Concept and Fundamentals of Interim Placement
Die interim placement is a measure under German law that can be taken in the context of criminal or civil proceedings to order the provisional stay of a person in a psychiatric facility or a comparable closed institution. Its primary purpose is to protect the public or the affected person themselves when there is an imminent danger and other, less intrusive measures are insufficient. The legal basis is found in particular in Section 126a of the Code of Criminal Procedure (StPO) and in the respective state laws on the placement of mentally ill or addicted individuals.
Interim Placement in Criminal Proceedings
Requirements and Legal Basis
In criminal proceedings, interim placement serves as a provisional safeguard when the accused, due to their mental condition, may be considered for placement in a psychiatric hospital (Section 63 StGB) or a detoxification facility (Section 64 StGB), but the main proceedings have not yet been concluded. The legal requirements are set out in detail in Section 126a StPO.
Key requirements:
- There must be urgent suspicion of an unlawful act.
- There must be grounds to assume that placement in a psychiatric hospital or a detoxification facility is likely to be ordered by the court.
- The measure is only permissible if less restrictive measures are insufficient to eliminate the dangerous situation.
Purpose and Objective of the Measure
The aim of interim placement is to avoid hindering the proceedings against an accused who is considered incapable of guilt or with diminished criminal responsibility, while at the same time protecting the general public or the individual themselves from significant violations of legal interests. In contrast to regular pre-trial detention, the focus is not on risk of flight or collusion, but on the assumption of significant dangerousness resulting from a mental illness.
Procedure and Legal Process
Course of Proceedings:
- The decision regarding interim placement is made by the competent court ex officio or upon application by the public prosecutor’s office.
- The order must be made in writing and limited in time. An extension beyond six months requires renewed judicial review.
- The affected persons are legally represented and informed of the measure. They have the right to appeal the decision (Section 304 StPO).
Remedies and Review:
- The order must be reviewed at regular intervals (Section 117 (1) StPO in conjunction with Section 126a StPO).
- In addition to the main proceedings decision in criminal matters, an immediate appeal can also be filed.
Interim Placement in Civil Law
Statutory Provisions
In civil law, interim placement is based on the public law placement acts of the federal states, usually as a provisional measure to protect against self-harm or harm to others, for example under the Mental Health Acts (PsychKG) and the Act on Assistance and Protective Measures in the Case of Mental Illness.
Examples of legal basis:
- Section 331 FamFG (Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction)
- State laws (State Equal Opportunity Laws, Mental Health Acts)
Requirements for Civil Law Placement
- There must be a present significant danger to the life or health of the person themselves or of third parties.
- The measure is only permissible if placement is necessary and proportionate to avert this danger.
- As a rule, a judicial decision is mandatory; in acute emergencies, an interim placement may initially take place without a judicial order, but this must then be promptly obtained (Section 331 FamFG).
Duration and Judicial Review
Interim placement in civil law is limited to a few days or weeks. An extension or permanent placement measure is only possible by a new judicial decision. The court must hear the affected person personally and, if necessary, appoint a procedural guardian. The measure must be reviewed by the court on its own initiative at regular intervals and must be terminated as early as possible if the prerequisites no longer apply.
Rights and Protection of the Affected Person
Hearing and Legal Remedies
Before ordering interim placement, the person concerned must be personally heard. The appointment of a legal representative or procedural guardian to safeguard their interests is usually mandatory. The person can file an appeal against the decision; in criminal proceedings, an “immediate appeal” is also possible.
Constitutional Significance
Interim placement constitutes a profound interference with the fundamental rights of the affected person, in particular the right to personal liberty (Art. 2 Para. 2 Sentence 2 GG). Therefore, strict legal requirements, a rule-of-law examination process, and effective judicial oversight are mandatory to prevent abuse.
Relation to Regular Placement, Pre-trial Detention, and Other Measures
Interim placement in criminal and civil law differs from regular placement or pre-trial detention. Whereas pre-trial detention is intended to secure the criminal proceedings, interim placement primarily aims to avert imminent danger posed by a mentally ill or addicted person to themselves or others until a final decision is made in the main proceedings.
Practical Relevance and Statistical Recording
The practical importance of interim placement is enormous, as it is often used in acute crisis situations. The number of such measures is statistically recorded and regularly published, for example as part of social statistics or specific scientific studies on coercive measures in psychiatric institutions.
Literature and Legal Sources
- Section 126a StPO (Code of Criminal Procedure)
- Sections 63, 64 StGB (Criminal Code)
- Section 331 FamFG (Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction)
- Mental Health Acts of the Federal States (e.g. BayPsychKHG, PsychKG NRW)
- Basic Law, Article 2 Paragraph 2 Sentence 2 GG
Summary
Interim placement constitutes a highly developed and strictly regulated state measure that can be judicially ordered in the interest of averting danger and protecting mentally ill or addicted persons or the public. It may only be applied under strict formal and substantive requirements and is accompanied by extensive rule-of-law safeguards to protect the rights of those affected and to prevent abuse. The measure is limited in duration and scope and is regularly reviewed and only imposed as a last resort.
Frequently Asked Questions
When can an interim placement be ordered?
An interim placement can be ordered by the competent court under German law if there are urgent grounds to assume that a person, due to their mental condition, presents a significant danger to themselves or to public safety and order. A prerequisite is usually the existence of a medical report certifying the mental illness and the acute risk situation. The court must decide without delay and usually limits the measure initially to a few weeks. Its primary purpose is to protect the affected person or others and, in contrast to long-term placement, to avert immediate danger while the requirements for a final (permanent) placement are still being examined.
What rights does the affected person have during interim placement?
Affected persons retain all fundamental rights during interim placement insofar as their exercise is not restricted by the measure itself. In particular, they have the right to be heard in court proceedings; the court must hear them personally before a decision is made, unless urgent necessity temporarily precludes this. They are also entitled to appeal the order (Section 70 FamFG) and to consult a lawyer or legal representative. Furthermore, the placement facilities are subject to judicial oversight and must respect the dignity of the affected person.
How long can interim placement last at most?
The duration of interim placement is legally limited. According to Section 427 FamFG and the relevant state laws, it may generally not exceed a certain period, which is usually between six and a maximum of eight weeks. An extension is only possible in exceptional cases and if there is a continued acute danger, by way of a new court order. The measure is expressly intended to be temporary only until a decision on permanent placement is made in the main proceedings.
Which court is responsible for ordering interim placement?
The court responsible for ordering interim placement is the guardianship court at the usual place of residence of the affected person. In particularly urgent cases, the court at the place of current residence may also act. The proceedings are not public, and the court must take all circumstances of the individual case into account in its decision. Jurisdictional rules are precisely regulated to ensure the fastest possible judicial decision and to avert a danger as quickly as possible.
What legal remedies are available against interim placement?
The affected person or their legal representative may file an appeal against the court-ordered interim placement according to the provisions of the FamFG (Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction). The appeal must be filed with the next higher court and generally has suspensive effect, unless the court orders immediate enforcement for reasons of public safety (Section 68 (3) Sentence 2 FamFG). The appellate court’s decision is made promptly to ensure effective legal protection.
Is involuntary medication permitted during interim placement?
Involuntary medication during interim placement is only permitted under very strict conditions. It requires a special judicial order and is only allowed if an immediate danger to life or health must be averted and milder measures are not available. The legal regulations have been tightened by numerous court decisions and the Federal Constitutional Court. The measure must always be proportionate, documented, ordered by a specialist physician, and independently reviewable.
Who bears the costs of the court proceedings and the placement?
The costs of the court proceedings for interim placement, as well as the costs of the placement itself, are generally borne by the placed person, insofar as they are financially able to do so. If this is not the case, the costs may be transferred to the public treasury or covered by social assistance providers. Court costs are governed by the Court and Notary Fees Act (GNotKG); for the placement, co-payments and costs for medical care as well as for the stay in an institution may be incurred by the health or social insurance. The precise cost regulation depends on the individual case and the respective state and federal regulations.
