CAT/C/DEU/CO/6
the “Dublin cases”, and ensuring mandatory medical checks of detained asylum seekers
(ibid., para. 24), exercising jurisdiction in accordance with article 5 of the Convention and
providing information about the remedies, including the compensation, provided to Khaled
El-Masri (ibid., para. 28), and ensuring that members of the police in all the Länder can be
effectively identified and held accountable when implicated in ill-treatment (ibid., para. 30).
8.
The Committee appreciates the State party’s replies in this regard under the followup procedure, received on 26 November 2012 (see CAT/C/DEU/CO/5/Add.2) and on 28
February 2014. However, in the light of the information provided, the Committee finds that
the recommendations in paragraphs 24 (see paragraph 25 of the present concluding
observations) and 28 have not been implemented and that the recommendations contained
in paragraphs 16 and 30 have been partially implemented (ibid., paras. 34 and 38).
Definition and criminalization of torture
9.
The Committee remains concerned that the State party does not consider it necessary
to define torture as a specific crime under its general criminal law (the Criminal Code and
the Military Penal Code), despite the Committee’s recommendation in its previous
concluding observations (CAT/C/DEU/CO/5, para. 9). The Committee recalls its general
comment No. 2 (2008) on the implementation of article 2, in which it states that serious
discrepancies between the Convention’s definition and that incorporated into domestic law
create actual or potential loopholes for impunity (para. 9). Furthermore, there are no
provisions establishing that the crime of torture is not subject to a statute of limitations,
which has led to impunity for torture in specific cases (arts. 1 and 4).
10.
The State party should consider all necessary measures to include torture as a
specific offence in its general criminal law in accordance with articles 1 and 2 of the
Convention. It should also ensure that the crime of torture is not subject to any statute
of limitation.
Fundamental legal safeguards
11.
Taking into account the procedural guarantees established in domestic legislation,
the Committee is concerned at reports that, in practice, detained persons do not always
enjoy all the fundamental legal safeguards from the outset of their detention, including the
receipt of information on their rights in writing, in a language that they understand (arts. 2
and 11).
12.
The State party should take effective measures to ensure that detainees enjoy
the benefits of all fundamental safeguards in practice from the outset of their
deprivation of liberty, in accordance with international standards, including, in
particular: the right to receive legal assistance at any time and without delay; and the
right to be informed of the reasons for their detention and the nature of the charges
against them in a language that they understand. The State party should regularly
monitor the compliance with the legal safeguards by all public officials and ensure
that those who do not respect the safeguards are duly disciplined, and inform the
Committee of the results of such monitoring, including disciplinary action if
applicable.
National Agency for the Prevention of Torture
13.
While welcoming the decision of the Ministers of Justice of the Länder to increase
the funds for the National Agency for the Prevention of Torture and to involve civil society
organizations in the appointment of the members of the Joint Commission of the Länder,
the Committee remains concerned by reports that the Joint Commission will not have
sufficient resources to accomplish its mandate and visit the total number of institutions with
a sufficient frequency to ensure effective monitoring.
14.
The Committee reiterates its recommendation in its previous concluding
observations (CAT/C/DEU/CO/5, para. 13) that the State party provide the National
Agency for the Prevention of Torture with sufficient human, financial, technical and
logistical resources to enable it to carry out its functions effectively and independently,
in accordance with article 18 (3) of the Optional Protocol and guidelines Nos. 11 and
3