1. National context
One of the major challenges in current prison system is the unbalanced consideration between the reintegrative and the security aspects of the implementation of a sentence of imprisonment. Paragraph 2 of the 1977 German Federal Prison Act stated clearly that the aim of imprisonment is to enable prisoners to live a future, socially responsible life free of offence. Then, and only then shall imprisonment protect the society from further crime, clearly as a secondary objective.
Since 1977, security has become predominant in many prison areas and has a dramatic impact on prisoners’ rights. The swing of legal and legislative competences relating to prisons from the federal State to the regional states (Länder) in 2006 has strengthened this movement, so that all new 16 regional Prison Acts place security as one of their main duties, and not as secondary one as mentioned above.
Over the last decades, the judicial control over prisons has been dominated by national jurisprudence. The German Federal Constitutional Court (FCC) has played an important role in influencing prison law and prison practice in several matters. Among other decisions, the FCC requested the creation of a Prison Act for adults in 1977 and a special prison act for juveniles in 2006.
The FFC continuously states that the principle of the State of Law (Rechtsstaat), according to which fundamental rights can only be limited by law, applies to every citizen – prisoners included. The Court decided in 1973 that prisoners shall be rehabilitated with the respect of their human dignity and other constitutional principles, ensuring thus both prisoners’ and society’s interests. As such, this decision formalised a right to rehabilitation that is constitutionally guaranteed.
In October 2013, a case came before the regional Court (LG Augsburg) and made some media headlines. The prisoner complained about the psychological consequences of 15 months of isolation. He spent his daily yard walk of one hour separated from other prisoners and had to take off his clothes each time he came back to his cell. It was a similar regime as to family visits during which he was handcuffed and separated from his visitors by a glass wall. If the notion of “isolation” doesn’t appear in prison rules, there is the notion “particular safety measures” (§§ 88 ff. Federal prison act), one of which is the separation from other prisoners, without time limits. The regional court decided in that case to grant the prisoner more freedom and less restriction in detention.
Whereas cases like that of Günther Finneisen who was isolated in the prison of Celle for 16 years remain exceptional, the National agency for the prevention of torture estimated in its 2012 report that 1.41 out of every 100 prisoners is in isolation. The National agency recommended monthly evaluation of the prisoners’ isolation and external counselling to find alternatives, which are currently not the case. There are still too many rules governed by discretionary power that prevent effective remedies and protection of prisoners’ rights. In one judgement against Germany, the ECtHR has only condemned isolation of a naked prisoner in a security cell, but not the connected lack of legal protection.
In general, courts decisions are respected. But over the years there have been documented cases of non-compliance. Fortunately, the Federal legislature has introduced measures which allow the prison administration to be fined for non-compliance. Since 2013, there exists the possibility to oblige prison authorities to execute a court decision by imposing on them, for instance, a penalty payment (§ 172 VwGO).
Even if it seems that such penalties haven’t been imposed so far, prison experts consider that this possibility constitutes an effective means of pressure upon the prison authorities, so that they prefer to implement the court decision rather than risk the imposition of fines. Whereas courts can order the prison authorities to do or not do certain things, they are not entitled to decide matters in which the law grants the prison administration an area of discretion. They will only establish that the prison decision was wrong, and that the prison has to decide again taking the court’s arguments into account.
Main problems remaining:
- Meetings concerning the further development of a prison sentence plan can be held without the presence of the prisoner or his lawyer.
- Some rights are still not clearly defined, such as the right to prison leave.
- Cases before the local court can be held without an oral hearing of the prisoner (only written statements); the complainant is always heard, but only in writing; there is no oral argument provided for.
- There is only one regional (and not independent) Prison Ombudsman.
- There is no obligation to provide a lawyer during the implementation of prison measures.
- There is no mandatory legal aid for prisoners. Legal aid exists theoretically, but not in practice. Criteria are a reasonable chance of success, often decided together with the courts final finding.
- Prison remedies are weakened because of jurisdictional fees.
2. Bodies in charge of the prisoners’ complaints
2.1 Judicial authorities
Federal Constitutional Court
Since 1977, prisoners have the possibility of accessing administrative courts. In a decision of the local administrative court in Stuttgart, a prisoner was allowed to claim for getting the shower room repaired.
The FCC has decided that the issue of housing belongs to § 144 of the Prison Act when it comes to human dignity, and the regulation of heating and temperature in the cell is also a measure in the meaning of § 109 Prison Act that can be challenged. Measures restricting the use of letters and post also lie in the competency of administrative courts.
Civil courts are competent for claims for compensation, especially in cases of breaches of duty according to Article 34 of the Fundamental Law (Grundgesetz) and § 839 of the Civil Code. A civil court has competence, for instance, when a prisoner has been excluded from work and therefore does not get paid anymore: he can claim compensation if s/he feels that his/her rights have been breached.
In addition to the judicial authority, other authorities are responsible for receiving claims on violations of Article 3 of the European Convention, such as:
- The National Preventive Mechanism, established according to OPCAT (Nationale Stelle zur Verhütung von Folter)
- In North-Rhine-Westphalia only: Ombudsman for Prisons (Justizvollzugsbeauftragter des Landes Nordrhein-Westfalen); the Ombudsman does not deal with cases where there is an additional procedure with the penitentiary court
- Parliamentary Committees on Petitions
- On prison level there are visiting boards (Anstaltsbeiräte) receiving complaints, but they have no power to challenge decisions.
The judicial authorities deal with cases that have happened in the past and with the finding that they have been unlawful. Compensatory remedies are dealt with by a different court of Civil Law. The non-judicial authorities deal with recommendations for prevention which are not directly binding.
The inspections by the Ministry of Justice made by a sort of monitoring board (Aufsichtbehörde) have different quality and effectiveness, also because they investigate and decide about internal affairs. According to § 151 of the 1977 Prison Act, the monitoring board “visit all prisons as often as is necessary to be fully informed about all prison issues”. Since the justice administrations are free to organise their monitoring boards as they wish, and prisoners have no legal entitlement to impose concrete measures on the monitoring board.
The boards of visitors (Anstaltsbeiräte, § 162 of the Prison Act) are considered as representative of the public opinion, but have unfortunately no influence on it.
Even if their capacity to influence prison life is quite important, boards of visitors are quite dependant on the good will of the prison director or prison staff, so that there are often conflicts between the board and the prison staff. Board members have considerable access to files and can move freely within the prison (even if in practice it’s not the case for practical reasons, for instance because no staff is available to accompany them and open some doors) and they can confer with prisoners without the presence of prison staff.
At least two members of the regional Parliament must be on the board and these members are also those receiving and examining prisoners’ petitions sent to the Parliaments, which could lead in some cases to political disputes. The main limitation of the Board is that it has no power to have access to prisoners’ medical files.
There is only one regional Ombudsman in Germany who is in charge of prison issues. Established in 2010, he is competent for the big region of North Rhine-Westphalia and receives complaints both from prisoners and prison staff. However, the regional Ombudsman has no authority to make binding decisions, but only to mediate, make recommendations and publish reports.
The other limitation is that the regional Ombudsman is closely linked to the Ministry of Justice as to the nomination and remuneration of the ombudsman and their staff.
Complaints brought before the German Parliament
Article 17 of the Fundamental Law makes it possible for prisoners, outside of any prison regulations, to submit requests and complaints to the German Parliament and other types of people’s representative bodies, this without any formal requirements and outside judicial remedies (Petitionsrecht). This right can be exercised both by individuals and by groups, without any requirement of specific connections between prisoners. The institution receiving this complaint must consider it as to its content. People’s representative bodies in this context means the German Federal Parliament and the regional parliaments. Each representative body creates a complaints committee for this purpose, which is competent for all complaints lodged with a people’s representative bodies.
Even if these bodies have no direct authority to make a decision, they can state that the complaint was justified, they can ask the Government to examine the complaint a second time or they can declare that the case is closed because the prison administration has not done anything wrong. The representative body does not have to give reasons for its decision to the prisoner, neither it is obliged to provide those to the Government. Finally, such type of complaint does not preclude the use of any other type of legal remedies.
Before presenting the different domestic systems protecting prisoners’ rights, it is important to mention that prisoners rarely have access to legal aid (Prozesskostenhilfe) in order to cover the financial costs of remedies. Indeed, the court decides to provide this aid only when the complaint has a concrete prospect of success. In practice, prisoners either don’t try to lodge a complaint or the court questions the prospect of success.
Since 2006, there are a multitude of regional prison acts – in each region one act for detention centers, one for remand prisons and one for juvenile prisons. Before that, there were already regional and cultural differences in court jurisprudence. The latest development is thus the even greater loss of coherent jurisprudence regarding the judicial protection of prisoners’ rights.
3.1 Judicial remedies
The Federal Prison Act includes in § 109 the possibility of lodging a judicial remedy in case of any measure (or act) violating a prisoner’s right; this is guaranteed for all types of administrative measures (or acts) by Article 19.4 of the Fundamental Law. The competent authority is the Court for the execution of prison sentences (prison court, Strafvollstreckungskammer) based at the local Court (§ 110) and the appeal can be lodged to the criminal chamber of the Higher regional court (Oberlandesgerichte, § 116).
The Court for the execution of prison sentences is composed of a sole judge in most cases, and of three judges when deciding on lifers or psychiatric imprisonment. Although the geographical competence of the courts is defined, there is still the possibility that judicial control of prison measures can be delegated to a local Court that has experience and contact with prison issues.
The judicial review has to be made by the prisoner within two weeks following the practical or written notification of the measure. Although a remedy has no suspending effect on the measure, there is still the possibility for the court to order it so in cases where prisoners’ rights are acutely in danger. However, this power is almost never used by the courts (Laubenthal, 2015).
Two main critical points are that the court decides without oral hearing of the prisoner (§ 115 of the Federal Prison Act), and that the court can assess the legality of the discretionary power (mis)used by prison authorities, but it won’t be evaluated on its practical content.
The remedy is accessible (for those who can read and write) and the language of the court is German. The procedure is entirely in writing. Prisoners have to claim that their rights under the prison law have been violated but chances of success are low (according to research carried out by Feest/Lesting/Selling in 1997). The decision of the prison has to be challenged by the prisoner within two weeks; the appeal has to be lodged within a month after the court decision by a solicitor or with a legal clerk of the court (who is asked to come to the prison).
The complainant receives all the documents that are introduced by the other (defending) side (prison authorities). The prisoner will get a court decision in writing.
The idea to have courts close to prisons was based on the theoretical assumption that judges would be thus more familiar with prison life and prison issues. In practice, judges of the prison courts rarely go into the prison, and the close relationship between judges and prison directors (sharing similar academic background) prevents prisoners’ requests from being impartially and comprehensively examined.
As mentioned above, the discretionary power of prison authorities is quite broad and applies also to evaluation and prognostic of the prisoner’s personality and sentence plan. In these cases, the court only controls if the prison authorities have respected the formal rules as to the decision framework, but the vague legal notions are as less controlled as discretionary power. For instance, the notions of “flight risk” and “risk of breach” regarding prison leaves included in prognostic assessments are such vague legal notions that are mostly not possible to be controlled by the court.
Many of these vague legal notions and discretionary power have been kept in the new 16 regional prison acts.
Appeal can be made under § 116 (et sqq.) of the Federal Prison Act, also with postponing effect, in front of the Higher regional court.
Another issue is the length of proceedings. There are no time limits for the courts to reach a decision. It usually takes at least several months. An urgent procedure exists, but the courts are rarely using it. It is also possible to complain to the court about the length of proceedings (complaint relating to delay) but it results in compensation at best and not, or at least not directly, in a quicker decision.
According to the German Constitution and its Article 2, the courts are obliged to deal with a case within an appropriate timeframe, as also stated by Article 6 of the ECtHR. There is even the possibility of lodging an application regarding a failure to act (§ 116, 1 Prison Act) when the „Prison court“ has not initiated any procedure after a complaint based on § 109 of the Prison Act. This could prevent severe violations of prisoners’ rights because of overlong time frames, ensuring then the right to a fair trial as to Article 6 ECtHR.
Unfortunately, German domestic courts do not provide as effective remedies in this regard as they legally could; also the ECtHR has regularly stated that Article 6 and 13 are violated when procedures are overlong.
In its decision Uzun v. Germany from 2nd of September 2010, the ECtHR has urged the German legislator to create a remedy that will take into account the requirements of Articles 6 and 13 ECHR. This was followed by a law passed on the 3rd of December 2011 with the title „Law on legal remedies regarding on overlong court proceedings and criminal investigation”.
With the introduction of § 198 of the Law on Court proceedings (Gerichtsverfassungsgesetz), a new way to claim compensation has been introduced in Germany. However, the applicant must first lodge a complaint with the Prison court – where actually the problem has occurred – before s/he can apply to the High regional court. Moreover, the result would be just a reprimand from one court to another, and not a mandatory order for the applicant. If the Prison court has done nothing after 6 months, there is a new reprimand.
It is a preventive measure rather than a protective remedy and it is not very useful for prisoners. The penitentiary courts have mainly preventive remedies at their disposal. For compensatory remedies, the complainant has to turn towards the regular civil courts.
In short, the decision on a prisoner’s application at the High regional court works as follows (§ 119 Prison Act):
- The Court is in general composed of a single judge
- The Court decides following an oral hearing
- The Court examines only the elements of the case produced by the applicant
- The Court can refuse an application without giving any reason when all three judges support its decision.
- The Court can decide if its positive decision for the applicant is the last resort and thus to be enforced / implemented. Otherwise, the Court can ask for a new decision before the Prison court.
- As to remand prisoners: criminal courts are in charge of pre-trial detention, whereas prison courts are in charge of sentenced prisoners. However, sometimes this will be the same judges, because all of these judges are those from the criminal courts.
As to urgent procedures (Eilverfahren), there are usually not very effective because the courts will still wait to examine the case as part of the main process. Prisoners are therefore often disappointed of its inefficiency, having put their hope in the urgent procedure.
As to the burden of proof, there is no such thing since the procedure is an inquisitorial one. But the administration finds it much easier to supply the court with the relevant facts. It’s all on the claimant’s shoulders and it has to be done in a written form. Given the acknowledged difficulties faced by many prisoners as regards reading or writing, this constitutes a major hurdle for the prisoner to testify about the violation of his/her rights.
3.1.1 Constitutional Court
As it has been recently introduced in France (question prioritaire de constitutionnalité) and some other European countries, German citizens now have the possibility to apply to the Federal Constitutional Court (FCC) in case of a violation of their fundamental rights. As a result, the FCC has produced an important constitutional jurisprudence on issues that are linked with the European Convention of Human Rights.
As in other countries (e.g. Italy, Spain), the right to rehabilitation (also called reintegration or re-socialisation) is considered as a primary goal of the execution of a prison sentence and has a constitutional value. The FCC derives this right from the fundamental principle of protection of human dignity and from the principle of the social welfare state (see Article 2 (1) in connection with Article 1 (1) and Article 20 (3) of the Fundamental Law): “From the point of view of the offender, this interest in re-socialisation grows out of his constitutional rights in terms of Article 2 (1) in conjunction with Article 1 of the Fundamental Law [that is, the right to develop one’s personality freely in conjunction with the protection of human dignity]. Viewed from the perspective of the community, the principle of the social state requires public care and assistance for those groups in the community who, because of personal weakness or fault, incapacity or social disadvantage, were delayed in their social development”: prisoners and ex-prisoners also belong to this group (BVerfGE 35, 202: 235-236).
Many decisions of the FCC are related to prisoners’ rights, such as the protection of human dignity and the right to rehabilitation.
The protection of human dignity
Overcrowding is found to be an issue in several federal states, particularly in closed prisons and in pre-trial detention. In one case before the FCC, the Court considered the confinement of two prisoners for 48 hours in a cell of about 8 sq.m. The toilets were not separated from the rest of the cell and there was thus no protection from the view of the cellmate. The FCC considered this type of accommodation as a violation of human dignity. The FCC decided also on similar cases, e.g. accommodating 3 prisoners in a cell of 11.5 sq.m. violates human dignity (see decision of 22nd of February 2011). Moreover, the FCC stated that group accommodation might be an infringement of human dignity.
“The principle of the provision of appropriate accommodation does not only mean that the prisoner has a right to be placed in an appropriate room with enough space. A longer lasting accommodation in a group cell against the will of the prisoner may be seen as a violation of the principle of human dignity that implies the right to privacy.”
As a consequence, prisoners applying for single accommodation shall be so accommodated.
As to compensation, the FCC has recognized its pertinence, even if it only ordered a compensation of 2,300 € for nine months of inhuman detention.
The principle of rehabilitation
One major elements of the implementation of the rehabilitation principle are prison leaves, which are provided in order to prepare the prisoner for reintegration into society. Many FCC decisions deal with refusal of prison leaves. German law provides for such measures in cases of low/no risk of abuse, reoffending or escaping.
The discretion of the prison administration has been restricted by the jurisprudence of higher courts and the FCC in several aspects, always by interpreting such leaves in the light of the constitutional right to rehabilitation.
“The prison administration shall not reject such leaves – that regularly precede the decision on parole (conditional release) – without concrete and sufficient grounds, e.g. with solely abstract arguments on the risk of escape. In the interest of a better preparation for release and later reintegration, society has to accept a certain risk (verantwortbares Risiko)”.
The longer the execution of the prison sentence lasts, the stronger the right of the prisoner increases to be granted day leaves and similar measures.
3.1.2 Legal remedies covered by the 1977 German Prison Act and regional prison acts
There were many attempts to draft a legal act for the execution of prison sentences (1897, 1923, 1927), but only administrative regulations were passed during the Weimar Republic. After WWII, a commission for the reform of prison law was launched in 1967, introducing then in 1969 prison leaves and other similar measures. In 1972, the Federal Constitutional Court decided that primary legislation is a constitutional prerequisite, so that many drafts for a comprehensive Prison Act were proposed (1970, 1972, 1973, 1976). Because the FCC required in 1976 that primary legislation is passed as soon as possible, the Prison Act was adopted shortly after and came into force on the 1st of January 1977.
Unfortunately, a political deal between the federal State and the regional states in 2006 transferred the legislative and executive competence on prison law and sentences to the regional states. Even if the core elements of the 1977 Prison Act were adopted in regional prison acts, there was no clear improvement thirty years after the original act.
The importance of administrative discretion has not been reduced (see above) and it remains a source of legal uncertainty for prisoners. Although the FCC decided that a prisoner is almost always eligible for prison leaves accompanied by a prison officer, such leaves are sometimes rejected or denied when a prisoner made a corresponding request.
184.108.40.206 Legal remedies: institutional and procedural aspects
The 1977 Prison act had to conform to the constitutional principles of the Rule of Law as mentioned in Article 20 (3) of the Fundamental Law, which also outlines:
- the principle of legality (Vorbehalt des Gesetzes)
- the principle of proportionality (Verhältnismäßigkeitsgrundsatz).
- the specification principle (Zitiergebot)
- legal certainty requirement (Rechtssicherheit)
- the clarity principle (Bestimmtheitsgebot)
According to § 108 of the 1977 Prison Act, a prisoner has the right to complain directly to the prison director, and some consultation hours are organised to this purpose. Parallel to it, a prisoner must have the possibility to meet a representative of the monitoring board (Aufsichtsbehörde) from the Ministry of Justice when the latter is visiting the prison, or to submit a complaint directly to the Ministry of Justice and thus avoid a Court procedure.
The right to meet the prison director is important since the complaint can therefore be done in an oral manner, and facilitates the presentation of the facts by the prisoner. Even if there is no mandatory presence of a legal adviser during such a meeting, a prisoner can mandate his/her lawyer to be present.
The right to complain to the Ministry of Justice (Dienstaufsichtsbeschwerde) is available against decisions of the prison director and other prison staff members. This remedy can be used without any formal requirements and within any time.
4. Procedures regarding disciplinary issues
There are some conditions that need to be fulfilled in order to launch disciplinary procedures – these are listed in § 102 of the Prison Act:
- When a prisoner violates obligations contained in the prison act or based on it, the prison director can take disciplinary action;
- However, there is no need for disciplinary sanction when it is considered as sufficient to warn the prisoner;
- A disciplinary sanction is also authorised when a criminal procedure is opened for the same violation.
As an example, the refusal to participate in a urine test is a sufficient reason to take a disciplinary action against a prisoner.
4.1 Discretionary power of the prison director
The prison director can take disciplinary action in many cases, but it’s not a compulsory decision and s/he can decide to restrict his/her reaction to a violation in the frame of a measure of safety. Although s/he has complete discretionary power to react to a violation, his/her reaction has to be grounded, cannot be based on a simple suspicion and must be reviewed during the disciplinary procedure. That means, among other things, that the procedure shall ensure that the prisoner is aware of his/her obligations. Moreover, since disciplinary sanctions are penal-like sanctions, they cannot exceed the level of the prisoner’s guilt or ignore the principle of proportionality.
The only case in which the director is not the deciding authority is when the violation has been directed against him/her. In that case, the Prison Central Administration will decide on a sanction.
4.2 Types of sanctions
According to § 103 of the Prison Act, the authorised disciplinary sanctions are:
- Limitation or withdrawal of the prisoner’s money and prisoner’s ability to purchase goods for up to three months;
- Limitation or withdrawal of reading material up to two weeks, and of radio/tv material for up to three months; both together only up to two weeks;
- Limitation or withdrawal of objects dedicated to leisure or of participation in collective leisure activities for up to three months;
- Suspension of work or activity and the related payment for up to four weeks;
- Limitation of contact with persons external to the prison for up to three months;
- Confinement for up to four weeks.
The prison director is free to choose any of these sanctions independently from the violation, except in the case of confinement which is restricted only to serious or repeated violations. Otherwise, several disciplinary sanctions can be ordered and implemented at the same time.
4.3 Procedural rules
As mentioned above, disciplinary sanctions are considered as being of a penal nature and presenting a considerable interference in the prisoner’s right of freedom. That is why disciplinary procedure requests a comprehensive investigation of the case, a clear evidence of guilt and a fair process. Since disciplinary sanctions have an influence on further disciplinary sanctions, leaves, early release and transfer to another prison, there is a clear reason to enable the possibility of review of such sanctions by a court.
The law provides that disciplinary sanctions must be taken and implemented as fast as possible.
The burden of proof regarding the prisoner’s guilt follows general procedural rules (§ 106 of the Prison Act). That means: a) a hearing of the prisoner by the prison director or a delegated staff member, b) a clarification and an investigation of the case during the hearing, c) all elements of the hearing must be written down in a special document.
As to the right to silence, the Federal Prison Act (PA) does not mention it, but as far as the violation also represents a criminal offence, the Federal Highest Court considers that prisoners under disciplinary procedure shall be notified that they have the right to remain silent and to refuse to give any statement. The practice shows that it is often not the case.
As to legal defence, there is no indication or rule about prisoners having the possibility to request the presence of a lawyer during the disciplinary procedure. Again, it is often not the case in practice, also because some legal scholars and judges consider that the sanction has to occur in very short time after the violation in order to ensure the “positive” effects of the sanction on the prisoners (e.g. “educational” value of sanctioning). The jurisprudence considers that it is sufficient when the accused prisoner can meet his/her lawyer before the hearing or even call him/her before it.
In special cases in which the prisoner is undergoing health treatment or breastfeeding her baby, the prison doctor has to be consulted; otherwise the disciplinary sanction would be unlawful.
In cases of a serious violation, the prison director has to organise a meeting before the hearing with the staff members who are in charge of the prisoners. This meeting is only consultative and the decision power remains in the hands of the prison director.
In cases where the prisoner does not attend the hearing, his/her absence cannot be a reason alone to take a disciplinary measure (Nemo-Tenetur-Principle). Consequently, the right to a hearing can be lost because of the absence, but there will not be any sanction because of the absence.
The decision taken at the end of the disciplinary procedure has to be both orally transmitted to the prisoner and the reasoning has to be provided in writing (§ 106 al. 3 of the Prison Act).
Example: a prisoner named S. accuses another prisoner named M. of M. harassing him sexually. S. could only escape from M. with the use of violence. The prison director hears M. who rejects the accusation and explains that S. wants to cause him trouble since he cannot stand him. M. is disciplinarily punished with five days of confinement, with the only reason being that the prison director did not consider M.’s statement believable. Although a local court rejected M.’s appeal, the Federal Constitutional Court considered the disciplinary sanction as unlawful since a simple suspicion with a statement vs. statement (without further evidence) is not sufficient. The local court should have reviewed the case and not simply mention the prison director’s discretionary power.
Interestingly, once a disciplinary sanction has been taken, it must not be compulsory implemented due to its pedagogical aspects; it can be sufficient to suspend it. Moreover, if the delay between the violation and the sanction is too long, there is the possibility to revoke the sanction and close the disciplinary procedure.
Consequently, prison courts are indeed competent in both disciplinary matters and sentence implementation. There is a problem with these overlapping competencies, since the court may have formed a negative opinion with respect to a certain prisoner because of the nature of his complaints, and this may bias its views when it comes to the decision to release.
5. Prisoners’ rights protection and early release / alternative measures’ procedures
5.1 Prison leaves
Prison leaves can be granted when there are no counter-indications and when it supports the prisoner’s rehabilitation. Even if the prisoner does not use a prison leave, this is not a prerequisite for conditional release.
Prison leaves can be granted in the form of: a) activity outside the prison (e.g. work) under prison staff supervision (Außenbeschäftigung), b) activity outside the prison without supervision (Freigang), c) going somewhere (e.g. meeting for a job) under supervision (Ausführung), and d) going somewhere without supervision (Ausgang) (§ 11 al. 1 of the Prison Act).
Prison leave is granted if: a) the prisoner agrees, b) there is no risk of escape or misuse, and c) a discretionary decision has taken all circumstances into consideration.
As to the evaluation of the risk of escape or misuse, the jurisprudence recognises that despite the fact that there is no 100% certain evaluation, some risk is taken into consideration for the higher sake of rehabilitation (here again the principle of proportionality). However, since prison leaves are strongly oriented towards supporting conditional release, the risk assumed for prison leaves shall not be higher than the risk for considering a conditional release (§ 57 al. 1 of the Criminal Code).
A simple suspicion regarding the possible risk of escape or misuse is sufficient to deny a prison leave, which is left to the discretionary power of the prison authorities, especially since the notion of risk of misuse may vary between the different forms of prison leave.
A prisoner can challenge a refusal of prison leave before the prison court (Strafvollstreckungskammer). Since the court is not in a position to gather the same information as the prison authorities to evaluate the assumed risk, the court is not allowed to propose its own risk evaluation. A major decision of the Highest Court allows prison courts only to review whether the prison director:
- has taken his/her decision after a comprehensive investigation of the risk of escape or misuse
- has considered the appropriate reasons for refusal and
- has not misused his/her margin of appreciation.
5.2 Conditional release
Conditional release is obligatory (except for life sentenced prisoners) when the following conditions are fulfilled (§57 of the Criminal Code):
The prisoner must have served two-third of his/her sentence, and the sentence must be of at least two months duration.
A positive social prognostic must be validated, which means that general population’s safety has to be taken into consideration. This prognostic shall consider: the prisoner’s personality and biography, the circumstances of the offence, his/her behaviour in prison, his/her family environment and the effects that such a release will have.
Equivalent to prison leave, some risk of reoffending is always there and this should not prevent the conditional release;
The prisoner must agree to it.
Conditional release can be granted after half of the sentence spent in prison, and the sentence must be of at least six months duration, when:
- The prisoner in prison for the first time and the sentence is less than two years
- When special circumstances regarding the prisoner justify the release.
In the case of prisoners sentenced to life imprisonment, in addition to a positive prognostic, the further conditions are:
- A minimum of fifteen years spent in prison
- No further prosecution because of the seriousness of the offence.
The prison court is responsible for granting conditional release. The court requests a recommendation from the prison director. Behaviour during detention cannot be considered a unique reason to grant or deny conditional release.
The court must organise a hearing for the prisoner, but a single judge can also proceed to the hearing when s/he considers that there is no need for a more comprehensive hearing (e.g. no serious offence or negative prognostic). The hearing can be a video-conference when the prisoner agrees to it and has been informed of his/her right to a “real” hearing before the court. The court is composed of three judges when the case deals with a prisoner sentenced to life imprisonment.
6. Concrete state of the protection of prisoners’ rights
In Germany, § 146 al. 1 of the Prison Act prohibits overcrowding. The prison capacity indicated for each prison occupation plan cannot be exceeded through the acceptance of new prisoners. Exceptions for short time periods may be authorised by the central prison authorities.
When several prisoners must share a cell, the prohibition of inhuman treatment limits the discretionary powers of the prison authorities.
There is no general, abstract definition of what conditions constitute conditions violating Article 3 of the ECHR.
The Higher court in Frankfurt has stated that „such a violation exists when – cumulative – the cell has not a distinct or view-protected toilet, and there is not a minimum of air volume (16 m³) or area (6 up to 7 sq. m).“
The Higher court of Karlsruhe has indicated that “a constant detention of two prisoners in one cell is not a violation of human dignity when the cell is bigger than 9 sq. m and has a separated bathroom of at least 1.3 sq.m”.
For another Regional High Court, a violation occurred when two prisoners were detained in a cell of 8.8 sq.m with a toilet that was only separated with a small mobile wall. The same Court has stated three years later that even with a separated toilet, there is a violation when each prisoner has less than 5 sq.m area in the cell“. 
If a violation of human dignity because of lack of space in a cell doesn’t automatically qualify prisoners for a final compensation based on the Civil Code (§ 839 BGB), it is sufficient that the court finds an unlawful collective detention in a cell to justify compensation without the need for a request for immaterial harm. In other words, overcrowding is at such a violation of prisoners´ rights, regardless of the level of suffering. 
Prisoners have a right to a comprehensive mental and physical health care (§§ 56 ff. of the Prisons Act). Since prisoners are not included in the general health insurance system, prison authorities are responsible for their health, providing them with medical examination, prevention measures, medical treatment and medication.
As already mentioned in the section on general remedy mechanisms, a prisoner can lodge a complaint against the prison doctor to the prison director (§ 108 of the Prisons Act). There are a lot of complaints in the medical field, especially since prisoners cannot freely choose any doctor they want to consult and because medical staff in Germany are members of prison staff. This does not facilitate a a trustful relationship between the prisoner and the doctor.
There are other issues which are potential source of complaints: medical staff a) provide certificates when a prisoner is not able to work, b) agree on the change of workplace or on a placement in a shared cell, c) agree on the placement in individual cell and on special food regimes. The doctor can even recommend stopping the implementation of the sentence of imprisonment in cases where the prisoner is considered unable to cope with imprisonment (Haftunfähigkeit) and prison conditions (Vollzugsuntauglichkeit).
Since the medical doctor enjoys discretion, which cannot be altered by the court, the court must decide whether the medical treatment did comply with the state of the art.
6.3 The ECtHR jurisprudence regarding Germany
In the past, German courts did not pay much attention to the jurisprudence of the European Court of Human Rights. The 2009 case M vs. Germany has shifted this resistance. After German legislation allowed courts to retrospectively order indeterminate preventive detention, the ECtHR considered it as a violation of Article 7 ECHR, despite a differing opinion of the German FCC. This ECtHR decision had important consequences for the legal and practical aspects of preventive detention in Germany. Even if there are still some conflicts between both courts regarding dissenting judgments, the FCC now tends to integrate more and more of the European jurisprudence and other types of soft law such as recommendations of the Council of Europe – e.g. the European Prison Rules.
One difficulty with the domestic jurisprudence is that it often does not refer to the Convention rights but rather to the fundamental rights embedded in the German Constitution (Grundgesetz). Most ECtHR cases against Germany in the area of criminal law are connected to fair trial aspects and/or the length of proceedings (see Mooren v. Germany), but also a number of decisions found violations of Article 3 such as in Jalloh v. Germany (2006) or Hellig v. Germany (2011).
Since the legal status of the ECHR is considered in Germany as that of an ordinary primary legislation, the German Constitution prevails, although German courts shall interpret legislation in accordance with the international legal commitments taken on by the German State, which means the ECHR is included.
Considering the above mentioned decision of the Jalloh v. Germany, the Court stated that “the applicant complained that he had been administered an emetic by force and that the evidence thereby obtained – in his view, illegally – had been used against him at his trial. He further complained that his right not to incriminate himself had been violated. He relied on Articles 3, 6 and 8 of the Convention. The Court found that the German authorities had subjected the applicant to a grave interference with his physical and mental integrity against his will. They had forced him to regurgitate, not for therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less intrusive methods.
The manner in which the impugned measure was carried out had been liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him. Furthermore, the procedure had entailed risks to the applicant’s health, not least because of the failure to obtain a proper anamnesis beforehand. Although this had not been the intention, the measure was implemented in a way which had caused the applicant both physical pain and mental suffering. He had therefore been subjected to inhuman and degrading treatment contrary to Article 3 (additionally violation of Article 6)”.
In the other mentioned decision, i.e. that of Hellig v. Germany, the Court considered the case of a seven-day placement of a prisoner in a security cell in order to prevent him from attacking prison staff. The cell had a space of approximately 8.46 square meters and was equipped with a mattress and a squat toilet and was, therefore, not suited for long-term accommodation. But the prison authorities did not consider the applicant’s placement in this cell as a long-term measure. From the circumstances of the case and the general practice, the Court concluded that there were sufficiently strong, clear and concordant indications that the applicant had been naked during the entire period of his stay in the security cell. The domestic authorities had knowledge of these indications.
The Court considered that “to deprive an inmate of clothing is capable of arousing feelings of fear, anguish and inferiority capable of humiliating and debasing him.” While, as a rule, inmates were placed without clothes in the security cell in order to prevent them from inflicting harm on themselves, a German court examining the facts of the case at an earlier stage by hearing witnesses could not establish for certain whether there was a serious danger of self-injury or suicide during the time of the applicant’s placement in the cell. Furthermore, there was no indication that the prison authorities had considered the use of less intrusive means, such as providing the applicant with tear-proof clothing, as recommended by the European Committee for the Prevention of Torture.
Thus, the Court held that, as the government failed to submit sufficient reasons which could justify such harsh treatment as to deprive the applicant of his clothes during his entire stay, the applicant has been subjected to inhuman and degrading treatment contrary to Article 3.
The ECtHR case-law is still unknown (or less known) to domestic courts. Even if the Strasbourg Court has a good reputation in German courts, only the Federal Constitutional Court (and few Higher regional courts) refer to European jurisprudence.
6.3.1 Different level of interaction between the ECtHR and the German Federal Constitutional Court (FCC).
220.127.116.11 Competing court decisions – FCC v. ECtHR
The case of M. v. Germany (17.12.2009) considered the issue of retroactive preventive detention. In 2004, M. challenged before the FCC the constitutionality of the amendment that allowed his preventive detention to be extended beyond the maximum of 10 years that applied when he was initially sentenced. M. argued that this violated the prohibition of retroactive punishment in the German Constitution (Article103 (2) Fundamental Law). This extension had been imposed several years after the initial sentence by a court that decided that there was a severe danger that M. would reoffend as soon as he would be released. M´s claim was not successful. The FCC confirmed the doctrinal position that preventive detention wasn’t to be considered as a punishment.
The FCC first decided in 2004 that retroactive implementation is possible since preventive detention is a measure, not a ‘penalty’. Answering to this, the ECtHR decided in M. v. Germany that due to the manner of its enforcement, preventive detention combines many aspects of a penalty and should therefore be considered as such – which means in that case a violation of Article 5 and Article 7 of the Convention. Even if the FCC still pleaded for its own competences and reasons, it acknowledged a more “Europe-friendly” legal interpretation in text and practice, as it resulted in its decision on preventive detention of 4th of May 2011, considering the German legislation on preventive detention as unconstitutional and requesting major reform.
18.104.22.168 Complementing effect: Taking soft law into account … with regard to the detention of juveniles
The Federal Constitutional Court decided in 2006 that: “It could be an indication that insufficient attention has been paid to the constitutional requirements of taking into account current knowledge and giving appropriate weight to the interests of the inmates if the requirements of international law or of international standards with human rights implications, such as the guidelines or recommendations adopted by the organs of the United Nations or the Council of Europe are not taken into account or if the legislation falls below these requirements”.
22.214.171.124 Complementing effect: Taking soft law into account (2) … with regard to the pre-trial detention
Similar line of reasoning in a decision on occupational activities, out-of-cell time and general living conditions of remand prisoners (FCC uses the same quote as above). Additionally, the FCC draws on CPT standards that 8 hours per day should be spent outside the cell (§ 47), even if it acknowledges that they have an even ‚softer‘ status than the Recommendations.
An early reference to soft law recommendations can be found in a FCC decision of 1965 in which a pre-trial detention based solely on the gravity of the crime (e.g. multiple murder by a representative of the Nazi-regime) was declared unconstitutional.
The FCC argues that according to „new legal developments“ – represented by the Universal Declaration on Human Rights, the ECHR and the Council of Europe‘s resolution (1965) 11 on remand in custody – pre-trial detention must remain an „exceptional measure“.
6.4 CPT reports
During its last visit in 2013 and in the corresponding report of 2014, the CPT emphasised that “unrestricted access to the personal and medical files of detained persons in all States Parties was essential in order for the CPT to effectively carry out its work in line with the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment”. Further, the Committee urged “all relevant federal and Länder authorities to resolve this issue as a matter of priority, in the light of the remarks made by the Committee in paragraphs 6 and 8 of the report on the 2010 visit during which the CPT also encountered serious difficulties in regard to the access to personal and medical files of detained persons.”
As to preventive detention (continuation of the detention of prisoners after the end of their sentence because they are considered as dangerous), the CPT “would like to be informed of the number of sentenced prisoners in Baden-Württemberg and Rhineland-Palatinate who are currently earmarked for preventive detention and of the specific treatment measures which are being provided to them”.
In the report, the CPT reviewed the measures taken by the German authorities following recommendations made by the Committee after previous visits. In this connection, particular attention was paid to the treatment and conditions of detention of persons held in preventive detention (Sicherungsverwahrung). Further, the CPT examined in detail the procedures for the imposition of special security measures in prisons and, in particular, the use of mechanical restraint (Fixierung). The report also deals with the issue of surgical castration of sex offenders which was the subject of consultations with representatives of the Federal Ministry of Justice.
The Council of Europe’s European Commissioner of Human Rights has a remit similar to the CPT. The report of his visit in 2007 contains observations and recommendations with regard to the then ongoing drafting of the Prison Acts of the federal states – he recommends to keep the aim of re-socialisation as the main aim and to implement the EPR. He also reacted to concerns made known to him by experts with regard to juveniles in prison (inter-prisoner violence; ‚structural lack of personnel‘; too few juveniles in open regimes) and preventive detention. It is unclear how much impact these visits or reprts have; at least there was one more institution to monitor critical developments.
NPM – OPCAT Germany was rather late to ratify the OPCAT of 2002 (adopted in 2006, in force since 2008); the National Preventive Mechanism is in place since 1.5.2009 (Bundesstelle zur Verhütung von Folter; additionally there is a commission for the federal states). The National Agency for the Prevention of Torture is Germany’s independent agency to prevent inhuman conditions and treatment at places of detention. It was established under the Optional Protocol to the UN Convention Against Torture. The National Agency has the remit to prevent torture, abuse, and inhuman treatment at facilities where people are or can be deprived of their liberty. The National Agency is not competent to deal with individual complaints. However, information concerning conditions and treatment of persons deprived of their liberty is important to the National Agency’s work. This information can influence the selection of places to visit and the focus during visits. The NPM itself is monitored by the UN-Sub-Commission for the Prevention of Torture who visited the German colleagues in 2013 and who was quite critical – too few staff, not enough expertise, too much reliance on other monitoring bodies such as the CPT.
The NGO “Prison archive” (Strafvollzugsarchiv)
This organisation has started in the 1970s at the University of Bremen (North of Germany) with the objective of documenting and explaining prisoners’ rights and prison laws. Led by Professor Johannes Feest over the last decade, it is now also active in the legal field since 2011 at the University of Dortmund under the direction of Professor Christine Graebsch (who is also a lawyer).
Beyond that, students go to the prisons in Bremen every week and give legal advice to prisoners. There are also between 600 and 800 prisoners who write every year to Professor Feest.
Professor Feest with his comments on prison law and Professor Graebsch with her articles on prison remedies – among others – have strongly influenced the perception and the knowledge about prison legal issues, and certainly contributed to a stronger protection of prisoners’ rights than it would have been without their contribution to NGO Prison Archive.
In general, there are no NGOs which could help prisoners go to court. The Law Association in Bremen (Verein für Rechtshilfe im Justizvollzug in Bremen) is an exception. But even in Bremen, the work is mainly to instruct prisoners on how to seek relief within the prison system rather than helping them to go to court. The Strafvollzugsarchiv answers legal questions from prisoners sent to it by mail. Sometimes lawyers will be recommended or contacted, affiliated lawyers will represent prisoners in court, but this is not in the name of these organisations.
Prisoners are not allowed to go to court in the name of another prisoner. Thus the ‘jailhouse lawyers’ are not an official institution. Prisoners are also not allowed to represent a collective in court. Recently, a self-organized ‘trade union’ of prisoners (not acknowledged as a trade union by authorities and courts) was denied access to the courts for the purpose of representing a collective complaint.
German prison law provides good legal, theoretical framework. However, prison remedies are not effective at a macro level since there are applied only to individual cases and don’t have influence on structural issues.
 Rdn. 12 ff, Rdn. 17 f.
 see Kudlich JA 2003, 704.
 07.07.2011, No 20999/05, Hellig v. Germany
 Feest & Lesting 2012, Strafvollzugsgesetz. Carl Heymanns Verlag.
 Wolfgang Lesting, speech at the 2012 Conference of Criminal lawyers in Hannover.
 13.9.1977, VRs IX 151/77.
 also OLG Zweibrücken NStZ 1982, 221; OVG Hamburg NJW 1993, 1153.
 BVerfG ZfStrVo 2002, 176, 178.
 OLG Nürnberg ZfStrVo 2002, 313.
 VGH Mannheim NJW 1997, 1866.
 §§ 13 GVG, 40 Abs. 2 Satz 1 VwGO; (OLG Celle ZfStrVo SH 1978, 73.
 OLG Brandenburg FS 2010, 1.
 OLG Frankfurt 12.11.1979 – 3 Ws 877/79 (StVollz)
 Beier (1992):Aufsicht über den Strafvollzug. Eine Quelle des Mißerfolgs, in: ZfStrVo, 147; Koop (2006) (Ed.): Hauptsache ist, dass nichts passiert? Selbstbild und Außendarstellung des Justizvollzugs in Deutschland, Lingen)
 Arloth 2011 Rdn. 6 and AK- Feest 2012 Rdn. 15.
 Dürr (1983): Anstaltsbeiräte – Vertreter der Öffentlichkeit ohne Wirkung auf die Öffentlichkeit, in: Soziale Arbeit, 57.
 Münchbach 1973.
 K/S- Schöch 2002 § 4 Rdn. 43.
 AK- Feest / Graebsch 2012 Rdn. 1.
 OLG Hamm NStZ 1981, 277 – Wydra/Pfalzer 1164.
 AK- Feest / Graebsch 2012 § 162 Rdn. 8, 9.
 OLG Frankfurt (NJW 1978, 2351.
 AV des Justizministeriums NRW 13.12.2010 – 4400-IV.396; siehe ferner Rotthaus 2008, 373.
 Walter 2012, 27.
 Maunz/Dürig-Dürig Article 17 Rdn. 32.
 Arloth 2011, Vorbemerkungen § 108 Rdn. 4.
 BayVerfGH NVwZ 1988, 820, 821.
 BT-Drucks. 7/918, 84; Doller 1987, 264; Laubenthal 2007, 326; Voigtel 1998, 27 ff.
 BGH NStZ 1982, 173; NJW 1982, 1057; ZfStrVo 1982, 181; BGHSt 30, 320; see also Beaucamp 2012, 194.
 OLG Frankfurt ZfStrVo 1982, 309; OLG Karlsruhe ZfStrVo 2002, 377; NStZ 2002, 614; KG ZfStrVo 2003, 181; Kopp / Schenke 2012 § 114 Rdn. 23 ff; Laubenthal 2011 Rdn. 813; Treptow 1978, 2227.
 (OLG München FS 2011, 53; BVerfG NStZ 1998, 430; very critical on this: Schneider 1999, 140.
 Althammer / Schäuble (2012): Effektiver Rechtsschutz bei überlanger Verfahrensdauer, in: NJW 2012, 1; Baier (2001): Grundzüge des gerichtlichen Verfahrens in Strafvollzugssachen, in: JA, 582.
 Schenke 2012, 257.
 BVerfG ZfStrVo 2003, 58.
 OLG Hamburg 4.11.2002 – 3 Vollz [Ws] 100/02; OLG Frankfurt ZfStrVo 2002, 370, NStZ-RR 2002, 188; OLG Stuttgart NStZ-RR 2003, 284.
 OLG Celle StV 2008, 92.
 OLG Celle StV 2008, 93.
 EGMR NJW 2001, 2694; EGMR NJW 2007, 1259.
 NJW 2010, 3355.
 Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren ; BGBl. I 2011, 2302.
 Link / van Dorp 2012, 11.
 § 198 Abs. 3 Satz 2 2. Halbs. GVG.
 Link / van Dorp 2012, 16.
 OLG Hamburg StraFo 2012, 160; also OLG Mecklenburg-Vorpommern, Beschl. vom 23.1.2012 – 1 O 4/12.
 BVerfG, 27.02.2002, 2 BvR 553/01, BVerfGE, 105; BVerfG, 13.03.2002, 2 BvR 261/01, BVerfGE, 105; BVerfG, NStZ, 1993, p. 404.
 BVerfG 27: 1, 6.
 BVerfG, 11.03.2010.
 BVerfG NStZ 1998: 373.
 Beschl. v. 29.02.2012, Az. BvR 368/10.
 Arloth 2011 Rdn. 1; C / MD 2008 Rdn. 3; Laubenthal 2011 Rdn. 755; Litwinski / Bublies 1989, 115; Schuler 1988, 256.
 C/MD 2008 Rdn. 5; AK-Kamann / Spaniol 2012 Rdn. 8; Laubenthal 2011 Rdn. 756; a. A. OLG Nürnberg ZfStrVo SH 1979, 93; Arloth 2011 Rdn. 3.
 OLG Frankfurt ZfStrVo 1987, 252.
 BVerfG, Decision of 6.8.2009 – 2 BvR 2280/07. All footnotes mentioning “BVerfG” refer to decisions from the German Federal Constitutional Court.
 OLG Koblenz NStZ 1989, 342 f.
 BVerfG StraFo 2007, 24.
 BVerfG ZfStrVo 2004, 301 f.
 BVerfG ZfStrVo 1995, 53.
 BVerfG NStZ 1993, 605.
 BVerfG NStZ 2008, 292.
 OLG Hamburg, StrVert 2004, p 276 f.
 BGH NStZ 1997, p. 614.
 OLG Bamberg, StrVert 2010.
 OLG Karlsruhe, NStZ-RR 2006.
 BVerfG, StrVert 2004.
 OLG Hamburg, StrVert 2004, p. 276.
 BVerfG, StrVert 2003, p. 677.
 BVerfG, NStZ 1998, p. 430.
 OLG Karlsruhe, StrVert 2009, p. 595.
 OLG Hamm, NStZ 1991, p. 303.
 BGHSt. 30, p. 320 ff.
 BVerfG, NJW 1998, p. 2202.
 OLG Stuttgart, 3.5.2012.
 BVerfG, ZfStrVo 2002, p. 176.
 OLG Frankfurt, NStZ-RR 2005, p. 156.
 OLG Karlsruhe, NStZ-RR 2005, S. 224.
 OLG Hamm, StrVert 2006, p. 152.
 OLG Hamm, NStZ-RR 2009, S. 327.
 BGH, NJW 2005, S. 58 ff.
 Thanks to Prof. Dünkel and Dr. Morgenstern (University of Greifswald, Germany) for their advice on these cases.
 Federal Constitutional Court, BVerfGE 111, 317–319.
 ECtHR No. 54810/00.
 ECtHR No. 20999/05.
 Based on the presentation made by Prof. Dünkel and Dr. Morgenstern (University of Greifswald, Germany) at the 2014 ESC Conference in Prague.
 See Drenkhahn, Morgenstern & van Zyl Smit (2012): What is in a name? Preventive Detention in Germany in the Shadow of European Human Rights Law. Criminal Law Review, 3, 167-187.
 BVerfG NJW 2006: 2093, 2097.
 BVerfGE 19, 342 – 15.12.1965, 1 BvR 513/65.