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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 8 November 2017, 2 BvR 2221/16 [CODICES]
When referring to the original decision, please follow the suggested form of citation for decisions of the Court.

Second Chamber of the Second Senate

Order of 8 November 2017
2 BvR 2221/16

Headnotes (non-official):

1. Disregarding the economic interests of prisoners is incompatible with the obligation under constitutional law to reintegrate them into society. Accordingly, the prison’s obligation to provide for the welfare of prisoners requires protecting their financial interests.

2. Telecommunications services do not have to be offered free of charge. However, this does not justify charging prisoners significantly more for these services than is usual outside prions, if it is not necessary due to requirements or conditions of the penal system making them more expensive.

3. If the prison has, in the context of statutory obligations, a private company provide services on which the prisoners depend without any alternatives that can be freely chosen within the framework of market conditions, it will have to ensure that the private service provider charges fair market prices.

4. In that respect, the contractual obligation of the prison to the provider is not decisive. A long contract period with the provider – even if it is common in the context of prisons – must not lead to the result that market developments of prices do not have, in the longer term, any impact on the prices the prisoners have to pay.

5. In the present case, the Higher Regional Court should not have explicitly left open the question whether the telephone rates were reasonable; the claim to adjust the telephone charges should not have been denied based on the contractual obligation with the telecommunications provider.


I. The prison in which the applicant has been serving his sentence offers a telephone service to the prisoners. The telephone system is operated by a private telecommunications provider (hereinafter: provider) on the basis of a contract. The contract period is fifteen years and the contract was signed in 2005. The prisoners do not have any other alternative to this telephone service.
In June 2015, the provider changed the rates and conditions. In particular, the provider did not continue to offer the so-called “Flexoption” that provided the possibility to pay certain monthly amounts and reduce the costs per telephone unit by up to 50%. In July 2015, the applicant filed an application to the prison and requested that the telephone rates be adjusted to those outside of prison and that the prison protect his financial interests. The prison rejected his application. Recourse to the regular courts was also unsuccessful; the Higher Regional Court rejected his protest on points of law as unfounded. In particular, the court explicitly left unanswered the question whether the providers’ rates were unreasonably expensive because the prison was, as the court held, bound by the contract with the provider and thus unable to lower the telephone rates.

II. The Federal Constitutional Court decided that the decision of the Higher Regional Court violated the applicant’s fundamental right under Article 2.1 in conjunction with 1.1 of the Basic Law. The requirements to protect the financial interests of prisoners resulting from the aim of reintegrating them into society were not sufficiently accounted for.
It has been established in the context of the case-law of regular courts that it is part of the prisons’ responsibilities towards the prisoners to protect their economic interests. This also corresponds to the principle that disregarding prisoners’ economic interests is incompatible with constitutional requirements.
As the Higher Regional Court left the question of reasonable telephone rates unanswered, it disregarded the prisoner’s financial interests and thus violated his fundamental right to reintegration into society. In doing so, the court did not recognise that the contractual obligation to the provider does not constitute a sufficient justification for denying the adjustment of the telephone rates. Abiding by the contract that has been negotiated by the Land Ministry of Justice and knowingly signed for a period of fifteen years and that will not be terminated earlier does not prevent the prison from charging reasonable telephone rates or from offering alternatives to the current telephone system. The challenged court decision was based on the violation of fundamental rights. It cannot be ruled out that the Higher Regional Court reaches a different decision when taking into consideration the constitutional requirements under Article 2.1 in conjunction with Article 1.1 of the Basic Law.

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