Summary:

I.
The complainant was detained together with three other prisoners for a period of about six months. He alleges that he was detained in two quasi-identical cells, each having a total size of 16 m² and a toilet that was structurally separate from the rest of the cell. Arguing that the conditions of detention were in violation of human dignity, the complainant applied for legal aid to bring a public liability action against the Free State of Bavaria. The Regional Court (Landgericht) denied the application, holding that the complainant had not been detained under conditions that violated human dignity. The Higher Regional Court (Oberlandesgericht) rejected the immediate complaint (sofortige Beschwerde) challenging that decision. The constitutional complaint was directed against these decisions.

II.

The Federal Constitutional Court decided that the challenged decisions violated the complainant’s right to equal legal protection (Rechtsschutzgleichheit) under Article 3.1 of the Basic Law in conjunction with Article 20.3 of the Basic Law (Grundgesetz). It reversed the decision and remanded the matter to the Regional Court for a new decision.

The decision is based on the following considerations:

1. The guarantee of equal legal protection requires that individuals with the requisite financial means and those without them be put on a broadly equal footing for obtaining legal protection. It is not objectionable under constitutional law to base the granting of legal aid on whether the action a party intends to bring, or its defence against an action that has been brought against it, has sufficient prospects of success and does not seem frivolous. However, unresolved points of law and fact must not be decided in proceedings relating to legal aid. Rather, individuals who lack the requisite financial means must be put into an equal position in terms of having such questions resolved in principal proceedings. Different rules apply only if, in consideration of a statutory provision or in view of guidelines for interpretation provided by existing case-law, the point of law can be easily clarified. If this is not the case, and if the matter has not yet been resolved by the supreme federal courts, denying legal aid to a party lacking the requisite financial means is incompatible with the constitutional requirement to ensure equal legal protection if such denial is based on the action’s lacking prospects of success. Otherwise, unlike a party with the requisite financial means, a party lacking them would be deprived of the opportunity to present its legal view in principal proceedings.

2. Measured against these standards, the orders denying legal aid do not stand up to constitutional review. The question of whether the detention of prisoners is compatible with human dignity depends on an overall assessment of the actual circumstances determining the conditions of detention. The parameters to be taken into account for assessing the detention of a group of prisoners in close quarters have not been sufficiently determined in case-law yet. Specifically, the following aspects are relevant:

a) When performing an overall assessment, the primary factors to be considered with respect to the amount of space are the surface area per prisoner and the situation concerning sanitary facilities. In particular, the question whether and under what conditions a surface area of less than 6 m² per prisoner, as is the case here, is able to satisfy the requirements following from the guarantee of human dignity has not been resolved yet in case-law and has been assessed differently by different courts.

b) Also unresolved is the question of how the requirements under Article 1.1 of the Basic Law relate to those under Article 3 of the European Convention on Human Rights (ECHR). With regard to the prohibition of torture and of inhuman or degrading treatment or punishment pursuant to Article 3 ECHR, the European Court of Human Rights considers the guideline to be 4 m² of surface area per prisoner; if a prisoner has less than 3 m² of surface area, this is a strong indication of degrading conditions of imprisonment. The Federal Court of Justice has emphasised that the Basic Law imposes higher requirements. Hence, the question of law to be decided here also has not yet been resolved by the regular courts with regard to the relation between the Basic Law and the ECHR.

c) Finally, the question raised by the complainant concerning the assessment of the conditions of detention in the case of group confinement in close quarters has remained largely unresolved in the case-law of the regular courts. It is yet to be determined how the space requirements are affected by stress and conflict situations that arise in the case of higher occupancy in close quarters, and by the requirements following from indispensable privacy. It is also unclear what – compensatory or aggravating – weight other factors have in the assessment, e.g. the daily amount of time spent locked up in cells.

3. By denying from the very outset that the intended public liability action had any prospects of success and by denying legal aid without regard to these unresolved points of law, the Regional Court and the Higher Regional Court violated the complainant’s right to equal legal protection. The proceedings relating to legal aid are not the permissible forum for addressing the points of law that are decisive for assessing the complainant’s intended action. Rather, such questions must be decided in the principal proceedings; this also enables the complainant to submit them, if necessary, to the Federal Court of Justice for clarification.