COMMITTEE AGAINST TORTURE EXAMINES THE SITUATION IN GERMANY
30 April 2019
The Committee against Torture this afternoon concluded its conside-ration of the sixth periodic report of Germany on measures taken to implement the provisions of the Con-vention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
„Tiger Cages“ Made in GDR by Justice their STASI-intelli-gence –for High End of Repression. Prisoners (my)view.
Peter Jugel, Deputy Permanent Representative of Germany to the United Nations Office at Geneva, recalled that Germany was a supporter of the Committee against Torture and the United Nations Voluntary Fund for Victims of Torture, and then introduced the German delegation.
Introducing the report of Germany, Almut Wittling Vogel, Head of Directorate IV C (Human Rights, European Union Law, and International Law) and the Representative of the Federal Government for Matters Relating to Human Rights, Federal Ministry of Justice and Consumer Protection, said that Germany had substantially improved the law on preventive detention and its’ practise; in 2018, the Grand Chamber of the European Court of Human Rights had recognized that in its current form, preventive detention was fully in line with the European Convention.
The criminal and procedural law provided for the legal means to investigate alleged criminal conduct by police officers, and constituent states (Länder) had taken steps to further improve the corresponding complaint mechanisms, including by resorting to new instruments such as the Public Ombudspersons, who were independent and not bound by any instructions. Speaking about the violent cla-shes between demonstrators and police at the Group of 20 Summit in Hamburg in 2017, Ms. Wittling Vogel said that Germany attached great importance to thoroughly investi-gating all allegations of disproportionate use of force by law enforcement officers, which was also of great signific-ance for the public’s confidence in the police.
In the dialogue that followed, Committee Experts reiterated concern that serious discrepancies between the Conventi-on’s definition of torture and that incorporated into domestic law created actual or potential loopholes for imp-unity. They urged Germany to amend the existing definition so that it covered a broader range of offences, to repeal the statute of limitations, and to include torture as a specific offence in its general criminal law.
Die “ratio legis“ also der Kern des Folterverbotes, ist nicht die Gesundheitsschädigung, auch nicht die Kör-perverletzung, sondern der Angriff auf die Wür-de des Menschen. Der Betroffene darf im Verfahr-en nicht zum Objekt gemacht werden…
”Folter ist, wenn ich dem Menschen mit Gewalt seine Autonomie nehme, ihn zu einem bloßen Körper mache”– sagte der Strafrechtsprofessor und Vizepräsi-dent des Bundesverfassungsgerichtes a.D. und RA Winfried Hassemer – 2003.
Commending Germany’s work to prevent extremism and radicali-zation, the Experts expressed concern about the far-reaching measures to combat terrorism adopted in the wake of the attack on the Berlin Christmas market in 2016, which weakened the right to a fair trial, and the right to free movement.They raised concern about the rise in attacks and violence against refugees and asylum-seekers and asked the delegation to outline the measures taken to protect this group and investigate and prosecute all acts of violence. The Experts discussed the training of state and law enforcement officials in preventing and combatting torture.
The delegation was asked to inform on actions taken to address the reports of the complicity and involvement of some police officers in right-wing and neo-Nazi activi-ties, including threats and intimi-dation of individuals.
In her concluding remarks, Ms.Wittling Vogel thanked the Comm-ittee for a very fruitful dialogue in which the delega-tion was treated in a very fair manner.
„Ko ne poznaje istinu je samo glup; ko je pak poznaje i zove je laz je zlocinac.“
Citat pastora Joahima Gauka, osnivaca i sefa Arhiva ostataka, neunistenih dosijea MfSa( STASI-ja) 110 duznih kilo-metara iz 1992 godine u Haleu – 2012 je postavljen za 11. predsednika ujedinjene Nemacke postoji video zapis:
He said: From time to time we do recognize that we are living in one Land, which is deep sick, in the Landscapes of lies, ant thera are living peoples in all positions whoare liing in to the end.“
COMMITTEE AGAINST TORTURE EXAMINES
Jens Modvig, Committee Chairperson, thanked the delegation and wished it all the best in its endeavours.
The delegation of Germany consisted of representatives of the Federal Mini-stry of Justice and Consumer Protection, Federal Ministry of the Interior, Building and Community, Federal Ministry of Defence, Land Anti-Discrimi-nation Agency of Schleswig-Holstein, Ministry of Justice of Rhineland-Pala-tinate, and the Permanent Mission of Germany to the United Nations Office at Geneva.
The Committee will issue its concluding observations on the report of Germa-ny at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parti-es, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.
The Committee will next meet in public at 3 p.m. on Wednesday, 1 May, to conclude its consideration of the second periodic report of South Africa (CAT/C/ZAF/2).
Presentation of the Report
PETER JUGEL,Deputy Permanent Representative of Germany to the United Nations Office at Geneva, recalled that Germany was a suppor-ter of the Committee against Torture and the United Nations Volunta-ry Fund for Victims of Torture. Mr. Jugel then introduced the German delegation.
ALMUT WITTLING VOGEL, Head of Directorate IV C (Human Rights, European Union Law, and International Law) and the Representative of the Federal Government for Matters Relating to Human Rights, Federal Ministry of Justice and Consumer Protection of Germany, presenting the report, said that Germany had done its utmost to comply with the requirements defined by the European Court of Human Rights and the Committee’s concerns regarding preventive detention, as well as the requirements of the judgement of the German Federal Constitutional Court. The law on preventive detention and its practise had been substantially improved. The Fede-ral authorities and all of the constituent states (Länder) had enacted new statutes on preventive detention, €200 million had been spent on new buildings, and a large number of additional personal had been hired, qualified to care specifically for persons in preventive detention. This reform had once and for all clarified the fundamental difference between penal imprisonment and preventive detention that aimed to protect the general public against dangerous persons. As recognized by the Grand Chamber of the European Court of Human Rights in 2018, preventive detention in Germany in its current form was fully in line with the Convention.
German criminal and procedural law provided for the legal means to investigate alleged criminal conduct by police officers, and cons-tituent states had taken steps to further improve the corresponding complaint mechanisms. New instruments that the Länder were resorting to were the Public Ombudspersons, who were independ-ent and not bound by any instructions. Turning to the extensive protests, including violent clashes between demonstrators and police at the Group of 20 Summit in Hamburg in 2017, Ms. Wittl-ing Vogel said that criminal investigations had been part of the analysis of the course of action taken by the authorities, and a parliamentary committee of inquiry had been set up in Hamburg. Germany attached great importance to thoroughly investigating all allegations of disproportionate use of force by law enforcement officers, which was also of great significance for the public’s confi-dence in the police.
On the prosecution of international crimes, Ms. Wittling Vogel stressed that Germany had always been a strong supporter of inter-national criminal justice. An important part of its efforts was the domestic prosecution of international crimes in accordance with the principle of universal jurisdiction. In 2008, a War Crimes Unit had been established in the Office of the Federal Prosecutor Gene-ral, which pursued a very active policy to implement in practice the German Code of Crimes against International Law. This Code, tog-ether with the Rome Statute, allowed for the prosecution of acts of torture through its provisions on crimes against humanity and war crimes. The achievements of the War Crimes Unit, which had been repeatedly enlarged over the years, included the three convictions for war crimes by Higher Regional Courts, one of a member of the so-called “Islamic State”, another of a leader of a Syrian militia that had been in control of parts of Aleppo, and most recently, a memb-er of another Syrian militia. All three convictions included allegati-ons of torture. The Federal Prosecutor General was currently cond-ucting criminal investigations in 80 cases and arrest warrants had been issued in 15 cases.
Questions by the Committee Experts
CLAUDE HELLER ROUASSANT, Committee Co-Rapporteur for Germany, recognized the commitment and contribution of Germany to human rights and the prevention of torture and that in a general sense, the situation in prisons and detention centres was in step with international laws and standards. There were, however, reports of acts of violence by the security forces as well as questions related to the situation of migrants and refugees, including racist expressions and discriminatory attitudes, anti-Islamism and anti-Semitism in particular.
The delegation was asked about measures taken to incorporate the crime of torture in the general criminal legislation and not merely in the Code of Crimes against International Law, as well as to amend the articles of the Criminal Code and the Military Criminal Code to streng-then the prohibition of torture and ill-treatment, for example those related to harm inflicted in the discharge of official duties.
The Co-Rapporteur recognized that the rights enshrined by the Convention were already covered by the fundamental law and the European Convention for Human Rights, however, gaps remained in the legislation in regards to German nationals who committed acts of torture abroad. One such example was the case of Colonia Dignidad, in which German citizens participated in the commission of crimes of torture during the dictatorship in Chile in the 1970s. The absence of the stand-alone criminalization of torture in German law opened the door to impunity, Mr. Heller Rouassant stressed.
Germany maintained that, given the broad scope of judicial protection, it was not necessary to create a state body mandated with the protection of human rights. The Federal Anti-Discrimination Office, the Federal Agency for the Prevention of Torture, and the National Human Rights Institute were the three principal human rights bodies. With the adoption of the 2015 law, the National Human Rights Institute had been set up and in 2016 it had obtained A status under the Paris Principles. What were the selection criteria for its members and how was its governance structured? The Institute had taken on monitoring functions for the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child – when would the mandate be extended to the Convention against Torture and other human rights conventions?
The delegation was asked about the appointment of members of the Federal Agency for the Prevention of Torture, a body that served as the national prevention mechanism in Germany, the resources allocated to it and the participation of civil society organizations in it work, as well as how its independence was maintained. Could the delegation comment on the claims that the budget allocated to the Agency was not sufficient to fully enable its work, in particular in relation to the investigation of allegations of violence committed by the police? The Agency was responsible for the monitoring of the 280 places of detention that existed in the country and for the monitoring of the expulsions and deportations. It had raised concern about the use of physical coercive methods and the use of violence by the police in some Länder.
Amnesty International for example had raised concerns about barriers to the effective investigation of complaints of torture and ill-treatment by the police due to the lack of investigation mechanisms of independent supervisory bodies. The European Committee for the Prevention against Torture and the Council of Europe had urged Germany to establish of an independent complaints mechanism to cover all the territory and all state agencies.
Germany firmly believed that its anti-terrorism legislation was fully in line with international law and standards, especially following the comprehensive analysis carried out by the Parliamentary Investigative Commission. In this context, the Co-Rapporteur commended Germany’s work to prevent extremism, including through education, engagement with youth, social work, and activities aimed at de-radicalization. However, Amnesty International had stated that following the attack in 2016 on the Berlin Christmas market, Germany had adopted far-reaching measures to combat terrorism which weakened the right to a fair trial, and the right to free movement.
The Co-Rapporteur took note of the reports which claimed that Germany facilitated the use of drones by a third party in countries which were not in conflict and which aimed to selectively eliminate certain individuals in violation of international law. In March 2019, the High Administrative Court of Rhine-Westphalia had made a statement in the case against Germany lodged by citizens of Yemen for its alleged participation in drone attacks in that country in 2012. The Court had found that Germany had a legal obligation to determine whether drone attacks originating from a military base on its territory were compatible with international law.
The Committee was concerned about the use of the insufficiently defined category of “potential attacker” in the recent anti-terrorism legislation, in particular the 2017 law which extended the monitoring abilities of the Federal Police and authorized the use of measures such as home arrests, electronic bracelets, and monitoring of communicati-ons of potential attackers, as well as the extension of pretrial deten-tion from 14 days to three months in some Länder.
The Committee commended the exceptional leadership of Germany and its response to the 2015 refugee crisis and recognized the political cost that this had incurred for the Federal Government, including political manipulation of the topic by extremist parties. In 2017, Germany had received 222,683 asylum requests, a 70 per cent drop compared to 2016, and the downward trend continued in 2018 and so far in 2019. Germany was also a leader in the return and repatriation of refugees, the Co-Rapporteur said, noting that the Federal Office for Migration and Refugees considered the risk of torture in the country of origin while examining asylum requests.
In spite of the worsening conditions in Afghanistan, the return of asylum-seekers from this country continued, and Committee was concerned about the prolonged detention of asylum-seekers awaiting deportation, including those deported under the Dublin procedure, as well as lack of procedures that would allow for the identification of vulnerable asylum-seekers and refugees, including victims of torture.
The attacks and violence against refugees and asylum-seekers continued to be an issue of concern, Mr. Heller Rouassant said, and recognized the seriousness with which the Federal Government had approached the issue, including the extensive consultations with civil society organizations and the adoption of the national action plan against racism and other forms of discrimination. On 16 April 2019, the law on organized return had been presented to Parliament; it included harsher measures against refugees and asylum-seekers, deprivation of their rights, and the withdrawal of welfare support. Could the delegation comment?
Mr. Heller Rouassant raised concern about the nonconsen-sual genital mutilation of intersex persons, as 1,700 opera-tions had been conducted without consent and not for urgent reasons.
Finally, the Co-Rapporteur raised the controversial issue of arms exports to Saudi Arabia and the United Arab Emirates and the link to the conflict in Yemen where numerous human rights violations and violations of international humanitarian law were ongoing. What legislation was in place to govern this issue in line with the human rights policy of Germany?
BAKHTIYAR TUZMUKHAMEDOV, Committee Co-Rapporteur for Germany, reiterated the concern that the serious discrepancies between the Convention’s definition of torture and that incorporated into domestic law created actual or potential loopholes for impunity. The German Criminal Code hardly reflected various facets of the Convention’s definition, having defined torture as “inflicting bodily harm or bodily injury”. The Committee urged Germany to amend the existing definition so that it covered a broader range of offences, to repeal the statute of limitations, as well as to include torture as a specific offence in its general criminal law.
As for the use of the Convention against Torture as a source of law or terms of reference in German courts, the Co-Rapporteur noted that the Federal Constitutional Court was more inclined to cite European instruments, rather than the universal Convention against Torture, and that it was not inclined to cite, as an auxiliary source, the views of the Committee.
Reiterating the critical importance of a legal definition of torture in the Criminal Code, the country’s most apparent source of law, the Co-Rapporteur referred to a case brought to the Committee’s attention by the Berlin-based European Centre for Constitutional and Human Rights, which involved a German citizen who had allegedly collaborated with Chilean authorities during the military junta. After the restoration of civilian rule in Chile, charges had been brought against that individual and Chile had requested legal assistance from Germany, including extradition. However, the non-extradition of its own citizens’ provision of the German basic law combined with the absence of a statute of limitations for the specific crime of torture and the lack of definition of the latter, allowed that German citizen to escape from both Chilean and domestic criminal judicial procedures.
Turning to the training of law-enforcement personnel, personnel of detention facilities, and medical doctors, Mr. Tuzmukhamedov asked about specific measures taken to ensure that the Istanbul Protocol Manual was taught to specific personnel on a regular and systematic basis. Were officers dealing with asylum-seekers trained in intercultural communication skills and in identifying signs of enduring mental suffering, and were interpreters trained in assisting medical experts in communications with persons subjected to physical or mental torture? Germany had been deploying its military forces as part of international missions for a long time, the Co-Raporteur noted, and asked about the training that the troops received in matters of international law. He remarked that the Manual on the Law of Armed Conflict did not include reference to the Convention against Torture or its Optional Protocol. Furthermore, the courses in the 2019 catalogue at the German Armed Forces United Nations Training Centre seemed to be devoid of any reference to international humanitarian law or international human rights law.
As for the fundamental legal safeguards, Mr. Tuzmukhame-dov pointed to the gaps in the implementation of the relevant legislation, including the failure to inform persons taken into custody of their rights in writing in police stati-ons in Brandenburg, Hamburg, and Mecklenburg-Western Pomerania. In Lower Saxony, leaflets for persons taken into custody under the Police Act were only available in German.The delegation was asked to comment on the systematic application of fundamental legal safeguards, and in particular the use of physical restraints on persons in custody.