HINDERBERGER v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Andreas Hinderberger, is a German national who was born in 1977 and lives in Berlin. He was represented before the Court by A. Feller, a lawyer practising in Hannover. The applicant was serving a prison sentence in Amberg Prison. On 3 July 2002 he was transferred to another prison in Bielefeld for the purpose of arranging a visit (Besuchszusammenführung). From 10 to 12 July 2002 he was detained as a transit detainee (Durchgangsgefangener) in Hannover Prison for a period of 23 hours. During this transit detention he shared a prison cell measuring 16 square metres with four other prisoners. The cell was equipped with five beds, five chairs, two tables and two wardrobes. An in-cell sink and toilet were screened from view but not otherwise separated. The prisoners were allowed to leave the cell for one hour per day for exercise (Hofgang). The cell was locked during the night. At a request lodged by the applicant on 11 July 2002 the Hannover Regional Court (Landgericht) found in a decision of 16 September 2002 that the conditions of the applicant’s transit detention in Hannover Prison had been unlawful since five prisoners sharing a cell of 16 square metres that was locked at night and equipped with a toilet only visually separated was in breach of the requirement for the humane accommodation of prisoners. The applicant subsequently instituted official liability proceedings against the Land of Lower Saxony (Land Niedersachsen) before the Hannover Regional Court and requested adequate financial compensation for non-pecuniary damage of at least 200 euros. By a judgment of 15 July 2003 the Hannover Regional Court confirmed that the applicant’s conditions of detention had been in breach of the requirement for the humane treatment of prisoners. It held that a prison cell designed for accommodating several prisoners had to be equipped with a separate plumbing unit with its own ventilation system, failing which prisoners had to have access to washing facilities or toilets outside the cell, day and night. Sanitary facilities in a prison cell that were only visually separated infringed the prisoners’ right to humane treatment. The Regional Court further found that in the instant case the relevant authorities were responsible for a breach of their official duties under Articles 839 and 847 of the Civil Code (Bürgerliches Gesetzbuch), as well as Article 34 of the Basic Law in conjunction with the pertaining provisions of the Penal Code (Strafvollzugsgesetz). They should have recognised that the conditions of detention did not comply with the requirements for humane accommodation. While noting the difficulties the Land was facing at that time in respect of the large number of detainees and the limited space for their accommodation, the court found that these did not justify the restriction of the prisoners’ rights as had previously been established by the case-law of the Federal Constitutional Court (Bundesverfassungsgericht). The Regional Court further held that the violation of the applicant’s right to human dignity in itself constituted a serious interference with his personal rights (Persönlichkeitsrecht) that could not be remedied other than by financial compensation for non-pecuniary damage and awarded the applicant the compensation he had requested. Following an appeal lodged by the Land of Lower Saxony, the Celle Court of Appeal quashed, by a judgment of 2 December 2003, the judgment of the Hannover Regional Court and dismissed the applicant’s claim for financial compensation for non-pecuniary damage. The Court of Appeal confirmed that the applicant’’ case-law on Article 847 of the Civil Code in the version applicable at the time and which also applied to the case at hand, it stated that financial compensation for non-pecuniary damage could be refused in the event of minor bodily harm that was not significantly detrimental and did not cause permanent damage to the victim. In view of the short duration of the applicant’s transit detention and the fact that there was nothing to establish that he had endured significant or long-term physical or mental suffering, the interference with the applicant’s rights had not reached a severity that required the award of financial compensation for the purpose of preventing similar violations or granting just satisfaction. Since the Regional Court had found a violation of the applicant’s right under Article 1 § 1 of the Basic Law, there was no danger of similar infringements of his rights occurring in the future. Furthermore, it had to be taken into account that the prison’s transit detention division had been chronically overcrowded during the respective period and a short-term improvement of the situation had not been envisaged owing to financial restrictions. In order to respect the applicant’s rights under the specific circumstances, the prison authorities would have had to interfere with the rights of other prisoners or would have had to reject his transfer to another prison. This had been organised in his own interest, namely for the purpose of arranging a visit. While these considerations could not justify the breach of the applicant’s rights, they nevertheless indicated that the degree of the authorities’ fault and the motives for their actions could not be considered to have been of a serious nature. On 4 November 2004 the Federal Court of Justice dismissed the applicant’s appeal. It upheld the Court of Appeal’s finding that under the particular circumstances of the instant case, pecuniary compensation had not been necessary for granting the applicant adequate legal redress. It pointed out that there was no automatic link between the finding of a violation of Article 1 § 1 of the Basic Law and the granting of financial compensation. In accordance with the established case-law of the Federal Constitutional Court a prisoner had the right to have the lawfulness of his detention conditions reviewed by the courts irrespective of their duration. The finding of a violation by the domestic courts did not, however, require financial compensation in each case. Depending on the severity and scope of the violation of the right to human dignity in the individual case as well as on the motives and the degree of fault of the acting authorities, sufficient redress could be provided by other means than financial compensation for non-pecuniary damage. Referring to the Court’s case-law, the Federal Court of Justice pointed out that within the scope of the Convention it was also recognised that for inhuman or degrading treatment to trigger a right to financial compensation under Articles 3 and 41 of the Convention, it had to reach a minimum level of severity. The assessment of this minimum level was dependent on the circumstances of the individual case such as the duration of the treatment, its physical or psychological effects or the sex, age or state of health of the victim. Furthermore, it had also been established in the Court’s case-law that a judgment finding a violation might in itself constitute sufficient just satisfaction for non-pecuniary damage suffered by a victim. By written submissions dated 24 December 2004 the applicant lodged a constitutional complaint against the decisions of the Court of Appeal and the Federal Court of Justice arguing, in particular, that without appropriate financial compensation he was being deprived of sufficient redress and satisfaction for the violation of his rights guaranteed by Article 1 § 1 of the Basic Law and Articles 3 and 5 of the Convention. The protection of human dignity was absolute and could not be subject to a weighting of other interests or legal values. The mere finding of a violation did not have a deterrent effect on the Land and was not an incentive to change the detention conditions in its prisons or prevent a recurrence of similar violations. An infringement of the right to human dignity constituted a serious violation irrespective of the gravity of the interference and thus always required financial compensation. By a decision of 27 December 2005 (file No. 1 BvR 1359/05) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint and dismissed his request for legal aid. The Federal Constitutional Court found that even departing from the Court of Appeal’s finding that the conditions of the applicant’s detention had violated his right to human dignity, the Federal Court of Justice’s finding that there was no automatic link between the finding of a violation of Article 1 § 1 of the Basic Law and the granting of financial compensation under Article 839 of the Civil Code taken in conjunction with Article 34 of the Basic Law did not give rise to any concerns under constitutional law. Article 34 did not require the granting of a particular kind of compensation but only regulated the relevant authorities’’s conclusion – as upheld by the Federal Court of Justice – that the applicant had been granted sufficient redress by the Regional Court’s finding that the conditions of his detention had constituted a violation of Article 1 § 1 of the Basic Law did thus not raise any concern from a constitutional law perspective. While it was true that, under Article 1 § 1 of the Basic Law, a violation of human dignity could not be justified by weighing it against other constitutional concerns, this did not concern the possibility of taking into account the severity of the violation in the determination of the kind and amount of compensation to be awarded to the victim. Article 1 § 1 of the Basic Law stipulates that human dignity shall be inviolable and that to respect and protect it shall be the duty of all state authorities. Under Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, an individual has the right to be compensated by the State for any damage arising from a breach of official duty committed by a public servant. Under Section 847 § 1 of the Civil Code (in its version in force until 31 July 2002 and applicable to damage caused before that date) adequate financial compensation for non-pecuniary damage can only be claimed in the case of injury to the body or health, or in the case of deprivation of liberty.