The Doctrinal Inconsistencies in Claims for Compensation for Accommodation Conditions that Infringe Fundamental Rights : Opinions and Proposals

Abstract

The criticism of the current regulation of the compensation procedure under the Prison Act can be given in the legal-dogmatic contradiction and the imprecision of the normative text. The latter inaccuracies have led to the different interpretation of the law by the judiciary in the penal and civil fields. In conclusion, therefore, if the claim to be enforced is related to the circumstances of the placement which violate fundamental rights, it is possible, as explained above, to bring an action only for the enforcement of objective sanctions for violation of personal rights, but not for damages in addition to sanctions independent of the responsibility. Civil proceedings under the general rules are only possible if the claim is not related to accommodation conditions which infringe fundamental rights. In such a case, however, it must be borne in mind that, under Article 143 subsection (1) to (2) of the Prison Act, a prisoner cannot bring a claim for damages against a prison directly before a court: he must bring it before the prison authorities where the damage occurred. The prisoner may appeal against this decision within a time limit of 30 days from the date of notification. Only in the case of a claim for damages arising from a violation of personal rights (i.e. not linked to an injury caused by conditions of detention which infringe the prohibition of torture, cruel, inhuman or degrading treatment), it is possible to go directly to court and the action does not have to be preceded by proceedings before the penitentiary institution.In our view, it would be worthwhile to reintroduce the possibility to claim for harm caused by placement conditions that violate fundamental rights into the framework of civil litigation. However, this would require the creation of a legal environment which does not give rise to the above-mentioned dogmatic contradictions. It should be pointed out, by way of example, that the ECtHR does not wish to introduce a separate, formalised procedure for compensating detainees, but is “content” with the possibility of bringing a civil action based on a violation of personal rights.