suffered in their country of origin was minor, then the refugee status was repealed, but other factors would be considered on whether they could remain in Germany. The fact that a person had been detained abroad was not evidence they had been tortured, and it would not follow that asylum or refugee status was automatically granted. For example if a person had been detained under the Gaddafi regime in Libya, then came to Germany claiming asylum, then that asylum would not be granted as the regime responsible for that persecution no longer existed.
Mechanisms used to identify vulnerable persons at an early stage included special training measures for personnel in order to recognize traumatized and tortured persons, including minors. Asylum procedures would take too long if every applicant had to go through a screening procedure and be medically examined – there were not that many experts, in any case. Rehabilitation centres for victims of torture existed and would continue to be funded.
Migrant women, who were considered to be especially vulnerable, were able to access all facilities available in Germany to women who suffered gender-based violence.
The practice and procedure of extradition gave a double safeguard to any person involved. First, following a request for extradition, if the person concerned did not accept, the criminal courts would decide on the extradition, and the person involved could offer any information or documents to the court. The second check was done on a case-by-case basis by the Government. Any diplomatic assurances would be conducted by an exchange of diplomatic notes between the respective Foreign Offices; it was a very formalized process. If there was a real risk of ill-treatment for the person it was unlikely a diplomatic assurance would suffice.
In the case of the co-called ‘Caliph of Cologne’, who was deported to Turkey under diplomatic assurances, the General Consulate in Istanbul had monitored his arrival and Turkey had assured his legal process. As Mr. Caplan was a Turkish national, not a German one, he was not assured German consulate assistance. Nevertheless a visit to him by the German Consul had been requested and would soon take place.
The National Prevention Mechanism could visit detention facilities without any notice, although normally 12 hours notice was given to ensure there would be people there to speak to. The National Prevention Mechanism could not visit detention facilities of foreign armed forces on German territory, because they were not subject to German sovereignty.
Preventative detention was a lengthy and complex subject, and if the Committee had any further questions they would be provided in writing. The possibility of using electronic ankle monitors instead of preventive detention had only been available since January 2011. However statistical evidence from other departments, up to August 2011, showed that over 290 persons had used the electronic ankle monitor and 90 per cent of those persons had to be taken into detention again.
A judge must decide whether a person might be part of the group of 14 to 18 year olds, or 18 to 21 year olds, which would determine which prison they went to. Juvenile men and women were separated from adults in detention facilities. Permanent seclusion was a temporary measure only used if certain conditions were fulfilled. Overall seclusion from other detainees for longer than three months (for adults) and two months (for youths) was only legitimate if reviewed by the courts. Permanent seclusion did not mean people had no contact with the outside world, they could receive visits from medical staff, family and chaplains, and were in regular contact with prison management.
There were four new prisons in North Rhine Westphalia, two of which were already in use, and the other two would start to be used in 2012.
Follow-Up Questions from Committee Experts
CLAUDIO GROSSMAN, Chairperson and Committee Expert who served as Rapporteur for the report of Germany, thanked the delegation for their thorough and professional answers, and noted they had not been given time to provide all of their prepared answers – he hoped they would before the end of the meeting. He then asked how many allegations would constitute alleged violations of articles 1 and 60 of the Convention?
Was there any case where the principle of universal jurisdiction had been used to prosecute and sentence a person for the crime of trafficking, which was a form of slavery? Was anti-trafficking seen as a priority in Germany, for example had there been any budgetary increase for dealing with the scourge?
In terms of collecting statistics on ethnic minorities, it would be helpful to know more about racist crimes.
Little success with diplomatic assurances had been seen by the Committee, enthusiasm for them seemed to be cooling and they were by nature unreliable. Mr. Grossman said he would be interested to hear about deportation as opposed to extradition.
An Expert asked about the requirement for police officers to wear identification badges. Depending on the success of the measure in Berlin, might it be rolled out across the country?
The concept of torture was not included in the German penal code. The reasoning that the parliament might be able to do so, would it not be imposed by international law, did not make sense as the term ‘torture’ was already present in other international conventions that Germany had succeeded to and had become a ‘catchword’ in everyday parlance.
Concerning the ‘Caliph of Cologne’ the Committee appreciated he was not a German national, but an Expert said she was surprised to hear there were now negotiations to visit him in detention in Turkey, because he had been deported in 2004. On a wider issue, what was Germany’s concept of diplomatic assurances and follow-up?
Response by the Delegation
There was a constant dialogue between the Ministry of Justice and the Lander, for example the report of the meeting would be sent to every Lander.
The Federal Office for Refugees would start training under the Istanbul Protocol on recognizing the physical signs of torture. Of course psychological damage was equally important. There was a translation of the Istanbul Protocol into German, but unfortunately it was only available as a book, and not electronically on the Internet. The authorities were trying to make sure the book was widely available.
Concerning the European Union debate on unaccompanied minors, it was difficult to say the German position on that as they were internal discussions. A delegate confirmed that the same discussion was going on in Germany and there were constant developments in that field.
Those who voluntarily returned to their countries, for example Kosovo, had the same access to a lawyer as everyone else, including to legal aid. There were no special programmes for those persons. In general a pre-condition of deporting a foreign national involved a certain level of responsibility. Unfortunately it was not possible to give a more specific answer.
It was true that there were cases where non-identification of police officers led to difficulties in criminal procedure, including some very bad cases as referred to by the Committee. There was an ongoing discussion about the issue, while it was recognized that there were problems for police officers who were identified in the street, and then had their names and home addresses published on the Internet.
If the Government heard of ill-treatment in detention facilities of foreign armed forces on German territory, the National Preventative Mechanism could not visit, but there would be diplomatic correspondence on the issue, although that would not necessarily be in the public domain. Fortunately there had been no instance of such ill-treatment.
It was unfortunately rare that German jurisdiction referred to international laws. However there were now seminars on international human rights treaties for judges and prosecutors, and the German Bar had similar programmes for lawyers. International law also was now a stronger part of university degrees. Normally national law should be sufficient to transport the principles of international law to the national level.
KONRAD MAX SCHARINGER, Deputy Permanent Representative of the Permanent Mission of Germany to the United Nations Office at Geneva, thanked the Committee for a very constructive dialogue, their precise questions and their patience with the answers. Any questions not answered today would be answered in writing at the earliest opportunity, and the delegation looked forward to the concluding observations of the Committee.
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