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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 Federal Constitutional Court’s Order of 10 July 2013, 2 BvR 2815/11 [CODICES]
Abstract
Third Chamber of the Second Senate
Order of 10 July 2013
2 BvR 2815/11

Headnotes (non-official):

The physical search of a prisoner without conducting an adequate proportionality test violates his or her general right of personality.

A ruling on appeal for which no reasons are provided, and which manifestly deviates from the case-law of the Federal Constitutional Court and of the European Court of Human Rights, violates the guarantee of legal protection under Article 19.4 of the Basic Law.



Summary:

I.
The constitutional complaint concerns the limits to the permissibility of a prisoner’s strip search under § 64.3 of Prison Code III of the Federal Land Baden-Württemberg (hereinafter: the Code). The provision reads as follows:

§ 64 Search and Controls for Narcotics Abuse


(1) …

(2) Only in individual cases, and following an order from the prison governor, or in an emergency, shall it be permissible to perform a strip search. It may only be carried out in the presence of men in case of male prisoners, and in the presence of women in the case of female prisoners. It shall be carried out in a closed room. No other prisoners may be present.

(3) The prison governor may order in general terms that prisoners may be searched according to section 2 on reception, after contacts with visitors, and after any absence from the prison.

(4)…


The applicant served time in a prison.

In April 2011, before being taken before the Regional Court (Landgericht), he was strip-searched, which included a cavity search. He was then cuffed and taken to the hearing, travelling alone with two prison officers. On arrival, they handed him over to two guards who took him to the hearing. After the hearing, he was handed back to the prison officers and driven to the prison. There he was freed of the cuffs and – following a general order issued by the prison governor – once more strip-searched.

The applicant applied for a court ruling against the search that was carried out after his return.

The Regional Court rejected this motion with the challenged order. The applicant lodged an appeal against this. With the challenged order, the Higher Regional Court (Oberlandesgericht) rejected the appeal as inadmissible, stating that it was not required to review the challenged order, since it would not help to refine the law or to ensure uniform case-law.

The applicant lodged a constitutional complaint against the orders of the Regional Court and the Higher Regional Court.

II.
The constitutional complaint is well-founded. The decisions challenged by the applicant violate his fundamental rights. They were therefore reversed; the case was remitted to the Regional Court.

The Regional Court’s interpretation and application of § 64 of the Code violates the applicant’s general right of personality under Article 2.1 in conjunction with Article 1.1 of the Basic Law.

The interpretation and application of ordinary law is, in principle, a matter for the regular courts. They are, however, subject to constitutional review as to whether they decided arbitrarily or fundamentally disregard the significance of a fundamental right. Even the fundamental rights of prisoners may only be restricted by or pursuant to a law, and only in accordance with the principle of proportionality.

Strip searches constitute a severe interference with the general right of personality. This applies especially to cavity searches, which involve an inspection of bodily orifices that are normally covered. Because of the particular weight of acts of interference that affect the prisoner’s intimate sphere and sense of shame, the prisoner is entitled to special consideration.

This assessment also forms the basis of the European Court of Human Rights’ case-law, which is to be taken into account when interpreting the fundamental rights of the Basic Law. Strip searches and cavity searches may thus be justified by the requirements of security and order in the prison. They must, however, be carried out gently, inter alia out of the potential sight of other prisoners or unnecessarily present staff, and may not be carried out routinely and regardless of individual reasons for suspicion (see in detail ECHR, judgment of 4 February 2003, Van der Ven v. The Netherlands, application no. 50901/99, para. 62; judgment of 4 February 2003, Lorsé and others v. The Netherlands, application no. 52750/99, para. 74; judgment of 12 June 2007, Frérot v. France, application no. 70204/01, paras. 41 and 47; judgment of 27 November 2012, Savics v. Latvia, application no. 17892/03, paras. 133 and 142 et seq.).

A prisoner cannot demand unlimited staffing and other resources to be used in order to avoid restrictions to his or her fundamental freedoms. Administrative procedures may be simpler where it is not necessary to exercise consideration in order to avoid interferences with the prisoners’ rights. This fact, however, is no permissible justification for forgoing such consideration when ordering searches that affect the prisoner’s intimate sphere and sense of shame.

According to these standards, the challenged order of the Regional Court does not stand up to constitutional review. The abstract risk of prohibited objects being brought on the premises suffices for the situations mentioned in a general provision like § 64.3 of the Code, as long as exceptions can be made in individual cases, if warranted by proportionality considerations. It would be impossible to effectively prevent items from being smuggled if such a constellation always required specific positive suspicions.

The Regional Court failed to examine the decision of the prison authority as to the exercise of discretion. In order to avoid a disproportionate interference, such discretion must be exercised in accordance with the constitutional standards and the provision of ordinary law that is aligned with it if it is apparent to the respective prison officers, or could be apparent without much effort, that under the current specific circumstances, the danger of articles being smuggled in is very small. The Regional Court, however, broadly denied the need for the exercise of discretion on a case-by-case basis.

One cannot argue that this failure is irrelevant for the court’s decision because it was foreseeable that the outcome of the review could only have been unfavourable for the applicant. The risk of smuggling prohibited articles is rather small when a prisoner was continuously cuffed while taken outside or before a court, had been under uninterrupted supervision by prison officers, and only had contact with them and a judge. Thus, such an assessment would have required additional reasons.

Nor is it self-evident that it was impossible to take account of such special circumstances for practicability reasons. Taking them into account does require a certain effort to ensure the necessary communication and its reliability. The officers responsible for the decision on whether to search returning prisoners need to be informed in good time and in a reliable manner, and not only by the prisoner in question. However, in view of the seriousness of the interference, it cannot be argued that this would evidently conflict with an obligation to take them into account.

The challenged ruling of the Higher Regional Court violates the applicant’s fundamental right under Article 19.4 of the Basic Law. This right guarantees effective judicial protection that is as comprehensive as possible against acts by public authorities. The appeal courts may not render an appeal ineffective for the applicant via the manner in which they implement and apply the statutory prerequisites for access to a decision on the merits.
According to this standard, the order of the Higher Regional Court is incompatible with Article 19.4 of the Basic Law. The Prison Act permits the court’s Criminal Panel (Strafsenat) to refrain from providing reasons for the ruling on the appeal if it considers the complaint to be inadmissible or manifestly unfounded. The Criminal Panel availed itself of this possibility. There are therefore no reasons given for the decision that the Federal Constitutional Court could subject to a constitutional review, beyond the findings that are contained in the operative provisions of the order: that the requirements for the admissibility of an appeal – the control being necessary to refine the law or to ensure uniform case-law – were not satisfied. This, however, does not mean that the order itself could not be subject to constitutional review or that the standards applying to such a review were to be relaxed. Rather, the ruling is already to be reversed in such a case if there are serious doubts as to its compatibility with the applicant’s fundamental rights. This is the case here, since the content of the Regional Court’s order manifestly deviated from the case-law of the Federal Constitutional Court and from the case-law of the European Court of Human Rights, which is to be taken into account when interpreting the fundamental rights.

Languages available

Additional Information

ECLI:DE:BVerfG:2013:rk20130710.2bvr281511

Please note that only the German version is authoritative. Translations are generally abriged.