All state justice ministers have had a problem for years: The imprecisely formulated Section 64 of the Criminal Code has led to a dramatic overload of the penal system and must be amended.

The penal system differs from the penal system and affects both mentally ill and addicts offenders;

they are housed in psychiatric hospitals or rehab centers.

Rudiger Soldt

Political correspondent in Baden-Württemberg.

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In some federal states, patients had to be released early from clinics in order to make room for serious offenders in the penal system who fought for a place in court because of an alleged drug addiction. In Baden-Württemberg there is a shortage of around 120 places in the penal system; In Lower Saxony there were almost 200 offenders on the waiting list in 2020.

A federal-state working group set up in October 2020, in which the state justice ministers and some state health ministers were involved, has now presented a final report on the amendment of the penal code: it is planned to reformulate Paragraph 64, which will narrow the requirements for placement in a rehab facility be recorded: In the future, placement in the penal system to complete drug therapy should only be possible in the case of a “substance use disorder”; just the "tendency" to enjoy intoxicating substances in excess should no longer suffice.

The following wording should be inserted: "The slope requires a substance use disorder, as a result of which a permanent and serious impairment of lifestyle, health, work or productivity has occurred and continues", says the report, which is available to the FAZ.

In addition, the stay in the rehab facility should only be able to be ordered by the court if there are “actual indications” that this could deter the offender from “relapsing into the slope” or from committing repeated “significant illegal acts”.

Everything goes back to an imprecise definition

The current practice of enforcement of measures goes back to an imprecise definition of the term “addiction” to alcoholic beverages or intoxicating substances. It was created in the course of the second criminal law reform law in 1969 and was later confirmed by a judgment of the Federal Court of Justice (BGH) in 2004. At that time, the BGH took a very generous view of the connection between the “offense” and the person's tendency to consume intoxicants in abundance. The right to be placed in a detention center also existed if the “propensity for drug abuse” was not the sole cause of the crime.

The numbers alone speak for a reform: from 1995 to 2020, the number of patients who had to be placed in a rehab facility increased from 1,373 to 5,280.

Between 1995 and 2016, the average length of treatment for offenders in the penal system increased by six months;

the proportion of those who were fully culpable among those placed in the penal system was 20 percent in 1995, and 70 percent in 2019.

An "abuse of the rehab centers"

To justify the amendment, the report now says: "Because any co-causation of the slope is sufficient for the offense, those persons are also included in the scope of paragraph 64 in whom the delinquency is not predominantly due to the slope, but essentially to other causes This means that drug dealers who have become criminals due to criminal tendencies and an antisocial personality structure can, according to the current legal situation, be placed in the penal system, even if they have only occasionally consumed drugs.

Experts even speak of an "abuse of the rehab centers", where "dominant patients" are treated who have support in the criminal milieu outside the clinic, whose need for therapy is low and who are only concerned with the mitigation of their prison sentence and better prison conditions. That is why the working group also proposes that the suspension of the sentence no longer be examined after half the prison term, but only after two thirds.

Because representatives of the current traffic light government parties also took part in the deliberations of the working group, a quick consensus is expected in Berlin.

The FDP provides the Justice Minister Herbert Mertin in Rhineland-Palatinate and the Minister of Health with Heiner Garg in Schleswig-Holstein.

Green state ministers were also involved.

In the green parliamentary group it is said that the report is a “good basis for discussion”, the problem is obvious, so the reform proposals should not disappear in “any drawer”.

A spokeswoman for Federal Justice Minister Marco Buschmann (FDP) said that the ministry would draw up a draft law on the basis of these proposals, and that Buschmann would publish and comment on the proposals in the coming week.