My colleague’s remarks were very comprehensive and I have little that I wish to add to them but I would like to say perhaps a little more about the penal system in Germany. There is no difference between the judicial and the medicinal concrete diagnosis here. The court takes on the psychiatric diagnoses just the way they are and doesn’t check their plausibility necessarily. It’s almost never the case. As far as this closed regime is concerned, it’s not sexual crimes that are sentenced here but generally property, theft, robberies and sometimes bodily harm as well. Sometimes these are cases where people weren’t intending to commit these crimes but where the success of the crime has escaped the criminal. So sometimes this can happen to criminals who perhaps are not trying to achieve anything in particular but the closed regime can sometimes impact on them. 

The case […] is one I think we know about and I think I can describe here in detail. Miss Theuermeister, who is a member of the survivors of the mental health system. She had a candle burning to keep her tea warm. She left her apartment and when she came back, her apartment was in flames and she has been put in a closed penitentiary as a result of this. She has been in there for two years now and it is still not clear when she is going to come out because she doesn’t admit to her illness, as the psychiatrists call it. 

The code of laws in Germany says that if a potential criminal or a real criminal is diagnosed as mentally ill and in connection with the crime are seen as being convicted of their crimes and do not admit to this. As a result of this, the criminal cannot be sentenced. This is set out in § 21 of the code of laws. A psychiatric expertise was called for and this has to be done before the trial. But very often people are not informed of their right to silence, for example, the kind of thing you would have in normal criminal proceedings. § 160a of our criminal procedure code here in Germany makes it quite clear that these people have to be informed that they have that right in advance and if that is not done then the testimony should not be heard during the main proceedings. 

So for various reasons it was a disputed ruling. Differentiations which should have been made were not being made and the ruling then comes if the court decides that alongside the fact that the person committed the crime they are particularly dangerous, then under § 63 they can be placed in a closed psychiatric unit. The basis for that again is expertise which will be backed up during the hearing by the presence of the witness, of the expert, or whatever they call them. 

Usually the court procedure is oriented towards the actions of the defendant and the question is: Is this person particularly dangerous, is this person likely to be a repeat offender or not and in addition to that, can the penalty – well, putting someone into a closed unit is not necessarily regarded as a penalty but is it appropriate? So, in judging whether the person is likely to commit crimes in the future, the medical expert is very likely, in many cases, to take a very pathological approach e.g. would the person be likely to take neuroleptics? If so, then they don’t have to be placed in a closed unit or they can be placed on probation. If it seems that the offender is not prepared to accept therapy – as they put it euphemistically – then they will be committed. 

There are certain rules governing the closed regime and this is very carefully monitored. Usually probation is included – a probation officer will be part of the structure. If the defendant says, for example, that he or she is not mentally ill and the expert is wrong and this is combined with a kind of refusal to collaborate, then very often that is enough to have the person committed to a closed regime. Closed regime is not easy to monitor, if at all or as often as that  - sometimes it doesn’t happen at all. But according to the law, once a year an expert report is called for under the procedural code. Which means that a judge comes to visit and interviews the person in the regime and also the attendants. A social forecast is called for but an assessment is made as to whether the person could be placed in residence elsewhere. Also a therapy forecast is made, that means: does the patient obey the doctor’s orders or not? If the patient does obey the doctor’s orders, it may still be deemed an “apparent co-operation” and this may be regarded as a pseudo-adaptation, a kind of “trick adaptation” and that has to be monitored. 

And then the courts of course also address the legal forecast. This is not actually governed by law but it’s about the likelyhood whether the patient or defendant is likely to commit repeat crimes in future. The attendant/nurse will produce a report of 16 – 20 pages about how the patient has been behaving and if they then decide, the judges always follow what the doctor has said – they will never challenge anything that the doctors have said. It is possible to call for independent expertise but in practice, these independent experts usually know each other very well and obviously they are not likely to cause each other problems. 

There are hardly any medical experts around who are likely not to support the expertise. I’m responsible for the North-Baden psychiatric unit. There is a Dr. Stramm there who is the permanent independent expert of the criminal court there, the Heidelberg court and I don’t know of any single case where Dr. Stramm has concluded that a patient who is allegedly mentally ill should be recommended for release unless the doctors themselves have come to this conclusion, of course. Dr. Stramm himself worked in the psychiatric unit in northern Baden for a long time – he got his training there so it is not at all surprising, I suppose. The head of the forensic department was his boss and he knows the people there. 

Ok, that is how closed regimes are monitored and there is no time limit and in that context it is of course not at all surprising that psychiatric treatment – and above all, forensic psychiatric treatment – community have a pretty blank check. They set up their own rules and these rules are binding for the patient. Any violation of these rules, however minor, is mercilessly penalized. That is the form for preparing these defendants, these patients for their future life. For example, participating in work therapy for an hourly wage of about 1DM per hour putting ballpoint pens together. About six months ago, one of these patients actually put one of these pens in his pocket. Other people do this all the time. He took this pen home and of course, he didn’t dare hand it back because he might have been reproached for doing so and the doctor’s report this year, when asked about whether the form of residential care should be altered, is based above all on the fact that the patient isn’t very truthful and stole a pen. 

So the argument of the doctor is: if the patient isn’t able to adapt to even the simplest of rules, then how is he going to cope with life and liberty. And of course it is quite clear that he should be kept in the closed regime for another year. 

Ok, the seventh chamber of the Heidelberg court, the court responsible for enforcement has always followed those recommendations and the recommendations of the doctors and therefore the closed regime was applied for another year. The enforcement act is only applied to a limited extent to the monitoring of the closed regime. In Baden-Wurttemberg and in Schleswig-Holstein as you were saying, they don’t actually have a proper act to cover closed regimes. It is a kind of unrestricted area, if you like. Above all social workers – I would have to agree with what you have just said and doctors and nurses are relatively unregulated. So the consequence of the fact that the provisions of the criminal enforcement act are only applicable to a limited extent to a closed regime usually means that the patients aren’t allowed to keep a television or a radio in their rooms, which means that the right to information and deciding what information you want, doesn’t apply in closes regimes and anybody who substantiates this by saying that a patient in a closed regime doesn’t have access to such information by comparison with other forms of residence, that’s the way it is. 

It often happens that a patient in a closed regime for a whole year will be isolated from the other patients in order to make this person more “accessible”, as they call it. For example Mr. H. it says here at the beginning of the reporting period, was because of his “persistent and malignant” – “malignant” is a word they normally apply to cancer – behaviour, was isolated from the other patients. We reported about this in our report in November 2000. The man is still in isolation. 
At the time this was introduced for security reasons, during the anti-terrorism acts in Germany but now it has become the rule in closed regimes. Patients can be isolated without any kind of court or legislator taking an interest.