CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Second
periodic reports of States parties due in 1992
Addendum
AUSTRIA*
[6 October 1998]
________
* The initial
report submitted by the Government of Austria is contained in document
CAT/C/5/Add.10; for its consideration by the Committee, see documents
CAT/C/SR.18 and 19 and Official Records of the General Assembly,
Forty-fourth session, Supplement No. 46 (A/44/46), paras. 202-230.
Introduction
1. Austria
ratified the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment in 1987 (Federal Gazette No. 492/1987);
the initial report was submitted in 1988 pursuant to article 19 of
the Convention (CAT/C/5/Add.10).
2. The present
report is a comprehensive account for the period from 1989 to August
1998 and is intended to serve as supplement to the initial report,
focusing on the present legal situation, especially on those aspects
which are substantively related to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment. While
the Republic of Austria regrets the delay in reporting, it would like
to point out that a number of legislative as well as practical changes
in the national framework have now been completed, so that a comprehensive
report can now be made.
3. International
monitoring of the protection of human rights is given high priority
in Austria. The Austrian authorities undertake continuous efforts
to ensure the improvement of the standard of human rights protection
and are particularly interested in carrying on a continuous dialogue
with the human rights organs within the framework of the United Nations
and the Council of Europe. In 1958, Austria ratified the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR), article 3 of which reads as follows: "No one shall be subjected
to torture or the inhuman or degrading treatment or punishment."
4. The ECHR
and the Protocols thereto play a decisive role in Austria and are
of constitutional standing, directly enforceable and applicable before
Austrian courts of law and authorities. The ECHR and its application
by the Convention organs have had a strong influence on the legal
system both in the legislative and executive fields, in particular
as regards the law of criminal procedure, the jurisdiction of the
administrative authorities in determining matters of civil law, and
the administrative criminal procedure. The protection and implementation
of human rights is basically observed by public authority. In those
cases where individual human rights violations nevertheless occur,
there is an effective system of legal protection. After all domestic
remedies have been exhausted, i.e. after ordinary appeals have been
taken to the highest instance in Austria and after adequate use has
been made of the available extraordinary appeals, for example by filing
a complaint with the Constitutional Court or the Administrative Court,
a complainant may file an individual application with the European
Commission on Human Rights invoking a violation of his/her rights
guaranteed by the ECHR and may subsequently also address the European
Court of Human Rights or - as of November 1998 - the permanent European
Court of Human Rights in Strasbourg established in accordance with
Protocol No. 11 to the ECHR.
5. Furthermore,
in 1989, Austria ratified the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (Federal
Gazette No.74/1979). The European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited
Austria twice, in 1990 and 1994 (see para. 49 of the present report).
6. In the
past few years, the law pertaining to the Austrian security police
authorities has undergone a process of renewal which has far-reaching
consequences for the legal status of persons living in Austria. The
starting point of this process was the Security Police Act (Sicherheitspolizeigesetz,
Federal Gazette No. 566/1991) which entered into force on 1 May 1993.
This Act, for the first time, placed the prevention-oriented activity
of the police within a regulatory framework; it gives the individuals
affected by a police action important subjective rights, on the one
hand, and a wider scope of legal protection, on the other. At the
same time, a "Code of Professional Duties" was introduced in a so-called
Guideline Ordinance (Richtlinienverordnung/RLV, Federal Gazette
No. 266/1993) which reaches beyond the sphere of competence of the
security police and contains guidelines on the prohibition of discriminatory
treatment of persons and the conduct of interrogations.
7. As a next
step of the reform process, a fundamental revision of the provisions
regulating detention on remand was implemented with the Criminal Procedure
Modification Act 1993 (Strafprozeßänderungsgesetz, Federal
Gazette No. 526). This is a first move in the direction of a comprehensive
reform of preliminary criminal proceedings, which had already been
due for some time.
8. As a third
element of this complete reorganization of the powers of the security
police, a comprehensive revision of the law pertaining to aliens was
adopted in June 1997. The 1997 Aliens' Act (Fremdengesetz,
Federal Gazette I No. 75/1998) and the 1997 Asylum Act (Asylgesetz,
Federal Gazette I No. 76/1998) entered into force on 1 January 1998
while maintaining the general principle of the migration law which
had been in force since the early 1990s. The main objective of this
"integration package" was to maintain the basic principles of the
legislation pertaining to migration which take into account the migratory
movements in the wake of the opening of the Eastern borders, and which
were characterized by the strict separation and specific treatment
of individual groups of foreigners (tourists, migrant workers and
asylum-seekers), on the one hand, and the prevention of the abuse
of asylum rights, on the other hand; in addition the "integration
package" aims at achieving greater justice in the enforcement of the
law in individual cases.
9. Thus,
a codification process has been undertaken which has revised large
parts of the law in less than a decade and which should be completed
in the upcoming legislative period by a revision of preliminary criminal
proceedings (including police investigations).
I. THE SECURITY POLICE ACT (SICHERHERTSPOLIZEIGESETZ, SPG)
A. Principles of fulfilment of tasks and legal protection
10. The SPG
presents a significant change regarding the way in which the activities
of the police authorities and their enforcement officers are regulated,
insofar as it clearly shows that a person affected by an intervention
by the security police is to be regarded a legal subject, i.e. as
a holder of subjective rights which can only be interfered with in
specific cases and then only to the extent that this interference
is commensurate with the importance of the duty to be fulfilled. A
closely related aspect is that the person affected by an official
intervention is granted full legal protection, the competence for
which is primarily vested in the Independent Administrative Tribunals
(Unabhängige Verwaltungssenate).
11. An underlying
objective of the SPG, which finds its expression in the above regulations,
is to raise the awareness of security police officers with regard
to the rights of persons affected by their actions. This is ultimately
an important factor for the prevention of human rights violations.
1. Principles
of fulfilment of tasks
12. As regards
the fulfilment of tasks, the SPA lays down principles which
(a) Clearly
indicate that the main objective of police intervention is not to
serve the interests of the State but rather to protect the physical
integrity of human beings;
(b) Are
designed to guarantee that the rights of individuals affected by official
acts committed by the security police are adequately safeguarded (principle
of proportionality);
(c) Grant
such persons certain minimum rights including the right to be informed
at their request about the reason and purpose of the intervention
and the right to submit facts that are relevant to the intervention,
and to have these facts officially established;
(d) Give
the officers of the public security service guidelines for their intervention
which are intended to contribute to a reasonable interaction with
the persons concerned and to reduce the risk of conflict.
2. The
Guideline Ordinance (RLV)
13. The above-mentioned
basic objective of ensuring an interaction with persons affected that
respects them as holders of certain rights is expressed in the Guidelines
for the Intervention of Organs of Public Security - issued in the
form of an ordinance - as follows.
14. Section
5 of the RLV which is entitled "Respect for Human Dignity", provides
for a comprehensive prohibition of discrimination which has special
regard for the status of members of social fringe groups; in the fulfilment
of their duties, the organs of public security are to refrain from
any action which may create the impression of partiality or can be
seen as discrimination on the ground of gender, race or skin colour,
national or ethnic origin, religious affiliation, political beliefs
or sexual orientation. The organs of public security are - with a
few exceptions - obliged to address everybody respectfully by using
the formal personal pronoun "Sie".
15. Anyone
affected by a police action must at their request be informed about
their rights and about the purpose of the police intervention (sect.
6, para. 1).
16. Persons
being interrogated should, wherever possible, be permitted to sit
down (sect. 6, para. 2).
17. Interrogations
of arrested persons must generally be conducted on official premises
(sect. 6, para. 3). In case of lengthy interrogations, breaks must
be taken. Interrogations must be documented in such a way that it
is possible later on to re-establish how they were conducted.
18. The organs
of public security must inform arrested persons to be examined by
a physician commissioned by the authority that they are free to ask
for a doctor of their choice provided that this is possible without
substantially delaying the examination (sect. 8, para. 3).
19. Persons
affected by a police action may raise the issue of observance of the
guidelines by lodging a complaint to a superior authority (Aufsichtsbeschwerde)
which is laid down separately in section 89 of the Security Police
Act. If the complainant is not satisfied with the reaction of the
police authority, he or she may request a review by an Independent
Administrative Tribunal.
20. It is
also possible for the superior authority to use the complaint as an
occasion to promote a dialogue between the complainant and the respondent
officer. This procedure is intended to facilitate a settlement of
the conflict which, on the one hand, gives the persons affected the
feeling that their concern is taken seriously, and on the other hand,
leaves room for the understanding that the escalation of a conflict
is often not only the fault of one side. If the complainant is satisfied
with the dialogue, the complaint may be dropped.
3. Right
to lawful intervention and legal protection
21. A special
feature of Austrian law is section 87 of the SPG, which grants anyone
affected by an act of police intervention a subjective right that
the intervention must be in accordance with the law. This is to be
seen in connection with section 88, which offers persons affected
by any type of interference with their rights the opportunity to submit
a complaint to the Independent Administrative Tribunal. Such comprehensive
legal protection against police intervention is unique in Austrian
law as these instruments of legal protection normally are only provided
in connection with certain acts of sovereign authority (hoheitliches
Handeln).
B. Security Report
22. In accordance
with section 93 of the SPG, the Federal Government is required to
submit an annual Security Report to the Austrian Parliament. This
report must also include statistics regarding the complaints raised
against organs of public security under disciplinary and criminal
law. The 1996 Security Report (pp. 217-218), thus contains detailed
information on complaints lodged against members of the Federal Police
and Federal Gendarmerie authorities. Further information is given
(pp. 298 and 299) on cases in which police officers were accused of
maltreatment and which were reported to the Public Prosecutor. In
the year under review, there were 715 complaints and 8 convictions.
II. THE CODE OF CRIMINAL PROCEDURE MODIFICATION
ACT 1993 AND THE BASIC RIGHTS COMPLAINT ACT
23. As an
important phase of the comprehensive reform of preliminary criminal
proceedings, the Code of Criminal Procedure Modification Act 1993
(Strafprozeßänderungsgesetz 1993), Federal Gazette No. 526/1993),
constitutes a fundamental reorganization of the provisions concerning
arrest and detention on remand.
24. The new
provisions require a renewal of remand decisions within specified
time limits (two weeks, one month, two months); the examining judge
has to decide each time following a hearing with the defendant, the
defence counsel and the prosecutor. Legal assistance is mandatory
in such proceedings. A new scheme of legal aid has been set up for
the purpose of providing instant legal assistance to all defendants
arrested and remanded in provisional detention (Untersuchungshaft).
25. A defendant
who is arrested at a place outside the jurisdiction of the court having
issued the arrest warrant, is to be brought to this court from any
part of the country within 72 hours after the arrest.
26. The new
law has led to a significant (and permanent) reduction of the population
in remand detention (by more than 20 per cent).
27. As far
as detention is concerned, it is possible as from 1 January 1993 to
have orders and decisions of criminal courts reviewed by the Supreme
Court under a special Basic Rights Complaint Act (Grundrechtsbeschwerdegesetz,
Federal Gazette No. 864/1992), to ascertain whether there has been
a violation of the basic right to personal liberty, for instance by
an incorrect assessment of the preconditions for detention on remand,
its disproportionate length or, by an incorrect application of the
law in connection with arrest or detention.
III. THE ALIENS' ACT 1997 AND THE ASYLUM ACT 1997
28. The current
law pertaining to aliens and asylum matters contains some important
provisions designed to counteract the risk of maltreatment.
A. Ban on expulsion and deportation
29. An explicit
ban on expulsion and deportation (refoulement) within the meaning
of article 33 (1) of the Convention relating to the Status of Refugees,
(Federal Gazette No. 55/1955), which is in effect in Austria as an
ordinary federal law in the version of the Protocol relating to the
Status of Refugees (Federal Gazette No. 78/1968), has already been
introduced in the Austrian law pertaining to aliens (sect. 13a of
the Aliens' Police Act in the version of Federal Gazette No. 190/1990).
This provision was included without any substantive changes in the
1997 Aliens' Act (sect. 57) and amended by a special procedural provision
(sect. 75) which requires the authority to examine whether there is
a reason to assume a risk of persecution that is relevant within the
context of deportation.
30. Under
the law, the expulsion or deportation of foreigners to another country
is inadmissible if there are valid reasons to assume that this would
put them at a risk of being subjected to inhuman treatment or punishment
or to the death penalty in that country. The expulsion or deportation
of foreigners to another country is not admissible if there are valid
reasons to assume that their life or liberty would be at risk because
of their race, religion, nationality, membership of a specific social
group or their political opinions. This ban on residence-terminating
measures is of an absolute nature and must be observed ex officio
at all stages of proceedings aimed at terminating a person's right
of residence. Pursuant to section 75, paragraph 1, of the Aliens'
Act, the authority is obliged to decide, at a foreigner's request,
whether there are valid reasons to assume that he or she is threatened
in a State designated by him or her under section 57, paragraph 1
or 2, of the above Act. The only exception to that rule applies where
an asylum authority has previously decided on the question of admissibility
of deportation to another State or where it has found that the foreigner
will be protected from persecution in a third country.
31. The Asylum
Act 1997, which took effect together with the Aliens' Act on 1 January
1998, provides for a separate non-refoulement review by the asylum
authorities. This is to ensure that a competent authority with expert
knowledge decides on the admissibility of police measures in sensitive
cases. Additionally, the asylum authorities are obliged to observe
the "third country" clause, which, unlike the former law, is essentially
future oriented and thus requires a prognosis with regard to the level
of security to be expected in the third country. The reason is to
avoid protection gaps which might result from an interpretation of
the third-country rule based on the past situation.
32. Thus,
it is clearly stipulated that, in the face of a threat of inhuman
treatment or punishment or the death penalty, any measure terminating
the right of residence would be inadmissible even in cases where article
33, paragraph 2, of the Convention relating to the Status of Refugees
is applicable. For, under this provision, a residence-terminating
measure would also be admissible under article 33, paragraph 1, of
the Refugee Convention in case of a deportation ban if the refugee,
for important reasons, constitutes a danger for the security of the
Republic of Austria or poses a threat to the community because of
a final conviction for a serious crime.
33. The provision
concerning the restricted right of residence (sect. 15, Asylum Act)
must be seen in connection with the non-refoulement review. Under
that rule, the asylum authorities are obliged to grant those aliens
whose application for asylum has been finally rejected for other than
asylum exclusion reasons (art. 1.F of the Geneva Convention) and who
are not legally entitled to stay on the Austrian federal territory
a restricted residence permit if the non-refoulement review has shown
that the rejection, expulsion or deportation of such aliens is not
admissible. This is to ensure that foreigners who cannot be made to
leave the country are granted a right to stay as long as the situation
prevails. Thus, a restricted residence permit is usually granted in
conjunction with a negative decision regarding asylum; it can, however,
also be granted at a later stage when a residence permit has initially
been granted and then ceased to apply.
34. Finally,
a deportation under section 57, paragraph 6, of the Aliens' Act 1997
is not admissible as long as the European Commission on Human Rights
or the European Court of Human Rights has indicated an interim measure,
i.e. that an alien cannot be expelled until the Commission or the
Court has examined the application.
B. Independent Federal Asylum Tribunal (Unabhängiger Bundesasylsenat)
35. The lawmakers
have upgraded the status of asylum proceedings by establishing an
independent appeal authority in asylum matters, the so-called Independent
Federal Asylum Tribunal (sect. 38 of the Asylum Act 1997) whose members
are appointed for an unrestricted term of office and who are not subject
to superior orders. The court-like organization of the new authority,
which - unlike the Federal Asylum Office, which is subordinate to
the Federal Minister of the Interior - is established within the sphere
of competence of the Federal Chancellor, thus constitutes a tribunal
within the meaning of article 6 of the European Convention. It is
thereby ensured that decisions in asylum proceedings, which are in
substance closely related to universally recognized human rights and
which frequently contribute significantly to the prevention of torture
and other cruel, inhuman or degrading treatment or punishment, are
taken under optimal circumstances and with an adequate level of quality.
C. Protection of displaced persons
36. The Aliens'
Act 1997 also provides a special contribution to the prevention of
torture in that it protects "displaced persons" (sect. 29) even if
they do not come within the scope of protection of the Geneva Refugee
Convention. Under paragraph 1 of this provision, the Federal Government
has the authority, with the consent of the Main Committee of the National
Council (Nationalrat), to grant groups of aliens who are directly
affected and who cannot find protection elsewhere a temporary right
of residence during times of armed conflict or under other circumstances
threatening the security and safety of entire ethnic groups. This
system has already proved extremely helpful during the crisis in Bosnia
and Herzegovina.
37. In order
to ensure that a sufficient remedy is available in periods where an
ordinance by the Federal Government cannot be issued with the consent
of the Main Committee of the National Council because the extent and
duration of the armed conflict in the region in crisis cannot sufficiently
be assessed, or because the National Council cannot deal with the
matter promptly enough, for instance, during the summer recess, it
is possible, with the consent of the Federal Minister of the Interior,
under section 10 paragraph 4, of the Aliens' Act, to grant displaced
aliens a three-month residence permit ex officio on humanitarian grounds
even if there were important reasons to refuse such a permit. The
availability of the possibility for an adequate reaction during the
earliest indication of a crisis is thus ensured.
IV. SELECTION AND TRAINING OF POLICE OFFICERS
38. The selection
and training of police officers constitutes an important contribution
towards the prevention of torture or inhuman treatment.
A. Selection of police officers
39. In January
1996, the Minnesota Multiphasic Personality Inventory Test (MMPI),
which is used to examine the suitability of persons applying for employment
or life tenure status, was introduced in Austria. The test is designed
to detect reliably all latent psychological illnesses and all pathological
personality disorders. In the case of unusual test results an expert
in the field of psychiatry is consulted to ensure that all persons
with major personality disorders are excluded from recruitment into
the public security service.
B. Education in the course of basic vocational training
40. During
their basic training police officers are instructed in the field of
constitutional law with a view to providing them with an understanding
of basic rights and to teaching them how to perform their duties with
respect for human dignity. The training programme for senior supervisors
includes a separate course entitled "Human Rights" which emphasizes
the importance of these fundamental rights. Within the framework of
further vocational and in-house training, there are frequent references
to the importance of human rights and the relevant laws, especially
the Security Police Act. In addition, sections 5 and 6 of the Guideline
Ordinance contain important provisions concerning "respect for human
rights" and "dealing with persons affected by a police action". Criminal
investigation officers, who are primarily responsible for examining
persons arrested, receive special training in interrogation techniques.
C. Human Rights Week
41. It is
the conviction of the Federal Ministry of the Interior that lasting
prevention of police interference cannot be achieved only by conducting
more thorough reviews, but needs to be rooted in the police officers'
understanding of their roles and duties. With the aim of launching
a reflection process on the relationship between the basic rights
of persons affected by police actions and the statutory duties of
police officers, a special Human Rights Week was held from 2 to 6
February 1998, in the course of which key members of the police force
from all parts of the Ministry were informed about the importance
of human rights in everyday practice.
42. This
project was initiated following charges by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment concerning cases of mistreatment during police custody.
The main target group of the project - for reasons of cost - comprised
senior police officers such as heads of district gendarmerie departments
or high-ranking security police staff and detectives at the Federal
Police Directorates. It is gratifying to note that the workshop was
organized in cooperation with Austrian NGOs such as Caritas and Amnesty
International.
43. The main
issues covered in the workshop included the conduct of police officers
vis-à-vis criminals and suspects as well as human rights violations
against foreigners, fringe groups and minorities. By presenting some
examples of their own, participants in the workshop were able to widen
and deepen their understanding of sensitive human rights matters arising
in the performance of their duties and to develop alternative ways
of how to act.
44. While
there was some initial scepticism on the part of the participants,
the workshop was able to break down barriers of prejudice on both
sides; this was largely due to the involvement of outside groups.
45. It was
remarkable to note that the participants developed specific projects
designed to communicate the issues and problems to their staff. An
important contribution came from the Wolfsberg District Gendarmerie
Department, which had realized an impressive project on the topic
of "gendarmerie authorities responding to citizens' needs" which to
a large extent also had to do with human rights. Remarkably, the project
has led to a reduction in the number of complaints in the district
by half. In the light of this positive experience, the other participants
suggested that more such workshops or seminars be conducted, that
the subject matter be integrated in the curriculum of further vocational
training courses, that the scope of basic training be amended and
enlarged and that panel discussions be organized with representatives
of NGOs and citizens' groups.
46. Finally,
it may be noted that the Human Rights Week workshop was not a one-time
undertaking but rather the beginning of a project which should be
continued in the future. This aim, however, can only be achieved if
the further training of educators ("multipliers") is guaranteed, if
all members of the security police force are included in the target
group, and if certain ideas concerning the basic and further training
of police officers are implemented.
V. EXAMINATIONS BY MEDICAL OFFICERS
47. The Federal
Ministry has already instructed the gendarmerie and police authorities
(by ministerial orders of 6 and 15 February 1990, respectively) to
ensure that examinations by the competent medical officer may be conducted
in police prison facilities without prior notice. The security authorities
were specifically reminded of these ministerial orders in 1996, on
the occasion of the visit of the CPT to Austria. The number of such
examinations was set at a minimum of 12 per year.
48. Pursuant
to section 5 of the Service Rules for Medical Officers in the Federal
Police Authority, any injuries observed in the course of an examination
by a medical officer are to be noted in the medical report, which
must provide a detailed description of the injuries and of the type
of traces or visible signs or consequences of physical harm that were
observed, as well as information about the alleged physical harm incurred,
its causes and consequences. When the new service rules for medical
officers are issued, it will be important to re-emphasize the above
provisions. There is a general obligation to examine any offence,
including possible physical injuries, in accordance with the pertinent
laws. This applies in particular to those officers of the public security
service who are performing supervisory functions.
VI. THE
EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT (CPT)
49. The CPT
visited Austria twice, from 20 to 27 May 1990 and from 26 September
to 7 October 1994. In both of its reports, the CPT criticized certain
aspects of police arrests. In particular, the CPT pointed out on both
occasions that people being arrested by the security authorities are
at risk of being maltreated. Both the reports of the CPT and the comprehensive
observations by the Austrian Federal Government have been published
(cf. Council of Europe documents CPT/Inf (91) 11 of 3 October 1991
and CPT/Inf (96) 29 of 31 October 1996). (In a letter of 3 October
1996, the CPT expressed the wish that the Austrian observations on
the CPT's report on its second visit to Austria be amended in some
aspects. This request was complied with on 31 January 1997.)