Preventive detention: placement in an institution for mentally abnormal offenders under section 21 StGB

Section 21 StGB, in the version of the reform effective 1 March 2023, ties placement to three requirements. First, there must be a predicate offence that carries a penalty of more than one year. Second, the offence must be based on a serious and lasting mental disorder, a formula that has replaced the earlier higher-degree mental or psychological abnormality. Third, a qualified risk prognosis is needed, namely that the person will, under the influence of the disorder, commit an offence with serious consequences. Only the coincidence of all three points sustains the measure.

What to do now: First, examine whether the predicate offence even reaches the threshold of more than one year. Second, review the psychiatric expert opinion as to whether it establishes a serious and lasting disorder within the meaning of the new rule. Third, scrutinise the risk prognosis, because it is the most common point of leverage for the defence.

Section 21 StGB distinguishes two situations. Under section 21 para 1 StGB, placement takes the place of a sentence where, at the time of the offence, the person lacked criminal responsibility on account of the disorder. There is no conviction with a sentence; the court orders the measure. Under section 21 para 2 StGB, placement is added to a sentence where the person was criminally responsible despite the disorder. In that case the sentence is served before the measure and the time spent in placement is credited. Which paragraph applies depends on whether criminal responsibility at the time of the offence was excluded.

What to do now: First, clarify whether the proceedings proceed on the basis of a lack of responsibility (para 1) or of responsibility despite the disorder (para 2). Second, for para 2 keep in mind the sequence, that the sentence is served first and the measure thereafter. Third, observe the crediting of the placement time so that it is recorded correctly.

The proceedings on placement under section 21 StGB rest on a psychiatric expert opinion. It assesses whether a serious and lasting mental disorder exists and whether the qualified risk prognosis is justified, namely that the person will, under the influence of the disorder, commit an offence with serious consequences. The court is not bound by the opinion, but in practice it carries great weight. The measure is enforced in a forensic-therapeutic institution that has a treatment mandate.

What to do now: First, examine the expert opinion closely, above all the reasoning of the risk prognosis. Second, consider whether a supplementary or a differing opinion is worth obtaining. Third, keep the institution’s treatment mandate in view, because it matters for the later review and release.

Placement under section 21 StGB is not a fixed sentence; in principle it lasts as long as its purpose requires. Under section 25 StGB, preventive measures are to be enforced only for as long as the dangerousness exists; if it falls away, the person is to be released. The court must review the continued necessity of placement of its own motion. Under section 47 StGB, conditional release comes into consideration where it can be assumed that the dangerousness no longer exists; it is coupled with a probationary period and, where appropriate, with directives and probation assistance.

What to do now: First, keep the regular review under section 25 StGB in view and pay attention to treatment progress. Second, work towards the requirements of conditional release under section 47 StGB. Third, prepare the later probationary period with directives and probation assistance early on.