Pecuniary compensation for detention in an undersized solitary cell

Press Release No. 68/2015 of 16 September 2015

Order of 14 July 2015
1 BvR 1127/14

In an order published today, the Third Chamber of the First Senate of the Federal Constitutional Court partially reversed a judgment by the Berlin Higher Regional Court (Kammergericht) in public liability proceedings (Amtshaftungsverfahren) concerning accommodation during detention that did not meet the standards demanded by human dignity. In a decision published on 5 November 2009, the Berlin Constitutional Court (Verfassungsgerichtshof) had found a violation of human dignity in the case of another complainant who had been detained in a solitary cell of 5.25 m² without separate toilet for between 15 and 21 hours a day for several months. The complainant in the case at hand had been detained under similar conditions. In as far as the judgment of the Berlin Higher Regional Court rejected the public liability claims for the time before the publication of the decision by the Berlin Constitutional Court and granted a time period of two weeks to implement that decision, this is not objectionable under constitutional law. However, by refusing pecuniary compensation even after the implementation period had expired, the Higher Regional Court failed to recognise the significance and scope of the guarantee of human dignity (Art. 1 sec. 1 in conjunction with Art. 20 sec. 3 of the Basic Law, Grundgesetz – GG). In this respect, the case was remanded to the Berlin Higher Regional Court for a new hearing and decision.

Facts of the Case and Procedural History:

Between 9 June 2009 and 23 November 2009, the complainant was detained in a solitary cell with a floor space of 5.25 m² in which the toilet was not separate from the rest of the room. In a comparable case, in an order published on 5 November 2009, the Berlin Constitutional Court found a violation of human dignity. In the challenged judgment, the Higher Regional Court dismissed the complainant’s action for damages. It decided as follows: For assessing how to end the conditions of detention in the correctional facility that violated human dignity and that concerned many people, a two-week transitional period until 19 November 2009 was to be allowed. Exceeding that transitional period to a relatively small extent did not oblige the state to provide pecuniary compensation. Rather, by finding the circumstances of detention to violate human dignity, the court already took appropriate account of the complainant’s recognised legal interest in bringing an action.

Key Considerations of the Chamber:

The constitutional complaint is partly successful.

1. In as far as the Berlin Higher Regional Court concluded that, until the decision by the Berlin Constitutional Court had been published on 5 November 2009 and, beyond that, until the two-week transitional period had expired, there was no fault on the part of the responsible office holder (Amtsträger), this still remains within the limits of the regular courts’ leeway in applying the law (Wertungsspielraum). The Berlin Higher Regional Court’s assessment is tenable in as far as it found that it was not easy to determine what specific size of a detention cell violated human dignity, and that particularly with regard to solitary cells, this point of law had neither been clarified by the courts nor conclusively dealt with by legal doctrine.

2. However, the Berlin Higher Regional Court’s judgment cannot be upheld with regard to the period between 20 November 2009 and 23 November 2009, after the transitional period had expired. The Higher Regional Court’s considerations, which led to denying the complainant’s public liability claim for deprivation of liberty violating human dignity, do not do justice to the importance of human dignity as a fundamental right under Art. 1 sec. 1 in conjunction with Art. 20 sec. 3 GG as a basis for compensation according to the rule of law that exists in the form of public liability claims. The Federal Constitutional Court has already decided that the state mandate of protection inherent to human dignity or, respectively, the general right of personality (allgemeines Persönlichkeitsrecht) requires a claim to compensation of intangible damages, since otherwise the legal protection of the right of personality would probably wither. While the compensation required by the rule of law does not necessarily entail granting a claim to pecuniary damages, in this case, the Berlin Higher Regional Court denied such a claim in a way that is not acceptable under constitutional law.

The Berlin Constitutional Court pointed out that, in taking into account all relevant factors, detaining a prisoner in a solitary cell with an area of 5.25 m² and locking him up for between 15 and 21 hours a day for about three months violated the detainee’s human dignity. This constitutes an assessment that is not objectionable under federal constitutional law. In this regard, however, the Berlin Constitutional Court also held that, in large detention facilities, it was not possible to establish conditions respecting human dignity overnight and that therefore, a transitional period of two weeks was to be tolerated. Against this backdrop, it still remains within the limits of the regular courts’ leeway in applying the law to deny a public liability claim during the transitional period by not finding a fault on the part of the responsible office holders. In contrast, continuing detention after the transitional period obviously constitutes an act committed with fault triggering public liability.