Judgment Non-smoker protection in prison

OLG Hamm: Authorities must enforce a lawful smoking ban
Prison authorities must also enforce the statutory smoking ban in prison and, if in doubt, install smoke detectors in rooms. Because non-smoking prisoners are entitled to not be endangered or molested by the blue haze, the Higher Regional Court (OLG) Hamm ruled in a decision announced on Monday, October 2, 2017 (Ref .: 1 Vollz (Ws) 274/17).

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In the specific case, a prisoner complained that in December 2016 to complete a hospital stay in the prison hospital in Fröndenberg in the waiting room more than an hour with 14 other prisoners had to sit. Eight people of it smoked.

In court, the prisoner wanted to know that the placement in the waiting room with the smokers was unlawful.

The prison hospital had still argued that they had taken preventive measures against smoking. In advance, the lighters were taken away from the detainees while they were being dressed.

The District Court of Dortmund decided that it was not the correctional hospital but the smoking fellow detainees who violated the right of the applicant to smoke-free air.

However, in its decision of 18 July 2017, the OLG did not make it so easy for the law enforcement authorities. According to the case law of the Federal Constitutional Court, the penal system must be "designed to take into account the claim of a non-smoking prisoner of protection against danger and significant harassment from smoking by inmates and supervisors".

In the present case, the prison hospital should have taken appropriate "independent measures" to systematically enforce non-smoker protection. Smoke detectors could have been installed without any problems in order to be able to monitor the legal smoking ban. The accommodation in the waiting room had therefore been unlawful because of the lack of non-smoker protection. fle