Judgment of 18 January 2012

R e a s o n s:

1

The constitutional complaint concerns the question of whether employees of a private corporation that has been entrusted with operating a facility for psychiatric confinement may order and carry out extraordinary security measures.

A.

I.

2

1. Pursuant to the Hesse Act on the Implementation of Correctional and Security Measures in a Psychiatric Hospital or Addiction Treatment Facility (Gesetz über den Vollzug von Maßregeln der Besserung und Sicherung in einem psychiatrischen Krankenhaus und in einer Entziehungsanstalt – HessMVollzG, hereinafter: the Act) of 3 December 1981 (Law and Ordinance Gazette, Gesetz und Verordnungsblatt – GVBl I p. 414, last amended on 28 June 2010, GVBl I p. 185), corporations that are either directly or indirectly owned by the Hesse Social Welfare Association (Landeswohlfahrtsverband) can be entrusted by contract with the operation of psychiatric confinement facilities if they have demonstrated the necessary expertise and reliability (§ 2 third and fourth sentence of the Act). The contract must ensure that resources required for the orderly fulfilment of this function are available at all times (§ 2 of the Act). In the case of contractual transfer of authority to a private company, the director of the respective facility, their deputy and other physicians with managerial functions [...] remain employees of the Hesse Social Welfare Association; they alone have the authority to make discretionary decisions that might interfere with the fundamental rights of those offenders placed at the facility (§ 2 sixth sentence of the Act).

3-6

[…]

7

Additional measures relating to the authority to interfere with fundamental rights are contained in the general rules for psychiatric confinement under § 5 of the Act, which also apply to privately run facilities. § 5(2) of the Act provides that certain decisions that have particular relevance with regard to fundamental rights and are also relevant to security are reserved for the director of the facility. These include medical treatment that requires the patient’s consent (§7(2) of the Act), day releases or privileges (§ 8 of the Act), holidays (§ 9(1) of the Act) and directives relating to granting or revoking holidays or privileges (§ 10 of the Act) and extraordinary security measures (§ 36 of the Act). However, other employees at the facility are authorised pursuant to § 5(3) of the Act to temporarily order extraordinary security measures, with the exception of shackling other than by handcuffs or foot chains (§ 36(3) second sentence of the Act), if there is danger requiring immediate action.

8-12

[…]

13

Pursuant to § 3 of the Act, the operators of psychiatric confinement facilities are subject to administrative oversight in the form of general directives and, in the case of non-compliance with statutory requirements or general directives, individual directives.

14-17

[…]

18

2. a) The psychiatric confinement facility currently operating under the name Vitos Clinic for Forensic Psychiatry Haina (Vitos Klinik für Forensische Psychiatrie Haina) [...], in which the complainant is confined, was until 2007 operated by the Hesse Social Welfare Association, an association of local authorities organised under public law which, due to its tasks in the area of psychiatric confinement, is subject to oversight by the competent state ministry ([...]).

19

After the Act had created the necessary statutory prerequisites for private operation with the introduction of the third through sixth sentences of § 2 of the Act, the psychiatric confinement facilities that were previously operated by the Hesse Social Welfare Association were transferred to non-profit limited liability companies (gemeinnützige Gesellschaft mit beschränkter Haftung – gGmbH). The shareholders in these companies are the Hesse Social Welfare Association, with 5.1%, and a holding entity known until 2009 as LWV-Gesundheitsmanagement GmbH, now Vitos GmbH, with 94.9%. The latter entity is 100% owned by the Hesse Social Welfare Association. The psychiatric confinement facilities, including the one in which the complainant is confined, were then operated by the respective non-profit limited liability companies.

20

b) The Land Hesse, represented by the Hesse Ministry for Social Affairs, concluded contracts with the respective non-profit limited liability companies as operators of the individual psychiatric confinement facilities (hereinafter: the ‘Contracts’), by which the companies assumed the functions related to placement and treatment of offenders in psychiatric confinement ordered in accordance with § 61 no. 1 and 2 of the Criminal Code and also the sovereign powers required to perform this function, including the power to interfere with fundamental rights to the extent permitted by the Act.

21-32

[…]

33

Vitos Haina gGmbH must maintain 407 psychiatric inpatient places in its facility and must be able to accommodate additional persons if needed. If its occupancy exceeds 10% of the maximum for more than six months, the Ministry for Social Affairs must decide on the necessary remedial measures to sustainably reduce overcrowding after consulting with the director of the facility (§ 3 of the Contracts). The general statutory obligation to ensure by contract that necessary resources for the facilities are available at all times (§ 2 fifth sentence of the Act) is reflected in the Contracts with a clause that obliges the operator to remain within the corresponding parameters of the budget set by the Hesse Ministry of Social Affairs (§ 7(1) of the Contracts) and a provision that any security deficiencies must be promptly rectified by the operator when requested by the director of the facility (§ 7(2) of the Contracts).

34

§ 5 of the Contracts sets out the operator’s and the facility director’s respective rights to issue directives and delineates the area of responsibility in which the latter is not subject to directives from the private operator:

35

§ 5

36

Right to Issue Directives

37

(1) The director of the psychiatric confinement facility is solely responsible for fulfilling the functions within the area of responsibility that they are assigned by law and by § 4(2) of this contract in compliance with the provisions of public law and in accordance with the directives from the operator of the facility pursuant to §3(2) of the Act. With regard to this area of responsibility, the operator is not authorised to issue its own directives to the director of the psychiatric confinement facility.

38

(2) The director of the psychiatric confinement facility has the professional authority to issue directives to the staff employed at the facility.

39

(3) The operator may exercise its authority to issue directives in particular with regard to the operational organisation, administration and managerial and financial matters, insofar as such exercise does not interfere with the director’s area of responsibility assigned by law and by this contract. In the event of differing interpretations regarding responsibilities, a shareholders’ meeting must be convened without undue delay. Both parties have the right to invoke such a meeting.

40

§ 6 of the Contracts provides that the staff employed to fulfil tasks relating to psychiatric confinement must have the requisite expertise and personal aptitude and grants the director of the facility the opportunity to participate in the selection of the staff working within the director’s assigned area of responsibility.

41-43

[…]

44

Other provisions of the Contracts relate to the operator’s obligations with regard to security,

45-48

[...]

49

establishing rules for the operation of the forensic clinic,

50-52

[...]

53

liability (§ 10 of the Contracts), the contract length of 30 years and the right of termination (§11 of the Contracts).

54

c) Staff who pursuant to § 2 sixth sentence of the Act must remain employees of the Hesse Social Welfare Association and who have discretionary authority to make decisions that may interfere with fundamental rights are formally seconded to Vitos Haina gGmbH through a personnel sharing agreement.

55

Pursuant to § 2(2) first sentence of the personnel sharing agreement, the Hesse Social Welfare Association selects the director of the facility on the basis of a nomination from LMV - Gesundheitsmanagement GmbH (now Vitos GmbH) subject to approval from the Hesse Ministry for Social Affairs. The selection of other staff physicians that are to be seconded by contract, as well as all staff vacancies for physicians with managerial functions, is done pursuant to § 2(2) second sentence of the personnel sharing agreement by the Hesse Social Welfare Association following a proposal from the GmbH in accordance with the procedure provided for in § 6 of the Contracts, i.e. on the basis of the right of the director of the facility to nominate a candidate, bound by their professional judgment and subject to the director’s right to appeal the matter to a meeting of the general shareholders if the GmBH intends to deviate from the director’s nomination.

56-58

[…]

59

Pursuant to § 3(2) first sentence of the personnel sharing agreement, the Hesse Social Welfare Association delegates its management authority to issue directives to the seconded physicians within the scope defined by § 5 of the Contracts to the private operator.

60

According to the Hesse Land Government, a total of twenty doctors and one psychologist employed by the Hesse Social Welfare Association are currently working in the six facilities run by the non-profit organisations, of which six doctors and the psychologist work at the Vitos Clinic for Forensic Psychiatry in Haina. The remaining staff at this clinic are employed by Vitos Haina gGmbH.

61

3. The responsibility and procedures for determining the funds available to the psychiatric confinement facilities were at the time of the challenged decision provided for in § 31 of the Hesse Appropriations Act (HessMittelstufengesetz).

62-71

[…]

72

A corresponding provision is now contained in § 19 of the Hesse State Welfare Association Act (Gesetz über den Landeswohlfahrtsverband Hessen).

73

[…]

II.

74

1. The complainant, who has had repeated episodes of aggression, was forcibly placed in seclusion during one such incident by nursing staff at the psychiatric confinement facility now known as the Vitos Clinic for Forensic Psychiatry Haina. The physician on duty was informed of the incident after the fact; he in turn advised the senior physician on duty.

75

2. With an application for a judicial decision (§ 109(1) of the Prison Act, Strafvollzugsgesetz – StVollzG), the complainant sought a declaration that the seclusion, which was not ordered or carried out by a sovereign authority, was illegal. [...]

76

3. In the order that is being challenged in these proceedings, the Regional Court (Landgericht) rejected the application. [...]

77

4. The complainant appealed this decision, claiming a violation of his substantive rights. He contends that the challenged measure carried out by the employees of a private corporation violates Art. 33(4) of the Basic Law (Grundgesetz – GG). [...]

78

5. The Higher Regional Court (Oberlandesgericht) rejected the appeal as unfounded by order dated 8 December 2009 (Neue Zeitschrift für Strafrecht Rechtsprechungs-Report2010, p. 93 ff.), which is also challenged in these proceedings.

79-82

[…]

III.

83

With his timely submitted constitutional complaint, the complainant asserts a violation of Art. 33(4), Art. 2(2) second sentence and Art. 20(2) of the Basic Law.

84-87

[…]

IV.

88

The Government for the Land Hesse, the Federal Government, the Land Parliaments of Rhineland Palatinate and Thüringen and the Land Governments of Brandenburg and Lower Saxony submitted statements in these proceedings.

89-111

[…]

V.

112

In the oral hearing, the complainant, through his authorised representative [...] and the Government for the Land Hesse presented and elaborated on their arguments. In addition, statements on behalf of the Vitos Clinic for Forensic Psychiatry Haina were given by its Medical Director, Dr. Rüdiger Müller-Isberner, as well as several individuals in their capacity as experts: the Head Physician of the Isar Amper Clinic in Munich East, Dr. Herbert Steinböck and the Medical Director of the LWL Centre for Forensic Psychiatry, Dr. Nahlah Saimeh, whose statement was also on behalf of the German Association for Psychiatry, Psychotherapy and Psychosomatics (Deutsche Gesellschaft für Psychiatrie, Psychotherapie und Nervenheilkunde – DGPPN). A statement on behalf of the DGPPN was also given by Professor Dr. Jürgen Müller of the Clinic and Outpatient Clinic for Psychiatry and Psychotherapy at the Georg August University in Gottingen, who also serves as the Head Physician at the Asclepius Clinic for Forensic Psychiatry and Psychotherapy in Gottingen.

113

1. […]

114

2. State Minister Michael Boddenberg, former Assistant Secretary Dr. Herber Günther, Director Dr. Elke Bohl and Assistant Secretary Jürgen Osmers submitted written statements on behalf of the Government for the Land Hesse:

115-123

[…]

B.

I.

124

The constitutional complaint is admissible.

125

1. This also applies insofar as the complainant alleges violations of Art. 33(4) of the Basic Law and the principle of democracy.

126

In this respect, it is not relevant whether and, if so, to what extent Art. 33(4) of the Basic Law contains a subjective right on its own (answering this question in the negative Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 6, 376 <385>; Federal Constitutional Court, Order of the First Chamber of the Second Senate of 18 February 1988 - 2 BvR 1324/87 -, juris, para. 9; left open in BVerfGE 35, 79 <147>). This is because the complainant’s fundamental right under Art. 2(1) of the Basic Law is affected by the challenged decisions that affirmed the seclusion as legally justified (see II.1. below) and, in this regard, the complainant can contend that the interference was not justified due to a violation of Art. 33(4) of the Basic Law. This is the case regardless of whether the fundamental right under Art. 2(1) of the Basic Law protects against any interference that conflicts with a provision of objective law. While Art. 33(4) of the Basic Law does not serve to protect the interests of individual civil servants or those who wish to become civil servants ([...]), it does serve – among other things – to protect the fundamental rights of citizens affected by the performance of sovereign functions (cf. BVerfGE 119, 247 <261>; [...]).  

127

Even to the extent that the complainant alleges a violation of the principle of democracy, he does so in connection with a complaint of interference with fundamental rights, which he contends is unjustified due to a violation of Art. 20(2) of the Basic Law, among other things, and thereby does not exceed the limits of what may be challenged in a constitutional complaint.

128

2. It is of no consequence that the complainant does not actually assert an interference with his general freedom of action (Art. 2(1) of the Basic Law), but instead asserts a violation of his fundamental right to personal liberty under Art. 2(2) second sentence of the Basic Law, which is not affected in this case (see II.1. below). If the fundamental right at issue is recognisable in the complaint, then the failure to correctly identify the affected fundamental right does not result in the inadmissibility of the constitutional complaint (cf. BVerfGE 92, 158 <175>; 115, 166 <180>; Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 2, 275 <277>).

129

3. […]

II.

130

The constitutional complaint is unfounded. The assumption on which the challenged decisions are based, i.e. that the seclusion of the complainant interfered with his fundamental rights (see 1. below), but occurred in a manner compatible with the Constitution, including with regard to the organisation of the psychiatric confinement facility and the status of the employees involved (see 2. below), is constitutionally unobjectionable.

131

1. The complainant’s seclusion, and its recognition by the lower courts as lawful, affects the complainant’s general freedom of action (Art. 2(1) of the Basic Law).

132

However, it does not fall within the scope of protection of personal liberty (Art. 2(2) second sentence of the Basic Law). Seclusion in a smaller restricted area within the facility exacerbates the way in which the existing deprivation of liberty is carried out; but it does not constitute a renewed deprivation of liberty which must satisfy the special requirements of Art. 104(2) first sentence of the Basic Law (cf. BVerfGK 2, 318 <323>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 8 July 1993 - 2 BvR 213/93 -, Neue Juristische Wochenschrift – NJW 1994, p. 1339).

133

2. The seclusion is not unjustified due to a lack of a constitutional basis for interference. § 5(3) of the Act, which authorises employees of psychiatric confinement facilities, including those employed by private operators, to order temporary extraordinary security measures against a person placed in the facility in the event of danger requiring imminent action, is compatible with the Basic Law.

134

The requirements of Art. 33(4) of the Basic Law also apply to the exercise of sovereign functions by private organisations (see a) below) and, in the present case, are not inapplicable because the authorisation for interference in § 5(3) of the Act does not concern a sovereign function that is carried out on a permanent basis (see b) below). The requirements are not violated because a permissible exception from the functions reserved for civil servants exists in this case (see c) below).

135

a) Art. 33(4) of the Basic Law not only provides rules for the exercise of sovereign functions by public entities, it also applies without exception to the delegation of such functions to private entities.

136

The wording of this provision does not indicate that it would not apply in the latter case. Such a restrictive interpretation would also be incompatible with the spirit and purpose of the provision. The exclusive reservation of certain functions for civil servants under Art. 33(4) of the Basic Law is intended to ensure that the exercise of sovereign authority as a continuing function is regularly subject to the special institutional safeguard of qualified, loyal and law-abiding performance by the career civil service system (cf. BVerfGE 9, 268 <284>; 119, 247 <260 f.>; on the protective function in relation to persons affected see B.I.1. above). To this end, Art. 33(4) of the Basic Law institutionally guarantees a minimum field of service for civil servants ([...]). This intent would be circumvented if sovereign functions could be removed from the scope of application of Art. 33(4) of the Basic Law by delegating them to private entities.

137

This corresponds with the prevailing opinion in the case-law and legal scholarship that Art. 33(4) of the Basic Law applies regardless whether the entity carrying out the task is organised under public or private law (cf. Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 57, 55 <60>; [...]).

138

b) The reserved functions under Art. 33(4) of the Basic Law relate only to the exercise of sovereign powers and only to the extent such powers are delegated as a permanent function.

139

The compatibility of § 5(3) of the Act with Art. 33(4) of the Basic Law does not result from these limitations, as this provision does confer sovereign powers to be exercised by employees on a permanent basis.

140

An exercise of sovereign powers is always involved when authority is exercised in such a way as to interfere with fundamental rights in the strict sense ([...]), i.e. if public authority directly restricts freedoms protected by fundamental rights by means of orders or coercion. How far the concept of sovereign authority extends beyond this narrow meaning ([...]) need not be determined here. § 5(3) of the Act authorises interference with fundamental rights in the strict sense and therefore the exercise of sovereign powers.

141

The exercise of the power granted under § 5(3) of the Act is also delegated to the employees on a permanent basis. In this respect, the frequency in which the authority to interfere is exercised in practice is not decisive ([...]). According to the legislative history, the reservation of functions was limited only to permanent functions in order to exclude those functions that would cease to exist in the foreseeable future, such as those of the food and economic offices ([...]). As for the question of whether the exercise of authority is conferred as a ‘permanent function’, it depends on, consistent with the literal meaning of the term, the permanence of the delegation of power and not on the frequency of its exercise. In contrast, whether the exercise of the conferred sovereign power occurs often or rarely and whether it influences the overall character of the activity of the person exercising that power can play a role in determining whether the exception to the reservation that is left open in Art. 33(4) of the Basic Law might apply.

142

c) The power to temporarily order extraordinary security measures that is provided by § 5(3) of the Act proves to be – even in the overall context of the legal framework of privatised psychiatric confinement in Hesse – a permissible exception to the reservation of functions in Art. 33(4) of the Basic Law.

143

aa) Pursuant to Art. 33(4) of the Basic Law, the exercise of sovereign powers on a regular basis must, ‘as a rule’ be entrusted to career civil servants. This reservation allows for exceptions.

144

(1) First, the relationship between the exception and the rule expressed in this provision has a quantitative dimension. The exception is not available if it would lead to a situation where the general rule became merely the exception in practice. A contrary interpretation would run counter to the purpose of Art. 33(4) of the Basic Law (see II.2.a. above), that is, to institutionally reserve a minimum field of service for civil servants. The determinative force of the rule in its purely quantitative dimension is nonetheless limited, because for those administrative levels below that of the Federation or Länder whose tasks are being considered, a reference point for the required quantitative comparison can hardly be identified without some degree of arbitrariness ([…]).

145

(2) The ‘as a rule’ requirement is not limited to its quantitative meaning. Rather, according to the legislative history of Art. 33(4) of the Basic Law and consistent with the spirit and purpose of this provision, it also includes a qualitative requirement for permissible exceptions. During the deliberations of the Parliamentary Council, examples of areas in which the exception was intended to provide legislative leeway were those in which, if classified as ‘sovereign’ at all, were at a minimum not considered to be primarily sovereign in nature, such as economic activity of the public sector, including state and municipal entities providing services of general interest, and in the area of social welfare [...]. Thus, the possibility for exceptions is not granted for any use that falls within certain quantitative limits, but instead for those areas in which the protective purpose of the reservation of functions does not require the relevant sovereign functions to be performed by professional civil servants on the basis of proven experience or, when considering the special characteristics of a particular function, reserving that function for civil servants only does not appear appropriate in the same way as in the normal case.

146

Thus, according to the prevailing and correct understanding, exceptions from the reservation of functions required by Art. 33(4) of the Basic Law require justification by a special objective reason ([...]). Such reason must correspond with the purpose for the possible exception, taking into account experience with the established structures or, considering the purpose that reserve functions serve, the relevant special characteristics of a particular function (cf. for example, on the permissibility of an exception for a function which, for constitutional reasons, should be carried out as independently from the state as possible, BVerfGE 83, 130 <150>; on the functions of a teacher that are not predominantly of a sovereign nature, BVerfGE 119, 247 <267>; […]). Reasons that could apply in the same way for other sovereign functions, i.e. those which do not involve an exception, can be ruled out from the outset as a possible justification for the use of non-civil servants in functions reserved in principle by Art. 33(4) of the Basic Law.

147

Consequently, exceptions cannot be based on the purely fiscal argument that the performance of a function by non-civil servants – even if only through savings that would benefit the performance of other functions – would relieve the public budget ([...]). A blanket consideration that having civil servants perform functions leads to higher costs that could be avoided in other organisational settings – for example, in the event of privatisation, which might provide opportunities to have the functions performed for lower wages – runs counter to the fundamental preference expressed in Art. 33(4) of the Basic Law for professional civil servants because it is not specific.

148

That does not mean, however, that fiscal considerations have no relevance at all ([...]). Rather, in determining the eligibility for an exception, it can be taken into account whether a particular function has special characteristics for which the costs and benefits of using civil servants are in a different – and significantly more disadvantageous – relationship than what is normally to be assumed under Art. 33(4) of the Basic Law (cf. BVerwGE 57, 55 <59 f.>: ‘comparative appraisal’). The examples mentioned by the Parliamentary Council demonstrate that the purpose of allowing for exemptions was precisely to allow this weighing of special reasons why the compulsory use of civil servants might be impractical.

149

In this respect, the requirement of an objective reason for an exception from the reserved functions for civil servants ensures that exceptions are limited by the principle of proportionality ([...]). The more intensively a specific activity affects fundamental rights, the less acceptable the loss of institutional safeguards provided by the loyal and law-abiding performance of functions through the civil service.

150

To the extent that the permissibility of exceptions also depends on an assessment of the current situation and future developments, the legislator is entitled to a margin of appreciation (cf. BVerwGE 57, 55 <59 f.>; […]).

151

bb) According to these standards, there is no violation of Art. 33(4) of the Basic Law in the present case.

152

(1) The use of non-civil servant nursing staff with the authority to temporarily order extraordinary security measures (§ 5(3) of the Act) is not unobjectionable merely because the interference is so insignificant in comparison to the care and support based parts of nursing that it no longer appears to have a sovereign character.

153

The enforcement of a deprivation of liberty imposed by criminal courts is one of the core functions of sovereign power. In this respect, placement in psychiatric confinement is no different to prison in terms of the intensity of the possible interference with fundamental rights ([...]). In such a context, a person who is delegated powers of order and coercion over others exercises a sovereign function, even if – precisely because of the nature of such powers– formal orders and their enforcement through direct coercion are unnecessary in most cases.

154

This does not, however, categorically rule out the possibility of an exception from the reservation of functions under Art. 33(4) of the Basic Law in this area ([...]).

155

(2) The formal privatisation of psychiatric confinement in Hesse in such a way that the use of civil servants is not compulsory at the managerial level of those employees of the Hesse Social Welfare Agency and, below this level, is no longer provided for as a possibility, is justified by objective reasons.

156

The Hesse Land Government has stated that the chosen approach to privatise serves to maintain the organisational cooperation of psychiatric confinement facilities and other psychiatric facilities currently combined under the umbrella of the respective gGmbHs, and that maintaining this cooperation has led to improvement in the quality of psychiatric confinement through synergies and through improved potential for recruitment, education and training opportunities ([...]). The Medical Director of the clinic in which the complainant is confined confirmed this assessment and also noted another advantage of cooperative aspects of the system, which results from the fact that patients placed in psychiatric confinement often have already received psychiatric treatment several times before their placement and continue to require psychiatric care after their release ([...]).

157

The simultaneous assessment that the advantages of operating psychiatric confinement facilities as a privatised network do not result in any perceptible impairment to ensuring the loyal and law-abiding performance of functions – which is indispensable, particularly in the core area of sovereign functions – is within the margin of appreciation of the legislator and the government responsible for the contractual framework in view of the existing experience with invoking the possibility of an exception under Art. 33(4) of the Basic Law in the area of psychiatric confinement and the institutional structure of the privatisation at issue here.

158

(aa) It must also be taken into account that, long before the decision to privatise the operation of psychiatric confinement facilities and the relevant legislation authorising privatisation, the use of civil servants in this area in Hesse was no longer a common practice at the managerial level, let alone for the nursing staff ([...]). This development corresponds with the general trend in Germany confirmed by the expert witnesses at the oral hearing ([...]), which – according to concurring opinions of both the Government of the Land Hesse and the director of a psychiatric confinement facility which had been privatised during the course of the proceedings, who also gave a statement at the oral hearing – did not lead to a decline in the quality of the implementation of statutory placement in psychiatric confinement ([...]).

159

Such assessments by individual entities and persons, particularly when they involve evaluating the results of decisions to privatise, must be viewed with caution in light of the complexity of the conditions to be assessed, how they may change over time and the possibility of bias. It is therefore doubtful whether such assessments are sufficient on their own to rebut the presumption established by Art. 33(4) of the Basic Law that, particularly in the core area of sovereign powers, the fundamental rights of those affected by the exercise of such powers are best protected if such powers are reserved for professional civil servants. In the present case, however, the assessments are corroborated by the convincing description of the advantages of the network solution as well as the examination of the institutional framework of the privatised psychiatric facilities in Hesse. With the proviso that a continued observation of the future development of these conditions is required, the assessment that the institutional design sufficiently ensures the implementation of psychiatric treatment in a manner that conforms with the law and is subject to direction in a legal framework that is democratically accountable appears to be justified.

160

(bb) It is also significant that the privatisation of psychiatric confinement in Hesse is only of a formal nature. The Act provides that the private entities responsible for operating psychiatric confinement facilities remain directly or indirectly in the hands of a public entity, the Hesse Social Welfare Association (§ 2 third sentence of the Act). The operators are therefore freed from any for-profit motivation or constraints. This means that psychiatric treatment functions are not handed over to the forces and interests of private-sector competition which systematically run counter to the statutory goals of psychiatric treatment and the protection of the rights of those in psychiatric confinement, such as with regard to the length of placement and the reduction of treatment and care costs ([...]). [...]

161

(cc) The legislator has made it clear that the public sector’s obligation to ensure that psychiatric confinement facilities are sufficiently equipped to fulfil their function is in no way affected by organisational privatisation. In accordance with § 2 fifth sentence of the Act, the Contracts must ensure that the necessary personnel, buildings, expertise and organisational resources required for the orderly provision of psychiatric treatment are available at all times. The Contracts take this into account to the extent required within the framework of the budget provided for by the competent ministry (§ 7(1) of the Contracts). They also take precautions against a permanent deterioration in conditions due to overcrowding (§ 3(4) of the Contracts) and stipulate that the staff employed must have the necessary expertise and aptitude (§ 6 first sentence of the Contracts). The resources, which are of vital importance for providing psychiatric treatment in conformity with the law and fundamental rights, are thereby guaranteed to the privatised operators of the psychiatric confinement facilities in the same way as would be the case if the facilities were publicly run.

162

[…]

163

dd) The far-reaching powers of governance held by the substantive public entity – the Hesse State Welfare Association – and the supervising ministry, as well as the special legal status of the director of the facility (see in detail 3.b)bb)(1) and (2) below) ensure – in a manner equivalent to a formally public-law organisation – that the private facility operators’ and their employees’ fundamental rights obligations and other legal obligations with regard to psychiatric confinement do not just exist on paper. The equal effectiveness of this safeguard is not called into question by restrictions on the possibility of parliamentary oversight; the legislator can fully comply with its duty to monitor the effects of the organisational change that it has enacted and to react to any deficiencies that result from that change (see in more detail 3.b)bb)(3) below).

164

3. The requirements of the principle of democracy are also satisfied. The authorisation of staff at the facility to order extraordinary security measures under § 5(3) of the Act does not violate the constitutional requirements of the democratic legitimation of sovereign authority.

165

a) aa) The principle of democracy requires that all acts of public authority have democratic legitimation (Art. 20(2) of the Basic Law). Such acts must be traced back to the people’s will and be accountable to it (cf. BVerfGE 77, 1 <40>; 83, 60 <72>; 93, 37 <66>; 107, 59 <87>). The required relationship of accountability between the people and public authority is established, in particular, by way of parliamentary elections, laws adopted by Parliament setting legal standards for the executive branch, by way of parliamentary influence on government policies and by the fact that the administration is generally bound by government directives (cf. BVerfGE 83, 60 <72>; established case-law).

166

In the case of the delegation of functions to a private entity, this requires, among other things, that the possibility for parliamentary oversight of the delegated functions remains unimpaired ([...]). Parliamentary oversight is especially important here because the delegation of sovereign functions to a private entity must not lead to an abdication of responsibility by the state for the exercise of such functions. The legislator’s assessment that this responsibility is sufficiently taken into account with regard to a specific sovereign function when conferred to a private entity under the framework the legislator has set must prove to be true in reality. The state’s responsibility to guarantee that functions are properly performed therefore includes a corresponding duty of oversight, including for Parliament ([...]). The required ties to democratic legitimation are only guaranteed when Parliament’s oversight is not impaired.

167

bb) A sovereign decision has personal legitimisation if the appointment of the person making the decision can be traced back to the sovereign people in an uninterrupted chain of legitimation. Functional-substantive legitimation is conveyed through the binding nature of statutes and of government mandates and directives (cf. BVerfGE 93, 37 <67 f.>; 107, 59 <87 f.>). Personal and functional-substantive legitimation are interrelated in such a way that a diminished level of one form of legitimation can be offset by a stronger level of the other form, as long as a certain level of overall legitimation is achieved (cf. BVerfGE 83, 60 <72>; 93, 37 <66 f.>; 107, 59 <87 f.>; […]). The more intensively the decisions to be made affect fundamental rights, the higher the level of legitimation that is required (cf. BVerfGE 93, 37 <73>).

168

b) Based on this standard, the required level of legitimation for the decisions to be made in the Hesse psychiatric confinement facilities that interfere with fundamental rights, including the orders authorised by § 5(3) of the Act, is sufficiently guaranteed.

169

aa) The director of a psychiatric facility, their deputy and other physicians with managerial functions have personal legitimation as representatives of the social welfare association through their selection by a public entity (§ 2 sixth sentence of the Act). With regard to the personal legitimation of facility directors, there is the fact that the Hesse State Welfare Association can only fill these positions with the approval of the Hesse Ministry for Social Affairs (§ 2(2) first sentence of the personnel sharing agreement).

170

However, the other employees of the facility – except for third parties working with the consent of the director (§ 6 third sentence of the Contracts) – are formally employed by the private operator. The mere fact that the operator is entrusted with the task of psychiatric treatment and is thereby subject to state oversight does not convey personal legitimation to the operator’s staffing decisions ([...]). However, the private operator’s employees who are responsible for or can be authorised to make decisions relevant to fundamental rights or who can be involved in such decisions are substantively integrated into a ‘chain of legitimisation’, in that the director, who has personal legitimation, has the right of nomination for filling positions in their area of responsibility in accordance with the Contracts (§ 6 second sentence of the Contracts). This right to nominate is not absolutely protected; if the management intends to deviate from the nomination, a shareholders’ meeting of the respective – partly indirectly, and partly directly publicly controlled – entity must be convened (§ 6 fifth sentence of the Contracts). However, the management is bound by the professional judgement of the director of the facility, so that the latter has a professional right of veto in all cases (§ 6 fourth sentence of the Contracts). Third parties - i.e. persons other than the management staff provided by the state welfare association and the employees of the private entity – may only be employed within the facility with the consent of the director (§ 6 third sentence of the Contracts).

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bb) In terms of functional-substantive legitimation, the performance of functions by the privatised operators and their staff at the psychiatric confinement facilities has legitimation because they are bound by the law and subject to the responsible public operator’s power to issue directives – which at the same time also precludes the management of the private operator from issuing directives in the area of responsibility of the director of the respective facility.

172

(1) § 3 of the Act puts all matters relating to the psychiatric confinement facilities under the administrative oversight of the Ministry for Social Affairs, which includes supervisory functions that are delegable to the competent regional commissioner (Regierungspräsident) (§ 3(1) of the Act); the authority responsible for oversight can issue general directives to the facility operators and, in the case of non-compliance with statutory requirements or general directives, individual directives (§ 3(2) of the Act). The Hesse Social Welfare Association, in its position as the substantive operator of the formally privatised psychiatric confinement facilities, is also subject to the administrative oversight of the competent ministry ([...]) and has an extensive ability to exert influence, which the company law provides the governing public holder of the private-law gGmbHs ([...]).

173

Within the overall responsibility of the facility operator that is subject to oversight, all measures relating to the implementation of psychiatric treatment are reserved for the director of the facility (§ 4(2) second sentence of the Contracts). In this area of responsibility, the director is subject to the provisions of public law and the administrative directives issued to the operator of the psychiatric confinement facility in accordance with § 3(3) of the Act, but not the directives of the private operator (§ 5(1) of the Contracts). The director, in turn, has the authority to issue directives to the staff at the facility (§ 5(2) of the Contracts).

174

Thus, all decisions relating to psychiatric treatment that directly interfere with fundamental rights are shielded from potential motivations that are not primarily based on concerns of clinical care by the compulsory and unbroken chain of command all the way down to the individual staff providing care ([...]).

175

(2) The administrative oversight pursuant to § 3 of the Act is not rendered insufficient because the Act does not expressly set out the means for obtaining information and enforcement required for effective oversight (cf. BVerfGE 17, 232 <252>); [...]).

176

The question of whether, in the case of delegation of public authority to private entities, the necessary oversight powers generally follow from the delegation – which always requires a statutory basis – without any further detail in the statutory provisions ([...]), can be left open here. In any case, to the extent that the statute expressly assigns oversight of delegated authority to a competent public entity without specifying the means of oversight, such provision can only be interpreted in conformity with the Constitution as meaning that the oversight power includes all necessary information-gathering and enforcement powers for the effective fulfilment of the state’s responsibility. In the present case, there is nothing preventing such an interpretation in conformity with the Constitution. § 3(2) of the Act specifies that administrative oversight is to be carried out by means of general directives and, (only) in the event of non-compliance with such directives or statutory requirements, by individual directives; this limits the authority to issue individual directives in a manner that is still compatible with the state’s responsibility to ensure compliance and preserves the power to intervene in the event of a breach of the law. There is no evidence of any further restrictions to oversight in the provision.

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(3) The competent oversight authorities, which are not only authorised but also obliged to effectively supervise the private parties entrusted with sovereign authority ([...]), are also subject to the necessary democratic legitimation (see a) above). This chain of legitimation is neither interrupted nor impaired by the confidentiality of contractual arrangements for the fulfilment of tasks ([...]) or by other restrictions on parliamentary oversight.

178

cc) In considering both the personal and the functional-substantive legitimation, there is a sufficient level of legitimation overall.

179

It must be taken into account here that, pursuant to § 2 sixth sentence of the Act, which generally reserves discretionary decisions that interfere with fundamental rights to the managerial staff, the employees of the private operator with limited personal legitimation may only carry out activities that interfere with fundamental rights to the extent that these are informed by general or case-related directives from managerial staff in such a way that no discretionary scope remains or that any discretionary scope that remains in individual cases is generally left to the managerial staff.

180

Insofar as § 5(3) of the Act also authorises the private operator’s employees to take temporary security measures, which are discretionary decisions according to the wording of the provision (‘may’), there is, at most, a narrow scope of discretion. This is due to the strict conditions for the permissibility of extraordinary security measures (§ 36(1) of the Act) – guided by the principle of proportionality, according to which such measures generally will only be permissible when they are also required – and the fulfilment of the necessary margin of assessment is, through the obligation to immediately notify the director of the facility (§ 5(3) second sentence of the Act), subject to an effective accountability to their authority to issue directives, which also has a preventative effect.

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c) Even outside the area of decisions that directly interfere with fundamental rights, a lack of democratic legitimation of the performance of tasks cannot be ascertained. A high level of legitimation is required here, particularly for decisions on the necessary allotment of resources to the facilities for the fulfilment of their functions, as this has a bearing on the ability of the psychiatric confinement facility to respect the fundamental rights of their patients. In this respect, the essential decisions on budgets and care rates were and are to be made by the competent ministry with approval from the Ministry of Finance, i.e. with full democratic accountability, after consultation with the entities responsible for the facilities (§ 31(1) of the Hesse Appropriations Act; now § 19(1) of the Hesse State Welfare Association Act). With regard to subordinate decisions on the internal use of resources at the facility, if no systemic disincentives can be identified, then the existing supervisory powers and opportunities to exert influence under company law are sufficient.

182

4. In view of the foregoing, there is nothing objectionable about § 5(3) of the Act with regard to sufficient protection from unjustified interference with fundamental rights.

183

5. The constitutional complaint therefore cannot be granted. Beyond his contentions concerning the constitutionality for the legal basis of the interference, the complainant has not asserted any violation of fundamental rights presented by the challenged decisions – for example, with regard to the legal basis for the use of direct coercion ([...]), the existence of the legal prerequisites for intervention or the fulfilment of the legal obligation to immediately notify the director of the facility in accordance with § 5(3) second sentence of the Act. Even without considering the extent to which such complaints might have been impermissible on subsidiarity grounds, it is also not apparent that the challenged decisions turned out any differently than they should have. There are therefore no grounds to examine ex officio contentions which were not asserted (cf. BVerfGE 70, 138 <162>; 124, 235 <241 f.>).