4 – PRISON SYSTEM
4.4 – PHYSICAL RESTRAINT
4.1 – MULTIPLE-OCCUPANCY CELLS
The National Agency defines physical restraint
(“Fixierung”) as the act of depriving a person of their
freedom to move by binding their arms, legs and in
some cases the centre of the body, with the result that
they are unable to change their sitting or lying
position independently. The Agency requires the
following conditions be met for the use of this
measure:
The use of physical restraints is only to be ordered as
a last resort, on the basis of clear and precisely defined
criteria, and for the shortest possible period of time.
To minimise the risk of physical harm, restraints
should be applied using a strap-based system. Persons
being physically restrained should, at the very least, be
given paper underwear and a paper shirt to wear in
order to protect their sense of modesty. A person
subject to physical restraint must also be observed
continuously and personally by a trained member of
staff who is in direct proximity to the detainee (known
as “Sitzwache”). The prisoner must also be checked on
regularly by a doctor. Written reasons must be given
for every instance of physical restraint. This includes
documentation of which less restrictive measures had
been tried in advance and why these failed.
According to the case law of the German Federal
11
Constitutional Court , prison cells accommodating
more than one person must have a completely
separate toilet with separate ventilation. Multipleoccupancy without such a separation constitutes a
violation of human dignity.
4.2 – CELL SIZE
In order for detention conditions to be humane, a
single-occupancy cell must have a floor space of at
least six square metres, excluding the sanitary area. In
cases where the sanitary area is not partitioned,
approximately one further square metre should be
added for that area, giving a total floor space of at least
seven square metres. For multiple-occupancy, a
further four square metres of floor space must be
added to this figure for each additional person,
excluding the sanitary area.
4.3 ��� STRIP-SEARCHES
According to the Federal Constitutional Court,
strip-searches involving a visual inspection of the
prisoner's genital area represent a severe interference
12
with the prisoner's general right of personality. They
must not be carried out routinely or independently of
13
case-specific suspicions.
In order for this
requirement to be fulfilled, general orders for stripsearches must leave room for exceptions wherever the
principle of proportionality so demands. Staff must be
made aware that in individual cases it may not be
necessary for the prisoner to undress fully.
If it is indeed necessary that the prisoner undress
fully, then the search should be conducted in a
respectful procedure, for example involving two stages
where half the body remains dressed in each stage.
4.5 – VISIBILITY OF TOILETS
Staff members should indicate their presence before
entering a cell, especially if the toilet is not partitioned
off. The person inside must be given the opportunity
to indicate that they are using the toilet.
A CCTV camera must be installed in a way that the
toilet area is either not visible on the monitor at all, or
only as pixelated images. If deemed necessary in
individual cases, it may be possible to permit
unrestricted monitoring of detainees held in specially
secured cells due to an acute danger of self-harm or
suicide. However, any such decision should be
carefully considered, substantiated and documented.
If a toilet area is indeed covered by CCTV monitoring
and is not pixelated, only persons of the same sex as
the detainee may carry out the monitoring.
11
Federal Constitutional Court, decision of 22/02/2011, file
no. 1 BvR 409/09, margin no. 30.
12
Federal Constitutional Court, decision of 05/03/2015,
2 BvR 746/13, juris margin no. 33–35.
13
Federal Constitutional Court, decision of 10/07/2013,
2 BvR 2815/11, margin no. 16, with reference to ECHR, van
der Ven v. Netherlands, 50901/99, 4/2/2003, margin no. 62.
4.6 – CCTV MONITORING
CCTV monitoring in prisons should only be
conducted in individual cases where this is imperative
to protect the person concerned. The reasons for
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