Good news from the German Federal Constitutional Court
In the summer of 2018, the Federal Constitutional Court strengthened people’s rights against four-point-restraint. With the important ruling announced on 22/1/2020, it makes clear: We mean it seriously. And in its reasoning it has set new standards:
a) Whether a violation of personal (physical) freedom has taken place depends solely on the actual, natural will of the person concerned. A lack of the ability to consent does not remove the protection of Article 2 Paragraph 2 of the Constitution; freedom is also guaranteed to the mentally ill and those without full legal capacity. With this, the Federal Constitutional Court begins a revision of its decision of 2011, in which it had asserted that incapacity to consent was the only possible justification for compulsory psychiatric treatment legally ruled by law – erroneously, as is proven here (in German). The court now appears to have taken note of this evidence.
b) Doctors and medical staff are from now on easily guilty of criminal liability – in particular as coercive treatment is bodily injury – if they take coercive measures without a legally effective order (i.e. a final decision) by a court, which later proves to be wrong. This is the case, for example, should the court have agreed to the coercive measures without a comprehensible, transparent psychiatric expert opinion.
It is therefore very important for you to have a PAD, which prohibits any psychiatric evaluation from the outset (§1901a German Civil Code) and to consequently keep silent and only refer to the PAD in a stereotypical way if a psychiatrist tries to talk to you. Then no psychiatric assessment may be made.
c) In future in Germany one should refer to this decision by the Federal Constitutional Court # 2 BvR 1763/16 in every related criminal complaint (for a template, see here), so that the public prosecutor’s office is informed that the investigations must be conducted thoroughly and brought to trial because the highest court has decided that in such cases there is a public interest in prosecution with the right to effective criminal prosecution.
By filing a criminal complaint, investigations can be initiated by the public prosecutor free of charge, without the need for an own lawyer. If the criminal proceedings have been successful, civil proceedings for damages for pain and suffering can then be conducted with the probability of success and the lawyer will then be paid by the other party.
Last year a compensation of 12.000,- € for pain and suffering could also be achieved for a case dating back to 2014, see the judgement here.
Report in the Medical Journal here.