Fundamentals rights section 3.5. Prohibition of torture (Art. 3 ECHR) 3.5.1. Living conditions in the Stein prison During the past year several complaints were directed to the Ombudsman Board concerning conditions in the Stein prison situated in Lower Austria in the city of Krems. Among other things, the Ombudsman Board ascertained that inmates of the Stein prison partially share a cell designed as a single cell with a second inmate. In some of these cells, the toilets are only separated from the rest of the room by a dividing wall and a curtain. In November 2008, 72 inmates had to live with at least one further person in a cell which was originally designed for one single person and in which the toilet area is only separated from the rest of the cell by a wall and a curtain. 248 inmates were held in cells in which the toilet area is separated from the rest of the cell by a wall and a curtain. 95 inmates were held in cells in which the toilet area is separated from the rest of the cell by a wall and a door. 340 inmates were held in cells equipped with an own cabin. The Federal Ministry of Justice stated that double occupancy of cells designed as single cells only occurred in one wing of the Stein prison. As the Stein prison is overcrowded and necessary renovation work is taking place at the same time, avoidance of double occupancy in cells designed as single cells is only possible once the refurbishment work is completed. Pursuant to § 40 of the Austrian penal law, criminal prisoners are to be accommodated in rooms that are simply and functionally furnished. The Ombudsman Board does not know of a decision as to how toilets in the cells of Austrian prisons must be separated. In the Federal Republic of Germany, the 5th criminal division of the Berlin Superior Court of Justice, after stating that the guarantee of human dignity within the meaning of Art 1 Para. 1 of the Bonn Constitution is not intended to cater to exaggerated sensitivities but to offer protection against extreme impositions that attack the core of personhood, decided that the German Federal Constitutional Court and the Frankfurt Higher Regional Court have both affirmed such a serious invasion of human rights if prisoners are assigned a doubly occupied single cell with an “open toilet” (without adequate visual and olfactory screening). The conditions of confinement objected to by the complainant, namely the accommodation of several prisoners in a communal cell without a separated toilet area must be considered unconstitutional even if the necessary reservations are taken into account, as the existing curtain offered neither visual nor acoustic protection, so that when a prisoner uses the toilet, all prisoners are unacceptably deprived of any possibilities of retreat, suffer an invasion of their privacy, and are injured in their human dignity. 24 32nd Report of the Austrian Ombudsman Board to the National Council and the Federal Council 2008