Penal enforcement

New construction of the correctional clinic in Cologne-Westhoven

In forensic , just as " forensics " for Department of Forensic Psychiatry , are based on § 63 and § 64 of the German Criminal Code , under certain circumstances, mentally ill or addicted offenders in accordance with the measures of correction and prevention housed. To distinguish from the forensic unit is the preventive detention to § 66 of the Criminal Code for dangerous offenders, which serves solely to protect the public.

The comparable instrument in Austrian criminal law is the enforcement of measures .

Historical background

The legal implementation of a two-pronged approach to serious offenses, punishment for guilty , protection and reform for incapacity for guilt was formulated in September 1893 in the preliminary draft of the Swiss penal code by the Bern professor Carl Stooss . At the beginning of the 20th century, several draft laws were discussed in Germany. On November 24, 1933, the dictator Adolf Hitler, authorized as legislator , passed the Customs Criminal Law (RGBl. Part I, page 995) on the basis of a draft bill from 1927, which the Nazis had tightened even further, with the measures of protection and reform and preventive detention. The two-way nature of criminal law continues to this day.

statistics

Penal system, old federal states
year	people
1970	4,401
1975	3,677
1980	3,237
1985	3,462
1990	3,649
1995	4,275
2000	5,872
2005	8,113
2010	9,590
2013	10,471

An increase in admissions and a decrease in layoffs can be observed in several European countries.

The little attention that the penal system has received so far in the Federal Republic is reflected in the data situation. At the federal level, for example, there are no figures comparable to normal prison statistics, as there is no law for the nationwide central recording of the figures. An existing administrative agreement only applies to the old federal states.

After the reform of psychiatry after 1975 and a major reform of criminal law since 1973 contributed to a decline in occupancy in the Federal Republic of Germany, there has been a sharp increase since 1990, in many cases overcrowding. This also applies to the accommodation of alcoholics and drug addicts according to § 64 StGB. The accommodation to § 63 of the Criminal Code takes longer and longer, and the current trend is nationwide then to dismiss fewer patients because of successful treatment. On a national average, correctional prison patients have already had almost seven years of treatment, in individual federal states an average of up to ten years of treatment without a discharge being recommended. If the doctor does not recommend the dismissal of these "long-term residents", dismissals are often ordered by the court because of the disproportionate nature of the further execution.

In the old federal territory on January 1, 1987, 3,746 people (with temporary placement) were accommodated in the psychiatric hospital and in the rehab facility on January 1, 1987, on March 31, 2013 (without temporary accommodation) 10,471 people (745 of them female), including in the psychiatric one Hospital according to § 63 StGB 6,652 people (thereof 510 female) and in the rehab facility according to § 64 StGB 3,819 people (thereof 235 female), thereof again 2,365 (thereof 146 female) without alcoholism. On January 1, 2013, 556 people (60 of them female) were temporarily placed in a psychiatric hospital or rehab facility according to Section 126a of the Code of Criminal Procedure .

costs

In 2004, the costs per patient year in Mecklenburg-Western Pomerania were 92,923 euros. An extrapolation of the daily rate set by the state of Mecklenburg-Western Pomerania results in an amount of 82,198 euros, which neglects the nationwide overhead costs. In comparison, regular detention cost only 35,770 euros in 2003.

Legal bases

Forensic psychiatry is technically responsible . According to the penal code, mentally ill lawbreakers are accommodated in the penal system, who are considered to be incapable of guilt or reduced criminal capacity within the meaning of Section 20 or Section 21 of the Criminal Code , and who at the same time, considering the perpetrator and his act as a whole, are expected to pose a further danger, provided there is a connection between the offense and mental disorder exists. In the case of delinquents suffering from addiction, there is no need to be restricted in their capacity to be guilty of being admitted to a rehab facility pursuant to Section 64 of the Criminal Code.

The court makes the above-mentioned findings at the main hearing . The persons affected are then instructed in the execution of measures. In enforcement, the measures enforcement laws apply. Some of these are separate state laws, and some are sections of the laws for the mentally ill of the other federal states. In North Rhine-Westphalia there are advisory boards to which the hospital management reports at least twice a year about special incidents.

There are also ombudspersons who deal with complaints, complaints and suggestions from forensic patients. The ombudspersons are appointed by the directors of the respective regional association as the lowest supervisory authority for the enforcement of measures.

Section 63 of the Criminal Code - placement in a psychiatric hospital - refers tocriminals who are incompetent or have reduced criminal capacity, who are considered dangerous to the general public due to their illness and from whom further significant crimes (violent crimes, but also sexual crimes) are to be expected. This measure is unlimited.
Section 64 of the Criminal Code - placement in rehab - refers tooffenderswith addictions . This measure is generally limited to two years, whereby the length of stay in the measure can be postponed / extended through corresponding maximum time limits.

In contrast to prisons, there are no advisory boards or prisons officers who are available as contact persons for prisoners, employees and prison managers for the patients in the penal system and the corresponding forensic psychiatry facilities . Therefore, there are no comparable consultations or controls of these institutions in the sense of an institutionalized public. This underlines the accusation that this area can also be referred to as the darkroom of law due to further regulations with a low legal density . After this in connection with the cases of Gustl Mollath and Ilona Haslbauer had increasingly come into the public eye, reforms "for accommodation according to § 63 StGB" were promised.

Mission and challenges

Both groups are primarily regarded as patients in the penal system. However, the legal mandate of "improvement and security" applies. Since a ruling by the Federal Constitutional Court in 1985, the principle of proportionality has applied to the execution of measures . In the course of the criminal law reforms since 1998, the release of parole from the penal system has been made more difficult by the legislature under public pressure.

The penal institutions are psychiatric-forensic specialist hospitals or departments at psychiatric clinics . The penal system is to be distinguished from the penal system and the preventive detention of dangerous (mostly repeat) offenders.

Clinical pictures

Many of the patients accommodated in accordance with Section 63 of the Criminal Code suffer from schizophrenic psychoses , often combined with addiction disorders . Another large group suffers from severe personality disorders or from difficult-to-treat sexual deviations ( paraphilias ) such as pedophilia . Affective psychoses (e.g. chronic manias), other delusional diseases (e.g. persistent delusional disorder, isolated madness of jealousy ) or organically induced psychoses are comparatively less common . A smaller group has an intellectual disorder , often associated with impulse control disorder . In accordance with Section 64 of the Criminal Code, alcohol dependence is in the foreground, followed by drug addiction, and severe personality disorders are often present at the same time.

safety

Prison facilities should ensure the highest level of safety for the population and meaningful therapy for the patients (even against their will). At the same time, they must treat and enable the greatest possible psychological stabilization and rehabilitation. This conflict of goals can only be resolved through gradual, constantly monitored loosening of enforcement, from execution to outdoor activity and vacation. Treatment extends for years because the legal requirements for discharge are high. Release on probation is only possible if forensic experts have made a clearly favorable prognosis. The medical associations and the DGPPN have drawn up training guidelines specifically for this. The training to become a forensic psychiatrist according to the medical associations provides for a further training period of a total of 3 years in corresponding comprehensive institutions. The DGPPN essentially requires a defined number of reports prepared under the supervision of the DGPPN. There is also legal psychology , which deals with the training of qualified psychologists. However, the penal enforcement chambers , which are staffed with professional judges , are responsible for the rehabilitation of the correctional prisoners in the sense of ultimate responsibility . These also regularly check the continuation of the measure. The legal basis for the execution and the psychotherapeutic and medicinal treatment of the person concerned are the measures law enforcement of the federal states.

Depending on the severity of the clinical picture and the risk profile (risk of fleeing, willingness to use violence, psychological stability, type of disorder), security is ensured on the one hand through technical measures such as security gates, surveillance cameras, window bars and fences, and on the other hand through the therapy of the patients and their relationships with the carers and Therapists. To ensure the safety of patients and staff, furniture and fixtures in anti-ligature design (suicide-inhibiting) are used within the facilities. Many patients suffer from their own mental disorders or from their consequences. If they stabilize themselves psychologically or “mature” or acquire new skills within the framework of the therapy and this through the experience of benevolent relationship offers on the part of the therapist, this is the best security measure that protects against both escapes and relapses. New patients or those classified as particularly dangerous are accommodated in specially secured areas.

therapy

A sustainable stabilization of the mental disorders and thus security can only be achieved through successful therapy. This requires (personally and professionally) specially qualified therapists who succeed in perceiving the patients not only as perpetrators, but as people in need of help, and who may treat them as patients for years. The specific treatment know-how has so far been hardly available as a training content, but exists as knowledge gained at correctional institutions that have been trying to provide therapies for a long time. A distinction is made between clinical-intuitive, statistical and criteria-oriented methods when predicting the risk of new relevant crimes. The latter use checklists that check particularly risky characteristics of the patient and are sometimes evaluated quantitatively. The courts are increasingly demanding the inclusion of checklists. In the last few years, the Federal Court of Justice (BGH) has formalized the requirements for prognostic assessments and issued guidelines for this, which forensic experts helped to develop.

Problem of escape

The institutions for the penal system repeatedly point out that the number of escapes has decreased recently and that serious relevant criminal offenses by offenders who have escaped from the penal system are statistically rare. Nevertheless, there are massive fears and reservations among the population in the communities in which such facilities are located. A major problem is the extension of treatment times due to the increased legal requirements for parole. It leads to an ever higher capacity utilization or overcrowding of the facilities, which is not adequately compensated by the increase in staff. Sometimes there is still an incorrect occupancy of general psychiatric beds.

Model projects

Model projects in Hesse, Baden-Württemberg and North Rhine-Westphalia have shown that the number of relevant relapses can be significantly reduced through consistent follow-up treatment. In the meantime, forensic outpatient departments at the hospitals in Hessen have proven their worth. Several federal states have set up forensic institute outpatient clinics. The aim is to accelerate layoffs without increasing the risk to the population.

Amendment to the law in 2016

On April 28, 2016, the Bundestag passed the law presented by the Ministry of Justice to amend the right of placement.

Minister Heiko Maas said:

“With the law that has now been passed, we are ensuring that those affected are better protected from disproportionate and disproportionately long detention without losing sight of the general public's interest in security. Lifelong placement should still be possible, but only in really serious cases. People who are only at risk of criminal offenses with little economic damage do not have to be placed in the penal system. And: Placements according to § 63 StGB will in future be checked more closely by expert reports to determine whether they are still necessary. With our new regulation, we are strengthening the principle of proportionality already emphasized by the Federal Constitutional Court and thus setting a clear signal for the rule of law. "

- Heiko Maas : BMJV press release

On this occasion, the corresponding law was also referred to as the “Mollath Paragraph” with reference to the Gustl Mollath case .

Again, criticism was expressed that the change in the law could not achieve the necessary improvements.

criticism

The journalist and lawyer Heribert Prantl ( Süddeutsche Zeitung ) wrote in a comment on the Gustl Mollath case in November 2012 :

“The Mollath case is indeed one in which the cruel weaknesses of Section 63 of the Criminal Code are symptomatic. Hardly any other paragraph has as massive an impact as this one, but hardly any other paragraph enjoys so little attention. The "63er" is the paragraph that quickly brings a criminal into psychiatry, from which he can then no longer quickly come out. This section 63 is a dark place of German criminal law. "

“Lawyers say there is no other area of justice where so much is wrong. They therefore try to circumvent it extensively: In the past, in order to get a favorable verdict, a defense attorney pleaded for "reduced culpability"; then the punishment can be lessened. Today, such a plea is a grave mistake: If a reduced culpability or even a lack of guilt is attested, the admission to psychiatry follows almost automatically. "

The medical journalist Eckart Roloff expressed criticism of the term measure execution, which with the words execution and measure does not in any way reveal what the psychiatric and forensic treatment of those affected is about.

In his 2014 book The Mollath Case - On the Failure of Justice and Psychiatry , the Hamburg defense attorney Gerhard Strate writes :

"The direct influence that forensic-psychiatric reports exert on court decisions should make society prick up their ears: If the court has the testimony of an expert, it rarely happens that it decides against the expert advice or at least critically questions the statements. Even the penal system itself is a contourless structure, which officially does not apply to the penal system, but to alleged therapy, but which some of those affected experience as far worse than a prison sentence. "

In the speech that Ilona Haslbauer gave on the occasion of her release from forensic psychiatry on August 14, 2014, she said:

“These facilities are hells of torture that are shielded from the outside world. It's not about help, it's not about treatment, it's not about therapy, it's about abuse and exploitation of addicts, through private clinics. It is about power and profit, through slavery and human trafficking . Due to the Nazi paragraph § 63 StGB, and due to the lack of controls in this legally free area, violence, arbitrariness, deprivation of liberty, locking in the room, isolation, forced restraint, forced medication prevail. Something will only change when this Section 63 StGB is finally abolished. Abolished and not reformed, because every reform is only cosmetic by those who have not done anything against these excesses so far. We need a paradigm shift. "

The deficits in the penal system were discussed in a panel discussion in Munich on November 24, 2014. The victims Gustl Mollath and Ilona Haslbauer described their experiences from everyday life in forensic psychiatry.

In an attempt to statistically record the success of treatment in the penal system, Christian Hartl came up with a legal probation rate of 93.7% for Section 63 patients and 84.5% for Section 64 patients (one year after discharge); Cases like the double murder of Bodenfelde , in which a former inmate of the penal system murdered two people aged 13 and 14 and was therefore sentenced to life imprisonment with subsequent preventive detention, are great exceptions.

literature

Michael Bauer, Matthias Lammel, Stephan Sutarski, Steffen Lau: Compulsory admission and compulsory treatment: indication, legitimation, control , MWV Medizinisch Wissenschaftliche Verlagsgesellschaft, annual issue of forensic psychiatry from June 6, 2011 ISBN 978-3-941468-40-5 / ISBN 3- 941468-40-5
Kammeier, H., Pollähne, H. (Eds.) (2018). Right of enforcement. Comment. Berlin: De Gruyter.
Jan Christoph Bublitz: Habeas Mentem? Forced psychiatric interventions in the penal system and freedom from dangerous thoughts. At the same time discussion of the BVerfG, decision of 23.3.2011 - 2 BvR 882/09 , magazine for international criminal law dogmatics 2011 (issue 08/09) page 714 (PDF; 272 kB)
Heinz Kammeier: Influence and function of care law in the penal system , BtPrax 2012, 140 (part 1) and BtPrax 2012, 192 (part 2)
Christian Müller: The Customs Criminal Law of November 24, 1933, Berliner Wissenschaftsverlag 1997
J. Rüdiger Müller-Isberner; Sabine Eucker: "Therapy in the prison system", Medizinisch Wissenschaftliche Verlagsgesellschaft, Berlin 2009, ISBN 978-3-941468-13-9
Cornelia Schaumburg: Execution of measures (basic knowledge). 2nd Edition. Psychiatrie-Verlag, Bonn 2005, ISBN 978-3-88414-334-6 .
Nahlah Saimeh (Ed.): Limited Liability Company. Execution of measures as a social obligation. Psychiatrie-Verlag, Bonn 2006, ISBN 978-3-88414-417-6 .
Schmidt-Quernheim, F., Hax-Schoppenhorst, T. (Ed.) (2018). Practice book forensic psychiatry. Bern: Hogrefe.
Donisch Seidel U; Bernhard van Treeck , Geelen A, Siebert M, Rahn E, Scherbaum N, Kutscher SU (2007): On the networking of forensic psychiatry and general psychiatry, law and psychiatry, 4: 184-188
Georg Stolpmann: Psychiatric measure treatment , in: APuZ 7/2010 pp. 28–33
Trost, A., Rogge, S. (2016): Basic knowledge: dealing with people in the penal system. Cologne: Psychiatrie publishing house. ISBN 978-3-88414-633-0
U. Venzlaff, K. Foerster: Psychiatrische Assessment, 4th edition, Urban and Fischer 2004
Bernd Volckart ; Rolf Grünebaum: Execution of measures. The right to enforce placement in accordance with Sections 63 and 64 of the Criminal Code in a psychiatric hospital and in a rehab facility. 7., rework. and exp. Edition. Heymann, Cologne 2009, ISBN 978-3-452-26854-9 .

Broadcast reports

Cornelia Schäfer: In there forever? - The enforcement of measures between reform and residual risk in dradio Background from October 2, 2013

Web links

General

Forensics specialist committee of the German Society for Social Psychiatry e. V. (DGSP e.V.)

Reform considerations of the BMJ for § 63 StGB

Guideline treatment according to § 64 StGB (NRW-commissioned measures enforcement agency; PDF; 147 kB)

Measures taken: unrestrained growth , Deutsches Ärzteblatt (2004)

Overview of case law accommodation / penal measures (Psychiatrie-Verlag)

Gabriele Steck-Bromme: Defense in the penal system of § 63 StGB (Criminal Defense Day Cologne - February 28, 2009)

Measures enforcement laws of the federal states

Individual evidence

↑ Federal Agency for Civic Education: Psychiatric Measure Treatment , February 8, 2010, accessed September 10, 2018

↑ Davina Theresa Stisser: The preventive detention - de lege lata et de lege ferenda . Nomos Verlag, 7 May 2019, ISBN 978-3-8452-9736-1 , p. 21ff.

↑ Those detained in the psychiatric hospital and in the rehab center on 31.3. (without temporary placement according to § 126a StPO, only old federal states, from 2000 Berlin as a whole)

↑ ^a ^b Federal Statistical Office: Prison statistics . Those detained in the psychiatric hospital and in the rehab facility on the basis of a criminal court order (prison system) - 2013/2014 PDF, 244 kB

↑ with data for Rhineland-Palatinate from 1999

↑ ^a ^b with data for Rhineland-Palatinate from 2010

↑ Dr. jur. Heribert Prantl People who don't count in Süddeutsche Zeitung, July 13, 2013, p. 5.

↑ ^a ^b ^c Horst Entorf: Evaluation of the penal system: Basics of a cost-benefit analysis . In: Darmstadt Discussion Papers in Economics . tape 183 , 2007 ( tu-darmstadt.de [PDF]).

↑ Activity report of the Prison Commissioner of the State of North Rhine-Westphalia 2011, section: The Prison Advisory Board : Presence, Activities and Selection of Members , pp. 189ff

↑ Dr. jur. Heribert Prantl People who don't count in SZ of July 13, 2013, p. 5

↑ German Medical Association PDF ( Memento of the original dated November 21, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2
↑ DGPPN ( Memento of the original from July 15, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2
↑ Anti-Ligation Design Suicide Resistant. In: Design plan lights. Retrieved June 20, 2020 (German).
^ Anti Ligature Explained. Retrieved June 20, 2020 (English).
↑ BMJV.de: Law amending the law of placement in a psychiatric hospital in accordance with Section 63 of the Criminal Code , accessed September 10, 2018
↑ bmjv, de: More proportionality in the accommodation of mentally ill offenders , April 29, 2016, accessed September 10, 2018
↑ SWR.de: "Mollath Paragraph" changed. Bundestag resolves higher hurdles for placement in psychiatry. , accessed September 10, 2018
↑ grundrechtekomitee.de: Lifelong locking up in (forensic) psychiatry , February 18, 2016, accessed September 10, 2018
↑ evangelisch.de: New law to change the enforcement of measures , accessed September 10, 2018
↑ SZ November 27, 2012: Psychiatry, the dark place of law. - Gustl Mollath has been in psychiatry for almost seven years because the Bavarian judiciary considers him to be insane and dangerous to the public. The case shows that a judiciary that confers a delusion on people without thorough examination is itself insane.
↑ http://www.neues-deutschland.de/artikel/834580.was-fuer-ein-wort.html?sstr=Eckart%7CRoloff
↑ Gerhard Strate: The Mollath Case - On the Failure of Justice and Psychiatry , Chapter 4, p. 63
^ Speech by Ilona Haslbauer ; Video from August 14, 2014
^ Law on the Execution of Measures - Progress or Crash Landing ; Video of the panel discussion with Ilona Haslbauer and Gustl Mollath in Munich on November 24, 2014
↑ How successful is the treatment in the penal system according to §§ 63 and 64 StGB? An investigation based on various measures of success - Diss. Universität Regensburg 2013
↑ Antje Windmann: The alleged double murderer of Bodenfelde is on trial. For twelve years it was almost permanently under state control. Why could the horrific act still happen?

[1] Federal Agency for Civic Education: Psychiatric Measure Treatment , February 8, 2010, accessed September 10, 2018

[Stisser2019-2] Davina Theresa Stisser: The preventive detention - de lege lata et de lege ferenda . Nomos Verlag, 7 May 2019, ISBN 978-3-8452-9736-1 , p. 21ff.

[3] Those detained in the psychiatric hospital and in the rehab center on 31.3. (without temporary placement according to § 126a StPO, only old federal states, from 2000 Berlin as a whole)