Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

Germany: Costs of Phone Calls in Prisons Must Reflect Market Prices

(Dec. 1, 2017) In a decision published on November 28, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) found that the constitutional requirement of social rehabilitation of sentenced persons is violated when a prisoner is charged excessive fees for phone services. An inmate’s request for a reduction of the costs for a prison phone call to the costs of calls charged by regular commercial providers had been denied by the prison administration, which had simply pointed out that it had an existing, exclusive, long-term contract with a private telecommunications provider the terms of which applied to prisoner calls. (BVerfG, Docket no. 2 BvR 2221/16, Nov. 8, 2017, BVerfG website (in German); Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, art. 2 ¶ 1 in conjunction with art. 1 ¶ 1, GERMAN LAWS ONLINE (unofficial English translation).)

Facts of the Case

The complainant in the case has been an inmate in a prison in the German state of Schleswig-Holstein since 2014. The prison’s inmate phone system is run by a private telecommunications provider on the basis of an exclusive, 15-year contract with the state of Schleswig-Holstein. No alternative phone services exist for the inmates. In 2015, the telecommunications provider changed its fee schedule, which resulted in significantly higher phone costs for the complainant. (Docket no. 2 BvR 2221/16, at 2 & 3.)

In July 2015, the complainant submitted a request based on the Prison Act to the prison administration to adjust the costs of phone calls made in the prison to match the costs of phone calls outside of a prison, in order to safeguard his financial interests. The prison administration denied his request. (Id. at 4; Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung (Strafvollzugsgesetz – StVollzG) [Act Concerning the Execution of Prison Sentences and Measures of Rehabilitation and Prevention Involving Deprivation of Liberty (Prison Act)], Mar. 16, 1976, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 581, 2088; I S. 436, as amended, § 3 ¶ 1, GERMAN LAWS ONLINE (translation updated through Apr. 25, 2013).)

The inmate’s lawsuit against the decision of the prison administration and the subsequent appeal were rejected. The prison administration submitted that it was not able to terminate the contract with the private telecommunications provider prematurely and that it would instead issue a re-tender for the contract upon its expiry in 2021. The appeals court therefore decided not to address the issue of whether the fees charged were excessive. (Docket no. 2 BvR 2221/16, at 6-10.)

Decision

The Federal Constitutional Court reiterated that prisons have a duty of care to safeguard the financial interests of their inmates and that disregarding this fact violates the social rehabilitation requirement of the German Basic Law, the country’s constitution. (Id. at 19.) It held that even though prisons are not obligated to eliminate fees for phone calls completely, they are required to approximate the living conditions in a penal institution as far as possible to the general living conditions outside  prison. (Id. at 20; Prison Act, § 3 ¶ 1.) In the Court’s opinion, it is therefore not compatible with this principle to charge excessive fees to inmates for services that are far cheaper on the regular market. It stated that charging excessive fees is also a violation of the constitutional principle of proportionality, which requires the state to minimize as much as possible the negative repercussions that  execution of the punishment might have on the prisoner. (Docket no. 2 BvR 2221/16, at 20.)

The Court stated that the prison cannot escape its obligations towards its prisoners by outsourcing services to third parties. If the prison decides to contract with a third party whose services the prisoners are forced to use, it has to ensure that the private company provides the services at regular market prices. Whether or not there is an existing contract is irrelevant for the question of whether the prices charged are market rate, in the Court’s opinion. (Id. at 21 & 22.)

The Court concluded that the appeals court violated the complainant’s financial interests and, by extension, his constitutional right to social rehabilitation, by not addressing the question of whether the fees charged were excessive. It held that an existing long-term contract should not prevent the prison from charging the market rate for phone services or from offering alternative phone services. (Id. at 23.) The Federal Constitutional Court set aside the judgment and remanded the case to the appeals court. (Id. at 25.)