Therapy Accommodation Act

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Basic data
Title: Law on the therapy and accommodation of mentally disturbed violent criminals
Short title: Therapy Accommodation Act
Abbreviation: ThUG
Type: Federal law
Scope: Federal Republic of Germany
Issued on the basis of: Art. 74 para. 1 no. 1 GG
Legal matter: Criminal law , procedural law
References : 450-31
Issued on: December 22, 2010
( Federal Law Gazette I p. 2300, 2305 )
Entry into force on: January 1, 2011
Last change by: Art. 8 G of December 5, 2012
( Federal Law Gazette I p. 2425, 2430 )
Effective date of the
last change: 		June 1, 2013
(Art. 9 G of December 5, 2012)
GESTA : C110
Please note the note on the applicable legal version.

The Therapy Accommodation Act (ThUG) is a reaction of the German legislature to a decision of the European Court of Human Rights (ECHR) of December 17, 2009. It regulates the accommodation of convicted criminals who are therefore no longer placed in preventive detention after the decision of the Court of Justice because their preventive detention was extended retrospectively. Accommodation takes place in closed facilities, which must be spatially and organizationally separated from the prison facilities.

The Therapy Accommodation Act came into effect on January 1, 2011 as Article 5 of the Act on the Reorganization of the Law of Preventive Detention and the accompanying regulations.

context

In its decision of December 17, 2009, the Human Rights Court saw the retroactive lifting of the ten-year limit for the first preventive detention as a violation of the European Convention on Human Rights . This had sparked controversy over the question of whether the at least 100 people affected should be released immediately. The opinions of the higher regional courts, but also of various senates of the Federal Court of Justice, differ on this question. While the 4th Senate of the Federal Court of Justice and the Higher Regional Courts of Karlsruhe, Frankfurt, Hamm and Schleswig-Holstein initiated the release of those in custody, the 5th Senate of the BGH and the Higher Regional Courts of Koblenz, Nuremberg and Stuttgart speak out against it. The release of around 20 people in preventive detention to date has generated a lot of media coverage and excitement among the population.

Content of the law

The law states that a person who, according to the decision of the European Court of Human Rights, can no longer be placed in preventive detention "because a ban on retrospective tightening of the law on preventive detention has to be taken into account" may continue to be placed in a closed facility if the following Circumstances exist: (1) a mental disorder which leads to the fact that “there is a high probability that the life, physical integrity, personal freedom or sexual self-determination of another person will be significantly impaired” and (2) the placement is therefore to protect the General public is required (§ 1). This applies both to persons who are still in preventive detention and to those who have already been released (Section 1 (2)).

The application for accommodation is submitted by the lower administrative authority, in whose area of ​​responsibility the need for therapy accommodation arises. If the person concerned is in preventive detention, the head of the facility in which it is being carried out is also entitled to apply. Affected persons are to be informed about the application (§ 5). You are entitled to legal counsel (Section 7). The decision on the placement is made by a civil division of the regional court (Section 3), after hearing two experts (Section 9). The placement ends after 18 months at the latest, unless it is extended by a court order after a renewed assessment (Section 12 (1)). The court can cancel the placement at any time as soon as the prerequisites no longer apply (Section 13).

Where those affected are ultimately to be accommodated is not regulated in the Therapy Accommodation Act and must be determined by each individual federal state. In any case, the placement should differ from the prison system so as not to risk another violation of the European Convention on Human Rights.

Assessment of the law

The law represents a compromise between the Federal Ministry of Justice and the Federal Ministry of the Interior . It was approved by the governing parties CDU / CSU and FDP, but also by the opposition SPD. Both the Greens and the Left have spoken out against this. On the one hand, it is argued against the law that it is unlikely to find any area of ​​application, since the imposition of preventive detention requires full sanity , while the admission due to a mental disorder contradicts it. There are also fears that the new law could also be repealed by the ECHR. Federal jurisdiction can also be disputed. The federal states, which have also passed corresponding state laws for the mentally ill , are actually responsible for averting danger .

The German Society for Psychiatry, Psychotherapy and Neurology speaks of an "abuse of psychiatry". The law imposes on psychiatry the therapeutic responsibility for a problematic clientele which, according to the state of our knowledge about the basics of psychotherapeutic interventions, it cannot meet at all from a technical and therapeutic point of view ".

The civil rights association Humanist Union described the Therapy Accommodation Act as a "circumvention of the case law of the European Court of Human Rights, which serves to achieve the retroactive extension of the duration of preventive detention, which is contrary to the Convention". In addition, the federal government lacks legislative competence , since it lies with the federal states for pure hazard prevention measures.

Subsequent therapy placement

The ThUG is limited in its application to persons who were retroactively taken into preventive detention or whose preventive detention was subsequently extended. From the beginning there has been a tendency to widen the scope. These were expressed in a Federal Council bill in 2012, which, however, did not find a majority. In the coalition agreement between the CDU / CSU and the SPD of November 2013, however, it was agreed to generally allow subsequent therapy placement. Well-known scientists and practitioners have spoken out against this.

literature

  • Jörg Kinzig : The reorganization of the law of preventive detention. In: Neue Juristische Wochenschrift 4/2011, p. 177.
  • Christine Morgenstern: Sick - disturbed - dangerous: Who falls under § 1 Therapy Accommodation Act and Art. 5 Para. 1 lit. e ECHR? At the same time, comment on BVerfG, decision of September 15, 2011 - 2 BvR 1516/11 , Journal for International Criminal Law Dogmatics (ZIS) 12/2011, 974, online (PDF, 118 kB)
  • Karl Nussstein: The Therapy Accommodation Act - First practical experience , NJW 17/2011, 1195.
  • Thomas Ullenbruch: Walter H. in the (just expanded) recaptures of the ThUG - is still the current gap between AGMR and BVerfG? in: Criminal Defense Lawyer 2013, 2. 268-278.

Web links

Individual evidence

  1. ↑ ECHR, Fifth Section, Application no. 19359/04, Judgment, December 17, 2009 (judgment in the official English version)
    ECHR No. 19359/04, judgment of the 5th section of December 17, 2009 in the German translation of the Federal Ministry of Justice
  2. ↑ Archived copy ( memento of the original from February 26, 2011 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. Statement of the DGPPN of February 10, 2011 @1@ 2Template: Webachiv / IABot / www.dgppn.de
  3. ^ Opinion of the Humanist Union of November 29, 2010.
  4. ↑ Link to the open letter