CAT/C/DEU/CO/5
(b)
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the United Nations Convention against Transnational
Organized Crime, on 14 June 2006;
(c)
Optional Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, on 4 December 2008;
(d)
Convention on the Rights of Persons with Disabilities, on 24 February 2009;
(e)
Optional Protocol to the Convention on the Rights of Persons with
Disabilities, on 24 February 2009;
(f)
Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography, on 15 July 2009;
(g)
International Convention for the Protection of All Persons from Enforced
Disappearance, on 24 September 2009.
5.
The Committee welcomes the enactment of the following legislation:
(a)
Federal Law on the Parliamentary Control of Intelligence Services, having
entered into force on 30 July 2009;
(b)
Federal Law on Preventive Detention of January 2011 requiring that
preventive detention is applied as a measure of last resort in accordance with the principles
of necessity and proportionality.
6.
The Committee commends the establishment of the National Agency for the
Prevention of Torture, composed of the Federal Agency and the Joint Commission of the
Länder, which has been mandated to serve as independent national preventive mechanism
under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
7.
The Committee also welcomes the joint project by the International Organization for
Migration and the Federal Office for Migration and Refugees to identify potential victims
of trafficking among asylum-seekers.
8.
The Committee notes the existence of a vibrant civil society that significantly
contributes to the monitoring of torture and ill-treatment, thereby facilitating the effective
implementation of the Convention in the State party.
C.
Principal subjects of concern and recommendations
Definition and criminalization of torture
9.
The Committee welcomes the State party’s Code of Crimes against International
Law which codifies, inter alia, crimes of torture in the context of genocide, war crimes or
crimes against humanity, in accordance with article 7 of the Rome Statute of the
International Criminal Court. However, the Committee expresses serious concern at the
absence of provisions adequately criminalizing acts of torture in the context of general
criminal law, as the application of provisions of the Criminal Code (including sect. 340,
para. 1, in conjunction with sect. 224) and the Military Penal Code (sects. 30 and 31) do not
adequately punish the infliction of pain or suffering, whether physical or mental, as
required by article 1 of the Convention. Moreover, while noting the data on investigations
into alleged offences by law enforcement officers, the Committee regrets the absence of
clarity regarding which of the allegations of ill-treatment by public officials, if proven true,
would amount to torture under article 1 of the Convention or cruel, inhuman or degrading
treatment or punishment under article 16 of the Convention (arts. 1 and 4).
The State party should include torture as a specific offence in its general criminal law
and ensure that its definition encompasses all the elements of article 1 of the
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