Federal Law On The Implementation Of The Optional Protocol Of 18 December 2002 To The Convention Of The United Nations Against Torture And Other Cruel, Inhuman Or Degrading Treatment Od...

Original Language Title: Bundesgesetz zur Durchführung des Fakultativprotokolls vom 18. Dezember 2002 zum Übereinkommen der Vereinten Nationen gegen Folter und andere grausame, unmenschliche oder erniedrigende Behandlung od...

Read the untranslated law here: https://www.global-regulation.com/law/austria/2997782/bundesgesetz-zur-durchfhrung-des-fakultativprotokolls-vom-18.-dezember-2002-zum-bereinkommen-der-vereinten-nationen-gegen-folter-und-andere-grausame%252.html

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
1. Federal law with the Federal Constitutional law, the public prosecutor's Office Act 1982, the Security Police Act, the penal law and the Federal Law Gazette law be changed (Federal Act on the implementation of the Optional Protocol of 18 December 2002 to the the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment - OPCAT implementation Act)

The National Council has decided:

Table of contents



Art.
Item 1 amendment of the Federal Constitution Act 2 amendment of the public prosecutor's Office Act 1982 3 amendment of the Security Police Act 4 amendment of the Penal Execution Act 5 amendment of the Federal Law Gazette Act article 1

(Constitutional provision)

Amendment of the Federal Constitution Act

The Federal Constitution Act, Federal Law Gazette No. 1/1930, most recently amended by the Federal Constitution Act, Federal Law Gazette I no. 60/2011, is amended as follows:

1. in article 22, the phrase 'Institutions of the Federal Government, the countries and the communities' is replaced by the phrase 'Institutions of federal, the States, the municipalities and the municipal associations'.

2. in article 148a para 1 first sentence is for the word "Foire" the phrase ", in particular because of a claimed violation of human rights," added.

3. in article 148a of paragraph 2, the phrase ", in particular by her suspected violations in human rights," is inserted after the word "Foire".

4. in article 148a, 3 the following paragraph is inserted:

"(3) to protect and promote human rights is the Ombudsman and the commissions set up by her (art. 148 h para 3), in the area of administration of the Federal Government including the business as carrier of appurtenant"



1. the place of detention to visit and to check, 2. to observe the behaviour of the institutions authorised to exercise direct administrative regulatory command and coercive power and accompanying review and 3 for persons with disabilities certain facilities and programs to check and to visit."

5. the previous para 3 to 5 of article 148a received the terms of paragraph (4), (5) and (6).

6. in article of 148b paragraph 1 first sentence, the phrase 'Institutions of the Federal Government, the countries and the communities' is replaced by the phrase 'Institutions of federal, the States, the municipalities and the municipal associations'.

7 article 148b is added the following paragraph 3:

"(3) paragraphs 1 and 2 shall apply by analogy to the members of the commissions and the members and substitute members of the Human Rights Advisory Board."

8. in article 148c the last sentence is replaced by the parenthetical expression (article 148a para 4) the bracket expression (article 148a para. 3).

9. in article 148d, the sales designation (1) preceded the first sentence and added the following two sentences:

"Moreover the Ombudsman can report at any time individual perceptions of the National Council and the Federal Council. The reports of the Ombudsman are to publish after submission to the National Council and the Federal Council."

10. the clauses of article 148d are combined into an own paragraph; This is preceded by the sales designation (2).

11. in article 148 g of paragraph 2 the following sentence is inserted after the second sentence:

"To mandate equality, the number of votes cast in the last national election is decisive."

12. in article of 148 g para 3 first sentence, the word "Voting strength" is replaced by the phrase "Voting strength, to mandate equality of voices of strength,".

13 Article 148 g paragraph 4 the following sentence is added to:

"Until any issue of a new allocation, the applicable business distribution on the new Member is apply by analogy to."

14 article 148 g paragraph 5 reads:

"(5) the members of the Ombudsman Board must be available to the National Council and have knowledge of the Organization and functioning of the management and knowledge in the field of human rights. They may belong to a general representative body nor the European Parliament during their duties, not a member of the Federal Government or a provincial government and no other profession."

15. in article 148 h is inserted the following paragraph 3:

"(3) for the performance of tasks under article 148a para 3, the Ombudsman has to establish commissions and to set up a human rights Advisory Board for their consideration. The Human Rights Advisory Board consists of a Chairman, a Vice-Chairman and other members and alternate members, who are appointed by the public prosecutor's Office. Deadline determine to what extent the Ombudsman in the appointment of members and alternate members of the Human Rights Advisory Board on proposals of other bodies is bound to. The Chairman, the Vice-Chairman and the other members of the Human Rights Advisory Council are involved in its activities no instructions."

16. the former paragraph 3 of article 148 h receives the sales designation (4); Paragraph 3 (paragraph 4) first sentence reads:

"The Ombudsman decides its rules of procedure and an allocation of business, in particular to determine is where the tasks of the members of the Ombudsman to carry out independently are."

17 article 148i is added the following paragraph 3:

"(3) a country that makes para. 3 of the authorization of section 1 with regard to the tasks do not use under article 148a, has by land constitutional law with the tasks under article 148a para 3 of land management to create a facility similar tasks and to make arrangements appropriate to the article 148 c and article 148d to the performance of these tasks."

18. in article 151 get I the Federal Act Federal Law Gazette No. 43 / 2011 attached paragraph 46 the sales designation (45), by the Federal Act Federal Law Gazette I no. 58 / 2011 attached para 45 the sales designation (46) and by the Federal Constitution Act, Federal Law Gazette I no. 60 / 2011 attached para 45 the sales designation (47).

19 article 151 is added the following paragraph 48:

"(48) article 22, article 148a, art. 148b paragraph 1, first sentence, and paragraph 3, article 148c last sentence, article 148d, article 148 g of paragraph 2 to 5, art. 148 h para 3 and 4 and article 148i paragraph 3 as amended by Federal Law Gazette I no. 1/2012 July 1, 2012 into force." The necessary for the activities of the commissions and of the Human Rights Advisory Board organizational and personnel measures already I no. 1/2012 by the Ombudsman at the end of the day of the announcement of the Federal Act Federal Law Gazette. Stands on July 1, 2012, in a country a land constitutional law in force, has been declared by the Ombudsman in accordance with article 148i paragraph 1 also for the area of land management for responsible it as a country is that of this authorisation with regard to the tasks under article 148a para 3 as amended by Federal Law Gazette I no. 1 / 2012 has made use of. Constitutional laws of the land are to be issued until the expiry of the 31 December 2012 in accordance with article 148i paragraph 3 no later than."

Article 2

Amendment of the public prosecutor's Office Act 1982

The Federal law on the Ombudsman (public prosecutor's Office Act 1982), BGBl. No. 433, last amended by Federal Law Gazette I no. 158/1998, is amended as follows:

1. paragraph 1 paragraph 2:

"(2) with the exception of adoption of the rules of procedure and the allocation of business pursuant to article 148 h paragraph 4 B-VG are subject to the collegial decision-making of the Ombudsman:"



1 recommendations, period legislative proposals and suggestions of measures of supervision in accordance with article 148 c B-VG, 2. reports to the National Council and the Federal Council in accordance with article 148d paragraph 1 B-VG, 3. applications to the Constitutional Court in accordance with articles 148e, 148f and 148i para 1 second sentence B-VG, 4 opinions in proceedings for review of legislation and draft regulations (§ 7 para 1), 5th suggestions an amendment or enactment of laws (section 7 paragraph 2) , 6. the appointment and dismissal of members of the commissions (§ 12 para. 2 and 4) and the or of the Chairman, which or whose substitute or Deputy and other members and alternate members of the Human Rights Advisory Board (§ 15 para. 3 and 6), 7 the establishing of general inspection priorities and 8 decisions on proposals of the Human Rights Advisory Board to ensure of uniform procedures and audit standards (section 14).

By the rules of procedure or the distribution of business other matters of the collegial decision-making can be reserved."

2. the existing text of § 3 is preceded by the sales designation (2); 1 the following paragraph shall be inserted:

(1) that has the Ombudsman to report the National Council and the Federal Council annually on their activities. Moreover she can report at any time individual perceptions of the National Council and the Federal Council."

3. § 3 the following paragraph 3 is added:

"(3) the reports of the Ombudsman are to publish after submission to the National Council and the Federal Council of this. "Moreover, the annual report of the Ombudsman is the Subcommittee for the prevention of torture (article 2 of the Optional Protocol to the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment by December 18, 2002 - OPCAT) to deliver."

4. paragraph 5:


„§ 5. "On the proceedings before the Ombudsman are the articles 6, 7, 10, 12, 13, 14, 16, 18 para 1, 3 and 4, 21, 22, 32, 33, 39a, 45 para 1 and 2, 46 to 51, 52, 53, 54 and 55 of the General administrative procedures Act 1991, BGBl. No. 51, and the extra law, BGBl. No. 200 / 1982, by analogy to apply."

5. the following section 7 is added:

"Laws and decrees are § 7 (1) in time to send the Ombudsman under grant a reasonable period for review.

(2) the Ombudsman may stimulate an amendment or enactment of laws.

"(3) the Ombudsman cooperates with science and teaching, and school and other educational institutions and informs the public about their activities."

6. the previous paragraphs 7 to 9 get the paragraph names "section 8", "section 9" and "10.".

7 the following III section is inserted:

"III. SECTION"

Protection and promotion of human rights

§ 11 (1) for the protection and promotion of human rights is incumbent on the Ombudsman, in the area of administration of the Federal Government including its activity as a carrier of execution and in the case of article 148i paragraph 1 first sentence B-VG also in the field of the administration of the country



1. the place of detention within the meaning of article 4 OPCAT to visit regularly and check, 2. to observe the behaviour of the institutions authorised to exercise direct administrative regulatory command and coercive power and accompanying review and 3rd in implementation of article 16 § 3 of the Convention on the rights of persons with disabilities, Federal Law Gazette III No. 155/2008, and to prevent all forms of exploitation That violence and abuse facilities and programs that are intended for people with disabilities, to visit regularly or to check.

(2) the Ombudsman has the commissions set up by her with the care of tasks referred to in paragraph 1 (sections 12, 13) to entrust.

Is (3) the Ombudsman and the commissions set up by her



1. information in particular about the number and treatment of persons of who are deprived of freedom or was, about the places where persons are deprived of the liberty or can be used and the conditions of his detention and the number and treatment of people with disabilities in institutions and programs for people with disabilities determined to grant, 2. documents , to grant 3. access to all places of detention facilities at most by delivery, and making free copies and copies thereof, as well as facilities for people with disabilities to grant and 4 on their desire contact with suspended or people with disabilities in institutions and programmes or to respondents without the presence of third parties, if necessary, an interpreter, to enable.

(4) in the exercise of their functions, the Ombudsman and the commissions set up by her on the requirements of the operation of the institution have carefully to take.

(5) the Ombudsman and the commissions set up by her are, as far as this of them tasks legally entrusted to the protection and promotion of human rights is necessary to meet, entitled, the documents relating to the case of illness (nursing documentation, medical history, findings and other relevant records of the party concerned) of the holder of the Institute, that no. 1 is a place referred to in paragraph 1, as well as in the messages to the resident representative pursuant to § 7 para 2 of the home stay law - HeimAufG , Federal Law Gazette I no. 11/2004, and in the messages about any further restrictions to the representative of the patient in accordance with §§ 33 f of the housing law - UbG, BGBl. to take no. 155/1990, insight and free produce transcripts and copies of these documents or the transmission of such documents to request. Residents representatives and patient advocates have to provide the information necessary for the performance of its tasks referred to in paragraph 1 of the Ombudsman and the commissions set up by her and to submit documents.

(6) the Ombudsman and the commissions set up by you have the personal relation of the data processed by them, if not other legal regulations provide for an obligation to further use of the data from the date to which the data to the tasks entrusted to them by law of the protection and promotion of human rights are no longer needed, delete.

12. (1) has the Ombudsman to use at least six commissions, which are divided according to regional or functional aspects. Each Commission consists of the required number of members, with the number of members of all commissions has to be at least 42. Each Commission is headed by a personality recognized in the field of human rights.

(2) members are appointed after hearing of the Human Rights Advisory Board of the Ombudsman with their consent. Only persons may be appointed as members, that have the required skills and expertise. Persons engaged in an activity which could cause doubts about the independent exercise of their function as a member of the Commission, are excluded from the order. The Ombudsman has a balanced representation of the sexes and an adequate representation of ethnic groups and minorities in the commissions, as well as to seek an independent, interdisciplinary and pluralistic composition under consideration on the terms of reference of the commissions.

(3) the order of the members is carried out for six years, every three years a new order of half of the members of all committees has to be carried out. Re-appointment is permissible.

(4) the Ombudsman can dismiss a member in writing and justified in advance,



1. at his request, 2 if it due to his health condition can no longer meet the challenges associated with its function, or 3 if it has grossly violated the obligations associated with its function or constantly neglected or an activity exercised, the doubts about the independent exercise of its function might cause.

(5) a member retires prematurely, is to appoint a new Member for the remainder of the term of Office of the resigning Member.

(6) compensation (§ 13 para 3) to the members for the performance of their duties.

(7) a decision of the Commission requires the majority of votes. Vote decides the head or the head. A decision in the circulation path is allowed.

§ 13 (1) certain commissions or some of her members carry out visits and inspections for the Ombudsman.

(2) the commissions report on their visits and checks to the public prosecutor's Office and give you suggestions for grievance findings and recommendations and suggestions of measures of supervision. The Ombudsman fails to proposals or recommendations of the commissions recommendations and findings of maladministration, the commissions are the reports of the Ombudsman may, (article 148d paragraph 1 B-VG) to connect comments relating to the activities of the relevant Commission. The leaders and head of the commissions are eligible to participate in the deliberations of the Ombudsman relating to its field of activity; the word is them upon request to grant.

(3) the Ombudsman has in its rules of procedure the rules of the commissions and to regulate their business distribution distributing business. In particular, it is to regulate how the commissions, taking into account the General inspection priorities of the Ombudsman must routinely and nationwide as well as in individual cases on the basis of circumstances become known to proceed and involve more experts if necessary. The Ombudsman sets also the amount of remuneration of the members of the commissions (§ 12 par. 6) in its rules of procedure after consulting the Commission. The commissions are to listen to before decision on the rules of procedure and business distribution of commissions.

(4) the directors and head of the commissions coordinate their activities with each other.

§ 14. The Human Rights Advisory Board advises the Ombudsman in matters of § 11 para 1, in particular in determining general inspection priorities, as well as the reimbursement of grievance findings and recommendations. He can reimburse the Ombudsman proposals to ensure of uniform procedures and audit standards.

The Human Rights Advisory Board consists of 15 (1) an or a Chairman, their or its substitute or Deputy, 14 other members and 14 alternate members.


(2) only persons may be appointed as members, that have the required skills and expertise in the field of human rights. That or the Chairman and whose or its substitute or Deputy should be acknowledged personalities with excellent knowledge of the organisation and functioning of the Administration, as well as with a scientific qualification in the field of constitutional law in the field of human rights. The Ombudsman has a balanced representation of the sexes and an adequate representation of ethnic groups and minorities in the Human Rights Advisory Board, as well as to seek an independent and pluralistic composition of the Human Rights Advisory Board.

(3) the members and alternate members of the Human Rights Advisory Board are appointed by the Ombudsman with their consent. Where is the Ombudsman at the order of depending on a member and a replacement member on a proposal of the Chancellor or Chancellor, Minister or the Federal Minister of the Interior, Minister or the Federal Minister of Justice, Minister or the Federal Minister of health, Minister of the Federal Ministry for defence and sports, Minister or of the Federal Minister for labour, Social Affairs and consumer protection and Minister or of the Federal Minister for European and international affairs bound. The proposing bodies is a balanced representation of the sexes and have an adequate representation of ethnic groups and minorities in the Human Rights Advisory Board, as well as to seek an independent, interdisciplinary and pluralistic composition of the Human Rights Advisory Board. Seven to be determined by the public prosecutor's Office non-governmental organisations, devoted to human rights, propose a member and an alternate member; the Ombudsman is bound by these proposals. The Chairman or the Chairman and their or its substitute or Deputy appointed the Ombudsman without this connection suggestions being bound.

(4) explains at least one country of the Ombudsman in accordance with article 148i paragraph 1 first sentence B-VG also for the area of land management for responsible, are another two members and two alternate members to order of a member and an alternate member on the proposal of a non-governmental organisation for human rights and one each on the basis of a joint proposal by the countries involved.

(5) the order is carried out for six years. Re-appointment is permissible.

(6) the Ombudsman may prematurely dismiss a member or alternate member,



1. at his request, 2 if it can no longer meet the challenges associated with his position due to his health condition, or 3 if it has grossly violated the obligations associated with its function or constantly neglected.

The dismissal of a non-governmental organization of nominated members and alternate members, as well as the or the Chairman and the representative or the representative of or of the presiding is done in writing and justified.

(7) compensation (§ 16 para 2) to members proposed by non-governmental organisations and the or the Chairman and whose or its substitute or Deputy.

Section 16 (1) a decision of the Human Rights Advisory Board requires the presence of or of the Chairperson or her or his Deputy or her or his Deputy and at least seven other members or alternate members and the majority of votes. Vote decides which or the Chairman. A decision in the circulation path is allowed.

(2) the Ombudsman has also the rules of procedure of the Human Rights Advisory Council in its rules of procedure and to regulate their business distribution also its business. The Ombudsman shall in their rules of procedure after hearing of the Human Rights Advisory Board also the height compensation of members of the Human Rights Advisory Board, proposed by non-governmental organisations, the or of the Chairman and their or its substitute or Deputy (§ 15 para. 7). The Human Rights Advisory Board is to listen to before the decision on the rules of procedure of the Human Rights Advisory Board.

(3) the members of the Ombudsman Board are entitled to participate in the deliberations of the Human Rights Advisory Board. The Human Rights Advisory Board is free to consult officials of the public prosecutor's Office and members of the commissions its deliberations.

Section 17 (1) the Ombudsman is entitled to the Subcommittee for the prevention of torture (article 3 para 3) in contact, to provide him with information and to meet with him.

(2) the Subcommittee for the prevention of torture is entitled to enter places of detention in the area of administration of the Federal Government including the business as carrier of appurtenant to the protection and promotion of human rights to visit and to check and for this purpose. The obligations pursuant to § 11 par. 3 apply toward him.

(3) objections to a visit to a particular place of detention will only be collected if it is necessary for reasons of national defence, public safety, due to natural disasters or serious disturbances of order in the place to visit, which temporarily prevent such a visit.

§ 18 no one shall be due to the grant be allocated information to the Subcommittee for the prevention of torture, on the public prosecutor's Office and the commissions set up by her with sanctions or otherwise disadvantaged.

§ 19. Personal data processed by the Ombudsman and the commissions set up by her may be published only with the express consent of the person concerned. The confidentiality of information is by the Ombudsman and the commissions set up by you in accordance with the statutory provisions to maintain.

§ 20. The Ombudsman, members of commissions and the members and substitute members of the Human Rights Advisory Board are not required to disclose the identity of a respondent or to display a judicially punishable behavior."

8. the name of the section and the section heading of the previous III. section are replaced by the following section title and section heading:

"IV. SECTION"

Final provisions"

9. the previous sections 10 to 12 receive the paragraph names "section 21", "section 22" and "article 23".

10. in the previous section 11 (section 22 new) replaced the expression "section 9" with the expression "section 10".

11 the previous text of the previous § 12 (§ 23 new) is preceded by the sales designation (1); following paragraph 2 to 4 shall be added:

"(2) § 1 para 2, § 3, § 5, § 7, the paragraph names of the previous paragraphs 7 to 9 (§§ 8 to 10 new), III section, the section title and the section heading of the previous III. section (IV. new section), the paragraph designation of the existing section 10 (§ 21 new), the previous section 11 (section 22 new), and the section name of the previous § 12 (§ 23 new) in the version of Federal Law Gazette I no. 1/2012 July 1, 2012 into force."

(3) in the case of the initial appointment of the members of the commissions is to order half of the members for three years, and the other half for six years.

(4) by July 1, 2012, skip provided positions of the Federal Ministry of the Interior in the position area of the Ombudsman for the performance of the tasks of the Office of the Human Rights Advisory Board. Staff who only or mainly get tasks, which now fall within the sphere of competence of the Ombudsman, are applied in the post area. The Federal Minister or the Federal Minister of the Interior determines after consultation with the competent services Committee decision which officials of the Federal Ministry of the Interior only or mainly get tasks, which now fall within the sphere of competence of the Ombudsman. The same with the proviso that an employer statement shall instead a notice applies to contract staff. The staff taken over on a position of the Ombudsman is one of previous use to assign use of at least equivalent if not important business interests are opposed. The stock, the composition and the term of Office of staff representative bodies established at the Federal Ministry of the Interior and the public prosecutor are not affected by the acquisition of staff referred to in this paragraph."

Article 3

Amendment of the Security Police Act

The Federal law on the Organization of the security management and the exercise of the security police (Sicherheitspolizei law - SPG), BGBl. No. 566/1991, as last amended by Federal Law Gazette I no. 33/2011, is amended as follows:

1. in the table of contents for the entries "section 15a of the Human Rights Advisory Board", "§ 15 b members of the Human Rights Advisory Board" and "§ 15 c the tasks of the Human Rights Advisory Board".

2. §§ 15a accounts for up to 15c with headings.

3. § 93 par. 2 last sentence deleted.

4. § 94 31 the following paragraph is added:


"(31) the table of contents in the version of Federal Law Gazette I no. 1/2012 July 1, 2012 into force. At the same time last set override connect the §§ 15a 15 c with headings and article 93, paragraph 2."

Article 4

Amendment to the penal law

The Federal Act of 26 March 1969 on the enforcement of custodial sentences and the preventive measures associated with detention (Criminal Justice Act - HCP.), BGBl. No. 144, last amended by Federal Law Gazette I no. 111/2010, is amended as follows:

1. in article 12, paragraph 2, the expression "18 paragraph 8," is omitted.

2. in article 13, paragraph 2, the expression "18 para of 3, 18 paragraph 9," is omitted.

3. paragraph 4 is § 14.

4. § 18 including the header is omitted.

5. in article 181 get I the Federal Act Federal Law Gazette No. 64 / 2010 attached paragraph 20 the sales designation (21) and by the Federal Act Federal Law Gazette I no. 111 / 2010 attached paragraph 21 the sales designation (22).

6 § 181 23 the following paragraph is added:

"(23) section 12, paragraph 2 and article 13 para 2 as amended by Federal Law Gazette I no. 1/2012 July 1, 2012 into force." At the same time § 14 para 4 and § 18 including the header override occur. They apply to trust people ordered the 31 December 2011 pursuant to § 18 para 3 ordered as the expiration of 30 June, 2012."

Article 5

Amendment of the Federal Law Gazette Act

The Federal Act on the Federal Law Gazette 2004 (Federal Law Gazette law - BGBlG), Federal Law Gazette I no. 100/2003, is amended as follows:

1. in section 3 Nos. 5 and 7, and article 4, paragraph 1 Nos. 3 and 8 is the word "Non-force" each replaced by the word "Except entry into force".

2. in article 3 Z 5 and § 4 para 1 No. 3 is "In force" each word "Entry into force" replaced by.

3. in article 3 No. 7, § 4 para is 1 Z 8 and the heading to § 14 the word "In force" respectively replaced by the word "Entry into force".

4. in article 4, paragraph 1 Z 6 is the quote "article 148h para 3 B-VG" by the quote "article 148h paragraph 4 B-VG" replaced.

5. in article 5, paragraph 1 Z 1, the quote is "art. 50 para. 2 B-VG" by the quote "art. 50 para. 2 Z 3 B-VG" replaced.

6. in article 5, paragraph 1, 4a is inserted following Z:



"4a. the decisions of the National Council and the Federal Council under article 23i B-VG;"

7 § 14 the following paragraph 3 is added:

"(3) as amended by Federal Law Gazette I no. 1/2012 come into force:"



1 § 4 para 1 No. 6 with July 1, 2012;

2. the other provisions at the end of the month of the announcement of this Federal Act."

Fischer

Faymann