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Conclusions and recommendations of the Committee against Torture, Germany, U.N. Doc. A/48/44, paras. 161-180 (1993).



Convention Abbreviation: CAT


Conclusions and recommendations of the Committee against Torture


161. The Committee considered the initial report of Germany (CAT/C/12/Add.1) at its 128th and 129th meetings, on 16 November 1992 (see CAT/C/SR.128, 129 and 129/Add.2).

162. The report was introduced by the representative of the State party, who stressed that the prohibition of torture and other cruel, inhuman or degrading treatment or punishment was a feature of the German Constitution and other legislation. That prohibition was part of the principle that human dignity should be respected, as established by the Federal Constitutional Court. He then pointed out that the German Penal Code did not contain a general offence of "torture"; however, there were specific offences such as assault and battery in office which would be penalized in the manner provided for by the Convention. In addition, under the provisions on remand custody, arrest warrants had to meet certain requirements, confinement could be reviewed at any time and it was more difficult for remand custody to be extended beyond six months. Prisoners in remand custody or sentenced in connection with terrorist offences were treated in the same way as other prisoners.

163. Legal remedies in Germany were not restricted to the domestic level. Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was directly applicable in Germany and citizens could file applications with the European Commission on Human Rights. Germany had also recognized the jurisdiction of the European Court of Human Rights in accordance with article 46 of the European Convention. According to the statistics of the European Court, there had been no instance where Germany had been deemed to have violated the prohibition against torture contained in article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. One case was, however, pending.

164. Furthermore, the representative referred to training and instructions given to State employees and public officials to ensure that torture was not practised. With regard to the manifestations of violence directed against foreigners which had recently taken place in the country, he stated that both the Federal Government and the Länder were taking great pains to put an end to such acts. He also referred to sections 51 (1) and 53 (1) of the Aliens Act, which contained provisions implementing article 3 of the Convention.

165. Members of the Committee generally wished to know why the German Penal Code did not contain specific provisions for combating torture, which was an offence specifically mentioned in international human rights instruments and defined by the Convention against Torture, whether German legislation was directly applicable in the five new Länder, whether the current State assumed jurisdiction for acts of cruel or inhuman punishment committed by officials of the former State, with regard in particular to prisoners and detainees, and whether compensation was being paid to the victims of the former regime. Information was also requested on the workings of the German judiciary and on measures concerning legal aid. It was particularly asked whether the Convention took precedence over the German Constitution.

166. In connection with article 2 of the Convention, members of the Committee sought clarification on the concept of "remand custody" in Germany and on the use of force by the police in accordance with the law. They also wished to know whether there was any circumstance that allowed the police to hold a person incommunicado and for how long, and how long a judge could keep a person in custody.

167. With regard to article 4 of the Convention, members of the Committee wondered whether, in the absence of specific provisions on torture, some gaps existed in German legislation in respect of prohibiting certain aspects of torture, such as psychological pressure, threats and intimidation. They also wished to know what other persons in office, apart from teachers, had been convicted by German courts for assault and battery and what the maximum sentence was for serious cases of bodily harm caused by a public official.

168. With reference to articles 5, 6, 7 and 8 of the Convention, clarification was requested on the full implementation of their provisions by German legislation. It was wondered, in particular whether the principle of discretionary prosecution was not in conflict with certain obligations under the Convention.

169. In relation to article 9 of the Convention, it was recalled that its provisions required that judicial assistance should be granted to all other States parties to the Convention, regardless of whether a treaty on mutual assistance existed, and it was asked whether that requirement was being met in accordance with the principle that the provisions of a convention to which Germany was a party were applied directly.

170. With regard to article 10 of the Convention, it was pointed out that its provisions specifically required medical personnel and the police to be educated about torture and the treatment of torture victims. It was also asked whether there was in Germany a code of ethics for the police and prison staff and whether any effort was being made in faculties of law to instil awareness of the question of torture.

171. As for article 11 of the Convention, more information was requested on measures to prevent violations of human rights during interrogations by the police.

172. Turning to article 14 of the Convention, members of the Committee wished to know whether the compensation referred to in the report concerned torture only or also include other forms of ill-treatment, which court had jurisdiction to hear requests for compensation and whether such cases could be brought before criminal, civil and administrative courts at the same time.

173. In his reply, the representative of Germany stated that, in his country, the concept of torture was hedged about by a body of extremely strict rules; he referred, in particular, to article 104, paragraph 1, of the Basic Law which provided that a person who had been arrested could not be subjected to mental or physical ill-treatment. He also explained that, since the signature of the Unification Treaty on 31 August 1990, the five new Länder which previously constituted the territory of the German Democratic Republic had been united with the Federal Republic of Germany and all the international treaties ratified by the latter and all the laws and codes which had been in force there were fully applicable to them. A number of exceptions were, however, admitted by the Unification Treaty to take into account difficulties connected with the transition period. The applicability of the Convention against Torture in Germany was guaranteed by article 59, paragraph 2, of the Constitution, which provided for the procedure to incorporate an international instrument in national legislation.

174. The representative further informed the Committee that recently a law providing compensation for injustices committed in the German Democratic Republic had been promulgated. It would be followed by a series of other laws that would benefit the victims, and persons who had been imprisoned unjustly would be compensated. Hundreds of proceedings had been initiated in the new Länder for torture and extortion of confessions. Members of the security forces or public officials who had ill-treated prisoners and even caused their death in the German Democratic Republic were subject to punishment. The problem of retroactivity did not arise in such cases since ill-treatment had also been punishable in the German Democratic Republic. A body of case law now existed ensuring the applicability of the law to persons accused of offences committed in the former German Democratic Republic and several members of the militia had been sentenced for killing persons who had tried to cross the Berlin wall. The representative also provided information about the organization of the German judicial system and pointed out that judges were independent and could not be removed from office. Financial assistance was provided by the State to persons who were completely unable to pay the costs of legal proceedings. In addition, the State must, if the situation so required, assign a lawyer to assist a person suspected of a crime or assist the presumed victims. In case of conflict between German law and Germany's international obligations, precedence was given to international obligations over any others. That case had never arisen, however.

175. In connection with article 2 of the Convention, the representative explained that the police was required to bring any person who had been arrested before a judge on the day following his arrest; the judge informed the person of the charges against him as well as of his rights. The suspect could call the lawyer of his choice and refuse to make any statements in his absence. Persons who were suspected or accused of terrorism were treated in the same way as other offenders. A person placed in remand custody could at any time request the judge to interrupt his detention. Within a period of six months at most, the Supreme Court of the Land had to rule whether remand custody was not too severe a measure in relation to the charges and circumstances of the case. The representative further explained that the use of violence by the police within the limits authorized by law concerned situations such as body searches, fingerprinting etc., where the suspect refused to comply with police instructions. In that kind of situation, the police acted in accordance with the principle of proportionality; in other words, the restraint used should be proportional to the end sought. On the other hand, the representative informed the Committee that investigations were being carried out in two cases of ill-treatment allegedly suffered by persons arrested by the police, which had been reported by Amnesty International.

176. With regard to article 4 of the Convention, the representative pointed out that under article 223 of the German Penal Code, physical or moral ill-treatment was punishable and that any person causing serious bodily harm to, or jeopardizing the health of another person could be sentenced to a maximum of three years' imprisonment. In this connection, he referred to a number of judgements handed down by the courts in respect of different kinds of physical or mental ill-treatment. For the same crime, an official such as a police officer could incur much more severe punishment than an ordinary citizen, since he could be sentenced to 5 years' imprisonment and, in very serious cases, to 15 years' imprisonment. The extortion of testimony by mental torture was also an offence under German Criminal Law and confessions obtained under duress could not be used before a court.

177. With reference to articles 5, 6, 7 and 8 of the Convention, the representative stated that a foreigner suspected of having committed torture abroad could be brought before a German court, if the country of origin did not request his extradition. However, the government procurator could not, under article 153(c) of the Code of Criminal Procedure, institute proceedings in certain circumstances, as when the person concerned had already been sentenced abroad for the same offence or if an additional sentence might constitute unduly severe punishment.

178. In connection with articles 10 and 11 of the Convention, the representative referred, in particular, to directives concerning the training of officials with a view to making them aware of the need to respect strictly article 136 (a) of the Code of Criminal Procedure providing that confessions obtained under duress could not be used before the court. The representative acknowledged that not only personnel responsible for the application of laws, but also medical personnel, health workers, psychologists, psychiatrists and social educators should be fully informed about matters connected with torture and that work in that field should be intensified.

179. Referring to article 14 of the Convention, the representative explained that the normal rule of responsibility for the commission of illegal acts applied to public officials; any wrong done to persons or damage to property justified a request for compensation for material and non-pecuniary damage. Requests for compensation had to be addressed to the administration and then to a court.

Conclusions and recommendations

180. The Committee thanked the Government of Germany for its clear, comprehensive and objective report and its representatives for the pertinent replies they provided to the questions submitted to them. The Committee welcomed the legal and administrative measures that had been taken in Germany to prevent and, where necessary, punish torture, and it was pleased to note that Germany was doing everything in its power to fulfil the obligations it had assumed in ratifying the Convention. The Committee requested the German authorities to inform it of the result of the investigation initiated in Bremen into the incidents brought to its attention; and also requested the Government of Germany to envisage the possibility of making the declarations necessary to be bound by articles 21 and 22 of the Convention.


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