Federal Constitutional Court - Press office -

Press release no. 02/2012 of 18 January 2012

Judgment of 18 January 2012 – 2 BvR 133/10 –

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


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. 


This press release is also available in the original german version.