Austria

A demonstration against racism and xenophobia in front of the Austrian parliament, November 1999. © Sascha Osaka

IHF FOCUS: Torture, ill-treatment and Parliamentary Committee on Human misconduct by law enforcement officials; Rights. Guidelines on deportation prac- right to privacy; protection of ethnic mi- tices were also established. Generally, norities; intolerance, xenophobia and public awareness of human rights prob- racial discrimination; homosexuals’ lems in increased. Many cases of rights; protection of asylum seekers and police misconduct were publicly dis- immigrants; human rights institutions; cussed, and scrutinized by human rights human rights defenders. organizations and the media. A number of demonstrations were held in which thou- sands of Austrians protested against racism Austria’s human rights record for 1999 and xenophobia. Nevertheless, the out- was marked by the tragic death of an asy- come of the 1999 parliamentary elections, lum seeker during his deportation flight in which the Freedom Party (FPÖ, a party and the ensuing consequences, and im- known for its racist and xenophobic atti- provements in Austrian legislation. The tudes) won 27 percent of the vote, re- gaps between legislation and practice vealed that concerns about racist slogans were exposed. As a result, two new human and attitudes were not necessarily shared rights institutions were established: the by the entire population. Advisory Board for Human Rights and the

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Torture, Ill-Treatment and 1999, out of 211 alleged cases of ill-treat- Misconduct by Law Enforcement ment, only three officers were sentenced Officials and none were dismissed from office.

Legal Provisions on Torture In a survey among policemen on the “ethics of police conduct”, half of the In its 1999 report1, the UN Human Rights 2000 policemen interviewed stated that Committee recommended that the crimi- they would not denounce their colleagues nal procedure code ought to be amended in cases of misconduct. The survey was to provide that confessions, if challenged, carried out by the Ministry of Interior.3 must be proved not to have been extracted through torture or ill-treatment. Thus far, ■ In the case of the Austrian citizen of such amendments have not been made. African origin, Dr. C., who was beaten so severely by police in the course of a traffic Inhuman Treatment in Prisons parole’s control at the end of 1998 that he had to be hospitalized for 12 days, the During a 12-day visit by a delegation of judge held their behavior to be “inhuman the Council of Europe Committee for the and degrading”. He sentenced the police- Prevention of Torture and Inhuman or De- men to six months imprisonment in April grading Treatment of Punishment (CPT) 1999. Dr. C. was sentenced to 4 months between 19–30 September 1999, the imprisonment for “resisting a public officer delegation found small latticed cots in a in the execution of his duties”. Viennese prison. The cots were used when prisoners became furious or endangered ■ In March 1999, a dramatic incident in- themselves or others. Prisoners were kept volving Mohammed S., a black-skinned there for several hours. The cots were de- French citizen, occurred. Five people stroyed after the delegation expressed the witnessed the incident in which he was in- view that they constituted the inhuman sulted in a racist manner (shouting, for treatment of prisoners. However, special example, “I will wear you out, you dirty beds confined with nets (“Netzbetten”) are nigger-pig”), and severely mistreated by still in use and raise similar concerns. police officers at an underground station. The eyewitnesses reported the case to the Ill-Treatment and Misconduct by police, the minister of the interior and the Law Enforcement Officials2 media. Despite this, charges against the police officers were dismissed. Mo- During the past few years, the police have hammed S. was sentenced for resisting the committed many acts of violence against police and carrying drugs, and was subse- aliens, particularly those of African origin. quently deported from Austria. The eye- The victims have, in most cases, ended up witnesses were not believed. accused of “resisting a public officer in the execution of his duties” and have sub- The minister of justice has since taken sequently been convicted. Conversely, the some initiative and ordered the review of prosecutor usually dismisses cases in about 900 dismissed cases. The public which police officers are charged with prosecutors are obliged to present their having engaged in police brutality. In records and journals to the reviser. In

1 A/54/40, point 186, 21 September 1999. 2 Falter, 51–52/99, p 14–16. 3 Falter, 49/99, page 9.

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1999, he also issued a so-called “Anti-Tor- Right to Privacy ture Decree”,4 which recommended that public prosecutors should open a judicial On 25–26 May 1999, the newly permitted inquiry into cases of alleged misconduct method of electronic surveillance was by police officers, rather than having the used in the so-called “Operation Spring.”5 police investigate their own colleagues. An alleged circle of Nigerian drug dealers This also better fulfills the requirement of was screened in Vienna. During this oper- objective and independent investigations. ation, 850 police officers arrested more This “Anti-Torture Decree” was criticized than 70 people throughout Austria, mostly by the general inspector of the Viennese of African origin. Most persons were re- security agency (Sicherheitswache), who leased before long, for lack of evidence. A believed that the procedure would take complaint questioning the legality of the too long. He suggested, instead, the estab- use of electronic surveillance was lodged lishment of an independent body – a spe- because the decision to employ the cial investigation unit within the execu- method was not well-grounded. tive, under the direction of the minister of justice. Protection of Ethnic Minorities

■ On 6 November 1999, Mr. G. was taken Since November 1999, the Constitutional to the police station at Boltzmanngasse Court has been examining whether the de- and left badly wounded. He suffered a cree for official languages (Amtssprachen- cerebral hemorrhage, and the lesion of an verordnung) for the Slovene minority in optic nerve, and is now blind in one eye. Carinthia is in accordance with the law on He reported having been intentionally ethnic groups (Volksgruppengesetz6). This punched in the eyes, although the official law empowered the federal government to police report stated that, intoxicated, he issue decrees to determine in which mu- had first run into the duplex system, and nicipalities, and before which public au- then fallen from the chair. The following thorities, minorities are allowed to use day, he was charged with severely injuring their languages as official languages. A public officers. Three weeks later, the po- parallel regulation stated that in villages lice reported his injuries, which they with at least 25 percent minority represen- claimed had been inflicted by unknown tatives, signs showing the name of the vil- persons. At that time, preliminary investi- lage must also be in their language. This gations into the policemen’s conduct had 25 percent requirement also applied to the already begun, ex officio. As of this writ- decree for official languages. As a result, ing, legal proceedings are still under way. only a few villages in Carinthia were offi- cially allowed to use the Slovene lan- ■ On 10 December, Ms. M., who was in- guage. Consequently, many Slovenes liv- toxicated at the time, was arrested after a ing outside these villages were denied the quarrel with a taxi-driver. At the police sta- right to speak their own language before tion at Juchgasse, a female police officer public authorities. forced her to undress and kicked her. Ms. M. had bruises and abrasions. The police A similar regulation has been made for the officer was sentenced to 10 months im- Croat minority in Burgenland. In 1999, no prisonment for tormenting a detainee. other ethnic groups in Austria enjoyed the

4 Erlass vom 30. September 1999 zur Vorgangsweise bei Misshandlungvorwürfen gegen Organe der Sicherheitsbehörden, JMZ 880.014/37-II.3/1999. 5 Format, 28/99, page 39. 6 BGBl. 396/1976.

48 Austria right to use their language as an official ber of a secret right-wing organization language. called the Bavarian Liberation Army (Baju- warische Befreiungsarmee), which claimed The Constitutional Court is currently ex- responsibility for some of the attacks. No amining whether this 25 percent require- charges of racial motivation were brought ment is in accordance with the Austrian against Fuchs. In early 2000, he commit- constitution.7 ted suicide in his prison cell in .

Roma and Sinti Intolerance, Xenophobia, and Racial Discrimination According to UN press releases issued on 16 and 17 March, the Committee on the Discrimination on Ethnic Grounds Elimination of Racial Discrimination (CERD) found the situation of Roma in In its report on Austria, the European Com- Austria to be unsatisfactory. In its review of mission against Racism and Intolerance Austria, the CERD welcomed measures (ECRI), stated that “Austria still faces prob- taken for the Croatian, Hungarian and lems in this area, including incidents of ex- Slovene minorities, but expressed concern treme violence against non-citizens, cer- “at the lack of corresponding measures for tain minority groups and even public fig- other ’national ethnic minorities’, in par- ures who are accused of being over-friend- ticular for Czechs, Slovaks and Roma, as ly to such groups, and a high degree of well as for those who were sometimes re- support among the electorate for the right- ferred to as “new minorities.”8 wing populist Freedom Party.”9

■ On 10 March, Franz Fuchs was sen- ■ Helene Partik-Pablé, a deputy of the tenced to for producing Freedom Party (FPÖ) and a criminal court and sending a series of letter bombs which judge, stated in a session of the Federal injured more than one dozen people in Parliament that “...it is well-known that the Austria and Germany between December Blacks are normally more aggressive than 1993 and December 1995, including a Austrians...” pipe bomb which killed four Roma in the federal state of Burgenland in February ■ In the course of the parliamentary elec- 1995. The bombing campaign targeted tions in October, the FPÖ displayed xeno- ethnic minorities and public figures sym- phobic posters with slogans such as “stop pathetic to minorities and foreigners. foreign infiltration” or “stop the misuse of Fuchs is believed to have been responsible the right to asylum”. The results of the for some twenty-eight explosive devices elections – 27 percent voted for the FPÖ, altogether, including twenty-three letter making it the second strongest party in bombs. Fuchs was discovered by chance Austria – revealed that the electorate did on 1 October 1997, at a border crossing to not refrain from voting for a populist and , when a bomb he was holding discriminatory party with a xenophobic exploded. He lost both arms from the program. On 12 November, thousands of elbow down in the explosion. Prosecutors people demonstrated against racism and said the 49-year-old former engineer had xenophobia, and thereby expressed their acted on his own and was the sole mem- discontent with the election results.

7 Franjo Schruiff, Stimme von und für Minderheiten, No. 33/IV 1999, page 22. 8 Roma Rights, No. 1, 1999. 9 European Commission against Racism and Intolerance (ECRI), Report on Austria, Strasbourg, 13 March 1999, page 7.

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The CERD report on Austria10 expressed execution of his duty”; the third person similar concerns and added that “seven was sentenced to nine months imprison- years after it drew attention to the lack of ment. Proceedings against the policemen sanctions for racial discrimination in the were dismissed by the public prosecutor. private sector, little progress has been Klothilde Eckbrecht was sentenced in dis- made.” The CERD further expressed its ciplinary proceedings for her discriminato- concerns that non-citizens were still not ry behavior. eligible for participation in work councils (Betriebsrat). In its Concluding Observa- ■ On 6 October, while searching for drugs tions on Austria, CERD expressed concern in the home of Claudia B and her Ghanese about “the number of reported incidents of husband, police officers demolished the xenophobia and racial discrimination, in- apartment. Claudia B. was injured and cluding acts of anti-Semitism and hostility called insulting names such as “Nigger- against certain ethnic groups” and recom- bitch” and “Bimbo-slut.” During the court mended “that the State party introduce proceedings, the policemen stated that the comprehensive legislation to prohibit search of the apartment had been “cor- racial discrimination in all its forms, cov- rectly performed”. They are still in office.12 ering both citizens and foreigners.” Homosexuals’ Rights In 1999, there was still no Anti-Discrimi- nation Law in Austria that would effective- Despite numerous requests by the Euro- ly redress cases of discriminatory conduct. pean Parliament13 and the UN Human Rights Committee14 to repeal article 209 of ■ The IHF reported11 the cases of He Xi- the penal code, which prescribes 18 years uqin, He Xiuzhen and Ni Tongjun (of Chi- as the age of consent for sex between gay nese origin), who were ill-treated by po- men (compared to 14 years for heterosex- lice upon their arrest in a Chinese restau- uals and lesbians), Austria continued to rant, and their subsequent detention. Dur- discriminate against male homosexuals ing court proceedings, judge Klothilde because of their sex and sexual orienta- Eckbrecht named them “B1”, “B2” and tion. “B3” – because of their “difficult” names. She also asked them whether the cook Protection of Asylum Seekers “cooks Chinese food properly” or whether and Immigrants he just serves “the crap that is usually served to Austrians.” Moreover, she criti- Forced Deportations cized their poor German and assured them she would not slow down her manner of The inhuman treatment by the police speaking. Ultimately, two of the persons when deporting aliens has been criticized were sentenced to three months imprison- by human rights organizations in Austria ment for “resisting a public officer in the on several occasions.

10 CERD, Concluding Comments on Austria, 16 March 1999, point 8f. 11 See IHF 1999 Annual Report. 12 Falter 51–52/99, page 15. 13 Doc. A4-0112/97, resolution of 8 April 1997, paragraph 140; doc. A4-0034/98, resolution of 17 February 1998, paragraph 69; doc. B4-0824 and 0852/98, resolution of 11 September 1998, paragraph 1; doc. A4-0468/98, resolution of 17 December 1998, paragraph 53; doc. A5-0050/2000, resolution of 16 March 2000, paragraph 60. 14 UN General Assembly, 21 October 1999, A/54/40.

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■ The most tragic event was the death, in Kosovo Albanian refugees early 1999, of Marcus Omofuma, a 25- year-old Nigerian citizen. He died from In a special ordinance, displaced Kosovo suffocation during his deportation from Vi- Albanians were given temporary protected enna to Sofia on 1 May 1999. Omofuma resident status in Austria. Around 5,080 was handcuffed, and his mouth was shut Kosovar-Albanians were evacuated from with adhesive tape by the three police of- Macedonia; most of them had family ties ficers that accompanied him. It was only in Austria. The estimated total number of following the intervention of the minister refugees that were accepted in Austria dur- of the interior that the police disciplinary ing the Kosovo crisis amounted to 15,000 commission decided to suspend from of- persons. Most of them returned to Kosovo fice two of the three police officers. shortly after the end of the armed conflict. By the end of 1999, only around 1,500 This tragic event had several conse- Kosovo Albanians were reported to have quences: The minister of interior issued a remained in Austria. series of decrees with regard to deporta- tions and expulsions. On 3 May, he issued Immigration an ordinance to suspend all deportations and expulsions where the person is likely The minister of the interior decreased the to resist.15 This ordinance was replaced on quota for immigration into Austria by 6,7 1 June by another decree on the principles percent, thus from 8,670 in 1999 to 8,090 for aliens’ policy with regard to deporta- for 2,000.19 The quota system only applies tions16. The third ordinance established to non-EU citizens. new guidelines and instructions for all of- ficers involved in deporting a person by Der Standard reported the fate of 46 per- aircraft17. The practice of shutting the sons who had problems with the provi- mouth with tape, which had already been sions of the laws on asylum and aliens in criticized by the Autonomous Administra- 1999.20 Juvenile “sans-papiers”21, whose tive Tribunal (Unabhängiger Verwaltungs- parents or relatives failed to give them the senat, UVS) a few years ago, was explicit- proper papers and residence documents, ly forbidden. On 1 September, a special are among the vulnerable groups. ordinance on deportations via charter planes was issued.18 It stated that a plane ■ Baris, an 18-year-old Turk, had to leave should be chartered when a previous at- Austria on 14 January, after having fin- tempt to deport a person by normal aircraft ished school. Due to several interventions failed, when it was likely that the person and strong media interest in his case, he would physically resist deportation, or was allowed to return to Austria on 12 No- when a normal deportation would not be vember. possible.

15 Zl.31.200/15-III/16/99. 16 Grundsatz Fremdenwesen Abschiebung, Zl.31.200/28-III/16/99, 1 June 1999. 17 Richtlinie für die Organisation und Durchführung von Abschiebungen auf dem Luftwege (Linienflüge), Zl.19.250/42-GD/99, 1 June 1999. 18 Zl.31.200/50-III/16/99. 19 Der Standard, 25–26 October 1999. 20 Der Standard, 2 January 2000. 21 Without identity documents.

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■ Veroljub M. was not as lucky. He was and appointed by the minister of the inte- deported to Belgrade, after having lived in rior. Each member of the board shall work Austria for 12 years, because his mother in an honorary capacity for three years. had failed to get a residence permit for Their task is to advise the minister of inte- him. rior on all human rights issues and to ob- serve and evaluate how law enforcement ■ The Austrian embassy was responsible agencies perform their duties in terms of for giving the wrong type of visa to a compliance with human rights. Nigerian exchange student. As a result, he was detained in Austria. He received an The Advisory Board – in addition to the official order to leave Austria only one public prosecutor, the criminal courts and month after his release from the detention the disciplinary entities – shall also exam- center. ine complaints against law enforcement officials from a human rights perspective According to a report on the NGO- and is directly accountable to the minister UNHCR Forum in Klagenfurt on 12–13 of the interior. These reports will be pub- November, between 15,000 to 15,800 lished. At the request of the minister of the people in detention centers were awaiting interior, the Advisory Board shall give rec- deportation in 1999. The average period ommendations on how to improve human of detention was around 3–4 weeks; the rights safeguards in certain areas of the maximum was six months. Many organi- work of law enforcement agencies. An zations that cared for people in detention overall report on its observances, evalua- centers criticized the fact that, despite al- tion and recommendations shall be sub- ternative legal provisions that provide for mitted annually to the Ministry of Interior, the less stringent treatment of juveniles, who will integrate these findings into its many were still kept in such centers and annual security report to the Federal Par- treated as adults. liament (Nationalrat) and the Upper House of Parliament (Bundesrat). ■ After having tried to commit suicide, a 17-year-old Albanian woman was de- In its first session, the Advisory Board de- tained on 2 February and kept in a single cided to establish commissions, comprised cell. A few days later, on 6 February, she of physicians, judges and professors, to was deported. carry out unannounced visits to police sta- tions in order to examine the observance Human Rights Institutions of human rights in those facilities. The po- lice are obliged to give the members of the Advisory Board for Human Rights commission access to their files and pris- ons under police control. These commis- Another reaction to the Omofuma case sions assist the work of the Advisory was the creation of an Advisory Body for Board. Human Rights22 for the protection and safeguard of human rights by the security In October 1999, the Advisory Board sub- executive. The Advisory Board for Human mitted its first report to the minister of in- Rights (Menschenrechtsbeirat) is com- terior in which it recommends several im- prised of 11 members who are nominated provements with regard to deportation by the ministers of the interior and justice, practices, especially with regard to depor- the federal chancellor, and by five NGOs tations where it is likely that the person

22 Menschenrechtsbeirat-Verordnung, BGBl II Nr.202/1999, 30.6.1999, replaced by BGBl II Nr. 395/1999, 19 October 1999.

52 Austria would resist. The recommendations fo- cused on the improved training of accom- panying officers, better information and preparation for the person to be deported, and financial support for the first few days following deportation. This would entail involving international organizations, such as the UNHCR, IOM, NGOs and Austrian representation agencies.

How the new Advisory Board will perform its limited tasks, and if and how the rec- ommendations will be implemented in practice by the law enforcement agencies, remains to be seen.

Parliamentary Committee on Human Rights

On 18 November 1999, the new parlia- mentary committee on human rights had its constituting session. Its specific duties have yet to be agreed so as not to interfere with the already existing parliamentary committees.23

Human Rights Defenders

The main achievement that was praised in the IHF 1999 report – the establishment of an NGO human rights network coordinat- ed by a state-financed person – lost its co- ordinator, due to a lack of finances. The Austrian government paid the salary for the year of 1998 – the year of commemo- ration of the 50th Anniversary of the UN Human Rights Declaration. In summer 1999, when the government stopped its fi- nancial support, the NGOs involved in the network contributed enough money to pay for ten hours of work per week. As of this writing, the coordinator had to stop work- ing, as the financial means were no longer available. ■■■

23 http://www.parlinkom.gv.at

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