“Psychiatry and justice must no longer function so easily ‘hand in hand'”

Criminal law professor Henning Ernst Muller in an interview on the Mollath trial and the high level of prison sentences in Germany

Today begins the new main hearing against Gustl Mollath, who was held in a psychiatric hospital against his will for over 7 years (Mollath case: "If this is true, then this is not a constitutional state, then we have an Archipelago Gulag"). 17 trial days are scheduled for the proceedings before the Regional Court of Regensburg. The Regensburg criminal law professor Henning Ernst Muller has repeatedly discussed and commented on the Mollath case from a legal perspective on the Becks blog. In an interview with Telepolis, Muller explains what exactly the reopened trial is about and what consequences must be drawn from the Mollath case. And it makes clear that the current liability fee of 25 euros per day is far too low. Meanwhile, it became known that Gustl Mollath’s ex-wife exercised her right to refuse to testify and was disinvited as a witness by the court.




Mr. Muller, today is the start of the new main hearing in the Gustl Mollath case. Why did it take so long to get to the new trial??

Henning Ernst Muller: If you mean the time since the order by the OLG Nurnberg: Yes, that took a long time. But one has to take into account that the LG Regensburg is anxious to do everything right now and therefore has planned a very extensive main hearing, with many appointments. This is not easy to fit into a usually very tight judicial schedule. And since Mr. Mollath is at liberty, there is no longer any special legal need for acceleration, as is the case in custody cases. Gustl Mollath at a panel discussion in Munich in early December 2013: "Emport you!". Image: R. Grunhagen What exactly is the trial about now??

Henning Ernst Muller: It is a question of conducting a procedurally and substantively correct main hearing on the same charges as in 2006. What do you think of the fact that the trial has been scheduled for 17 days??

Henning Ernst Muller: As I said before, the court will try to investigate the accusations very carefully this time. Evidence gathering and presentation are obviously to be designed in an open manner. However, it is impossible to predict whether the main hearing will actually take so much time. So you ame that the court will by no means treat the case superficially, as it was amed by one or the other at the beginning?

Henning Ernst Muller: Superficiality is no longer an option. The court knows that this time it is under the scrutiny of the nationwide public. This is a special situation – despite the fact that the charges are not too serious "Honor" of the Bavarian judiciary is at stake and also whether Mr. Mollath needs to be exonerated. But it is also clear: Gustl Mollath is the defendant here, not those who put him behind bars at the time – their responsibility is not the program of investigation for this trial. Mr. Mollath has repeatedly emphasized that this is exactly what he wanted: a new main hearing. Which preliminary or. This trial may have disadvantages for Mr. Mollath?

Henning Ernst Muller: The advantage is that Mr. Mollath is now well defended, that the main hearing before the Regensburg Regional Court will certainly be conducted in accordance with the rule of law, and that he will possibly be fully rehabilitated from the allegations of the crime and from the allegation that he was acting "delusional" and is "dangerous". In any case, it cannot end worse for him than it did in 2006. However, the result of the hearing of evidence on the allegations of the crime has not yet been determined. However, the main witness for the prosecution and the side plaintiff is exercising her right to refuse to testify. In this way she prevents that her statements are critically questioned in the main trial. In my opinion, the probative value of their earlier statements is thus considerably reduced. The controversial psychiatric reports will also play a role in the trial. What findings do you expect with regard to the widely criticized psychiatric evaluations in the Mollath case?

Henning Ernst Muller: I am not a prophet. I hope, however, that the expert opinions will be put to the test and that the errors in the psychiatric evaluation will also be revealed.

"The imprisonment penalty is not appropriate at all"

What does a positive outcome for Mr. Mollath mean for him in terms of compensation payments?? If it turns out that Mr. Mollath was wrongfully imprisoned for seven and a half years, he will also have to be compensated. In Germany, 25 euros per day is paid in prison compensation, or just over 9,000 euros per year. In the USA, a man who was wrongfully imprisoned for two years was awarded 12 million euros in compensation last year. Do you think the level of compensation in Germany is appropriate??

Henning Ernst Muller: No, . It is a sad sign for a state, that "Freedom" in his hymn rests, that the freedom should be worth so little then. In the end, the affected citizen is told that he has to make a special sacrifice for the "unfortunately not quite perfect justice" and he is paid only a kind of expense allowance, less than the amount paid to election workers who spend a Sunday on the democratic process "sacrifice". Even if freedom is ultimately priceless, at least in the case of longer imprisonment, the compensation rates had to be raised considerably, because life time can no longer be made up. I am deliberately saying this in general terms and not in relation to Mr. Mollath. The main trial has not even begun. The Mollath case has left its mark not only in the psychiatric and political spheres. Let us summarize: At what points did the judiciary make mistakes and at what point, at the latest, did you think that there should have been a change of direction at the judicial level??

Henning Ernst Muller: The mistakes are complex and can hardly be summarized so simply. There were errors in the application of procedural law – e.g.B. in the detention, in the main trial, in the taking and weighing of evidence, in the execution (transfers, which can only be seen as a "Penalty decrease" (arbitrary dragging out of complaints), in the area of the execution of the accommodation. At the latest when it became obvious that considerable mistakes had been made in the procedure, one had "redirect" had to. I had expected that the accommodation would be declared closed before Christmas 2012 and that we would then work calmly to clarify what had happened. But why did this not happen?? Henning Ernst Muller: Well. I had the impression that parts of the judiciary developed a certain defiance from the time when the public and politics interfered more vehemently. Some within the judiciary saw these interferences as a threat to the independence of the judiciary. The independence of the judiciary is indeed a very important value. But the judiciary does not stand outside democratic society with its decisions; it must accept criticism and correct mistakes. I am very sure that without the public attention Gustl Mollath would have remained in psychiatry for several more years. Only the public excitement has caused the success of the request for a retrial. What do you think the outcome of the trial will be??

Henning Ernst Muller: I was wrong several times with my predictions in this case. I therefore prefer not to make any more public amptions. What must be done now to prevent another Mollath case? Where do you see a need for action?

Henning Ernst Muller: The reform aimed at by Bavaria to the Verhaltnismabigkeit of the accommodation can be only a first step. Another is a sensible Mabregelvollzugsgesetz in Bavaria. However, many things cannot be changed by legislation, but only by a different application of the law. Psychiatry and the judiciary are no longer allowed to act so easily "Hand in hand" In the application of the law and in the rendering of expert opinions, a certain routine has arisen that often does not do justice to the people concerned and their claim to freedom. The Mollath case only highlights the overall situation, which is prone to abuse. Gustl Mollath is not the only case of this kind. As he himself says: He was lucky. I am pleased to see that the Mollath case is now also being discussed to some extent in psychiatry and that its own routines are being viewed more self-critically. I hope that this is not just a flash in the pan, but really the beginning of a change in thinking.

Henning Ernst Muller, Professor of Criminal Law and Criminology at the University of Regensburg, blogs regularly on beck-blog. Texts on Telepolis: Edathy case – public prosecutor’s office in the "Gray area" and The Mollath Case, a Case for Legal Science?.