ANNEX - CASE STUDIES ON GOOD PRACTICES
ANNEX 3: GERMANY –
REFORM OF THE ACT ON
CRIMINAL LAW-RELATED
COMMITTAL TO A PSYCHIATRIC HOSPITAL OR
AN INSTITUTION FOR
WITHDRAWAL TREATMENT
IN NORTH RHINE-WESTPHALIA (STRUG NRW)
The StrUG came into force on 31.12.2021.
It standardises detention according to sec
63, 64 Criminal Code (StGB) in the Land of
North Rhine-Westphalia (NRW).508 Until the
reform, the legal text was largely unchanged
since 1999, apart from isolated amendments.
The revision of the legal text was due to
multiple reasons:
• In its decision of 4 May 2011, the Federal Constitutional Court (FCC) demands,
amongst other things, the compliance with
the principle of proportionality, a therapyand freedom-oriented enforcement of the
detention
• Empirical knowledge of the treatment of
persons with psychosocial disabilities has
evolved
• The average period of detention is 10.2
years in North Rhine-Westphalia, which is
longer than the national average. 33% of
those placed under sec 63 Criminal Code
had been detained for more than 10 years
as of December 31, 2017.509
Treatment, except for compulsory medical
measures, is only permissible based on the
right to self-determination. For this reason,
persons concerned are no longer referred to
as patients but as detainees (untergebrachte
Person) in the legal text, who may or may
not undergo treatment on a self-determined
basis.
According to sec 3, the detainees' dignity
and personal integrity must be respected
and protected. Life in forensic psychiatric
detention is to be adapted to the general
living conditions outside, provided that
security concerns do not prevent this. De-
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tainees shall be given space and opportunity
to maintain and develop their individuality.
In addition, detainees have a right to appropriate accommodation, food, treatment and
care (sec 3 para 2). However, the principle
of individual accommodation is missing
entirely. Currently, facilities of forensic psychiatric detention are overcrowded. Often,
overcrowding leads to multiple occupancy
of rooms. The lack of privacy can trigger
conflicts and disrupt therapeutic treatment.510 However, at least double rooms are
common even without overcrowding: Often
psychiatric hospitals for forensic psychiatric
detention are orientated towards regular
hospitals (including general psychiatry)
where rooms with at least two beds are the
standard. Of course, it should be noted that
the duration of detention is generally much
shorter in general hospitals.
In addition to complying with the principle
of proportionality, the FCC demands that
forensic psychiatric detention be oriented
toward therapy and liberty. This includes the
requirement for individualization of treatment, which must offer a realistic prospect of
release.511 In order to achieve the objective of
rehabilitation, detainees have a legal right to
the removal of restrictions on their liberty.512
The degree of deprivation of liberty is based
on the predicted danger (sec 4 para 1) and
expressed in levels (sec 4 para2), meaning
that measures to deprive a person’s liberty
must be defined and justified. The degree of
deprivation of liberty is indicated in degrees:
from 0 (little: the detainee is entitled to live
outside the facility in an external facility or
their own home) to 4 (intensive: the primary
place of residence of the detainee is the
facility. They are not entitled to leave it).
This new direction is important: the focus
no longer lies on measures that need to be
assessed (and granted), but interventions are
to be defined and justified from the point of
view of ensuring the protection of the general
public.
With its decisions in March 2011 and July
2018, the FCC strengthened the right of
self-determination of detainees. The UN
Convention on the Rights of Persons with
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