Bundesverfassungsgericht

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Decision regarding the privatisation of institutions for the execution of measures of correction and prevention: provision on the ordering of security measures by private nurses under the Hesse Act on the Execution of Measures of Correction and Prevention held constitutional

Press Release No. 02/2012 of 18 January 2012

Judgment of 18 January 2012
2 BvR 133/10

The Federal Constitutional Court rejected as unfounded the constitutional complaint of a patient committed to a psychiatric hospital as a measure of correction and prevention who had objected to a special security measure (locking in) being ordered and carried out by staff of a privatised psychiatric hospital.

The constitutional complaint raises the question of whether it is permissible at all, and if so, under what preconditions, for coercive measures taken in institutions for the execution of correction and prevention to be ordered and carried out by the staff of private entities on which sovereign authority has been conferred.

The institution to which the complainant has been committed had been transformed into a non-profit limited liability company (gGmbH) in the year 2007 on the basis of § 2 sentences 3 to 6 of the Hesse Act on the Execution of Measures of Correction and Prevention (hessisches Maßregelvollzugsgesetz - HessMVollzG). Part of the company's shares are owned by the welfare association of the Land (state of) Hesse (Landeswohlfahrtsverband), part by another limited liability company which is wholly owned by the Landeswohlfahrtsverband. The Land Hesse has contractually entrusted the gGmbH with the duty to execute, in its own name on behalf of the Land Hesse, the committals ordered as measures of correction and prevention according to § 61 nos. 1 and 2 of the Criminal Code (Strafgesetzbuch - StGB). The Land Hesse has conferred on the gGmbH the sovereign authority required for this duty, including the authority to perform the concomitant encroachments on fundamental rights which are permissible according to the HessMVollzG.

After an aggressive outburst, the complainant was locked in by violent means by staff of the gGmbH without the hospital management having been previously informed of the measure. He unsuccessfully applied before the non-constitutional courts for a declaration that the measure had been unlawful because only civil servants are allowed to order and carry out such an encroachment on a fundamental right.

By means of the constitutional complaint, the complainant objects inter alia to the encroachment having taken place in violation of the principle of democracy and of Article 33.4 of the Basic Law (Grundgesetz - GG) according to which the exercise of sovereign authority on a regular basis shall, as a rule, be reserved to members of the civil service who stand in a relationship of service and loyalty defined by public law, i.e. to civil servants.

The Second Senate of the Federal Constitutional Court ruled that the basis for the encroachment under § 5.3 of the Hesse Act on the Execution of Measures of Correction and Prevention, which, in cases of imminent danger, authorises the staff of privatised institutions for the execution of measures of correction and prevention (in this case, a psychiatric hospital) to provisionally order special security measures against persons committed to the institution, is compatible with the Basic Law.

In essence, the decision is based on the following considerations:

The basis of the authorisation for the security measure taken against the complainant is in conformity with the constitution. 1. By entrusting the staff of institutions owned by private entities with duties connected with the execution of measures of correction and prevention, the provision of § 5.3 HessMVollzG does not infringe the reservation of functions contained in Article 33.4 of the Basic Law, according to which the exercise of sovereign authority on a regular basis shall, "as a rule", be reserved to members of the civil service who stand in a relationship of service and loyalty defined by public law, i.e. to civil servants.

Admittedly, Article 33.4 GG also applies where private individuals or entities are entrusted with sovereign duties. However, the authority, provided in § 5.3 HessMVollzG, to provisionally order special security measures proves to be a permissible exception from the principle of the reservation of functions to civil servants.

Derogations from this principle must be justified by a specific reason that is commensurate to the meaning of the possible exception. They cannot be justified by merely citing the fiscal aspect that the exercise of duties by persons who are no civil servants would reduce the burden on the public budget. However, it can be taken into account whether a function has special characteristics due to which in the specific case, the relationship between the cost and the security advantage provided by having permanent civil servants carry out the task is different, i.e. considerably less advantageous, than can be presumed as a general rule according to Article 33.4.

Measured against this standard, an infringement of Article 33.4 GG cannot be established. The privatisation approach that has been chosen aims at maintaining the organisational cooperation between the institutions for the execution of measures of correction and prevention and the other psychiatric institutions under the management of the respective entities. Maintaining the cooperation is intended to have a beneficial effect precisely on the quality of the measures of correction and prevention through synergy effects and improved possibilities of training and further training and of recruiting staff. In view of the experience made concerning the use of the possible exception offered by Article 33.4 GG in institutions of correction and prevention, and in view of the institutional organisation of the privatisation, the assessment that the advantages of integrating the measures of correction and prevention into the privatised cooperation have not been bought at the price of noticeable disadvantages with regard to securing the qualified and law-abiding exercise of duties, which is essential in particular in the core area of sovereign duties of the state, is covered by the margin of appreciation of the legislature and of the government responsible for laying down the contractual framework.

On the one hand, the privatisation of the institutions for the execution of measures of correction and prevention in Hesse is purely formal. Ownership of the private hospitals for the execution of measures of correction and prevention completely remains with a public entity, the Landeswohlfahrtsverband; the hospitals are thus exempt from motives and constraints connected with gainful objectives. The duty of executing measures of correction and prevention is not delivered up to forces and interests of private-sector competition that might be systemically contrary to the statutory objectives of the measures of correction and prevention and to the safeguarding of the rights of the persons committed to the institution. The public-sector obligation to ensure that the equipment of the institutions competent for the execution of measures of correction and prevention is commensurate with their duties is not affected in any way. The human and material resources on which the possibility of an execution that is in conformity with the law, and especially with the fundamental rights, essentially depends are ensured in the same way with institutions operated by private entities as would be the case with an institution formally operated under public law. For the case of a strike, which cannot be ruled out if the persons in charge of executing the measures of correction and prevention are no civil servants, emergency services can and must ensure that, as required, third parties are not disproportionately impaired. Furthermore, the legal obligations of the private institutions and their staff that concern the execution of measures of correction and prevention are safeguarded by extensive controlling authorities of the public entity (i.e. the Landeswohlfahrtsverband) in a way that is similar to the situation in an institution formally organised under public law.

2. § 5.3 HessMVollzG does not infringe the requirements placed by constitutional law on the democratic legitimisation of sovereign action.

Democratic legitimisation must attain an overall level that is sufficient with regard to staff, materially and with regard to content. Conferring sovereign authority on private entities must not result in the state fleeing from its responsibility. The legislature's assessment that sufficient account has been taken of this responsibility under the framework conditions that have been established must prove true in reality. The state's responsibility for the proper fulfilment of the duties therefore includes a corresponding obligation of observation, also for Parliament. This requires inter alia that the possibilities of Parliament examining whether the duties are fulfilled will not be impaired.

With regard to the decisions encroaching on fundamental rights that have to be taken in the course of the execution of measures of correction and prevention in Hesse, the level of legitimisation that is required according to these preconditions is sufficiently ensured. The head of the respective institution and the other doctors with leadership functions derive their personal legitimisation from the fact that they, as employees of the Landeswohlfahrtsverband, are appointed by a corporation under public law. The employment of the staff of the private institution is placed in a context of legitimisation by the fact that according to the contract in which sovereign authority is conferred, the head of the institution, who is personally legitimised, has a right of proposal when a vacancy is filled, and by the fact that the management of the private institution is bound by his or her professional assessment.

Factually and on the level of content, the performance of duties by the privatised entities operating the institutions and by the persons working there is legitimised by their being bound by the law, together with comprehensive authority to give instructions on the part of the responsible entities under public law, while at the same time instructions by the management of the private entity in the area of responsibility of the head of the institution are excluded. The fact that the Act on the Execution of Measures of Correction and Prevention does not explicitly provide the means to obtain and enforce information, which are necessary for any effective supervision, does not make the technical supervision provided insufficient. To the extent that an express legal regulation subjects the entity on which the sovereign authority is conferred to the supervision of the responsible public entity, and the means by which such supervision takes place are not specified, such a legal regulation can only be interpreted in conformity with the constitution in such a way that the authority to supervise includes all authorities to obtain information and to enforce that are necessary for the state to effectively fulfil its obligation to provide the services necessary for public welfare.

The competent supervisory authorities are not only authorised but also obliged to effectively supervise the private entities on which they have conferred sovereign duties; for its part, the manner in which the authorities perform their duties is situated in the necessary context of democratic legitimisation. The context of democratic legitimisation is not interrupted or impaired by submitting contractual arrangements concerning the performance of duties to secrecy or by other restrictions on the possibilities of parliamentary review.

Furthermore, it must be taken into account that according to § 2 sentence 6 HessMVollzG, the members of staff of the private psychiatric hospital may carry out activities that encroach on fundamental rights only to the extent that such activities are programmed by instructions of the managing staff in such a way that no margins of discretion are left or that margins of discretion remaining in individual cases will be filled by management-level staff. To the extent that § 5.3 HessMVollzG authorises members of staff of the private institution to take provisional security measures, there is only a narrow margin of discretion, if any. Furthermore, the staff's legal obligation to inform the head of the institution without delay subjects the filling of the margin of appreciation to a feedback to the head of the institution's authority to give instructions; the feedback has a preventive effect.