2.7.2. System-related problem areas 2.7.2.1. Mandate of the NPM to observe forced returns by air In an earlier statement (see NPM Report 2013, p. 88 et seq.), the Human Rights Advisory Council asserted that the commissions of the NPM, as part of their mandate, have the right to enter an aeroplane and observe official actions there. This applies at least if the aeroplane is on a runway in Austria and the doors have not yet been closed. In 2015 the NPM again asked the Human Rights Advisory Council to share its expertise on this matter. The question was whether (forced) returns by air are generally within the mandate of the NPM under Article 148a (3) of the Austrian Federal Constitution. If this is the case, the commissions may accompany flights in the future and observe the (forced) return on board the aeroplane until the target country is reached. The question was discussed several times with the Federal Ministry of the Interior at joint meetings, but not definitively clarified. An exchange with the National Office for the Prevention of Torture in Germany in 2014 strengthened the NPM’s resolve to pursue this matter more intensively since the German prevention mechanism was able to report on interesting experiences when accompanying forced return flights. Expertise of the Human Rights Advisory Council First, the Human Rights Advisory Council determined that, during forced returns, an aeroplane should be considered a “place of deprivation of liberty” within the meaning of Article148a (3) (1) of the Austrian Federal Constitution and Section 11 (1) of the Ombudsman Act. This assessment is supported not only by the materials relating to the 2012 amendment to the Federal Constitution but also by the legal opinion of the UN Subcommittee on the Prevention of Torture (SPT), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the European Union Agency for Fundamental Rights (FRA). The CPT monitors such flights itself. According to the SPT, the term “place of deprivation of liberty” used in Article 4 of the OPCAT is to be interpreted broadly within the meaning of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It should be mentioned that the NPMs in other countries also monitor (forced) returns by air. Aeroplane as a place of deprivation of liberty Regarding whether and, if so, to what extent escorting law enforcement officers are authorised to exercise administrative power and coercive acts on aeroplanes during (forced) returns, the Human Rights Advisory Council uses the wording of Article 148a (3) (2) of the Federal Constitution as its starting point. According to that document, it is sufficient that these officers are inherently authorised to exercise administrative power and coercive acts. This means that every official deployment of police officers can be a potential object of observation under Article 148a (3) (2) of the Federal Constitution. This is also the case if a public security officer acts in an unlawful manner towards foreigners being deported during a flight. This was also the legal opinion of the Austrian Constitutional Court in connection with the death of a person being detained pending forced return, Marcus Authorisation of law enforcement officers 144