It’s about time I posted this entry, which has an incomplete feeling about it.
Gustl Mollath has been held against his will in a secure unit since March 2006, after he voiced suspicions that employees of Hypo Vereinsbank — including his ex-wife — had been smuggling money to Switzerland.
He was tried on charges of assaulting his wife and detained in a psychiatric hospital in Bavaria. But last year a German newspaper uncovered an internal audit report carried out by the bank that showed his claims were valid.
In the Süddeutsche Zeitung, Heribert Prantl comments on the deficiencies of the section of the Criminal Code which psychologists regard as law and lawyers as psychology.
Prantl writes: in the trials in Nuremberg in 2006, many errors were made: evidence not taken into account, the judgment based on a false document and false accusations used to show Mollath was under paranoid delusions.
Mollath seemingly cannot get out of the mental hospital because he is regarded as dangerous (and there is no agreed definition of dangerous).
§ 63 Unterbringung in einem psychiatrischen Krankenhaus
Hat jemand eine rechtswidrige Tat im Zustand der Schuldunfähigkeit (§ 20) oder der verminderten Schuldfähigkeit (§ 21) begangen, so ordnet das Gericht die Unterbringung in einem psychiatrischen Krankenhaus an, wenn die Gesamtwürdigung des Täters und seiner Tat ergibt, daß von ihm infolge seines Zustandes erhebliche rechtswidrige Taten zu erwarten sind und er deshalb für die Allgemeinheit gefährlich ist.
In the Bohlander translation:
Mental hospital order
If a person has committed an unlawful act in a state of insanity (section 20) or diminished responsibility (section 21) the court shall make a mental hospital order if a comprehensive evaluation of the offender and the act leads to the conclusion that as a result of his condition, future serious unlawful acts can be expected of him and that he therefore presents a danger to the general public.
Separated from my books, I’m not sure what German law means by insanity. One element was Mollath’s refusal to be tested by a psychiatrist, as he could not believe anyone would find him insane. Of course, it all started when he was found guilty of beating his wife on her evidence alone. And made ridiculous accusations that a bank was engaged in wrongdoing.
Update on June 17: The Süddeutsche reports that an earlier draft of the application to reopen the case has turned up and it appears that surprising alterations were made before the final engrossment.
And a doctor and CSU member who tweeted that the Bavarian Minister of Justice, Beate Merk, should be asked when Mollath will be released, was shortly afterwards visited by two plainclothes policemen:
Der Fall über den Richard Gutjahr heute in seinem Blog berichtet, ist so unglaublich, dass man ihn unbedingt weiterverbreiten muss. Die Ärztin Ursula Gresser (Mitglied der CSU!) twitterte “Wann Mollath freikommt? Diese Frage könnte man Frau Merk am Mo. 10.06.13 um 19 Uhr im Landgasthof Hofolding stellen“.
via Detlef Burhoff in JURION Strafrecht Blog