VZCZCXRO3479
PP RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV RUEHSL RUEHSR
DE RUEHRL #0927/01 2151529
ZNR UUUUU ZZH
P 031529Z AUG 09
FM AMEMBASSY BERLIN
TO RUEHC/SECSTATE WASHDC PRIORITY 4828
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
RUCNFRG/FRG COLLECTIVE PRIORITY
RUCNDT/USMISSION USUN NEW YORK PRIORITY 0815
RUEHGV/USMISSION GENEVA PRIORITY 1527

UNCLAS SECTION 01 OF 05 BERLIN 000927 
 
SENSITIVE 
 
SIPDIS 
PLEASE PASS TO DRL/MLGA KRISTEN MCGEENY 
 
E.O. 12958: N/A 
TAGS: PHUM GM UN
SUBJECT: GERMANY HAS FAR-REACHING SOCIAL AND LEGAL 
STRUCTURES TO COMBAT TORTURE 
 
REF: STATE 070129 
 
¶1.  (U) Summary:  This cable is in response to reftel 
regarding initiatives to prevent torture.  Germany has a 
variety of mechanisms in place to prevent torture 
domestically and abroad, as well as to assist victims of 
torture.  Domestic laws regulate the immigration of torture 
victims and give Germany's federal prosecutor jurisdiction 
over torture crimes around the world.  As a member of the 
European Union (EU), Council of Europe (CoE), and the United 
Nations (UN) Germany is party to several international 
treaties and committees aimed at preventing torture 
worldwide.  It is a party to the Rome Statute of the 
International Criminal Court (ICC), which can exercise 
jurisdiction over crimes of torture.  Germany also provides 
foreign assistance aimed at preventing torture worldwide both 
through international organizations and through direct aid. 
Finally, Germany has a very advanced network of treatment 
centers providing rehabilitation for victims of torture 
within Germany and internationally.  End summary. 
 
¶2.  (U) Meetings with the Human Rights Watch Germany, Berlin 
Treatment Center for Torture Victims, German Institute for 
Human Rights, and Bundestag Human Rights and Humanitarian Aid 
Committee have provided much of the information regarding 
what approaches Germany is taking to prevent and treat 
torture. 
 
Asylum and Prosecution 
---------------------- 
 
¶3.  (U) The Basic Law of the Federal Republic of Germany 
(1949) and the Penal Code reflect Germany's commitment to 
preventing torture.  Article 104 Para. 1 Clause 2 of the 
Basic Law forbids a person in custody from being subjected to 
mental or physical mistreatment.  Germany's Penal Code 
characterizes involvement by public officials in acts of 
torture as a criminal offense.  Furthermore, testimony 
obtained under torture may not be used. 
 
¶4.  (U) The Asylum Procedure Act (1993) and Residence Act 
(2004) in Germany protect individuals from torture.  The 
Asylum Procedure Act (Section 13) allows for applications for 
asylum from individuals who want protection from political 
persecution or cannot return to their own country for reasons 
specified in Section 60 of the Residence Act, including 
humanitarian reasons.  Section 60 of the Residence Act states 
that a foreign national may not be deported to a country if 
there is a threat that he or she will face torture or other 
cruel, inhuman or degrading treatment or punishment (such as 
capital punishment) in that country.  Such persons are given 
a residence permit.  This gives individuals protection from 
dangers not covered under asylum protection. 
 
¶5.  (U) Foreign nationals may also qualify for asylum even if 
they have been tortured in the past and no longer face a 
threat of torture in the country of origin.  This is possible 
if the foreign national has physical and/or psychological 
medical problems resulting from torture and requiring 
treatment, but proper treatment would not likely be provided 
in the country of origin.  These individuals would also 
qualify for a residence permit to be able to receive 
treatment in Germany.  The Residence Act also entitles 
immigrants who have received their first residence or 
settlement permit on humanitarian grounds to an integration 
course, particularly if they do not have simple oral language 
skills. 
 
¶6.  (U) An alternative option for rejected asylum-seekers is 
a "toleration" ("Duldung") permit.  This can be granted to 
"rejected asylum-seekers who cannot be returned to their 
country of origin for legal, technical, or humanitarian 
reasons" such as the risk of facing torture or requiring 
medical treatment that would not be provided in their country 
of origin.  "It does not amount to the right of residence as 
it simply suspends deportation on a temporary basis for the 
maximum period of six months at a time.  Accordingly, persons 
with a "toleration" permit have restricted access to health 
care, education and work while their right of movement is 
also severely limited.  In 2006, there were 186,000 people 
living in Germany on a toleration permit.  More than 100,000 
of them had already stayed longer than 6 years and almost 
54,000 for over a decade." 
 
¶7.  (U) German law also provides for universal jurisdiction, 
which allows the German federal prosecutor to charge someone 
 
BERLIN 00000927  002 OF 005 
 
 
with torture anywhere in the world.  The German Code of 
Crimes against International Law (CCAIL) went into force on 
30 June 2002 and establishes universal jurisdiction over 
crimes of genocide, crimes against humanity and war crimes. 
Torture qualifies as both a crime against humanity and a war 
crime.  The concept of universal jurisdiction is motivated by 
the principle that some crimes including genocide, war 
crimes, and crimes against humanity are so serious that they 
amount to an offense against the whole of humanity and 
therefore all states have a responsibility to bring those 
responsible to justice. 
 
¶8.  (U) The Geneva Conventions and the Convention against 
Torture place a legally binding obligation on states that 
have ratified them to exercise universal jurisdiction over 
persons accused of grave breaches of the Geneva Conventions 
and torture or to extradite them to a country that will. 
This guards against the possibility that an alleged criminal 
might not be prosecuted in the country where the crime has 
taken place. Instances of this would be (1) where the 
national legal system is weak following a conflict, (2) that 
country has granted amnesty to the alleged criminal, (3) 
there are political reasons for not prosecuting the alleged 
criminal in that country, (4) the alleged criminal may not 
receive a fair trial, or (5) the alleged criminal risks 
receiving the death penalty in that country. 
 
¶9.  (U) The German federal prosecutor will only exercise 
universal jurisdiction if the competent authorities of the 
territorial state, or of the state of nationality of the 
suspect or victim, refrain from carrying out a genuine 
investigation and where the ICC or another competent 
international tribunal does not investigate the case.  If the 
suspect's presence in Germany allows an investigation to be 
efficiently carried out and no other country or court is 
carrying out a genuine investigation, then the federal 
prosecutor is obliged to begin an investigation.  Both 
victims and the accused are entitled to legal aid if they are 
unable to pay for their legal representation. 
 
¶10.  (U) Recently, according to Human Rights Watch, 
"Germany's Ministry of Justice has created three dedicated 
positions in the general prosecutor's office to investigate 
cases of genocide, crimes against humanity, and war crimes 
that fall under Germany's universal jurisdiction law.  In 
addition, the Federal Criminal Police is establishing a 
specialized war crimes unit with seven investigators working 
on international crimes." 
 
¶11.  (U) Germany utilizes its own justice system to enforce 
its laws forbidding torture within its own territory.  This 
is illustrated by the Daschner case in Frankfurt am Main, 
Germany.  Wolfgang Daschner, a police officer, was 
interrogating a man in police custody suspected of 
kidnapping.  Daschner threatened the suspect, Magnus Gaefgen, 
with torture in order to learn the whereabouts of the 
kidnapped child.  Even though Daschner did not actually use 
torture, the court ruled Daschner guilty of a misdemeanor of 
coercion.  This demonstrated that even the threat of torture 
is not acceptable. 
 
CoE, EU, UN and Other Treaties 
------------------------------ 
 
¶12.  (U) As a member of the EU and CoE, Germany implements 
treaties in force under these two organizations in addition 
to other international treaties concerning the prevention of 
torture worldwide.  These treaties include: 
      - The Third Geneva Convention also known as the Geneva 
Convention Relative to the Treatment of Prisoners of War 
(1950) 
      - The Council of Europe Convention for the Protection 
of Human Rights and Fundamental Freedoms (1953) 
      - The Council of Europe Convention for the Prevention 
of Torture and Inhuman or Degrading Treatment or Punishment 
(1953) 
      - The International Covenant on Civil and Political 
Rights (1976) 
      - The European Union Charter of Fundamental Rights 
(2000) 
      - The European Union Guidelines on Torture (2001) 
      - The Rome Statute of the International Criminal Court 
(2002) 
      - The European Commission's ban on trade in instruments 
of torture (06/30/05) 
      - The Treaty of Lisbon (expected to enter into force 
 
BERLIN 00000927  003 OF 005 
 
 
end of 2009) 
 
¶13.  (U) The CoE Convention for the Prevention of Torture and 
Inhuman or Degrading Treatment or Punishment created the 
Committee for the Prevention of Torture (CPT).  Germany 
exhibits adequate compliance with this convention and the 
CPT, according to the State Department's 2008 Human Rights 
Report on Germany.  This report shows that Germany is open to 
investigations of torture and other cruel, inhuman or 
degrading treatment or punishment in its own detention 
centers.  Germany allowed visits by independent human rights 
observers and visits by the CPT in 2005.  According to the 
State Department's Human Rights Report, "the CPT criticized 
conditions under which one German prison held immigration 
detainees and raised concerns about the level of violence and 
intimidation among prisoners observed at three prisons.  The 
government responded in detail to the CPT,s recommendations, 
comments, and requests for information in its report to the 
CPT in April 2007."  This is evidence of Germany's 
willingness to cooperate and comply with the CPT on issues of 
torture and other cruel, inhuman or degrading treatment. 
 
¶14.  (U) As a member of the UN, Germany implements the UN 
Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment (UNCAT, 1984) and the 
Optional Protocol to UNCAT (OPCAT, 2002).  The Federal Agency 
for the Prevention of Torture is Germany's national mechanism 
for the prevention of torture based on Article 3 of OPCAT. 
The Federal Office for the Prevention of Torture was 
established on 20 November 2008 with a statutory notice 
issued by the Federal Ministry of Justice (Federal Bulletin, 
Nr 182, S. 4277).  The Agency is neither a non-governmental 
organization, nor a lower authority of any ministry.  The 
Agency is organizationally independent and not subordinate to 
any Federal Ministry, although it is financed through the 
Federal Ministry of Justice.  Thus, the management of the 
Agency underlies neither a legal nor a general supervision. 
 
¶15.  (U) In order to prevent torture and ill-treatment, the 
Agency is establishing a system of regular and unannounced 
visits to places of detention as specified under Article 4 of 
OPCAT.  The Agency directs its attention to grievances found 
and submit recommendations for improvement.  The Agency 
reports annually to the Federal Government and Parliament on 
its activities.  Furthermore, the Agency can submit proposals 
and observations to existing or draft legislation.  See the 
website of the Federal Agency for the Prevention of Torture: 
http://www.antifolterstelle.de. 
 
Foreign Aid 
----------- 
 
¶16.  (U) Germany contributes to the UN Voluntary Fund for 
Torture Victims (UNVFT).  General Assembly resolution 36/151 
established the UNVFT on 16 December 1981 to receive 
donations from governments, NGOs, and individuals in order to 
provide psychological, medical, social, legal, economic, 
humanitarian, and other assistance to torture victims and 
their family members.  This is the second largest source of 
funding for the rehabilitation of torture victims after the 
European Instrument for Democracy and Human Rights.  The last 
year for which the UNVFT has public records of Germany's 
contribution is 2002, in which Germany donated 122,066 USD 
(or 130,000 Euro).  According to the State Report of the 
Federal Republic of Germany under the UN Human Rights 
Council's Universal Periodic Review of 2008, Germany plans to 
continue to financially support national and international 
programs for the treatment of torture victims as well as 
continue its financial support for the UN Voluntary Fund for 
Victims of Torture in 2009. 
 
¶17.  (U) In addition, the German government allocated about 
80,000 USD to Kyrgyzstan to provide assistance for victims of 
torture and to monitor cases of torture in 2008.  This money 
will be channeled into maintaining the activities of a 
working group that was set up recently.  This group, along 
with Ombudsman Tursunbek Akun, will be involved in protecting 
the rights of citizens.  On 8 June 2008, the foundation Voice 
of Freedom signed a funding agreement with the German 
government to create national mechanisms for preventing and 
investigating instances of torture. 
 
Rehabilitation for Torture Victims 
---------------------------------- 
 
¶18.  (U) The National Association of Psychosocial Centers for 
 
BERLIN 00000927  004 OF 005 
 
 
Refugees and Victims of Torture (Bundesweite 
Arbeitsgemeinschaft der Psychosozialen Zentren fuer 
Fluechtlinge und Folteropfer e.V. or BAfF) is a concentration 
of facilities and projects that provide social, 
psychological, and medical rehabilitation for refugees and 
victims of torture and other organized violence.  BAfF 
started out as a series of national meetings and symposia but 
in 1997 developed into a nationwide alliance of psycho-social 
centers in Germany.  The objectives of BAfF are to create a 
network of treatment centers at the national, European, and 
global levels between states, NGOs and other actors; benefit 
from the exchange of treatment methods, technical resources, 
and professional standards between centers and external 
experts; create working groups on standards of treatment; 
work on lobbying and public relations; train professionals 
inside and outside of treatment centers; and strengthen the 
protection of human rights; have an annual federal 
conference; and improve the lives of people who have suffered 
traumatizing experiences. 
 
¶19.  (U) BAfF offers the opportunity for victims of torture 
and refugees to anonymously tell their stories in public and 
thereby raise awareness about the human rights abuses they 
have suffered from.  BAfF also undertakes fundraising to be 
able to pay for the treatment of torture victims and 
refugees.  BAfF has at least one member organization in each 
of the 16 German states.  There are currently 28 members 
including 24 treatment centers as well as initiatives and 
facilities. 
 
¶20.  (U) An international network similar to BAfF is The 
Network of European Treatment and Rehabilitation Centers for 
Victims of Torture and Human Right Violations in which over 
100 treatment centers are represented.  BAfF and its members 
are part of this network.  This network maintains large 
annual networking conferences, working groups on specific 
issues, a clinical discussion group, and ongoing dialogue and 
coordination via the internet.  Participants include 
psychotherapists, doctors, psychologists, social workers, 
lawyers and administrators.  Working groups have been 
established regarding assessment and documentation, research, 
fundraising, legal issues and advocacy, children, and 
clinical issues. 
 
¶21.  (U) Another similar international network is the 
International Rehabilitation Council for Torture Victims 
(IRCT).  A few individual German treatment centers are 
members of this organization, although BAfF is not a member 
of the IRCT.  The IRCT is an umbrella organization for 142 
member treatment centers and programs that support the 
rehabilitation of torture victims and work toward preventing 
torture worldwide.  The IRCT works with governments, human 
rights organizations, health professional organizations, and 
intergovernmental organizations.  Its objectives are to raise 
awareness of the rehabilitation need of victims of torture, 
promote and support the establishment of new treatment 
centers, work to prevent torture and end impunity, record the 
impact and consequences of torture, and work to increase 
funding for rehabilitation centers and programs around the 
world. 
 
¶22.  (U) The Berlin Treatment Center for Torture Victims 
(BZFO) is a good example of one of the treatment centers that 
is part of BAfF, the Network of European Treatment and 
Rehabilitation Centers for Victims of Torture and Human 
Rights Violations, and the IRCT.  The BZFO treats children, 
adolescents, adults, and their families from over 50 
countries who have suffered from physical problems, long-term 
psychological ailments, and psychosomatic disorders. 
Medical, psychiatric, and psychotherapeutic treatments are 
offered in the day-clinic and out-patient care.  Specific 
types of therapy include family therapy, client-centered 
therapy, psycho-dynamic therapy, behavior therapy, coherent 
perception therapy, art therapy, music therapy, 
physiotherapy, and garden therapy.  Knowledge of 
trans-cultural psychotherapy and psychiatry are very 
important as are interpreters who build the lingual and 
cultural bridges with patients.  Relevant research at BZFO is 
supported by the Hamburg Institute for Social Research. 
 
¶23.  (U) About 50% of funding comes from the public sector 
(Ministry for Family, Senior Citizens, Women and Youth; 
United Nations High Commissioner for Human Rights; and 
European Commission).  The other approximately 50% is 
donations from foundations, corporations, private donors, and 
fundraising efforts.  Despite government funding, BZFO 
 
BERLIN 00000927  005 OF 005 
 
 
remains neutral.  This is the only treatment center in 
Germany which receives government funding.  BZFO employs 
social workers to assist patients in dealing with authorities 
or while making a Social benefits claim; informs patients of 
services available to them at BZFO or other refugee 
assistance organizations; puts patients in contact with 
counseling agencies, doctors, or lawyers; and informs them of 
schooling, training, and employment opportunities.  BZFO 
works with government officials, other treatment centers 
around the world, NGOs, social workers, lawyers, nurses, 
prisons, and therapists not only to help patients with asylum 
requests but also to provide treatment and publicize its 
services.  BZFO also lobbies to government officials in order 
to get more state-funded housing for torture victims and more 
financial aid to treatment centers. 
 
¶24.  (U) Every German president has visited the center at 
least once.  Victims can seek out the treatment center on 
their own but must be assigned by the government for official 
treatment.  Victims must have an allowance to live 
permanently or temporarily in Germany in order to receive 
treatment.  Waitlists for treatment sometimes have up to 200 
people.  Torturers themselves may not receive treatment here. 
 BZFO also works to raise awareness about torture, for 
instance, through an art auction that will take place in 
September and through conferences with NGOs including Amnesty 
International. 
 
¶25.  (U) The BZFO, the University of Zurich, the Kirkuk 
Center for Torture Victims in Iraq, the University of 
Amsterdam, and Interapy Nederland B.V.  are collaborating on 
a research project which provides internet-based 
psychotherapy for post-dramatic stress disorders in Arabic. 
Patients include but are not limited to torture victims.  It 
is free of charge to a certain number of patients.  According 
to this program's website, interapy is a standardized, 
internet-based writing therapy conducted exclusively through 
e-mail and is based on a scientifically tested model with a 
defined fixed sequence of interventions.  This project was 
started in an effort to help the Kirkuk Center for Torture 
Victims expand its services.  Visit the website of this 
program at www.virtual-traumacenter.org. 
 
Other Organizations 
------------------- 
 
¶26.  (U) The German Institute for Human Rights is a national 
mechanism that does research and creates policy 
recommendations for the government for responding to general 
human rights themes around the world.  Regarding torture, one 
of their main goals is widespread ratification of OPCAT in 
addition to the acceptance of and provision of treatment for 
refugees.  Two areas of which the institute recommends 
stronger consideration are police experts and the German 
Federal Armed Forces.  Police experts should be consulted 
regarding how policemen deal with mistakes they might make as 
well as how policemen are trained with respect to torture. 
The German Federal Armed Forces undergo training in 
peacekeeping operations.  This training consists of 
simulations of peacekeeping operations where Armed Forces 
members must consider how human rights play a role in such 
situations. 
 
¶27.  (U) Other things the institute focuses on include court 
decisions, how the state reacts to and controls torture 
cases, talking to doctors, social workers, and other 
professionals on torture.  The institute employs a broad 
definition of torture, including not only extreme violence 
under the authorization of a government official but extended 
to other forms of extreme violence.  The institute is funded 
by the Ministry of Justice, the Ministry of Economic 
Cooperation and Development, and the State Department. 
Despite the government funding, however, this is a private 
national agency and is neutral. 
Bradtke