Judgment: No compulsory medication of investigative prisoners

OLG Hamm: Statutory foundations much too unconcrete
( jur).A compulsory medication of investigating prisoners in North Rhine-Westphalia is unlawful until further notice. According to Hamm, the Oberlandesgericht( Higher Regional Court, Hamm) in a resolution announced on Thursday, 31 March 2016( ref.: 5 Ws 88/16), the legal foundations are much too unconcrete. At the same time, the Federal Constitutional Court had expressed serious doubts about the forced treatment of mentally ill offenders.
No forced medication in prison. Image: mik38 - fotolia No forced medication in prison. Image: mik38 - fotolia

In 2011, the Federal Constitutional Court had already passed the Rhineland-Palatinate( resolution dated March 23, 2011, app.: 2 BvR 882/09, JurAgentur report of April 15, 2011) and the Baden-October 2011, app.: 2 BvR 633/11, JurAgentur-Bericht vom 20. Oktober 2011) Regulations for the forced treatment of mentally ill offenders in the so-called measure enforcement part for constitutionally declared. By resolution of February 20, 2013, the Karlsruhe judges also rejected the laws in Saxony( Az.: 2 BvR 228/12, JurAgentur announcement of 28 February 2013).

In accordance with the principles laid down, doctors and courts must accept it when a patient deliberately decides against the treatment. A compulsory treatment can only be justified if the patient is not aware of the disease due to illness. The prerequisite is that the patient endangers himself or others or that he can never be discharged as cured without treatment. An announcement of the forced treatment and an independent control are also necessary.

The Federal Constitutional Court rejected a complaint against compulsory treatment in North Rhine-Westphalian enforcement proceedings with a published decision of 24 February 2016 for formal reasons( ref.: 2 BvR 2427/14).In their brief explanatory statement, however, the Karlsruhe judges express considerable doubts as to the legal basis.

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As now the OLG Hamm decided, they do not do this with investigation prisoners. In any case, a forced treatment with medicines is not permitted.

Concrete is about a man who is currently on trial for manslaughter. Since September 2015, he has been under investigation, a judgment has not yet been announced.

During his period of detention, he was treated for four weeks in the psychiatric department of the Prison of Prison in Fröndenberg. At first he agreed with the gift of neuroleptics;the drugs that act on the nervous system and thus also inhibit the motor activity. When he refused to take the medication, the doctors applied for a forced treatment: under the influence of the medicine the man was "much more accessible and less tense".Now "threatens an acute foreign risk".

However, the Higher Regional Court ruled that a compulsory legal basis for a forced treatment of prisoners of investigation "especially with neuroleptics" is lacking in North Rhine-Westphalia. For such a serious interference with the fundamental rights of the prisoner, the Federal Constitutional Court had demanded a law regulating the various measures and their conditions "sufficiently clear and definite".

However, the North Rhine-Westphalian Law on Investigation of Detention does not specify the permitted measures nor regulate the conditions under which they are to be permitted. It is also unclear how the prisoner 's incapacity for consent is to be proved. Finally, there was a lack of the possibility of a "medical examination independent of the correctional institution" required by the Federal Constitutional Court. The decision of the OLG Hamm of 17 March 2016 is already legally binding.(mwo)

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