Gustl Mollath’s case to be re-heard

The Higher Regional Court of Nuremberg has ordered that Gustl Mollath’s case be re-opened, a court press release statesIn the meantime, Mollath has been released from the psychiatric hospital in which he had been held since June 2006.

Gustl Mollath’s case to be re-heard © ferkelraggae-Fotolia

Gustl Mollath’s case to be re-heard © ferkelraggae-Fotolia

Falsified documents

The order sets aside a previous decision of the Regional Court from 24 July 2013 in which state prosecutors’ request to recommence criminal proceedings against Mollath was rejected.

Now the court has transferred the case to a different chamber of the regional court for a new hearing.

The court found that a “falsified” doctor’s certificate had been used in the original criminal proceedings to confirm the injuries Mollath’s wife had received after being struck by him. Under German criminal law, if a untrue document is used to criminal proceedings to the detriment of the defendant, a re-trial can be ordered (§ 359(1) of the German Criminal Procedure Rules, StPO).

The certificate purported to have been signed by a certified doctor who had personally carried out the examination. However, upon magnification it became clear that the certificate had not been signed by the doctor but on her behalf. In its original size, the German abbreviation i.A. (im Auftrag) was not visible to the senate or indeed to those involved in the original proceedings.

In some legal areas it is permissible for a representative to sign a document using the principal’s name directly. Provided the principal is in agreement, there is no obligation on the representative to draw attention to the fact that he is signing on someone else’s behalf. However, the court distinguished such a situation from that of certifying a personal expert opinion. According to the court that person must sign a document personally.

The court held that the weight the falsified certificate carried in providing evidence of grievous bodily harm could have influenced the lower court’s original decision. As a result, the court ruled that the case must be re-heard.

Previous proceedings in the Mollath case

Mollath stood accused of grievous bodily harm, unlawful imprisonment and criminal damage. On 8.8.2006 the Regional court of Nuremberg-Fürth acquitted Mollath, but ordered that he should be detained in a psychiatric hospital after hearing expert evidence that he suffered from a psychiatric disorder which made him a danger to society.

An appeal to Germany’s Court of Justice was rejected on the grounds that it was unfounded. Consequently, Mollath was transferred to Bayreuth’s district psychiatric hospital.

Between February and March 2013 Mollath’s defence lawyer and Regensburg’s state prosecutors applied to have the case re-heard. An additional defence lawyer joined the application in July 2013.

On 24 July 2013 the 7th criminal chamber of the Regensburg regional court rejected the application as impermissible. Both state prosecutors and Mollath’s defence lawyer appealed the decision.

Legal consequences

The decision to re-commence criminal proceedings against Mollath nullifies the legality of the original decision and with it the basis for detaining him, thus leading to his release.

The case has now been remitted to a different criminal chamber of Regensburg’s regional court.

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Christian Solmecke ist Partner der Kanzlei WILDE BEUGER SOLMECKE und inbesondere in den Bereichen des IT-, des Medien- und des Internetrechts tätig. Darüber hinaus ist er Autor zahlreicher juristischer Fachveröffentlichungen in diesen Bereichen.

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