CAT/C/AUT/CO/6
(b)
Ensure that all complaints of torture or ill-treatment are promptly
investigated in an impartial manner by an independent body, that there is no
institutional or hierarchical relationship between the body’s investigators and
suspected perpetrators of such acts and that the suspected perpetrators are duly tried
and, if found guilty, punished in a manner that is commensurate with the gravity of
their acts.
Appropriate penalties for torture
10.
The Committee notes that section 312a (1) of the Criminal Code prescribes 1 to 10
years’ imprisonment for the basic offence of torture, which allows a very broad margin of
discretion to the sentencing judge. The minimum sentence of one year’s imprisonment
appears to be too low (art. 4).
11.
Recalling that penalties commensurate with the gravity of the crime of torture
are indispensable in order to have a successful deterrent effect, the Committee urges
the State party to amend its law so as to ensure that all acts of torture are punishable
by appropriate penalties that take into account their grave nature, in accordance with
article 4 (2) of the Convention.
Austrian Ombudsman Board
12.
The Committee expresses concern at the limited scope of the mandate and functions
of the Austrian Ombudsman Board with regard to allegations of abuse by law enforcement
officials. It also expresses concern that the process for appointing the Board members,
which is based on the nominations by the three strongest political parties in the Parliament,
does not allow for formal public consultation and participation of all elements of civil
society (art. 2).
13.
The State party should take appropriate legal measures to expand and
strengthen the mandate of the Austrian Ombudsman Board and ensure that the
appointment process of its members is in full accordance with the principles relating
to the status of national institutions for the promotion and protection of human rights
(the Paris Principles).
National preventive mechanism
14.
The Committee welcomes the designation of the Austrian Ombudsman Board as the
national preventive mechanism under the Optional Protocol to the Convention. It regrets,
however, the lack of information provided on the action taken by the State party in response
to the recommendations issued by this mechanism (art. 2).
15.
The State party should ensure the effective follow-up to and implementation of
recommendations of the Austrian Ombudsman Board generated by its monitoring
activities, in accordance with the guidelines on national preventive mechanisms of the
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (see CAT/OP/12/5, paras. 13 and 38).
Legal aid
16.
The Committee takes note of the explanation by the delegation that persons who
received legal aid and have since been convicted may be required to pay a flat fee as long
as it does not affect their basic needs or those of their immediate family. It is, however,
concerned that free legal assistance is not provided by law in proceedings before an
administrative court, although it appreciates that the Constitutional Court has recently ruled
to the contrary in a decision that has yet to be implemented (arts. 2 and 11).
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