Committee considered the second periodic report of Germany (CAT/C/29/Add.2)
at its 328th and 329th meetings, on 11 May 1998 (CAT/C/SR.328 and
329), and adopted the following conclusions and recommendations.
signed the Convention on 13 October 1986 and deposited its instrument
of ratification on 1 October 1990. The Convention entered into force
in Germany on 31 October 1990. Upon ratification Germany made declarations
concerning its understanding of article 3 of the Convention and the
presumptive concordance of German law with the Convention. Germany
has not declared in favour of articles 21 and 22. Both the initial
report submitted by Germany on 9 March 1992 and the present second
periodic report submitted on 17 December 1996 were prepared in accordance
with article 19 of the Convention and in accordance with the general
guidelines concerning the form and content of reports. The second
periodic report covers the period from 9 March 1992 to 17 December
1996. Important information concerning the State party is also included
in the basic document prepared by Germany on 8 August 1996.
Committee is encouraged by the fact that the Domestic Affairs Committee
of the German Federal Parliament, the Permanent Conference of the
Interior Ministers and Senators of the Länder and the Conference of
Ministers of Justice of the Länder have addressed Amnesty International's
report on the 70 alleged cases of police ill-treatment, especially
against foreigners, between January 1992 and March 1995.
Committee is satisfied that no cases of torture within the strict
meaning of article 1 of the Convention have been reported, and that
tainted evidence has not been reported as having been used in any
Committee is encouraged by the establishment of 12 torture rehabilitation
centres and welcomes the fact that the German Government contributes
to the United Nations Voluntary Fund for Victims of Torture.
and difficulties impeding the application of the provisions of the
Committee is aware of the State party's problems with the integration
and management of large numbers of refugees and other minorities of
non-German descent and of the problems deriving from the State party's
attempts to maintain fair and equitable asylum and immigration procedures.
Committee is concerned that the precise definition of torture, as
contained in article 1 of the Convention, has still not been integrated
into the German legal order. While section 340 of the German Criminal
Code and the Act on the Suppression of Crime, dated 28 October 1994,
would seem to cover most incidents of torture, statistical coverage
of the incidence of torture, aggravated forms of torture with specific
intent (dolus specialis) and incidents causing severe mental
pain or suffering ("mental torture" insofar as not covered by article
343 of the German Penal Code) are not covered by current legislative
provisions, as required by the Convention. Likewise, it is not absolutely
clear that all exculpation by justification and superior order is
categorically excluded as required by the Convention.
Committee is concerned at the large number of reports of police ill-treatment,
mostly in the context of arrest, received from domestic and international
non-governmental organizations in recent years, as well as at the
conclusions of the study entitled "The police and foreigners" commissioned
by the Conference of Ministers of Internal Affairs in 1994 and presented
in February 1996, to the effect that police abuse of foreigners represents
more than "just a few isolated cases".
Committee is concerned about the incidents of suicide of persons in
detention while awaiting deportation.
Committee is particularly concerned about the apparently low rate
of prosecution and conviction in the alleged incidents of ill-treatment
by the police, especially of people of foreign descent.
Committee is concerned at the existence of certain open-ended legal
provisions permitting, under certain circumstances, the discretionary
but significant reduction of the legal guarantees of those detained
by the police, such as provisions permitting the police in certain
cases to refuse permission to someone detained at a police station
to notify a relative of his arrest. Likewise, references to "the principle
of proportionality", unless with respect to specific and binding decisions
of the German courts, may lead to arbitrary reductions in such guarantees.
Committee recommends that the State party adopt the precise definition
of the crime of torture foreseen by the Convention and integrate it
into the internal German legal order (art. 4, para. 2, of the Convention).
Committee requests the German Government to envisage the possibility
of making the necessary declarations so that Germany is bound by articles
21 and 22 of the Convention.
Committee recommends that both internal disciplinary measures against
offending police officers and the external prosecutorial and judicial
measures be significantly strengthened to ensure that in future all
police officers accused of ill-treatment of domestic and foreign nationals
alike are brought to justice. In order to ensure that in cases of
alleged ill-treatment by police officers such conduct is open to the
fullest scrutiny, the Committee recommends, without prejudice to ordinary
State procedures, that German criminal procedures be open to subsidiary
prosecution by the victims of ill-treatment and that adherence procedures
(Adhäsionsprozesse) and civil procedures for damages be made
more widely applicable and possible. Adequate legal assistance by
competent German legal counsel should be made available. Furthermore,
the length of the investigation of complaints of police ill-treatment
should be shortened.
Committee recommends that further legislative attention be paid to
the strict enforcement of article 15 of the Convention and that all
evidence obtained directly or indirectly by torture be strictly prevented
from reaching the cognizance of the deciding judges in all judicial
Committee recommends that police and immigration officers of all ranks,
as well as medical personnel, receive compulsory training concerning
human rights in general and especially concerning the Convention against
Torture; in view of the fact that most reports of ill-treatment come
from foreigners, the Committee recommends that these officers also
receive compulsory training in the areas of conflict management and
Committee further recommends that Germany continue its efforts to
ensure that all detainees, at the outset of their custody, be given
a form in a language they understand, outlining their rights, including
the right to be informed of the reason for their arrest, to contact
a relative and a lawyer of their choice, to submit a complaint about
their treatment and to receive medical assistance.
196. In order
to make future judicial proceedings against those suspected of ill-treatment
possible, police officers should be required to wear a form of personal
identification that would make them identifiable to those who allege