CAT/C/DEU/CO/5
Convention. In accordance with the Committee’s general comment No. 2 (2007) on
implementation of article 2 by States parties, the State party should also clarify which
of the incidents of ill-treatment by law enforcement officers reported in the State
party’s response to the list of issues amount to torture and other cruel, inhuman or
degrading treatment or punishment, in order to help the State party identify how and
where the Convention is implemented and the monitoring thereof by the Committee.
10.
The Committee notes with concern that the State party has no specific information
on cases in which the Convention has been invoked and directly applied before the
domestic courts (arts. 2 and 10).
The Committee recommends that the State party take steps to disseminate the
Convention to all public authorities, including the judiciary, thus facilitating direct
application of the Convention before domestic courts, both at the federal and Länder
level, and that it provide an update on illustrative cases in its next periodic report.
11.
While welcoming that the Military Penal Code allows for punishment of illtreatment and degrading treatment by military superiors, in conjunction with the possible
penalties for “causing grievous bodily harm” or “causing bodily harm while exercising a
public office” stipulated in the Criminal Code, the Committee is concerned by the lenient
penalties in the Military Penal Code, which range from six months’ to five years’
imprisonment, even where such acts can cause severe pain or suffering (art. 4).
The State party should amend its Military Penal Code in order to make the offences of
torture in the military punishable by appropriate penalties which take into account
their grave nature, in accordance with article 4 of the Convention and the relevant
jurisprudence by the Committee.
Obligations of the Federation and the Länder
12.
While taking note of the constitutional reform of 2006 involving the transfer of
responsibility for prison legislation from federal to Länder level, the Committee remains
concerned at the prevalence of a higher standard of protection against torture and illtreatment at the federal level as compared to individual Länder. This is particularly the case
for physical restrictions (Fixierung). The Committee is also concerned at the lack of clarity
about the measures taken by the Federal Government to ensure compliance with the
Convention at the Länder level (art. 2).
Since the Federal Republic of Germany is a State party under international law that
has undertaken the obligation to implement the Convention in full at the domestic
level, the Committee recommends that the State party provide guidance and assist in
the adoption and application of legislative and policy measures to individual L��nder
to achieve even protection of human rights in the context of law enforcement at the
federal and Länder level, and seek consistency between the steps taken by various
Länder, in order to ensure that the standards and safeguards set forth in the
Convention are equally protected and implemented in all Länder.
National Agency for the Prevention of Torture
13.
The Committee is concerned at the lack of sufficient staff and financial and technical
resources provided to the National Agency for the Prevention of Torture, comprised of the
Federal Agency for the Prevention of Torture and the Joint Commission of the Länder,
owing to which places of detention can be currently visited only once in four years,
preventing the adequate fulfilment of the Agency’s monitoring mandate (arts. 2 and 12).
The Committee is further concerned at the information given by the State party that the
Joint Commission of the Länder had to announce, in some instances, its intention to visit
the places of detention to the respective authorities in advance in order to gain access.
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