Concept and significance of security proceedings
The security proceedings constitute an independent procedure under German criminal procedure law, applied pursuant to Section 413 et seq. of the Code of Criminal Procedure (StPO). Its purpose is to protect the public from dangerous offenders who, according to Section 20 of the Criminal Code (StGB), are not criminally responsible and thus cannot be subjected to punitive sanctions, yet for reasons of public safety, measures appear necessary. The main aim of the security proceedings is to determine whether and which criminal security measures—particularly placement in a psychiatric hospital (§ 63 StGB) or a rehabilitation facility (§ 64 StGB)—are necessary.
Legal foundations
Code of Criminal Procedure (StPO)
The core provisions governing security proceedings are set out in Sections 413 to 416 StPO. Additionally, general provisions of the Code of Criminal Procedure may apply correspondingly (Section 413 paragraph 2 StPO).
Criminal Code (StGB)
Sections 20, 21, 63, and 64 StGB are central points of reference for security proceedings. They regulate the prerequisites and legal consequences of lack of criminal responsibility, as well as the legal framework for commitment to suitable institutions.
Trigger and prerequisites for security proceedings
Lack of criminal responsibility and procedural prerequisites
Security proceedings are typically initiated when the person accused of an act cannot be held criminally responsible due to lack of culpability as per Section 20 StGB or due to permanent incapacity to stand trial. A classic trigger is when an act has been committed that would normally constitute a criminal offense, but the accused lacks the capacity to recognize the wrongfulness of their actions or act in accordance with such recognition.
Public interest and risk factor
The initiation of security proceedings further requires that the individual in question is expected to pose significant dangers to the public, in particular that serious unlawful acts as a consequence of their condition must be feared.
Course of the security proceedings
Initiation of proceedings
The proceedings are initiated by an application from the public prosecutor’s office if it believes that placement in a psychiatric hospital or a rehabilitation facility may be indicated. Unlike in criminal proceedings, no request for punishment is made; instead, only the imposition of a security measure is sought.
Investigation proceedings
During the investigation, large parts of the provisions applicable to ordinary criminal proceedings are applied, provided they are relevant to determining the act and the perpetrator and not to the imposition of penalties. Expert opinions on the condition of the individual concerned are especially obtained (Section 246a StPO analogously).
Main hearing and judicial decision
The main hearing in security proceedings resembles the process of a regular criminal trial. The person concerned has the same rights as a defendant in a criminal proceeding, in particular the right to defense and to be heard. The decision on ordering placement is made by the court by judgment, not merely by court order.
Legal consequences and measures
Placement pursuant to Section 63 StGB
The principal measure is placement in a psychiatric hospital. The prerequisites for this are an unlawful act committed in a state of criminal incapacity or substantially diminished capacity, as well as a resulting danger of further significant unlawful acts.
Placement pursuant to Section 64 StGB
In cases where addiction to intoxicants already exists or is imminent, the person concerned may also be placed in a rehabilitation facility. This requires both a propensity for substance abuse and the commission of significant unlawful acts as a result of this behavior.
No sentencing
There is no sentencing in security proceedings. The measures of rehabilitation and safeguarding are not penalties, but preventive protective actions for the safety of the public and for curing or alleviating the individual’s mental illness.
Legal remedies
Appeals against decisions
The person concerned has the same legal remedies against court decisions in security proceedings as in ordinary criminal proceedings. In particular, appeals and revisions may be lodged. The provisions of Sections 312 et seq. and 333 et seq. StPO apply correspondingly.
Review and continuation of placement
The order for placement is not time-limited, but the court is obliged to review its continuation at least annually (Section 67e StGB). Release is ordered if the requirements for placement are no longer met.
Distinction from related proceedings
The security proceedings are strictly distinguished from other procedures, in particular the expedited procedure pursuant to Section 417 et seq. StPO and ordinary criminal proceedings. The expedited procedure focuses on speedy adjudication of straightforward cases involving criminally responsible suspects. Security proceedings, by contrast, serve exclusively to avert danger from individuals who lack criminal or trial capacity.
Significance and practical relevance
Security proceedings ensure a balance between the principle of criminal responsibility and the need to protect the public. The involvement of various disciplines, in particular psychiatric, psychological, and medical experts, contributes to a nuanced assessment of the necessary legal measures. Although the number of security proceedings initiated each year is low compared to the total number of criminal cases, they are of considerable practical significance, especially in cases of serious violent and sexual offenses in the context of severe psychiatric illnesses.
Literature and further information
For further study, commentaries on the Code of Criminal Procedure—especially on Sections 413-416 StPO—and monographs and handbooks on the law of measures and forensic psychiatry are recommended. In-depth case law can be found in the decisions of the Federal Court of Justice and the Higher Regional Courts on the prerequisites and procedures of security proceedings.
Note: This article provides a detailed insight into security proceedings under German criminal law. The information presented is current as of June 2024 and reflects the applicable legal situation. An individual case assessment remains necessary in every instance.
Frequently asked questions
Under what circumstances are security proceedings conducted?
A security proceeding is conducted when a person is accused of a criminal act but, due to a permanent condition such as lack of criminal responsibility (§ 20 StGB) or incapacity to stand trial, is not able to appear before court and defend themselves as an accused in a regular criminal trial. A typical case is that of a mentally ill perpetrator, where the requirements for placement under § 63 or § 64 StGB need to be assessed. The crucial prerequisite for conducting security proceedings is that an unlawful act, but not necessarily a culpably committed offense, has occurred. The public prosecutor applies to the court for security proceedings, which then schedules a main hearing in which only the act and the condition of the accused are to be examined. The aim is to decide on the placement of the person in a psychiatric hospital or a rehabilitation facility for the protection of the public.
What procedural rights does the person concerned have in security proceedings?
Numerous safeguards and rights under criminal procedure law apply in security proceedings as well, intended to protect the individual from unjustified measures. These include, in particular, the right to legal defense, inspection of files, hearing, as well as the right to a personal hearing and to make statements in the main trial. Since significant infringements of fundamental rights such as deprivation of liberty regularly threaten, Section 140 paragraph 1 no. 2 StPO provides for mandatory defense, i.e., the court must appoint a defense counsel for the person concerned. Furthermore, the principle of fair trial under Article 6 of the ECHR (European Convention on Human Rights) applies, requiring especially comprehensive judicial investigation and consideration of the health status of the individual.
How do security proceedings differ from regular criminal proceedings?
Security proceedings differ from regular criminal proceedings in that they do not aim for conviction and sentencing, but for the imposition of a measure for safeguarding and improvement—in particular under Sections 63 or 64 StGB. There is no decision on guilt and penalty, but exclusively on whether and which measure to avert danger to the public is required. The act serves merely as a reference point for imposing the measure; there is no formal conviction. Additionally, involvement of a psychiatric or forensic expert to assess the mental state of the person concerned is generally required.
Can security proceedings also result in commitment for therapy?
Yes, in the context of security proceedings, in addition to placement in a psychiatric hospital pursuant to Section 63 StGB, placement in a rehabilitation facility pursuant to Section 64 StGB can also be ordered, provided the relevant requirements are met—particularly a substance use disorder linked to the offense. Such a therapeutic measure is generally considered if the risk of further significant criminal acts due to the individual’s mental state is to be feared and there is a prospect of improvement. The selection and specific design of the measure depend on the concrete findings about the person and the offense in the proceedings.
What is the role of experts in security proceedings?
Experts, usually medical specialists in psychiatry or psychology, play a central role in security proceedings. They prepare reports on behalf of the court to answer, in depth, the questions of criminal responsibility, diagnosis, and danger prognosis of the person concerned. These reports form the decisive basis for the judicial decision whether to order placement under Section 63 or 64 StGB. The expert must be heard in the main hearing, but the court is not bound by the expert opinion and decides freely according to its conviction.
Are there any special opportunities for detention review or legal remedies in security proceedings?
All ordinary legal remedies under criminal procedure are available against decisions in security proceedings. Complaints or appeals may, for example, be filed against interim or final orders of placement, depending on the level of the deciding court. In addition, there is a regular right to review the placement at set intervals, ensuring ongoing oversight of the proportionality of the measure. These judicial reviews serve to protect the individual from disproportionate or unduly prolonged deprivations of liberty.
