Statutory provisions on the remuneration of prisoner labour in Bavaria and North-Rhine Westphalia are unconstitutional

Press Release No. 56/2023 of 20 June 2023

Judgment of 20 June 2023 - 2 BvR 166/16, 2 BvR 1683/17

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court held that Art. 46(2) second sentence, (3) and (6) first sentence of the Bavarian Prison Act (Bayerisches Strafvollzugsgesetz – BayStVollG) and § 32(1) second sentence, § 34(1) of the Prison Act of North-Rhine Westphalia (Strafvollzugsgesetz Nordrhein-Westfalen – StVollG NRW) are incompatible with the requirement to seek the social reintegration of offenders (Resozialisierungsgebot) arising out of Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG). These Land law provisions fix the rate of remuneration that prisoners receive for their labour while in detention.

 The concepts for implementing the constitutional requirement of offender reintegration in both the Bavarian Prison Act and the Prison Act of North-Rhine Westphalia are neither internally coherent nor consistent. It cannot be comprehensibly inferred from either of the two legislative concepts what significance should be attached to labour as a reintegration measure (relative to other reintegration measures), what goals this reintegration measure is supposed to achieve or what purpose the intended amount of remuneration is supposed to serve. Furthermore, certain essential aspects are missing in the statutory framework. Both Bavaria and North-Rhine Westphalia lack statutory provisions on prisoners’ financial contributions for health care; Bavaria also lacks provisions on the content of sentence plans for prisoners. Moreover, there is no ongoing, scientifically-monitored evaluation in either federal state of how prisoner labour and its remuneration affect the social reintegration of offenders.

 The provisions shall continue to apply until new legislation is enacted or until 30 June 2025 at the latest.

Facts of the case:

Prisoners in Bavaria and North-Rhine Westphalia receive wages for their labour in detention. Pursuant to Art. 46(2) second sentence of the Bavarian Prison Act and § 32(1) second sentence of the Prison Act of North-Rhine Westphalia, these wages are based on a so-called ‘base remuneration’ in the amount of 9% of the average income of all payees into the German Federal Pension scheme in the calendar year before last, which is used as a reference point. The daily rate is 1/250th of the base remuneration. In both federal states, wages can be set at varying levels based on the type of labour and the work performance of the prisoner. Wages may only drop below 75% of the base remuneration if the work performance of the prisoner fails to satisfy certain minimum requirements (Art. 46(3) Bavarian Prison Act). In addition, there is also a non-monetary component of compensation. In Bavaria, if a prisoner has been working for two consecutive months, they are entitled to a day off work upon request (Art. 46(6) first sentence Bavarian Prison Act). In North-Rhine Westphalia, prisoners can request either two days off work or two days of home leave after having worked for three consecutive months (§ 34(1) Prison Act of North-Rhine Westphalia). If no request is made or the days off work or the home leave cannot be granted, then the days are credited towards an earlier release date.

 Complainant no. 1 is serving a life sentence in the Straubing Correctional Facility in Bavaria. Complainant no. 2 was in detention at the Werl Correctional Facility in North-Rhine Westphalia. Complainant no. 1 worked in printing operations at the facility; complainant no. 2 worked at the facility in a cable recycling operation. Both complainants applied for an increase in their wages. The correctional facilities denied the respective applications. The legal remedies initiated by the complainants in the ordinary courts against these respective decisions were unsuccessful.

 In their constitutional complaints, the complainants directly challenge the decisions of the ordinary courts and indirectly challenge the respective Land law provisions relating to prisoner remuneration. They contend that the insufficient remuneration constitutes a violation of the requirement to seek the social reintegration of offenders.

 Key considerations of the Senate:

 The constitutional complaints are admissible and well-founded.

 I. The indirectly challenged provisions in Art. 46(2) second sentence, (3) and (6) first sentence of the Bavarian Prison Act and § 32(1) second sentence, § 34(1) of the Prison Act of North-Rhine Westphalia are incompatible with the requirement to seek social reintegration arising out of Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.

 1. a) The Constitution requires criminal detention to pursue the goal of social reintegration of offenders. Individual prisoners have a fundamental right to insist that this goal is adequately met by those correctional measures that burden them. In the case of prison sentences, during which state authority largely controls the living conditions of the individual, this constitutional requirement has particular importance. Prisoners should be imparted with the ability and the will to lead responsible lives. They should learn how to assert themselves in a free society without breaking the law, how to make use of its opportunities and how to manage its risks.

 b) The constitutional requirement to seek the social reintegration of offenders is binding on all public authority. It is first and foremost the task of the legislator to establish the normative design of criminal detention and to ensure that it pursues the goal of social reintegration. The constitutional requirement to seek the social reintegration of offenders obligates the legislator to develop an effective and internally coherent social reintegration concept that is based on current scientific knowledge, and to implement this concept with sufficiently specific statutory provisions. In addition, the legislator must ensure that the personnel and financial resources that are recognised as necessary for the provision of successful detention conditions and measures are always made available. The state must provide the necessary means to realise the goal of detention, i.e. the reintegration of the prisoner into society.

 The development of a social reintegration concept that conforms to the constitutional requirement of offender reintegration is essential to give effect to the fundamental right of prisoners to social reintegration. It is also of great importance to the state and society. It follows that the legislator’s overall concept for achieving the constitutionally mandated goal of social reintegration must be recognisable from the statutory framework itself. The importance attached to labour as a reintegration measure and to its (overall) remuneration in the context of the overall legislative concept must be coherently set out in the law. In particular, the respective weight accorded to the monetary and non-monetary components of remuneration within the overall concept must be recognisable. This also applies to the statutorily defined system for calculating the monetary component of the remuneration and, where necessary, for categorising the work and the occupational therapy programmes into different grades of difficulty with different levels of remuneration. The legislator must also identify in the statute the objectives that are to be achieved by the (overall) remuneration, particularly its monetary component, in the context of its social reintegration concept, and must ensure that these objectives do not contradict one another. The weight and importance of the options and the scope of the non-monetary components must also be statutorily determined.

 c) In developing a statutory framework, the legislator is not bound to a specific concept. On the contrary, it is afforded broad leeway in satisfying its obligation to develop an effective social reintegration concept. The statutory requirements for the design of detention must be based on meticulously investigated hypotheses and prognoses on the effectiveness of varying models of detention and reintegration measures. The legislator is obligated to make use of all available sources of information, including practical experience in the area of detention, and to follow the current scientific knowledge. It must regularly review the effectiveness of established and traditional models of detention and reintegration measures in view of the evolving conditions in everyday life and in detention.

 d) If the legislator intends to include labour as a measure to achieve its statutory reintegration concept, then it must also ensure that the significance accorded to labour as a component within the overall reintegration concept can be clearly discerned from the statutory provisions. In this respect, it is particularly important for the statutory provisions to set out the relationship between (mandatory) labour and other reintegration measures, such as academic or vocational education, occupational therapy, therapeutic measures or other forms of assistance.

 e) The question of what constitutional requirements exist as to the rate of remuneration for prisoner labour can only be answered in conjunction with its status within the social reintegration concept developed by the legislator. For this reason, it must be possible to identify from the reintegration concept what objectives the legislator has intended remuneration of prisoner labour to serve.

 aa) It follows from the constitutional requirement to seek the social reintegration of offenders that prisoner labour can only be an effective means to promote reintegration when the labour provided is accorded reasonable recognition.

bb) Prisoner labour can serve, first and foremost, as preparation for employment in society when it is compensated through wages. However, the benefits awarded for labour in the statutorily determined reintegration concept can be expressed in different ways. For example, the legislator can ensure that reasonable recognition is accorded to labour by providing for work programmes that allow prisoners to shorten their time in detention or that offer other forms of sentence amelioration.

 cc) However, even when the recognition of prisoner labour includes non-monetary forms of supplementary remuneration, these non-monetary components must be equivalent to the labour provided and this equivalence must be readily perceptible to prisoners. Otherwise there is a risk that prisoners could find themselves faced with a system that eliminates any connection between mandatory labour and a reasonable (and justified) wage and thereby reduces them to mere objects of state authority. The manner of recognition must always be suitable to demonstrate to a prisoner, in the form of a tangible benefit, the value of routine labour for a responsible and law-abiding future.

 dd) It is up to the legislator to chose whether this goal is best met by a net wage, in which prisoners are paid a fixed lower net amount, or a gross amount.

 f) Because the reasonableness of remuneration for prisoner labour also depends upon the objectives that wages are intended to serve in the context of the reintegration concept, the legislator must set out these objectives in the statutory framework. In doing so, the legislator may provide for a certain portion of wages to be withheld for specific purposes, or to have the prisoner pay a reasonable amount of the expenses of detention.

g) When the legislator has set out a reintegration concept and decided which objectives that prisoner labour and its remuneration should serve, then the design and amount of the remuneration – particularly the monetary component – must be structured in a way that allows the objectives set out in the statutory provisions to actually be achieved under existing conditions, and that this is not unrealistic given the low wages for prisoner labour. The reasonableness of the remuneration is to be assessed in view of the objectives pursued by the reintegration concept.

 A statutory concept of reintegration through (among other things) prisoner labour that is compensated exclusively or primarily in monetary terms can only comply with the constitutional requirement of seeking social reintegration if the amount of wages payable to prisoners is capable of making them aware, at least to a minimal degree, that in order to establish one’s livelihood, gainful employment makes sense. The starting point for this is the value of gainful employment in society. In determining what amount is reasonable, the legislator can and must use a number of objective and subjective criteria.

 aa) In this way, the objective of a specific occupational activity
– whether as a therapeutic measure, as gainful employment (particularly in prison workshops supplying external customers or providing contract services to private companies), or as necessary housework carried out by the prisoners themselves at the correctional facility – can be taken into account when setting the wage level, just as the qualification level needed for each specific type of labour can be. The legislator can also use the amount of remuneration to provide incentives for eligible prisoners to avail themselves of therapeutic measures or to complete academic or occupational training.

 bb) In order to maintain security and orderliness in the prison system, it is a legitimate goal to avoid excessive differences in prisoner wages that could have negative effects on the conditions in detention, such as the creation of subcultures, dependencies or bartering amongst prisoners.

 cc) The pay for comparable jobs in the open labour market can likewise be considered and taken into account, as can the typical conditions in prison, in particular, the generally lower level of productivity.

 dd) The rates that external companies pay for prisoner labour, the competition presented by other means of production, such as overseas production, and the overall state of the employment market can also be taken into account. Further, the legislator may also include non-monetary components, such as days off work, as part of the constitutionally required recognition of labour, taking into account the type and amount of such non-monetary benefits.

 ee) If the legislator has provided for a system in which remuneration for prisoner labour is primarily or exclusively monetary, it is not prohibited from offsetting certain costs of detention against the wages paid. However, in the typical case of detention, the requirement of seeking social reintegration calls for a balance between the state interest of recouping costs and the economic interests and financial ability of the prisoner. This requires a statutory determination of detention costs that are assessed in such a way so that prisoners will always keep a reasonable portion of their remuneration, i.e. one that conveys a tangible benefit to the prisoner in comparison to those prisoners who do not work.

 ff) A (partial) remittance of the cost of the criminal proceedings can likewise be taken into account in determining remuneration.

 gg) When the reintegration concept includes the objective of facilitating the payment of maintenance and compensation of damages, then these payments must also be taken into account when setting the remuneration level. The same applies for the repayment of debts, even if such repayment is only in minimal amounts.

 hh) The perception of the overall remuneration of prisoner labour and, in particular, the assessment of the monetary component by the prisoners themselves, cannot be disregarded. The legislator must strive for a statutory framework that prevents the (low) wages from being seen as a punitive aspect of the sentence.

 h) As the legislator has considerable latitude in the codification of a reintegration concept, the Federal Constitutional Court engages only in a review of reasonableness when conducting a constitutional review.

 2. The reintegration concepts set out in the Land law of the Free State of Bavaria and North-Rhine Westphalia do not satisfy these standards. They conflict with the requirement to seek the social reintegration of offenders and violate the complainants’ right to social reintegration.

 a) Bavaria

 aa) The Free State of Bavaria lacks a social reintegration concept that is internally coherent and satisfies the constitutional requirements.

Art. 2 through 6 of the Bavarian Prison Act set out an array of reintegration measures that, despite being listed together, do not recognisably fit together with one another. Labour, occupational therapy and education constitute important, if not the most important, reintegration measures. The provisions relating to the obligation to work (Art. 43 Bavarian Prison Act) and the type and amount of remuneration (Art. 46 Bavarian Prison Act) appear to have essentially been adopted from the previously applicable federal law provisions without any reappraisal, review or adjustment. Certain statutorily determined objectives that are used in determining the amount of wages have been added. Art. 78(2) second sentence of the Bavarian Prison Act provides that prisoners shall be required to make amends for the damages caused by their offences. According to the legislative reasoning, the introduction of Art. 5a of the Bavarian Prison Act in June 2018 was intended to place greater emphasis on victim protection while essentially retaining the previous provision of Art. 78(2) of the Bavarian Prison Act. In addition, prisoners are to be supported in their efforts to fulfil their rights and duties and to take care of their financial dependants.

Given the low rate of monetary remuneration, it appears contradictory and unrealistic to hold prisoners responsible for the increased emphasis on victim protection in the context of the reintegration concept while at the same time making them responsible for compensating the damage caused by their offences. Further still, prisoners are also supposed to take care of their financial dependants. The statutory provisions also provide that prisoners must or may be required to contribute to the costs of the use of electronic devices, health care and drug tests. In this respect, it is not obvious how prisoners are supposed to fulfil these obligations without being provided higher wages for their labour.

 bb) The Bavarian legislator has failed to set out certain essential aspects regarding the manner in which the fundamental rights of prisoners to social reintegration are to be given effect.

 There are no provisions in the Bavarian Prison Act concerning the content of sentence plans for individual prisoners. The guidelines as to what should be included in these plans are contained only in administrative provisions. As the information in the sentence plans concern aspects of the detention that are important for social reintegration, the Land legislator may not leave it to administrators to determine the applicable requirements. The same applies to the procedure for creating and updating the sentence plans.

The details regarding prisoners’ contributions to their health care costs as envisaged under Art. 63 of the Bavarian Prison Act are also only set out in administrative provisions. These provisions, which flesh out the Land legislator’s social reintegration concept and are also of considerable significance for the monetary remuneration of prisoner labour and its use, and which are therefore relevant to fundamental rights, must instead be enacted by the legislator in the context of legislative hearings that must allow the public and experts the opportunity to familiarise themselves with the issues and have their views represented.

 cc) In the course of enacting the Bavarian Prison Act, there does not appear to have been any evaluation or scientific monitoring with regard to the effects of labour and education as measures for social reintegration or regarding the remuneration of labour. The statements at the oral hearing confirmed the continuing lack of any ongoing, scientifically-monitored evaluation.

 Art. 189 of the Bavarian Prison Act established a Criminology Unit that – in cooperation with research institutions – is tasked with advancing the state of knowledge on detention, reintegration programmes in particular, and with using the results of this research for practical application in the criminal justice system. However, the Criminology Unit has yet to focus on the questions relevant here. In this area at least, no research contracts appear to have been reached with researchers in the academic community.

 This does not do justice to the complexity of the matter and the need for the legislator to flesh out the requirement of offender reintegration with regard to the fundamental rights issues surrounding the importance of labour and its remuneration as a reintegration measure. If the legislator has cast a social reintegration concept into law, then the constitutional requirement of offender reintegration obliges it to keep track of the diverse factual conditions and evolving scientific knowledge and, where necessary, to improve the provisions in terms of the implementation of the concept in order to ensure its ongoing compliance with the Constitution. This requires a realistic assessment of the intended goals of social reintegration with a view to the reintegration measures that are available. This particularly applies in regard to the remuneration of prisoner labour that is to be set out by statute, both in its monetary and non-monetary components. With respect to prisoner labour and its remuneration, the constitutional requirement of offender reintegration demands, at minimum, that the factors to be included in the statutory framework be subjected to a scientifically-monitored evaluation that is independent and, if necessary, runs parallel to the research into and assessment of the actual effectiveness of these measures.

 b) North-Rhine Westphalia

The concept for implementing and attaining the constitutional requirement of offender reintegration as set out in the Prison Act of North-Rhine Westphalia similarly lacks internal coherency and consistency.

 aa) The provisions governing the obligation to work under § 29(1) and (3) of the Prison Act of North-Rhine Westphalia as well as the provisions governing the type and the amount of remuneration under §§ 32 and 34 of the same act were largely taken from the previously applicable federal law provisions without any significant new aspects being added. However, one change of benefit to prisoners was made to the non-monetary component. In § 34(1) first sentence of the Prison Act of North-Rhine Westphalia, the number of days off work that can be earned was increased from one day for two consecutive months of work to two days for three consecutive months of work. This amounts to a total of two additional free days per year of work.

 Several expert third parties at the oral hearing described labour as a natural part of social reintegration while in detention – a measure defined less by the prospect of receiving a specific wage and more by the personal experiences gained as a result, such as the feeling of accomplishment at the end of a successful working day and the interaction with others. While this supports the argument that establishing a good work ethos can have a positive impact on a prisoner’s personal development, on their time in detention, and on their prospects after release, these benefits are not directly related to the prisoner’s specific work performance and cannot be regarded as providing recognition for the performed work in the sense of offering reasonable compensation for labour.

 At the same time, the legislation requires that prisoners be encouraged to fulfil their obligations to their financial dependants (§ 4(3) Prison Act North-Rhine Westphalia) and to compensate the damages
– both material and non-material – caused by their offences (§7(2) third sentence Prison Act North-Rhine Westphalia). According to the explanatory memorandum to the act, this includes monetary compensation.

 In light of the overall impression conveyed at the oral hearing as to the financial capabilities of prisoners, and given the amount of money that prisoners can earn in detention for their labour, the aforementioned goals of having prisoners fulfil their obligations – which are laudable in and of themselves – are contradictory and unrealistic in the manner in which they are currently formulated.

In addition, the Prison Act of North-Rhine Westphalia also provides that prisoners must or may be required to contribute to the costs of the use of electronic devices, health care and drug tests. In light of the low remuneration for prisoner labour and the increased contributions that prisoners are required to make to the costs of their detention, the explanatory memorandum to the act does not explain how the statutorily determined goals of detention can be achieved. To this extent, it is not clear how prisoners are actually supposed to meet all of these different financial obligations.

bb) The legislator in North-Rhine Westphalia has failed to set out certain essential aspects regarding the manner in which the fundamental rights of prisoners to social reintegration are to be given effect. This, however, only applies to the provisions concerning the contributions that prisoners are required to make to their health care costs.

 cc) Pursuant to § 110 of the Prison Act of North-Rhine Westphalia, the Criminology Unit in that federal state has instigated a project entitled ‘Evaluation in Detention’ (Evaluation im Strafvollzug – EVALiS) for the scientific monitoring of prisons, reintegration measures in particular. According to the explanatory memorandum to the act, the Criminology Unit is also tasked with taking account of ‘the rapid developments in detention and key related issues, including technical innovations, within a reasonable time frame’ as well as facilitating ‘the ongoing advancement of a modern prison system that conforms to statutory goals’. The Criminology Unit is required ‘to monitor, analyse and assess reintegration measures, including in terms of cost effectiveness’.

 The evaluation measures undertaken by North-Rhine Westphalia in the form of the EVALiS project and the ongoing activity of the Criminology Unit in monitoring and evaluating measures in detention, particularly in cooperation with research institutions, are in principle suitable to satisfy the constitutional obligation to adapt the chosen social reintegration concept, where necessary, to changed conditions or new scientific knowledge and to ensure that the legislative concept remains in conformity with the Constitution.

 However, no thorough scientific examination or monitoring of the effects of prisoner labour and its remuneration has yet been conducted in the context of this evaluation and monitoring. This fails to do justice to the specific obligations arising from the requirement to seek social reintegration of offenders.