Wenner v. Germany | 2016

Wider availability of drug substitution therapy in prisons

The decision . . . has paved the way for many drug-addicted prisoners in Germany to have access to substitution therapy and thus to a more human life in prison.

Florian Haas, Wolfgang Wenner's lawyer in this case

Background

A detainee suffering from long-term addiction claimed that prison authorities treated him inhumanely by refusing to give him drug substitution therapy.

Wolfgang Wenner spent most of his days in prison in Bavaria in agonising pain due to nerve damage linked to a forty-year heroin addiction.

For many years, Wolfgang had treated his addiction under medical supervision with a synthetic opioid to replace heroin. He said the treatment had allowed him to lead a relatively normal life and to train as a software engineer.

But the therapy abruptly stopped when Wolfgang was arrested in 2008 and later jailed for a drug-related offence. A judge ordered him to detox at a rehab centre. But some months later, a court signed off Wolfgang’s retransfer to prison after accepting doctors’ views that he would most likely not be cured.

Back in prison, Wolfgang was given painkillers for his chronic pain.

At one stage, an external doctor suggested that Wolfgang be given substitution therapy to treat the pain. An addiction specialist later agreed, citing medical guidelines stating that the treatment was scientifically proven to help sufferers of long-term opiate addictions. The specialist said the therapy would reduce a high risk to Wolfgang’s life posed by detox.

However, the prison authorities steadfastly refused to give Wolfgang therapy, arguing that it was neither medically needed nor would it help with his rehabilitation. They were ultimately backed by the German courts.

Upon his release from prison in 2014, Wolfgang immediately resumed substitution therapy.

Judgment of the European Court of Human Rights

The European court ruled that Wolfgang had not received proper medical care in prison at a level comparable to that of the outside world, where drug substitution therapy was available.

The German government did not dispute the fact that the treatment was, in principle, available in prisons in Germany, and was provided in practice in prisons in several other parts of the country.

In the European court’s view, there was a strong indication that such therapy could be regarded as the required medical treatment for Wolfgang.

However, the court found that the German authorities had failed, with the help of expert health advice, to carefully examine whether Wolfgang needed the treatment in line with criteria set out in domestic law and medical guidelines.

…material before the Court . . . suggests that the chronic pain from which [Wolfgang] was suffering . . . could have been alleviated more effectively with drug substitution treatment than with the painkillers he received.

Judgment of the European Court of Human Rights, December 2016

Follow-up

In response to the European court’s judgment in Wolfgang’s case, the German authorities changed their administrative practice, notably in Bavarian prisons, to make sure it was compliant with the human rights convention.

As a result of these changes, the number of prisoners provided with drug substitution treatment has considerably increased.

In 2016, only 35 of 11,323 prisoners in Bavaria received such therapy. As of 31 March 2021, this number had risen to 687 (of 9,584 prisoners), and 19 of 36 Bavarian prisons were offering the treatment compared to zero previously.

In cases where drug substitution therapy is not available in a particular prison, prisoners in need of the treatment are transferred elsewhere.

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