Correctional institutions
putting other persons at risk but also to have the opportunity to get physical
exercise. The express request by the NPM that an inmate in an arrival cell can
use an ergometer in the entrance area was fulfilled.
In addition to the living conditions of the persons in isolation, the NPM also
examined whether sufficient prevention measures were taken to protect
employees from infection. The directives from the general directorate contained
a rule that persons with contact to those allocated to the arrival cells had to
wear PPE including an FFP2 mask. In some correctional institutions, the PPE
was limited to wearing gloves which were otherwise used in the shift operation.
Preventive measures
2.5.2.2 Obligation to wear a mask
Inmates are only allowed to join the day-to-day routine in correctional
institutions after admission or transfer once it has been clarified that they
are not infected. As not only the inmates but also a large number of persons
employed in the correctional institution have contact to the outside world,
wearing a tight mask is obligatory.
An employee who is not a law enforcement officer contacted the NPM. He has
to wear a mask even though he works alone in his office. Needless to say, he
is prepared to wear the mask when he has contact with other employees or
detainees but fails to fully understand the sense of the directive when he is
sitting alone in his office.
The Federal Ministry of Justice defended the internal instruction according to
which there is an obligation to wear masks at work at all times. The measure is
designed to protect all detainees, for whose health the State is responsible, and
all employees who have to be protected from infection under the duty of care.
The directive to wear a protective mask is not considered to be disproportionate
but is required to counter the spread of the virus.
The NPM does not question the necessity of measures that prevent carrying the
COVID-19 virus into correctional institutions. Wearing a mask is considered
sensible as a matter of principle. However, the obligation can be dropped if
contagion can be ruled out. This is the case if an employee performs their work
alone in a room. Excessive directives cause a violation of fundamental rights
pursuant to Article 8 of the ECHR. That the directive to wear a mask indirectly,
directly and disadvantageously violates the legal sphere has been clarified by
the Constitutional Court of Austria in G 271/2020, V 463-467/2020 = NLMR
20202/5, 409 et seq.
The NPM welcomed an announcement by the Federal Ministry of Justice on
3 September 2020 in connection with the obligation to wear a mask, in which
the officers are informed that regarding their appearance the claim of an
“appropriate dignified and, in the sense of Section 43 of the Austrian Civil
Appearance
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