TOPICS 2 – VIDEO SURVEILLANCE AND PEEPHOLES During its visits the National Agency repeatedly noted detention rooms which were fitted with optical surveillance devices. In September 2013 it asked the competent federal ministries and the ministries in the Länder to provide it with information regarding the use of peepholes and video surveillance in the case of measures involving the deprivation of liberty. Surveillance is conducted either by means of peepholes or CCTV cameras, sometimes by means of a combination of the two. Many facilities use the peepholes in the doors to the detention rooms for monitoring purposes or to protect staff against surprise attacks when entering a detention room. CCTV cameras are in particular used in specially secured rooms or in observation rooms, for example in infirmaries or in remand detention. Detention rooms fitted with CCTV cameras are also time and again found in police custody, for example when they are used to hold drunk persons. The main objective of such monitoring of the detention rooms is to prevent the detained person committing suicide or selfharming. Normal detention rooms are generally not fitted with CCTV cameras, a matter which is explicitly regulated in the prison laws of many of the Länder. The provision of decent conditions of detention to persons deprived of their liberty necessitates the taking of measures to protect their privacy. The aforementioned enquiry showed that only few of the Länder have explicitly regulated the protection of privacy in prison or in police custody. An awareness that one may possibly be being observed by others at any time can be a source of major psychological stress. Numerous Länder informed the Joint Commission that when building or refurbishing facilities they decided not to fit doors with peepholes. In addition, any peepholes which were already fitted were no longer used or were covered with a screw joint which only staff can open. Where this is not the case, the majority of prisoners agree to the peepholes being covered up, unless their use is necessary in the context of general or special precautions. The Federal Court of Justice has ruled that a case-by-case assessment must be carried out before ordering that the peephole be kept clear. The possibility of unrestricted monitoring of prisoners did not result from the nature 15 of the penal system, it ruled. In addition, privacy may have been violated where surveillance by means of a camera or through a peephole means the toilet area is in full view, as is, for example, the case in specially secured rooms. According to the Bavarian State Ministry of Justice, the monitoring of the entire detention room, including the toilet area, is necessary in order to effectively protect the life and health of prisoners and, where necessary, to be able to intervene in good time. Some Länder, by contrast, believe that unrestricted video surveillance of the toilet area even in specially secured rooms is not permissible on account of its violating human dignity. That is why in prisons in Lower Saxony, for example, the images depicting the toilet areas are pixellated. However, the Joint Commission established that other Länder also pixellate certain areas to protect prisoners’ privacy, for instance in custody pending deportation in Frankfurt Prison. The Joint Commission saw that pixellation can be used to protect privacy and at the same time to show the affected person’s actions in outline. Staff are thus able to quickly recognise and prevent suicidal acts. The Council of Europe has regulated the protection of privacy in the European Prison Rules. No. 19.3 of these Rules states: “Prisoners shall have ready access to sanitary facilities that are hygienic and respect 16 privacy.” On the occasion of its visits, the CPT has repeatedly emphasised that privacy when using the toilet or 17 looking after personal hygiene must be guaranteed. This also applies to so-called “high-security cells”, which are comparable to an observation room or 18 specially secured room. Sanitary facilities must at least be partially shielded. After analysing the requested documents, the international legal situation and on the basis of its experience during its visits, the National Agency recommends that privacy must be appropriately protected in all places where measures involving the deprivation of liberty are enforced. Where video surveillance is being used, this can, for instance, be done by pixellating the sanitary area. If need be, it may be conceivable, in a carefully considered, substantiated and documented individual case, to permit unrestricted monitoring of a detention room where there is an acute danger of self-harm or suicide. 16 Council of Europe, Recommendation CM/Rec(2006)2, No. 19.3 Cf. CPT/Inf (2009) 5, margin no. 109 18 Cf. CPT/Inf (2010) 16, margin no. 17 15 17 Federal Court of Justice, decision of 8 May 1991, file no. 5 AR Vollz 39/90 27