Verdict No compulsory medication of remand prisoners

Higher Regional Court Hamm: Legal basis too unconcrete
(Jur). A compulsory medication of remand prisoners in North Rhine-Westphalia is unlawful until further notice. The legal basis for this are far too unconcrete, complained the Higher Regional Court (OLG) Hamm in a decision announced on Thursday, March 31, 2016 (Az .: 5 Ws 88/16). At the same time, the Federal Constitutional Court had expressed considerable reservations about the compulsory treatment of mentally ill offenders.

No forced medication in prison. Picture: mik38 - fotolia

In 2011, the Federal Constitutional Court had already notified the Rhineland-Palatinate (resolution of 23 March 2011, ref .: 2 BvR 882/09, JurAgentur notification of 15 April 2011) and the Baden-Württemberg (decision of 12 October 2011, Az. : 2 BvR 633/11, JurAgentur-message from 20 October 2011) regulations for the compulsory treatment of mentally ill offenders in the so-called execution of measures partially declared unconstitutional. By decision of February 20, 2013, the Karlsruhe judges also rejected the laws in Saxony (Ref .: 2 BvR 228/12, JurAgentur Report dated February 28, 2013).

According to the principles set out, doctors and courts must accept it when a patient consciously decides against the treatment. Only if the patient is ill-informed, a forced treatment can be justified. The prerequisite is that the patient endangers himself or others or that he can never be released as cured without the treatment. Also necessary are an announcement of compulsory treatment and independent control.

A complaint against the compulsory treatment in the North Rhine-Westphalian penal enforcement has rejected the Federal Constitutional Court with a currently published decision of 24 February 2016 for formal reasons as inadmissible (Az .: 2 BvR 2427/14). In their brief justification, however, the Karlsruhe judges express considerable doubts as to whether the legal basis is sufficient.

As the Higher Regional Court Hamm decided, they do not do this with remand prisoners. In any case, a compulsory treatment with medication is inadmissible thereafter.

Specifically, it is about a man who is currently on trial for manslaughter. Since September 2015, he is in remand, a verdict is not yet announced.

During his pre-trial detention, he was treated for four weeks in the psychiatric ward of the prison hospital Fröndenberg. At first, he agreed with the gift of neuroleptics; These are medicines that act on the nervous system and thus inhibit motor activity. When he refused to continue taking the medication, the doctors applied for compulsory treatment: Under the influence of the drug, the man had been "significantly more accessible and less tense." Now threatens "an acute foreign hazard".

But for compulsory treatment of remand prisoners "especially with neuroleptics" is missing in North Rhine-Westphalia, a viable legal basis, the OLG decided. For such a serious encroachment on the fundamental rights of the prisoner the Federal Constitutional Court had demanded a law, which regulates the different measures and their conditions "sufficiently clearly and definitely".

However, the North Rhine-Westphalian remand detention law does not specify the permissible measures nor does it regulate the conditions under which they should be admissible, the OLG complained. It is also unclear how the prisoner's inability to consent has to be proven. Finally, there is a lack of the possibility of a "medical examination independent of the prison" required by the Federal Constitutional Court. The decision of the OLG Hamm of 17 March 2016 is already in force. (MWO)