CASE OF HELLIG v. GERMANY
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
5. The applicant was born in 1953 and lives in Frankfurt/Main. 6. The applicant was serving a prison sentence in Butzbach prison. In October 2000 the Butzbach prison authorities ordered him to move from his single cell to a cell which he would have to share with two other inmates and which did not have a screen or curtain separating the toilet from the rest of the cell. 7. By letter of 11 October 2000 the applicant, referring to a decision given by the Frankfurt Court of Appeal in 1985 in a case concerning a different prisoner, informed the head of Butzbach prison that accommodation in such a cell was generally unlawful and that he refused to move. On that same date, the applicant lodged a motion with the Gießen Regional Court, which was brought to the attention of that court only after the applicant’s transfer to the multi-occupancy cell. 8. On 12 October 2000 the prison staff ordered the applicant to vacate his single cell and announced that they would use force (unmittelbarer Zwang) if he refused to do so. Accordingly, the applicant vacated his cell and was taken to the multi-occupancy cell. At the door of that cell, however, he again refused to move into the cell. Subsequently, a scuffle ensued between the applicant and prison staff. According to the applicant’s submissions, he was kicked and beaten by the prison staff, while he had merely passively resisted being placed into the multi-occupancy cell. According to the Government, the applicant kicked the prison staff. 9. Subsequently, the applicant was forcibly taken to a security cell which had no items which could cause danger (besonders gesicherter Haftraum ohne gefährdende Gegenstände), where he was strip-searched and undressed. It is not clear from the material submitted by the parties whether the applicant remained naked for the whole period of time he spent in the security cell. 10. The security cell had a size of approximately 8.46 square metres and was equipped as follows: two doors with chain link, two cameras, one milky glass pane for daylight, one mattress with fire-proof sheet, one squat toilet, one call system, two windows above the doors, aluminium ceiling with ventilation slits, tiled floor. The temperature of the cell was controlled to ensure comfort, and the meals were served at the usual times. 11. Following his placement in the security cell, the applicant was examined by the prison physician who diagnosed minor bruising on the applicant’s front and his left shin and bruising and a small hematoma on his left thorax. On 12, 13, 16, 18 and 19 October 2000 the applicant was re-examined by the prison physician. According to the physician’s report submitted on 31 October 2000, the injuries would heal without complications; the bruising in the thorax area could, according to medical experience, cause discomfort for a longer period of time. 12. On 14 October 2000 the applicant was visited by a psychiatrist. 13. On 15 October 2000 the prison pastor visited the applicant. In his letter to the police dated 12 January 2001 the pastor made the following statement: “As the security chain was locked, which permitted to open the door only slightly, I could see that the prisoner was naked. I am not sure whether he sustained injuries which exceeded bruises and refer to the medical report. However, the prisoner was in a very agitated state of mind and talked about having been beaten by prison staff.” 14. On 16 October 2000 the head of the prison administration made the following report: “Since 12 October 2000 the prisoner is placed in the specially secured room ... Following his medical examination, it was intended to transfer him today to a multi-occupancy cell on station B I. In the presence of the prison guards B. and H. and myself the prisoner Hellig declared that he insisted on his right to be attributed a single cell as provided by the case-law of the Court of Appeal and that he would not leave the specially secured room. If this should be done by force, the prison guards would have to “beat him to death”.” 15. On 17 October 2000 the applicant was visited by the prison psychologist Dr E. who made the following report on his conversation with the applicant: “I visited Mr Hellig on 17 October 2000 in the segregation cell with the intention of finding a way out of the deadlock situation. However, Mr Hellig proved to be unable to compromise and stubbornly insisted on his request to be transferred to a single cell ... He could hardly imagine to remain in this prison after having been abused in connection with his placement in the segregation cell ... I have the impression that Mr Hellig is so obsessed that he is currently unable to compromise and to discuss a temporary solution. He feels mistreated and deprived of the single cell he previously occupied as a prison worker and station aid. Being a sportsperson and non-smoker, he could not be expected to share a cell with smokers.” 16. The applicant stayed in the security cell until 11.30 a.m. on 19 October 2000 when he consented to being placed in the prison hospital. Thereafter the applicant instituted the following two sets of proceedings. 17. On 25 October 2000 the applicant requested the Gießen Regional Court to declare that his detention in the isolation cell and the force used by the prison authorities had been unlawful. He submitted that he had been kicked and beaten by prison staff even though he had not given the prison guards any reasons to use violence against him. 18. On 8 April 2004 the Regional Court rejected the request. The Court took note of the written statements made by the prison pastor, the head of the prison administration and the prison psychologist (see §§ 14-16, above). It further pointed out that it had been beyond doubt that accommodation in a multi-occupancy cell with toilets that were not separated by screens or curtains from the rest of the cell would have been unlawful, as the Frankfurt Court of Appeal had already established in its earlier case-law. 19. According to the Regional Court the fact that the applicant was taken to the isolation cell was not due to his refusal to move into the multi-occupancy cell. It was in particular not a disciplinary measure to punish him for resisting, but he was detained in the isolation cell because his behaviour constituted a specific risk of violence and physical harm to other persons (section 88 §§ 1, 2 no. 5 of the Prison Act, see “Relevant domestic law” below), which allows for temporary detention in security cells. 20. The court based its findings on the statements of the prison personnel, who had confirmed that the applicant had begun pushing and hitting prison staff and that he had become very aggressive when he was ordered to move to the multiple occupancy cell. According to the official statements made by the prison guards, only the prisoner himself had used violence. In view of the applicant’s violent behaviour it had been necessary for the prison authorities to use force to take the applicant into the security cell in order to prevent him from causing harm to the prison guards. 21. The Regional Court further considered that “it could not be established for certain” whether there was a serious danger of self-injury or suicide during the time of his detention in the specially secured room. 22. Such detention was proportionate as it had not been possible to release the applicant from the cell before 19 October 2000. The applicant had announced that the staff members would have to kill him if they wanted to transfer him forcibly into the multi-occupancy cell. It was thus very likely that he would once again have resisted any such transfer. Therefore the specific risk of violent acts by the applicant persisted until 19 October 2000. Furthermore, the prison psychologist had stated that the applicant had not at all been ready to reach a compromise and, in particular, that he had stubbornly insisted on being transferred to a single cell. 23. On 8 April 2004 the applicant filed an appeal on points of law. He submitted in particular that, under the relevant guidelines, the duration of detention in a specially secured room should not exceed twenty-four hours. It followed that his seven-day placement had been disproportionate. 24. On 27 September 2004 the Frankfurt Court of Appeal declared the applicant’s appeal inadmissible, reasoning that no decision in the matter was required for the purpose of further developing the law or to secure the consistency of the case-law. 25. On 26 October 2004 the applicant lodged a constitutional complaint. He alleged that he had been kicked and beaten before being brought in the security cell, even though he had offered to consent to his placement in the security cell. He further submitted as follows: “In the instant case, I do not complain about the deprivation of liberty as such. However, the constitutional complaint is directed against the exceptionally severe conditions of my temporary detention (“besonders einschneidende Art und Weise meiner zeitweiligen Unterbringung”) during the execution of sentence.” 26. On 28 December 2004 the Federal Constitutional Court, relying on its Rules of Procedure, refused to admit the applicant’s constitutional complaint, without giving further reasons. 27. On 12 March 2001 the Gießen Public Prosecutor’s Office discontinued the criminal proceedings against the prison staff involved in the applicant’s transfer to the security cell. The Prosecutor’s Office noted that the applicant’s medical examination on 12. October 2000 established that he had sustained bruises. An x-ray taken some days later did not reveal any fractures or other bone injuries. It was thus established that the applicant suffered injuries on the occasion of his transfer into the security cell. It could, however, not be established whether these injuries had been caused by the prison staff, in particular by kicking or beating, or if they had been the unavoidable effect of his forced transfer to the security cell. 28. The relevant provisions of the Prison Act read as follows: Section 88 (Special Precautions) “(1) Special precaution may be ordered in respect of a prisoner where, in view of his behaviour or on account of his mental state, there is increased danger of his escaping or danger of violent attacks against persons or property or the danger of suicide or self-injury. (2) The following measures shall be permissible as special precautions: ... 5. detention in a specially secured room containing no dangerous objects, ... (5) Special precautions shall be continued only as long as is required by their purpose.” Section 92 (Supervision by Medical Officer) “(1) Where a prisoner is detained in a specially secured cell or shackled (section 88 (2) nos. 5 and 6) the medical officer shall visit him soon and, if possible, daily thereafter ... (2) The medical officer shall be consulted regularly as long as a prisoner is deprived of daily outdoor exercise.” Section 96 (Principle of Proportionality) “(1) From among several possible and suitable measures of direct coercion those shall be chosen which will presumably least affect the individual and the general public. (2) Direct coercion shall not be applied where any damage likely to be caused thereby would obviously be out of proportion to the desired result.” Section 109 (Request for a Court Ruling) “(1) A measure regulating individual matters in the field of execution of imprisonment may be contested by requesting a court ruling ...” “56. The CPT pays particular attention to prisoners held, for whatever reason (for disciplinary purposes; as a result of their ‘dangerousness’ or their ‘troublesome’ behaviour; in the interests of a criminal investigation; at their own request), under conditions akin to solitary confinement. The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary-confinement-type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible ...” From the CPT report on Finland 1998 (CPT/Inf (96)28): “102. It should be added that the unit also contained an "observation cell" in which prisoners considered to be suicidal or likely to injure themselves could be located. Surveillance was maintained via an internally mounted CCTV camera ... The delegation was informed that prisoners placed there would often be stripped of their clothes and left naked in the cell. Such a practice is completely unacceptable. The CPT recommends that the practice of placing prisoners naked in the observation cell be ended immediately; prisoners placed in this cell should be provided with tear-proof clothing and bedding ...” From the CPT report on Belgium 2009 (CPT/Inf (2010)24 (translation from the French original): “130. ... To keep a prisoner naked in a cell constitutes, according to the CPT, degrading treatment. The CPT recommends that this practice be stopped immediately. Specially adapted clothing exists which permits the prisoner to keep a minimum amount of clothing while taking into account the risk of suicide.”