5 May 2010
The Committee against Torture this afternoon heard the response of Liechtenstein to questions raised by Committee Experts on the third periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Tuesday, 4 May, the delegation, which was led by Roland Marxer, Director of the Office of Foreign Affairs of Liechtenstein, said, with regard to the right of access to a lawyer, the Code of Criminal Procedure of 1988 was presently being subjected to a complete revision and the new draft Code stipulated that, in future, any person being interviewed or interrogated by the police would have the right to have a lawyer present already from the first interrogation. It was envisaged that Parliament would pass that new Code of Criminal Procedure at the end of this year.
Regarding Liechtenstein's asylum procedure, the delegation said that, despite a sudden and massive influx of refugees into Liechtenstein in the second half of 2009, the competent authorities had conducted the asylum procedure in each and every case in accordance with the Liechtenstein Refugee Act, a law that had been elaborated in close collaboration with the United Nations Refugee Agency (UNHCR). A person who asked for asylum had the right to be accommodated in the centrally located Centre for Refugees where he or she could benefit, among others, from health insurance, German classes, food coupons and pocket money. These refugees were not detained, but merely spent the night in the shelters, which were fully equipped. On domestic violence, under the Violence Protection Act, a perpetrator of domestic violence could be expelled from the home, could be prohibited from entering the home or the victim could obtain a restraining order from the Court of Justice. Moreover, a proposal for a revision of Liechtenstein's sexual criminal law – which envisaged the establishment of domestic violence in the sexual sphere as ex officio offences – had been approved by the Government and the proposal had been submitted to a broad based consultation among all interested stakeholders.
The Committee will submit its conclusions and recommendations on the report of Liechtenstein towards the end of the session on Friday, 14 May.
As one of the 146 States parties to the Convention against Torture, Liechtenstein is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Thursday, 6 May, it is scheduled to hear the responses of Austria to questions put by Experts this morning.
Response of Liechtenstein
Responding to a series of questions raised by Committee Experts on Tuesday, 4 May, the delegation of Liechtenstein said that, with regard to the right of access to a lawyer, pursuant to the present Code of Criminal Procedure a lawyer was not allowed to be present during a police interrogation. Only in cases of interrogation of juveniles was a person of trust entitled to be present at such interrogations if the juvenile wished it. However, the Code of Criminal Procedure of 1988 was presently being subjected to a complete revision and the new draft Code stipulated that, in future, any person being interviewed or interrogated by the police would have the right to have a lawyer present already from the first interrogation. It was envisaged that Parliament would pass that new Code of Criminal Procedure at the end of this year.
According to the rules of the Code of Criminal Procedure, all police interrogations had to be documented in written form, the delegation added. Presently, interrogations were neither audio nor video recorded, with the exception of interviews of victims of sexual crimes.
In terms of access to a person of trust, detainees had the right to immediately inform a person of trust about the fact of having been arrested. In specific cases that right might be restricted with regard to certain persons, for instance, if the person of trust referred to was also under suspicion in the same case or a house search had to be carried out and there was a suspicion that the person of trust chosen would jeopardize the search by destroying or removing evidence or would influence witnesses before they had been interviewed by the police. In such cases, the arrested person would either have to wait until the danger of collusion no longer applied or the person of trust would simply be informed of the arrest but would not be able to speak personally with the detainee. In any case, the detainee could contact a lawyer at any time from the first moment of arrest.
Any complaints of misbehaviour by police officers had to be communicated to the National Commissioner or another authority, the delegation said. Usually, the Chief of Staff would collect facts and decide on the opening of a disciplinary procedure. Any disciplinary procedure was communicated to the Government. For several years now, the police did not initiate any preliminary investigations with regard to police officers under suspicion without reporting the suspicion immediately to the General Prosecutor in order to avoid any allegations of not reporting to the Prosecutor and deciding about the relevance or non-relevance of the allegation; such a decision was taken exclusively by the Prosecutor in all cases.
As to the issue of use of head or eye coverings during arrests, the delegation noted that that practice was an exceptional one. Only in cases where there was a well founded suspicion of backlash or revenge against the acting police officer or his family or in case of risk of escape was the head of a suspect covered during arrest. In prison, head coverings were not used. Since 2007, hoods were not used in these cases and were replaced by blackened-out ski goggles that simply acted as a blindfold and allowed for free breathing. It was also felt that such a practice presented a less humiliating appearance. In both 2007 and in 2008 there had been one person arrested using such black goggles and three in 2009.
Turning to recommendations of the national preventive mechanism with regard to prisons, and in particular that prison staff received vocational education as well as mandatory psychological support and monitoring, the delegation said that the prison staff's basic education was accomplished in the Swiss Training Institute for Prison Staff in Fribourg. The prison staff was also free to attend training courses offered by that Institute. Given that there were only six prison staff in Liechtenstein, including the chief, for more than one year there had been no courses that seemed useful or interesting to the staff. An obligation to attend a certain number of vocational courses every year, irrespective of whether the concrete offers covered an actual need of training, seemed therefore to be out of place. The prison personnel were well educated and the training was available on a voluntary basis. Consequently, the recommendation of the national preventive mechanism seemed not to reflect reality and the actual needs of the officers as expressed by themselves. The recommendation appeared to be based simply on the fact that, in 2009, none of the five officers had attended a substantial training course in that year. However, it had not been established that were any concrete shortcomings in the staff's professional skills.
With regard to the 1982 treaty between Liechtenstein and Austria on the accommodation of Liechtenstein prisoners in Austrian jails, the delegation said that, in practice, the Austrian Corrections Commission was competent also in relation to Liechtenstein prisoners during their stay in Austria and the prisoners were not kept separately from the Austrian prisoners. In general, each month the head of Vaduz Prison was informed about the circumstances in connection with Liechtenstein's prisoners in Austria, and more often in important cases. No information had ever been received, whether from the Austrian authorities, non-governmental organizations or the prisoners themselves, about mistreatment in Austrian prisons.
With regard to new laws concerning pre-trial detentions, the delegation noted that, among others, it had created much more work for investigating judges, because they now had to check on a regular basis on the situation on a case-by-case basis and to have interviews with the person involved. That helped to ensure that persons in pre-trial detention were only held as long as necessary.
Responding to issues raised on Liechtenstein's asylum procedure, the delegation said that despite a sudden and massive influx of refugees into Liechtenstein in the second half of 2009, the competent authorities had conducted the asylum procedure in each and every case in accordance with the Liechtenstein Refugee Act, a law that had been elaborated in close collaboration with the United Nations Refugee Agency (UNHCR). That Act stipulated that persons who submitted an asylum request in Liechtenstein could stay in the country until the conclusion of the proceedings.
The delegation stressed that asylum-seekers were not detained in Liechtenstein. A person who asked for asylum had the right to be accommodated in the centrally located Centre for Refugees where he or she could benefit, among others, from health insurance, German classes, food coupons and pocket money. The massive influx of asylum-seeker from Eritrea and Somalia had overstretched the capacity of the Refugee Centre so that, as an interim measure, a number of single male refugees had had to be accommodated in shelters that had been built to accommodate Liechtenstein's population in emergency situations.
The delegation further stressed that these refugees were not detained but merely spent the night in the shelters, which were fully equipped. That form of provisional accommodation had then been progressively replaced by the provision of special housing containers. While the delegation was not aware of cases where an asylum-seeker had substantial problems in obtaining free legal aid, the possibility that the exceptionally high number of asylum-seekers might have led, at some point in time, to a temporary shortfall in available legal aid lawyers right from the beginning of proceedings could not be excluded.
The Liechtenstein Refugee Act provided for the possibility of an asylum-seeker to be expelled on a preventive basis if an onward journey into a third country was possible, permissible and reasonable. That was the case if the third country was under a treaty obligation to consider the asylum request; the person concerned had previously spent some time there; and relatives and other persons lived there to whom the asylum-seeker had close links. In the case of the Somali and Eritrean refugees, investigations had shown that many of them had already submitted an asylum request in another European country or had lived in such a country for quite some time, benefiting from an admission on humanitarian grounds.
The delegation said that any decision for preventive expulsion, which was explained to the person concerned with the help of an interpreter, could be appealed against by the submission of a request within 24 hours for restoration of the suspensive effect. The Government then had to decide on the request for restoration of the suspensive effect within 48 hours. As at previous stages of the proceedings, free legal aid was available. The final appellate body was the Administrative Court.
The principle of non-refoulement applied to all such decisions, the delegation stressed. Moreover, if an asylum-seeker could give credible reasons as to his or her fear of being persecuted upon their return to a country, there would be an individual assessment of that request despite the fact that the country to which the individual was to be returned was included on a list of safe transit countries (European Union and European Free Trade Association countries).
With regard to the Victims Assistance Office, that body had been established on the basis of the Victims Assistance Act, which had entered into force on 1 April 2008. The Office was currently operated by one person, a trained social pedagogue and social worker who also had experience in crisis prevention. If the Office – owing to its limited capacity – was unable to provide assistance itself, it provided information on relevant contacts. In that regard, it cooperated closely with other relevant institutions, such as the Office of Social Affairs, the Women's Home and the Crisis Intervention Team.
As to whether refugees who had been subjected to torture in another country were entitled to assistance under the Victims Assistance Act, the delegation noted that, according to that law, everyone who was immediately affected by a criminal offence with respect to their physical, psychological and sexual integrity was entitled to assistance. That included victims of torture and other cruel, inhuman or degrading treatment or punishment, as well as members of their families. Under the Act, such victims were entitled to counselling and urgent assistance; longer-term assistance by the Victims Assistance Office; cost contribution to longer-term assistance by third parties; compensation; and legal aid. A distinction was made under the Act if the criminal offence in question had been committed in Liechtenstein or abroad. If committed in Liechtenstein, all five forms of assistance mentioned were available. If the offence were committed abroad, only individuals who were Liechtenstein residents at the time were covered. Therefore, refugees who had suffered torture abroad were not covered by the Act.
With regard to inspection of the situation of persons with disabilities in prisons, psychiatric institutions and other institutions serving persons with disabilities, the delegation observed that the national preventive mechanism under the Optional Protocol to the Convention was empowered to regularly monitor the treatment of persons who were deprived of their liberty at all places of detention, as defined in that instrument. As Liechtenstein's national preventive mechanism stated in its 2009 annual report, places of detention other than Vaduz National Prison would again be examined in 2010.
On domestic violence, under the Violence Protection Act, a perpetrator of domestic violence could be expelled from the home, could be prohibited from entering the home or the victim could obtain a restraining order from the Court of Justice. The Liechtenstein Women's Home, which was run by an non-governmental organization with financial support from the Government, had accommodated 17 persons in 2007, 13 of whom had their residence in Liechtenstein, while in 2008, 13 persons had been admitted, only 6 of whom had their residence in Liechtenstein.
Moreover, the delegation said that a proposal for a revision of Liechtenstein's sexual criminal law – which envisaged the establishment of domestic violence in the sexual sphere as ex officio offences – had been approved by the Government. The proposal had been submitted to a broad based consultation among all interested stakeholders and feedback from that process was due on 25 June.
Questions by Committee Experts
MYRNA Y. KLEOPAS, the Committee Expert serving as Co-Rapporteur for the Report of Liechtenstein, reiterated her concern at the non-criminalization of the specific act of torture in Liechtenstein's domestic law. Among others, that impeded the gathering of data on such crimes; hampered prevention efforts; and could lead to the imposition of inappropriate penalties.
Ms. Kleopas also asked Liechtenstein to reconsider its position and to have all police interrogations audio and video recorded, and not just for sexual crimes.
With regard to access to a medical doctor for detainees, Ms. Kleopas understood that, in Liechtenstein, such detainees did not have the legal right to have access to an independent doctor, but that such access was at the discretion of the authorities involved. She stressed that the obligations under the Convention required the former.
Further clarification was also requested on investigations into complaints of torture or ill-treatment. Ms. Kleopas stressed that it was very important to ensure that such investigations were carried out independently, and not by members of the same body that was being complained about.
Ms. Kleopas had lingering concerns on a number of further issues, including the use of goggles or blindfolds on any detainees; a lack of separation of prisoners – adults from children and men from women; safeguards and monitoring for those carrying out their penal sentences in Austria; questions as to whether the mandate of Liechtenstein's national preventive mechanism fully complied with the requirements set out in the Optional Protocol, in particular with regard to its membership; why any juvenile could be kept in prison up to 12 months; and a lack of a legal requirement to establish rights of patients during involuntary placements.
XUEXIAN WANG, the Committee Expert serving as Rapporteur for the Report of Liechtenstein, asked for further clarification about training for prison staff. If he had understood correctly, they would only receive voluntary trainings when shortcomings appeared. If that were the case, would it not be better to provide training before such shortcomings were evident?
In the case of interrogation of minors, Mr. Wang said the Committee's position was that the presence of a person of trust should be mandatory, unless the minor objected. In Liechtenstein, it appeared that the situation was that such a person was only present if the minor requested it.
Other Committee Experts then made additional comments and raised concerns on a number of issues, including asking for clarification as to what was meant by saying that asylum-seekers were now housed in "containers"; the need to train legal and medical experts, in particular those dealing with migrants and asylum-seekers, in the Istanbul Protocol; and whether there were examples of appeals that had been lodged in cases of preventive expulsions and what the outcome had been.
Response by Delegation
Responding briefly to additional questions raised, the delegation of Liechtenstein said, regarding concerns about accommodating asylum-seekers in "nuclear shelters", that the delegation had explained that situation, referring to shelters for emergencies. Those shelters and the use of containers had been used only as an interim measure, given the large influx of refugees, and Liechtenstein had taken those measures in consultation with UNHCR. Moreover, it should be remembered that the asylum-seekers were not detained in those areas, but they were just used for shelter at night. The accommodations provided all necessary services.
Additional responses would be provided in writing, the delegation said.
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