Women in prison in Germany

Summary

INTRODUCTION

On 31 March 2013, 3,184 women and 53,378 men were imprisoned in Germany. With a share of 5.6%, female prisoners form a minority of the total prison population and have, accordingly, garnered little attention in practice and research in previous decades. However, from the beginning of the 21^st century onwards, (inter)national research on female prisoners has steadily grown, as has interest in the implementation of international and European prison recommendations on female inmates.

Although recommendations have no legally binding character, their legal effect should not be underestimated. In a landmark decision, the Federal Constitutional Court of Germany emphasized the importance of international rules in a case concerning the unconstitutionality of the youth custody law on 31 May 2006:

“Indications can be found that available findings have not been taken into consideration sufficiently as required under the Basic Law or that prisoners’ concerns are not being given adequate weight when requirements under international law or international standards referring to human rights, as set out in the relevant directives and recommendations adopted by the United Nations or organs of the Council of Europe have not been observed or they fall short of them”.

While the German federal states (Bundesländer) responded by passing new constitutional youth custody laws, as required by the Federal Constitutional Court, by the end of 2007, the decision of the Court had far-reaching relevance for the whole law of prison administration. Due to federal reforms in 2006, the individual German states are now responsible for their own prison laws. This reform has led to an on-going process: at present, 11 out of 16 German states have enacted their own prison laws. That is why the prison laws of the German states differ to a certain extent from the Federal Prison Act nowadays. One example of this relates to the accommodation of women apart from men in separate prisons, in section 140 paragraph 2 of the Federal Prison Act. In contrast to this provision and Rule 56 of the Bangkok Rules, Article 166 paragraph 2 of the Bavarian prison law takes a more relaxed approach to the accommodation of female prisoners, in separate departments of male prisons. Due to the confusing diversity of different prison laws, the following chapter will mainly consider the provisions of the Federal Prison Act, which is still in force in six German states.