Nils Mönkediek
Psychiatric detention under German law
The relevant provision regarding psychiatric detention ordered by a court during criminal proceedings to obtain data about the accused’s mental condition is § 81 StPO[1] which reads as follows:
Section 81. (Committal for Observation of the Accused)[2]
(1) For the preparation of an opinion on the accused’s mental condition the court may, after hearing an expert and defense counsel, order that the accused be brought to a public psychiatric hospital and to be held under observation there.
(2) The court shall make the order pursuant to subsection (1) only if the accused is strongly suspected of the offense. The court may not make this order if it is out of relation to the importance of the matter or to the penalty or to the measure of reform and prevention to be expected.
(3) In the preparatory proceedings the court which would be competent for the opening of the main proceedings shall give a decision.
(4) An immediate complaint against the decision shall be admissible. It shall have a delaying effect.
(5) Committal to a psychiatric hospital pursuant to subsection (1) may not exceed a total period of six weeks.
In its judgement[3] on 9 October 2001 the BVerfG (German Constitutional Court) specified the constitutional guidelines for the interpretation and the application of § 81 StPO. Therein it stated that the committal to a psychiatric hospital according to § 81 StPO is only admissable, if it is indispensable and if any other inparticular ambulant means are exhausted, to come to an evaluation of the accused’s criminal responsibility. This follows out of the constitutional principle of proportionality.[4] The requirements to the declaration of indispensability are more severe, if an exploration was already completed.[5]
Further the BVerfG laid down that the concrete examination concept must be suitable to obtain information about an eventual personality disorder of the accused. The suitability must be propounded in a written expert opinion and in the court decision.[6] Therefore a committal to clinical observation would be not admissable, if the accused declined to approve to it or declined to take part in it insofar as the examination requires a cooperation of the accused.[7]
In its decision the BVerfG further stated that especially the right to privacy and personality (“Allgemeine Persönlichkeitsrecht”) out of Art.2(1) GG (German Constitution) and Art.1(1) GG has to be respected in this matter. This basic right protects in general against the inquiry and passing on of personal data about the condition of health, the mental state and the personality of a person. The more the data concerns the privacy of the person, the higher is the standard of protection. Furthermore there is an inviolable part of privacy which needs to protected against and by the state. However, the protection of privacy is not absolute and may be restricted by law in case of an prevailing general interest as long as the restriction is in conformity with the priniple of proportionality and does not touch the inviolable part of privacy.[8] Therefore an examination of the accused in terms of a total clinical monitoring is not admissable, because it would undermine the accused’s right to remain silent and infringes the core right to privacy.
These constiutionally guaranteed standards laid down by the BVerfG are generally accepted by the legal literature and applied by the courts.[9]
[1]German Criminal Procedure Code – Strafprozessordung:
.
[2]See English translation of the StPO at .
[3] BVerfG, 2 BvR 1523/01 in 9.10.2001, Absatz-Nr. (1 - 28),
.
[4] See also judgement of BVerfG 2 BvR 1509/94 -, StV 1995, S. 617 <618>, further compare: OLG Frankfurt a.
M., StV 1986, S. 51; OLG Hamm, StV 2001, S. 156; LG Zweibrücken, StV 1997, S. 347; NJW 1997, S. 70;
Dahs in: Löwe/Rosenberg, StPO, 24th edition, §81, Rn. 13; Kleinkecht/Meyer-Goßner, StPO, 45th edition,
§81, Rn. 7f.; Senge in: Karlsruher Kommentar, 4th edition, §81, Rn. 6 .
[5]See also judgement of the BGH (Federal Supreme Court) BGH 1 Str 169/02:
.
[6]See fn. 3 and compare OLG Frankfurt a. M., StV 1986, p.51.
[7]Compare BGH, StV 1994, p. 231f.
[8] BVerfGE 32, 373 <378ff.>; 44, 353 <372f.>; 65, 1 <41f.>; 78, 77 <84>; 84, 192 <194f.> .
[9] See fn. 4.