COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
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).
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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
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.