Presentation of the Report
HELMUT TICHY, Ambassador at the Federal Ministry for Europe, Integration and Foreign Affairs of Austria, stated that Austria was actively engaged not only to ensure the protection of human rights at the national level, but also to advance the international system for the protection and promotion of human rights. Human rights and the rule of law constituted priorities of Austria’s domestic and foreign policy, and Austria attached importance to its full compliance with its international human rights obligations, especially with the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment.
Austria possessed comprehensive national mechanisms and procedures for monitoring its compliance with its human rights obligations and international human rights standards. The Austrian Ombudsman Board played an important role in that. It was an independent body of three members elected by Parliament and vested with a broad mandate to investigate both cases of maladministration and human rights complaints. The Ombudsman Board served as Austria’s national human rights institution and, together with its independent expert commissions, as Austria’s national preventive mechanism. Cooperation with non-governmental organizations was considered as very important for the protection and promotion of human rights and a dialogue was underway on the preparation of an Austrian National Plan on Human Rights, due to be finalized in early 2016. Good cooperation was in place in Austria between the competent Ministries, federal regions and other relevant actors. The so-called “human rights coordinators” of the Ministries and regions met regularly to discuss issues related to the implementation of the country’s human rights obligations. There was still room for improvement, in particular concerning the availability of statistical data relating to human rights violations. In certain areas, the statistical data collected so far did not allow the Government to provide comprehensive replies to all requests for information.
The Committee’s recommendation to establish a specific provision prohibiting torture had been implemented by a new section 312a, which had been incorporated into the Austrian Criminal Code for that purpose. That provision now provided for punishment for the crime of torture of up to 15 years imprisonment if bodily injury with serious permanent consequences occurred, and up to possible life imprisonment if torture led to death. In addition, as of January 2015, Austria had introduced additional torture offences into its Criminal Code as elements of war crimes, thereby creating complementary provisions to those of the Rome Statute of the International Criminal Court in its domestic law.
Mr. Tichy said that one of the greatest challenges for the Austrian Government and society was the current massive influx of migrants from Syria and other crisis regions. Since September 2015, a total of 440,000 migrants had crossed into Austria with as many as 10,000 new arrivals on certain days. By the year’s end, some 90,000 applications for asylum were expected. For a country the size of Austria with a population of eight million people, those new developments represented a serious and unprecedented challenge. Even though most refugees and migrants wanted to continue their journey to other countries, Austria had to care for all of them as long as they stayed in Austria. The Government, with the support of many Austrian aid organizations and volunteers from civil society, was making every effort to cope with those new challenges, while remaining firmly committed to ensuring that all measures taken complied with Austria’s obligations under international humanitarian and human rights law.
Combatting and punishing acts of violence against women, including domestic violence and sexual abuse, was a priority on the Government’s agenda. The Austrian National Action plan “Protecting Women from Violence” was being currently implemented. Particular attention was given to awareness-raising measures in that regard. The budget for women’s shelters had tripled over the past 15 years to 7.3 million euro in 2015.
Questions by Experts
CLAUDIO GROSSMAN, Committee Chairperson and Co-Rapporteur for Austria, noted the unprecedented influx of people to Austria, and praised the efforts taken by Austria in that regard. The independence of the Ombudsman was also appreciated as a good practice. The Committee also valued the ratification of the Optional Protocol and the functioning of the national preventive mechanism.
The Committee was interested in hearing the delegation’s views on what was working well and what could still be improved. No complaints on the intimidation of human rights defenders or mass human rights violations by the police had been received from Austria.
On the topic of unaccompanied minor refugees, the Expert raised the lack of sufficient socio-psychological care for them. Could the delegation provide details in that regard? The situation of vulnerable groups in reception centres, such as persons with disabilities, was also brought up.
Austria could improve and speed up the process of investigating allegations of misconduct and racism. The Ombudsman Board did not have full powers to look into such issues. Was Austria contemplating expanding its powers in that regard?
Closing times in correctional institutions on weekends and holidays were quite early, which was an issue of concern. Were any measures planned in that regard?
The Expert noted that the range of punishment from one to ten years for acts of torture seemed not to be commensurate with the gravity of crime.
The statute of limitations in Austria was 30 years, unless specified otherwise. How did it relate to the acts of torture, the Expert asked.
Details were sought about guarantees for arrested persons to have access to lawyers? The language in relevant provisions created a possibility for abuse and prolongations. Had there been cases when free legal aid had been denied and was it discriminatory against poor citizens?
The use of audio and video equipment to record interrogations had gone through a trial run in 2014. What was the outcome of that trial and would it be widely implemented?
Given that Austria was not collecting information on the ethnicity of its citizens, was there a way to ensure that the composition of the police forces reflected the diversity of society?
Were there statistics on how many cases of bringing suspects before judges had been postponed and what the reasons had been for that?
Trafficking in persons amounted to modern-day slavery, said the Expert, and noted that the crime was punishable by up to five years in prison in Austria. How had that been applied in practice and how did it compare with other crimes? If a known trafficker had not committed his crime in Austria, but was physically present in the country, would the country take no action to arrest and extradite him?
The issue of violence against migrant and refugee women was also raised.
ABDOULAYE GAYE, Committee Expert and Co-Rapporteur for Austria, asked about whether the evaluation of the prosecution system had been conducted in 2014.
More information was sought about the training programme in line with the Istanbul Protocol.
The State party had made commendable efforts in combatting violence against women. What was the impact of the awareness-raising campaign, had it led to a decrease in that violence?
How were the recommendations of the Working Group on Juvenile Justice being implemented, the Expert inquired. Had a separate prison for minors been built?
People with mental disabilities should be placed in specialized institutions and not in custody, he noted and asked about the specific case of a 74-year old person.
More information was asked about the use of Tasers, which were considered a non-lethal weapon, but the use of which had led to cases of death.
The Expert referred to the three cases of death in detention, to which the State party had referred in its report. The information provided was insufficient. One case included serious bullet injuries; more information was requested.
Had any sentences been handed down for cases of torture and any compensation paid?
In the 2010-2012 period, no law enforcement official had been found guilty of torture, while six persons claiming that they had been tortured had been found guilty of defamation.
The Prosecutor for Special Inquiries in Vienna was competent for taking complaints on ill-treatment committed by law enforcement officers. Could the State party provide examples of inquiries taken up by tribunals since 2009?
Would it make sense to have a prohibition of net beds in a legal way rather than through a ministerial instruction?
Another Expert asked whether Austria had put in place a mechanism to detect victims of torture who needed special care and whether it would affect their requests for asylum.
There was a problem of serious overcrowding in 10 Austrian prisons due to the large number of migrant smugglers held there. How was the State party planning to address that issue?
In Austria there was a long-standing shortage of prison personnel, which created problems, including locking up of inmates before noon on weekends. What was being done to recruit enough qualified prison personnel?
The issue of death in custody was raised by an Expert, who said that in 2015 a Kazakh and a Nigerian national had died in prison. Was enough being done? Were statistics in that regard currently available? Which body monitored such developments?
The “train the trainer” method seemed to be becoming ever more popular, another Expert noted. Could the delegation elaborate on that programme in Austria?
The shortage of custodial staff was raised by one more Expert, who asked about strategic planning to increase their number.
Had there been any recent changes in the legislation on the maximum duration one could spend in solitary confinement?
A question was asked about the training of judges. Were judicial officers trained to identify symptoms on whether there had or had not been torture?
An Expert noted that police officers sometimes did not wait for the arrival of defence lawyers before starting to interrogate the arrested suspects.
How many complaints referred to the judiciary by the Ombudsman related to torture?
The issue of statistical information was raised by an Expert, who asked how the State party was collecting necessary data given the limitations on what kind of information it could amass. Was there any data available on the percentage of women and persons with migrant backgrounds in the police forces?
How about the independence and human rights expertise of the members of the Ombudsman Board? How did the Government prioritize recommendations issued by the Ombudsman?
Clarification was asked on the process of deportation. How was “voluntary return” assessed?
What were the criteria for punishing deeds of torture, the Expert inquired. No cases of alleged torture against police officers had resulted in a conviction, which raised eyebrows. Why was that the case?
Information was requested on the evaluation of the programme against bullying and corporal punishment in schools.
Replies by the Delegation
Responding to the questions on how Austria was dealing with the influx of migrants, the delegation said that there were about 220 per cent more asylum applications in 2015 than in 2014; some 500 to 600 applications were received every day. It was possible that Austria would need to deal with a total of 100,000 asylum applications in 2015. Austria was increasing the number of positions in the asylum-processing office. The increase of the number of applications had exceeded Austria’s expectations. First, Austria would decide whether it was responsible for accepting applications under the Dublin Rules, and then go into processing them, which lasted for months. The provinces had not been able to accept applicants fast enough, the delegation explained.
The migrants were mostly Afghan, Syrian and Iraqi, most of whom had experienced very long and traumatizing travels. Winter was now coming and those people did not have appropriate clothing. Irregular and sudden influxes represented a true challenge for the police. Efforts were being made to ensure that children and minors were not separated from their parents. Most people wanted to travel onwards to Germany, and could not be prevented from leaving on their own accord.
Some special classes had been set up for unaccompanied young arrivals who did not speak German, the delegation explained. That way, young people were being prepared for their future enrolment in Austrian schools.
In Voralberg, a number of buildings had been set up in line with international criteria, to serve as a detention centre pending deportation. There were no bars on windows; a library, a shop and a religious area were all included. Those working in the detention centre had been given human rights training; it was ensured that many languages were covered. The Ombudsman had visited the detention centre and the United Nations Children’s Fund would also pay a visit soon.
During the appeal procedure, a person could not be returned to his country of origin. The list of safe countries of origin was quite limited and included European Union Member States and a small number of other countries.
Given the crisis related to migrants and refugees, the correctional facilities in Austria had seen a great increase in the number of human trafficking cases. In the whole year of 2014, 1,104 cases had been instigated for human trafficking; as of 1 October 2015, there had already been 1,953 complaints for the same crime. The Eisenstadt facility, for example, had become overcrowded and, as a result, inmates had been transferred to another detention centre nearby.
On the national preventive mechanism, the delegation informed that the Government believed it was a successful institution. The Ombudsman Board dated back to the 1970s and was amongst the most established of such bodies in Europe. The independence of the Ombudsman was enshrined in the Austrian Constitution. There was, admittedly, a discussion on the issue, because of the fact that the three strongest parties in the Austrian Parliament were given power to nominate members of the Board. The Advisory Council of the Ombudsman Board had discussed the issue of net beds, which had led to a positive outcome. It was believed that it was a good choice to have the Ombudsman Board serve as the national preventive mechanism, which was an independent and effective mechanism. Responding Responding to the questions on health-related issues, a delegate informed that every refugee and person without documentation who was injured or sick had the right to immediate medical care. Asylum seekers, who were particularly vulnerable, were entitled to a broad catalogue of services, including initial examinations and immunizations. Best efforts were being made to identify and provide for the medical needs of all arrivals.
Sick people in detention centres had doctors available to them. The emergency number 144 was available for immediate care. If there seemed to be a need for hospital care, ambulances would be provided.
A new medical training ordinance prescribed that young doctors needed to have their awareness raised to recognize people exposed to psychological and physical violence. Those doctors would then be trained on how to fairly treat patients irrespective of their backgrounds. The Istanbul Protocol was applied whenever there were indications of possible violence. Interdisciplinary help groups had been set up for women and children victims.
Any form of female genital mutilation was considered a serious offence, the delegation emphasized. That offence was punishable regardless of where it was committed. Interventions on intersex children should be carried out only when necessary, following medical and psychological opinions. The entire medical profession now accepted that the best interests of the patient had to be treated as an absolute priority.
On net beds, it was explained that an instruction was now in place prohibiting such practice. They used to be used in Vienna and Graz only.
Penalties for murder could go up to life imprisonment, a delegate said. For torture leading to heavy bodily injuries, punishment could be up to 20 years, and for acts of torture leading to death, life imprisonment was possible. Judges paid attention to the damage inflicted, the intent and careful preparation, and the disregard of the consequences. Racist intent was considered an aggravating circumstance. There was no statute of limitations for the most serious crimes of torture.
With regard to legal aid, the delegation stated that if the accused person was convicted, a flat fee would be imposed as long as it did not affect the basic needs of that person or his immediate family. If the accused was acquitted, he would not need to bear costs. Ninety per cent of legal aid requests had been granted.
On human trafficking, the delegation informed that the penalty could go up to 10 years if the victim was a minor or there were aggravating circumstances. When the victim was an adult, the penalty was up to six years. There was a penalty of five to 15 years for depriving somebody of liberty, i.e. modern day slavery. If the perpetrator was present in Austria and exploiting the victim there, State prosecutors could take up the case; otherwise there would be no grounds for it.
Acquittal in cases of violence against women and children was granted if the offence could not be proven. The court would decide when the evidence was sufficiently substantiated.
Training opportunities in human rights were continuously provided for judges and prosecutors. Such seminars, provided in association with civil society and the University of Vienna, were obligatory. Topics taken up included Islamophobia, racism and homophobia. The curriculum also included visits to former concentration camps. Judges were trained in centres for victim protection for at least two weeks, so that they could learn how to best identify victims of trauma and torture and their treatment.
The delegation said that the task force on juvenile justice took into consideration proposals of the main stakeholders. Some of the priorities included reduction of the duration of pre-trial duration as much as possible; verifying alternatives to detention; verifying that social accommodation was available; and providing legal aid for juveniles throughout Austria. Young adults until the age of 21 would be covered by that policy; they could be punished with a maximum of 15 years in prison.
Regarding the discrepancy between the number of cases of complaints and the number of convictions for torture and ill-treatment, the delegation stated that when such cases were assessed, they often included minor bodily injuries, caused by restraining measures, which explained the large number of complaints submitted and the low number of proceedings. Some 200 cases had been suspended on the grounds of evidence. When no signs of injuries were visible, or when pepper spray, for example, was used by the police in self-defence, the case would be suspended.
Investigation in the case of death in detention of a Kazakh national was almost complete; an independent commission of inquiry had been set up. Once the results were ready, they would be communicated.
The State had created 130 new jobs in the penitentiary system in order to address the shortage of prison staff. Consequently, there had been a reduction in the period of time for which people were locked up. Several prison facilities had been expanded, and a new centre had been set up in Salzburg in 2014.
Human rights had been incorporated in the “train the trainers” programme, with a special focus on prison staff. Trainers were selected on the basis of their good soft skills and interpersonal qualities.
In 2014, eight cases in Austrian prisons had been labelled as suicides. A significant drop was marked in recent years. In 2015, 25 inmates had died, 19 of whom from natural causes. An expert group had issued recommendations vis-à-vis the case of the 75-year old man, which had been raised by Experts.
In police stations, there had been nine cases of suicide between 2008 and 2015. In each case, a diverse task force had been set up to investigate the background, with the involvement of the Ombudsman.
One of the options for solitary confinement in the Penal Code included a safe cell, used only if one represented a danger to himself or others, but without an absolute ban of contact.
Austria accepted some prisoners from Liechtenstein because the latter simply did not have the capacity to hold them.
The average duration of detention pending deportation had been shortened to 11 days. The number of persons currently awaiting deportation was 30. Doors of the cells were open, and there was enough space for free movement within the detention facility.
A pilot project was ongoing on the use of audio and video recording. Questioning of the accused with audio or video seemed not to be greatly appreciated.
Assistance was provided to the victims of crime and torture, the delegation assured. There were special provisions for relevant compensation if the act of torture had been carried out by State agents and led to a criminal investigation. In 2011, there had been two cases when financial compensation had been provided; in 2012, there had been one such case; there had been no cases in 2013 and 2014; and in 2015 thus far, two proceedings were underway.
The State could not question applicants for the police on their ethnic and national background; they could only be asked about the place of their birth or knowledge of other languages. About 15 per cent of Austrian police officers were women.
An Expert said that the Committee had established parameters on the statute of limitations when there were no war crimes or crimes against humanity.
Could the delegation explain why 10 per cent of requests for legal aid were not accepted?
The source of jurisdiction on human trafficking was the Convention, the Expert said. Not every case of trafficking involved torture, but Austria could take a more proactive role and apply universal jurisdiction in that regard.
Steps taken to decrease the time of lock-ups in prisons were valued.
Was there a possibility in Austria to have civil without criminal liability? Standard of proof for civil liability was less.
The Expert stated that there was a value of registering ethnicity for the sake of levelling the playing field, especially when hiring security officers.
Were there instructions in place for medical professionals regarding intersex interventions, asked the Expert.
Clarification was asked on compensation paid for acts of torture and ill-treatment.
Another Expert said that it would be better to prohibit the use of Tasers and net beds through laws rather than instructions. The Committee was still concerned about Tasers.
The issue of defamation was important, stressed the Expert, especially when possible victims of torture could be prosecuted for submitting their complaints about torture.
What happened to the assessment of the human rights training of prison guards?
Information was requested on the results of the application of alternatives to imprisonment on part of the prison population.
The issue of the judiciary oversight of the migration police was brought up by an Expert.
There was a concern over the almost complete lack of medical confidentiality in many detention facilities visited by the Subcommittee on Prevention of Torture. What was the practice in that regard?
Was there no full initial medical examination of everybody provided by medical doctors and were prison guards involved in such screenings?
The shortage of specialized personnel in prisons was also brought up. Sometimes, workshops in prisons were closed for hours or even days.
Out of the 535 investigations initiated by the Ombudsman, how many had been related to cases of torture and ill-treatment, and in how many cases had redress been provided to victims?
Replies by the Delegation
The delegation confirmed the existence of civil liability.
The “Vienna Needs You” project between the police and the migration authorities had been a successful pilot project and was now spread across Austria.
Some 200 Taser weapons had been in use in Austria since 2012, under very stringent provisions on weapon use by specially trained police units. Priority was always given to less dangerous weapons when possible.
In 2012, a six-figure amount had been paid as compensation to a victim of ill-treatment, the delegation informed.
The delegation clarified that there was an independent civilian authority in place handling all migration matters, which included asylum seekers. The Federal Administrative Court and nine State courts made asylum-related decisions based on law if a person appealed; the second instance of appeal lay with the Constitutional Court. The police thus played no role in the decision-making on migration.
The ethnicity issue was related to the minorities living in Austria, who preferred not to be counted, which was why that practice was no longer in place.
The assessment of the training of prison guards had been carried out since 2014 and was still underway, which was why its results could still not be presented.
It was explained that the 74-year old man who had been an inmate in the Steinmark prison had suffered from a severe foot injury. It was then recommended that persons who could not be held responsible for their own actions needed to be kept in psychiatric wards. Such persons could not be kept for longer than five years unless there was a high danger that they would conduct an offence.
Reorganization and refurbishment of the juvenile department were taking place in the Josefstadt prison.
It was only in cases of violent or dangerous inmates that prison guards could be present during medical examinations. Doctors could also demand protection. Comprehensive initial medical examinations took place for every new prisoner; based on them, inmates could be subjected to further, specialist investigations.
Of the 130 new positions in prisons, about 30 were dedicated to specialists such as social workers and psychiatrists, a delegate explained.
Even if the only symptom of alleged abuse was the reddening of the skin of the detainee because of the handcuffs, a report would be submitted to the State prosecutor in a very conscientious way, which was why there were so many reported cases. The number of convictions was much lower, though. The use of pepper spray was handled in a very restrained fashion; there had been only cases of reddened eyes, not blinding, so far.
In Austrian law, defamation was an offence with intent, which could rarely be shown. State prosecutors were rather reticent in defamation cases. Courts would get involved in the investigation only if there were accusations against senior police officials.
If there was a request for extradition in cases of human trafficking, an extradition would take place if the conditions were met. If not, the case could be considered in Austrian courts, which were quite generous with taking up cases of trafficking.
Every person could make a request for legal aid, after which their level of need was verified. Statistics did not provide details on why such aid was refused in 10 per cent of cases.
The delegation understood that the minimum penalty of one year for torture might seem too little. Austria first tried to exhaust domestic remedies before adopting new measures.
Intersex patients could decide on their own, thanks to all the information available, what changes, if any, they wanted to have done to their bodies, a delegate said.
HELMUT TICHY, Ambassador at the Federal Ministry for Europe, Integration and Foreign Affairs, stated that he hoped the delegation had responded as well as possible to the questions by the Committee. He reminded that the first efforts to abolish torture in Austria had been undertaken 250 years earlier, and the current Government was doing its best to continue that long positive practice. The contribution of Mr. Albert Grasel, from the Federal Ministry of the Interior, to the dialogue with the Committee over many years, was praised.
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