CAT/C/AUT/CO/4-5
into domestic law the crime of torture and adopt a definition of torture that covers all
the elements contained in article 1 of the Convention. The State party should also
ensure that these offences are punishable by appropriate penalties which take into
account their grave nature, as set out in article 4, paragraph 2 of the Convention.
Fundamental safeguards
9.
The Committee is concerned at the restrictions placed by the State party on the
exercise of the right of an arrested or detained person to communicate with counsel and
have counsel present during interrogations. In this respect, it notes with concern that,
pursuant to section 59 (1) of the amended Code of Criminal Procedure, police officers can
monitor contacts between the arrested or detained person and counsel and exclude the
presence of counsel during interrogations if “it appears necessary to prevent interference in
ongoing investigations or corruption of evidence”. In such a case, an audio or visual
recording of the interrogation must be made if possible (section 164, para. 2, of the Code of
Criminal Procedure). The Committee is also concerned at the content of paragraph 24 of
Internal Instruction (Erlass) Ref. BMI-EE1500/0007-II/2/a/2009 issued by the Federal
Ministry of Interior on 30 January 2009, which would seem to infer that there is no
obligation on the part of the police to delay questioning to allow the lawyer to arrive at the
place of interrogation (arts. 2 and 11).
The Committee reiterates its recommendation (CAT/C/AUT/CO/3, para. 11) that the
State party should take all necessary legal and administrative safeguards to ensure
that suspects are guaranteed the right of confidential access to a lawyer, including
during detention, and to legal aid from the moment of the arrest and irrespective of
the nature of their alleged crime. The State party should also extend the use of audio
and video equipment to all police stations and detention facilities, not only in
interrogation rooms but also in cells and corridors.
The State party should promptly amend paragraph 24 of the above-mentioned
internal instruction to avoid situations that would deprive detainees of the right to an
effective defence at a critical stage in the proceedings and expose them to the risk of
torture or ill-treatment.
Juvenile offenders
10.
The Committee notes that, under section 164, paragraph 2, of the amended Code of
Criminal Procedure, juvenile offenders cannot be interrogated in the absence of counsel.
Nevertheless, the Committee received information alleging that juvenile offenders, some as
young as 14, had been subjected to police questioning, sometimes for prolonged periods,
and requested to sign statements without the benefit of the presence of either a trusted
person or a lawyer (arts. 2 and 11).
The State party should take the necessary measures to ensure the proper functioning
of the juvenile justice system in compliance with international standards and to
guarantee that minors are always heard in the presence of a legal representative.
Legal aid
11.
The Committee takes notes of the legal aid programme initiated by the Federal
Ministry of Justice and the Federal Bar Association. However, the Committee remains
concerned about reports regarding the persistence of shortcomings in the implementation in
practice of the right of access to a lawyer during police custody, particularly with regard to
the confidentiality of communications with counsel (art. 2).
The Committee reiterates its recommendation (CAT/C/AUT/CO/3, para. 12) that the
State party should consider establishing a fully-fledged and properly funded system of
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