OLG Hamm: Authorities must enforce a legal smoking ban
Law enforcement agencies also have to enforce the legal smoking ban in prison and, if in doubt, install smoke detectors in rooms. Because non-smoking prisoners have the right not to be endangered or bothered by the blue haze, the Higher Regional Court (OLG) Hamm decided in a decision announced on Monday, October 2, 2017 (file number: 1 Vollz (Ws) 274/17).
In the specific case, a prisoner had complained, who had to sit in the waiting room with 14 other prisoners for more than an hour in December 2016 to complete an inpatient stay in the correctional hospital in Fröndenberg. Eight of them smoked.
The prisoner wanted to find out in court that the accommodation in the waiting room with the smokers was illegal.
The correctional hospital had also argued that preventive measures against smoking had been carried out. The lighters had been taken away from the prisoners when changing their clothes.
The district court in Dortmund still ruled that it was not the correctional hospital, but rather the co-detainees who had been violating the applicant's right to smoke-free air.
However, in its decision of July 18, 2017, the OLG did not make this so easy for the prison authorities. According to the case law of the Federal Constitutional Court, the prison system should be designed in such a way that “the claim of a non-smoking prisoner to protection against danger and considerable nuisance from smoking by fellow prisoners and supervisory staff is taken into account”.
In the present case, the correctional hospital should have taken appropriate “independent arrangements” for the systematic enforcement of non-smoking protection. Smoke detectors could have been installed without any problems in order to monitor the legal smoking ban. The accommodation in the waiting room was therefore illegal due to the lack of non-smoking protection. fle