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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the German Federal Constitutional Court’s Order of 22 February 2011, 1 BvR 409/09 [CODICES]
When referring to the original decision, please follow the suggested form of citation for decisions of the Court.

First Chamber of the First Senate

Order of 22 February 2011

1 BvR 409/09

Headnotes (non-official):

The right to equality of legal protection was violated through the refusal to grant legal aid for an official liability action because of undignified detention conditions (less than the minimum space per inmate, toilet integrated in the cell with no partition or ventilation).



The applicant applied for legal aid for an official liability action against the Land (federal state of) North Rhine-Westphalia because of undignified detention in two prisons. He claimed that he had been kept in undignified detention conditions for a total of 151 days, arguing that the cells he had been allocated in each case, and which he had had to share with a fellow inmate, had a surface area of only 8 m2. According to the applicant, the toilet contained therein had only been divided from the rest of the room by a moveable wooden partition providing a small privacy screen. The table at which meals were taken was said to have only been one metre away from the toilet. Apart from roughly one month during which he had been able to leave the cell for eight hours per day because of work, the applicant claims to have spent 23 hours per day in the cell with alternating fellow inmates. In response to his protests and transfer applications, he had always only been told that it was not possible to transfer him because the prisons were overcrowded and there was a waiting list. He had not lodged an application for a judicial ruling because the Land was said to continually ignore court rulings because of a lack of available space.

The Regional Court (Landgericht) rejected the applicant’s legal aid request, finding that he was not entitled to compensation on the basis of official liability. The court argued that detaining criminal inmates together does not constitute a violation of human dignity ifthere are no additional, aggravating circumstances causing disadvantages to the prisoner. According to the court, an award of pecuniary compensation is contingent not only on the existence of particularly oppressive spatial conditions. Over and above this, the - presumably - cramped condition of the cell had to have caused sustainable, permanent strain – either mental or physical – for the inmate in question. In that respect, the applicant’s submission was found by the the court to be unsubstantiated. Moreover, said the court argued that by having been engaged in work for one month, and having been able to engage in outdoor exercise for one hour during the day, the applicant had received privileges which had alleviated the detention conditions. Furthermore, the court ruled that a right to compensation is ruled out because the applicant had culpably omitted to lodge a possible appeal. By such means, he could have averted the interference with his right of personality through the undignified detention conditions which he is now challenging. The Higher Regional Court (Oberlandesgericht) rejected the immediate complaint against the ruling of the Regional Court.

With the constitutional complaint, the applicant is claiming amongst other things a violation of his right to equality of legal protection.


The Federal Constitutional Court has reversed the challenged decisions because they violate the applicant’s right to equality of legal protection under Article 3.1 of the Basic Law (principle of equal treatment) in conjunction with Article 20.3 of the Basic Law (principle of the rule of law). The case has been remanded to the Regional Court for a new ruling.

The constitutional right to equality of legal protection requires that the situation of those with and those without financial resources are largely brought into line when it comes to obtaining legal protection. This principle is not complied with if, when examining the prospects for success of the intended litigation in the legal aid proceedings, a regular court already answers a difficult question which is material to the ruling, or deviates from the case-law of the supreme courts, to the disadvantage of the person without financial resources. This is the case here.

The Regional Court deviates from the case-law of the regular and constitutional courts in its assessment of the prospects for success of the intended official liability action with regard to the prerequisites for a human rights violation. Accordingly, the detention conditions which the Regional Court has taken as a given meet the criteria for a violation of human dignity. The minimum space normally allocated per detainee was not provided in the cells in which the applicant was accommodated, and the integrated toilet was neither partitioned nor ventilated in either case. In accordance with the case-law of the Federal Court of Justice (Bundesgerichtshof), additional circumstances were certainly not needed to presume a violation of human dignity. Furthermore, there were also no circumstances which had eased the detention conditions in terms of space. It is immaterial that the applicant had been working temporarily , since he is not claiming compensation for this period. Insofar as the Regional Court has presumed, albeit without that corresponding facts to that effect had been put forward, that the applicant could have engaged in daily sport and leisure activities, it is not apparent how these could have had a major impact on the detention conditions, given a cell time of twenty-three hours per day. The same applies to the daily hour of outdoor exercise.

It is also constitutionally objectionable that the Regional Court denied that the intended official liability action had prospects for success on grounds of the fact that the applicant had not lodged an appeal against the challenged detention conditions. In accordance with the case-law of the Federal Court of Justice, the compensation obligation resulting from official liability proceedings can only be completely denied if the submission of a required appeal would have prevented the damage from occurring altogether. The party inflicting the damage bears both the obligation to present the case and the burden of proving the causal link between the non-submission of the appeal and the occurrence of the damage. The Regional Court deviated from this requirement. For its presumption that an appeal on the part of the applicant would have been allowed and that he would have been transferred into a single cell immediately, with the consequence that a violation of human dignity would have been prevented altogether, lacks corresponding submission on the part of the Land, which bears the obligation to present the case and the burden of proof in this respect. It made no statement whatsoever on the matter of a causal link, although the applicant did not only explicitly contest this, but also presented factual indications suggesting that an appeal would not have provided a remedy because there was no space available.

Furthermore, with regard to the legal consequences of the asserted claim, the Regional Court ruled in the legal aid proceedings on a difficult legal question which was material to the ruling, that is on the award of pecuniary damages. The Regional Court invokes the case-law of the Federal Court of Justice in this respect. The latter makes pecuniary damages because of undignified detention conditions contingent on additional requirements, such as the significance and extent of the interference and/or of the concrete impairment of physical and mental well-being, furthermore on the occasion and motive of the acting party, as well as on the extent of the acting party’s fault. In that respect, however, the Regional Court neglected the fact that the decision of the Federal Court of Justice in question relates to facts which are quite different, and that the additional requirements are clearly linked to the short duration of that respective undignified accommodation, namely a duration of only two days. By contrast, even according to the submission of the Land, the period at issue here significantly exceeds the relevant duration of accommodation at issue in the Federal Court of Justice’s decision. The Regional Court was not permitted to hand down, within the legal aid proceedings and in a manner forestalling the main proceedings, a final ruling in terms of the legal question – which had not yet been clarified at that time – as to whether it is possible to waive the additional requirements required by the Federal Court of Justice in another constellation in case of a longer duration of undignified accommodation when granting pecuniary damages.

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