VISITS BY THE JOINT COMMISSION accommodated in the prison, the principle of separation of prisoners and detainees awaiting deportation inevitably and unintentionally leads to the detainee’s isolation. Response: In view of the small number of detainees awaiting deportation, it is unlikely that it will be possible to place them in a separate facility. The desired positive effects will likely not arise. prisoners in one cell with a floor space of 9.13 m2 as still meeting human rights standards only if the toilet 45 is separated off. The Federal Constitutional Court has also classified the detention of prisoners as violating human dignity if the minimum floor area is not observed and there is no separate toilet in the 46 cell. Accordingly, prisoners cannot consent to being 47 placed in such multi-occupancy cells. Even the cells occupied by three or four prisoners only have a floor area totalling 17.53 m2, including sanitary area, and thus do not meet the statutory requirements. Section 7 (2) of the Penal Code Book I requires a floor area of at least 6 m2 per prisoner, excluding the sanitary area, if a cell is occupied by three or more prisoners. In addition, the question must be raised whether, in view of the other conditions of detention, one can still speak of decent detention. This depends on the concrete 48 circumstances. Particular attention should here be given to the fact that the prisoners face the additional burden that they cannot look out of the cell, which gives them an additional sense of confinement. That is why it is also doubtful whether the prisoners concerned can effectively consent to being placed in multi-occupancy cells. In addition, some prisoners told the Joint Commission that they had not been asked for their consent to being placed in a multioccupancy cell. The Joint Commission believes this violates human dignity. Cells without a separate toilet may only be occupied by one prisoner. It recommends that the conditions of detention be improved in those cells occupied by two or more prisoners. Response: Prison occupancy on the day of the visit was the highest it had been for many years. Average occupancy in the prison had stood at 94 prisoners over the previous 12 months. The reason for this state of affairs was that there is a lack of prison accommodation close to home in the South Württemberg/South Baden area and the new prison which had been planned for a long time in that region had not yet been built. The burden on Konstanz Prison had been relieved on only few occasions after prisoners were transferred elsewhere, because prisoners generally preferred the confined space in the prison to serving their sentence in prisons further away from home, which made it more difficult for relatives to visit them. Regardless of this fact and immediately after the Joint Commission’s visit, 15 prisoners were, at their own request, moved to other prisons. 3.3 – KONSTANZ PRISON The Joint Commission visited Konstanz Prison on 1 June 2013, which was a Sunday. It inspected the specially secured room containing no dangerous objects, the remand detention and penal detention wings, and other areas in the prison. In addition, the Joint Commission spoke to prison staff, including a staff representative, and five prisoners. Konstanz Prison is responsible for the execution of prison sentences of no more than 15 months and of remand detention. It has a roll of 72; it was holding 105 inmates at the time of the visit. 3.3.1 – Positive findings During its tour of the prison the Joint Commission noted the positive and relaxed atmosphere between prisoners and prison staff. Prison staff are extremely committed to their work, even beyond their normal duties, and offer sports courses, for example. The Joint Commission welcomes the fact that the prison does not carry out Fixierung. 3.3.2 – Recommendations of the Joint Commission and response of the Ministry of Justice of Baden-Württemberg Konstanz Prison has some cells with no separate toilet which are occupied by two prisoners. The floor area in double-occupancy cells, including sanitary area, is between 8.64 and 9.05 m2. These cells therefore do not meet the requirement set down in section 7 (2) of the Penal Code Book I that each prisoner must have 4.5 m2 space, including sanitary 43 area. Further, detention in these cells violates human dignity. With regard to multi-occupancy cells Frankfurt Higher Regional Court set the standard that each prisoner should have floor area of at least 6 to 7 m2, whereby the toilet must be separate and have 44 separate ventilation in multi-occupancy cells. Karlsruhe Higher Regional Court regards placing two 45 Karlsruhe Higher Regional Court, decision of 31 January 2005, file no. 1 Ws 279/04, JURIS, margin no. 18 46 Federal Constitutional Court, file no. 1 BvR 409/09, order of 22 February 2011, JURIS, margin no. 31 47 See Arloth, StVollzG, 3rd ed., section 18, margin no. 2 48 Cf. Federal Court of Justice, judgment of 11 March 2010, file no. III ZR 124/09, JURIS, margin no. 7 43 See also Baden-Württemberg Printed Paper 14/5012, p. 172 Frankfurt Higher Regional Court, decision of 18 July 2003, file no. 3 Ws 578/03 (StVollz), JURIS, margin no. 23. Cf. also National Agency, Annual Report 2010/2011, p. 19 et seqq., available in German and English at: www.nationale-stelle.de 44 81