Summary:

I.

The constitutional complaint relates to the impairment of a remand detainee by smoking on the part of fellow inmates in the cell.

The applicant, a non-smoker, was placed on remand in Stralsund Prison on 27 February 2010 in a three-person cell with two other inmates who were smokers. The two smoking inmates were transferred to another cell on 3 March 2010, and the applicant was accommodated together with a non-smoker.

The applicant filed an application dated 29 November 2010 to the Stralsund Regional Court (Landgericht) for a court ruling. He applied amongst other things for a finding that the “authorisation of the application of physical pain through substances that are harmful to health” had been unlawful. Both his fellow inmates had been heavy smokers, even smoking several times during the night. The smoke had already caused him serious headaches after the first night, and these had persisted despite his taking pain-killers. Nothing had at first been done when he had stated that the conditions in the cell were intolerable for him. He had been forced to inhale substances which were harmful to health, thus causing him physical pain. He had not consented to such joint accommodation.

The Regional Court rejected the application for a court ruling by order of 9 December 2010.

The applicant filed a complaint against this order. The Higher Regional Court (Oberlandesgericht) rejected the complaint by order of 3 March 2011.

The applicant’s constitutional complaint challenges the orders of both the Regional and the Higher Regional Court.

II.

The constitutional complaint is admissible and manifestly well-founded. The Federal Constitutional Court has rescinded the impugned orders and remitted the case to the Regional Court.

The admissibility of the constitutional complaint is not countered by the fact that the applicant has now been transferred to another prison to serve a criminal sentence. The interest to lodge a constitutional complaint is also to be presumed to continue to apply in cases of major encroachments on fundamental rights if the direct burden ensuing from the act of state which is the object of the complaint is restricted to a period of time in which the person concerned was highly unlikely to be able to bring about a ruling on the part of the Federal Constitutional Court in the regular course of business. Apart from encroachments on fundamental rights which the Basic Law has subjected to judicial reserve, also those on other fundamental rights can be considered major in the sense that is material here.

Accordingly, the applicant cannot be denied a continuing interest in bringing proceedings. Because of the typically short duration of remand detention, a remand detainee can as a rule not obtain a favourable ruling from the Federal Constitutional Court regarding measures of its enforcement whilst still on remand. Were the interest in bringing proceedings for constitutional complaints relating to such measures to cease to exist in each case when the person concerned is transferred into criminal detention, or on his or her transfer to another prison as a consequence of the latter, effective constitutional-court protection of fundamental rights would largely fail to exist in this area. In view of the weight attached to the encroachment complained of by the applicant, the interest in bringing proceedings also does not cease to apply because the encroachment on fundamental rights complained of did not reach the required severity.

The impugned order of the Regional Court violates the applicant’s fundamental right to life and physical integrity under sentence 1 of Article 2.2 of the Basic Law. At least with regard to inescapable joint accommodation in a small space, passive smoking is not only a considerable nuisance, but also has effects which are harmful to health which at least cannot be ruled out. Hence, the fact that an inmate is exposed to smoking by a fellow inmate in his or her cell without his or her permission can constitute a considerable encroachment on fundamental rights. The inmate has a right to protection against being placed at risk and suffering considerable nuisance as a result of smoking by fellow inmates and by prison staff. Accordingly, there was a considerable encroachment on the fundamental right under sentence 1 of Article 2.2 of the Basic Law as – according to his uncontradicted statement – the applicant, as a non-smoker, was accommodated for several days against his will in a cell with two fellow inmates who were heavy smokers.

According to sentence 3 of Article 2.2 of the Basic Law, the right to life and physical integrity may be interfered with only pursuant to a law. The Regional Court invoked sentence 3 of § 13.1 of the Act on the Enforcement of Remand Detention in Mecklenburg-Western Pomerania (Gesetz über den Vollzug der Untersuchungshaft in Mecklenburg-Vorpommern). According to this provision, in the case of a risk to life or health, or of need of assistance, remand detainees may be placed together during the resting periods without the consent of the remand detainee who is endangered or in need of assistance. The provision however does not provide a legal basis for the encroachment on the fundamental right to physical integrity that is to be ruled on here resulting from the joint accommodation of the applicant in a cell specifically with several fellow inmates who smoked.

The Regional Court furthermore at all events failed to appreciate the significance of the fundamental right to physical integrity when applying the provision invoked as a basis for the encroachment. This was a result of the fact of it considering the joint accommodation of the applicant with two smokers to be lawful without reviewing the proportionality of the encroachment.

The Regional Court did not even appropriately explore the very question of whether the encroachment was necessary. The necessary clarification of the facts was not carried out. The Regional Court presumed that it had not been possible to jointly accommodate the applicant with one or several non-smokers because of the occupation situation. The prison’s statement which the court cited did not however even explicitly state that the only way in which the applicant could be securely accommodated was in fact by placing him together with two fellow inmates who smoked.

The adequacy of the encroachment was also not sufficiently reviewed. It is not possible to justify arbitrary restrictions by claiming that the material situation in the prison did not permit any other course of action. Rather, the principle of proportionality, which must particularly govern the enforcement of remand detention, also makes demands on the equipment of the prisons. It is a matter for the State to take all measures within what is reasonable which are suitable and necessary in order to avoid curtailing the rights of remand detainees. It must procure, provide and deploy the material and staffing that are necessary in order to do so.