Federal Constitutional Court: Resocialization must be considered
The desire for family contact and the prospect of re-socialization can justify the transfer of a prisoner to prison. This applies all the more if the prisoner is housed in a prison over 600 kilometers away from his family and because of the distance he can hardly keep in touch with his wife and children, the Federal Constitutional Court in Karlsruhe ruled on Thursday, July 13, 2017, published decision (Az .: 2 BvR 345/17).
The constitutional judges thus considered the constitutional complaint of an imprisoned Iraqi prisoner to be "clearly justified". The man was sentenced to six years' imprisonment in 2004 for double rape and assault. Because of his deportation to Iraq, the prison sentence was initially not enforced.
When he was later picked up again when he was traveling to Finland in Germany, he should now start serving his sentence. He was sent to the correctional facility in Landsberg am Lech. His wife and their two children were placed in an initial reception facility in Bochum, over 600 kilometers away.
The prisoner applied for a transfer of detention to Bochum. His partnership suffered from the distance. In addition to marriage problems, he also cannot see his children and help with the upbringing.
Both the JVA and the Augsburg district court rejected the application. Visiting difficulties are not yet a reason for a transfer of detention. The families of other prisoners do not live in the same place. In addition, he had already been transferred twice to the JVA in Bochum in early 2016 so that he could see his wife and children. There is no right to transfer of prisoners. This is at the discretion of the authorities, the prison says.
In its decision of June 20, 2017, the Federal Constitutional Court ruled that the prison had misused its discretion. There is no right to a transfer of liability. Nevertheless, the principle of re-socialization obliges prisons to "counter the harmful effects of deprivation of liberty as far as possible".
"The family relationships of the prisoner are of crucial importance for the goal of rehabilitation, which is to be directed by the constitution by prison." Because the Basic Law protects the actual living and parenting community of parents and children.
When considering an application for a transfer of detention, the correctional facility must always have an eye on re-socialization and the fundamental right to protection of marriage and family. Here, the prison and the regional court wrongly assumed that a distance of more than 600 kilometers from the family is still acceptable.
It also makes no difference when deciding whether to transfer the prisoner whether the prisoner is obliged to leave the country and is only tolerated in Germany. The protection of the family also applies to the obligation to leave the country.
The short-term occasional transfers of the prisoner to Bochum would "not do justice to the interest in continuously caring for his family relationships," said the Federal Constitutional Court. These are not proportionate, so that only a transfer of liability can be considered here. fle