Definition and Explanation of Institutionalization
Institutionalization is a legal term under German criminal, regulatory, and civil law that describes measures by which individuals are placed in a facility (institution) by state decision. The aim is usually to ensure security, treatment, or protection of both the public and the affected person. The ordering and implementation of institutionalization are carried out in accordance with legal requirements and are subject to strict prerequisites and judicial oversight.
Legal Basis of Institutionalization
Criminal Law Institutionalization
Institutionalization under criminal law is particularly governed by the provisions of the Criminal Code (StGB), namely §§ 63 ff. StGB. The principal forms include placement in a psychiatric hospital (§ 63 StGB), in a detoxification facility (§ 64 StGB), as well as institutional placement according to § 66 StGB (preventive detention).
Placement in a Psychiatric Hospital (§ 63 StGB)
This measure is ordered when a person commits unlawful acts due to a mental illness or psychological disorder and is expected to commit further significant offenses. It is especially intended to protect the public and to provide therapy for the affected person.
Placement in a Detoxification Facility (§ 64 StGB)
Persons who commit criminal offenses due to an addiction disorder can be placed in a detoxification facility if there is a sufficiently concrete prospect of therapeutic success.
Preventive Detention (§ 66 StGB)
Preventive detention is a preventive measure that can be imposed following a prison sentence if a person is considered particularly dangerous to the public. It is carried out in dedicated facilities, which may be located either within or outside of correctional institutions.
Civil and Public Law Institutionalization
In addition to criminal law placement, there are also civil law and public law options for institutionalization, aimed at placing people with mental illnesses or severe behavioral disorders in appropriate institutions.
Supervision and Placement under the German Civil Code (BGB)
According to § 1906 BGB, a supervised person may only be placed in a closed facility or psychiatric institution by a court order if there is a risk to life or the expectation of significant health damage. This measure serves to protect the affected person and may only be taken in strict accordance with the principle of proportionality.
Public Law Placements under State Mental Health Laws (PsychKG)
Each federal state regulates in its own Mental Health Act the conditions under which a person incapable of consent can be placed in a closed facility against their will. Key prerequisites include acute danger to themselves or others.
Requirements and Procedure for Institutionalization
Requirements for Ordering
The order for institutionalization is subject to strict legal requirements:
- Written application for placement (in criminal law: application for a measure; in civil law: application by the guardian or authorized authority)
- Judicial decision: Any deprivation of liberty must be confirmed or ordered by a court (Art. 104 Basic Law).
- Medical expert opinion: As a rule, an independent expert opinion is required, documenting the health status and dangerousness of the respective person.
- Principle of Subsidiarity: Coercive measures are always the last resort when all less intrusive measures have been exhausted.
Procedure and Oversight
After the order, actual admission to a suitable facility takes place. Implementation is governed by numerous regulations, particularly regarding the rights of the institutionalized person (information, hearing, legal remedies notice) as well as periodic judicial review of the placement.
The institutions themselves, such as psychiatric hospitals, detoxification facilities, or forensic institutions, are obligated to uphold human rights standards and ensure appropriate treatment.
Legal Remedies and Protection of Rights
Various legal remedies are available against an order for institutionalization:
- Appeal against the court decision
- Hearing before the court and the right to make statements
- Regular judicial review of the placement
- Supervision by the public prosecutor’s office and supervisory authorities
- Appeal to the Federal Constitutional Court for violations of fundamental rights
In particular, the regular judicial reviews (e.g., according to § 67e StGB, § 329 FamFG) provide an important protection mechanism.
Legal Consequences and Implications
Placement in an institution represents a profound interference with the right to liberty and self-determination. It can impact criminal liability, enforcement, social environment, and many other aspects of life. Special, differentiated regulations apply for relaxations, release, and aftercare in forensic settings, as do specific rules for ending supervision in civil law.
International and Constitutional Aspects
Institutionalization also has strong constitutional, human rights, and international law dimensions. The Federal Republic of Germany is obligated to observe the human rights requirements of the European Convention on Human Rights (ECHR) and other international agreements, which particularly protect liberty rights and the prohibition of discrimination.
Conclusion: Importance and Limits of Institutionalization
Institutionalization is an essential component of the German system of regulatory and security measures. It serves to protect both the general public and persons who pose a threat to themselves or others. At the same time, it is only permissible under strict adherence to statutory provisions, judicial oversight, and observance of higher-ranking fundamental rights. Developments in case law, legislation, and academia continually result in further differentiation and reform of the relevant legal bases.
Frequently Asked Questions
When is an order for institutionalization considered?
An order for placement in an institution is typically made in accordance with §§ 63, 64 StGB. It is especially applicable when, due to a mental disorder or severe addiction disorder, a person’s culpability at the time of the offense was significantly diminished or excluded. Another key factor is the existence of the so-called risk prognosis: it must be expected that the person will commit further serious unlawful acts that would significantly endanger the public. Placement is usually supported by an expert opinion that assesses both the diagnosed disorders and the resulting future dangerousness. The formal order is made exclusively by the court and requires formal criminal proceedings. It is not a punishment, but a measure for rehabilitation and security.
How long does institutionalization last and can it be extended?
The duration of institutionalization is basically unlimited, as its purpose is danger prevention rather than proportional punishment for an offense. The requirement for continued placement is that there remains a significant ongoing danger to the public. However, the court is obliged to review at least annually whether the statutory prerequisites for continued placement still exist. This review is generally based on a current psychiatric expert opinion. If it is found that the dangerousness has ceased or has been significantly reduced, the placement must be lifted. In cases of temporary improvement, placement can be suspended on probation pursuant to § 67d para. 2 StGB, with strict instructions and regular monitoring.
What legal remedies are available against the order or continuation of placement?
Against the court’s order for placement, the affected person may file legal remedies—specifically, an appeal, revision, or complaint—depending on whether it is an initial decision or part of the review process. In the course of the annual review, immediate appeal is also available against decisions ordering the continuation of the measure (§ 463 StPO). The affected person has the right, within certain deadlines, to file legal remedies, which are then reviewed by a higher court. If the legal remedy is successful, the order can be lifted or referred back to the original court for a new decision.
What rights and obligations does a person institutionalized in a facility have?
Institutionalized individuals are not incarcerated in the classic sense, but are housed in what is known as a forensic psychiatric institution. They are entitled to humane treatment, medical and psychotherapeutic care, and measures aimed at resocialization. At the same time, they are required to participate in therapeutic measures as far as this is possible and reasonable. They are also entitled to contact with relatives and to judicial review of the placement. Disciplinary measures or the use of force are only permissible within the narrow limits of the principle of proportionality, for example in cases of risk of escape or significant disruption to the orderly running of the facility.
Can institutionalized persons apply for early release?
Yes, institutionalized persons may, in particular in the course of their annual review, apply for release at any time. Such an application may also be made independently of routine review dates, for example if new medical facts have arisen or if the risk assessment has changed. In these cases, the competent court will obtain up-to-date expert opinions to determine whether the requirements for release or suspension on probation are met. The practical enforceability of early release depends chiefly on the prognosis, i.e. the likelihood of repeated criminal behavior. The initiative is often also taken by the treating multidisciplinary team of the institution.
In which institutions does placement under §§ 63, 64 StGB take place?
Placement under §§ 63 and 64 StGB takes place in specialized forensic psychiatric clinics or specialist hospitals for forensic commitment. These are organized by the state and are subject to strict legal as well as medical and therapeutic supervision and control. Forensic commitment differs from regular imprisonment in its treatment offerings, structured daily routine, and implemented security precautions. A transfer to another federal state or institution is possible for treatment reasons or family proximity but in each case requires judicial approval.
What happens after discharge from institutionalization?
After discharge, supervision orders may be issued upon application and pursuant to § 68b StGB. This means that the former institutionalized person is placed under official supervision and must comply with certain instructions (for instance, regarding location, reporting obligations, or therapeutic requirements). The aim is to further reduce the risk of recidivism and to support permanent reintegration into society. Violations or new risk situations may lead to renewed placement or further measures.
