Successful constitutional challenge for Gustl Mollath

Gustl Mollath has led a successful constitutional appeal after being incarcerated in a psychiatric hospital for over seven years. Germany’s constitutional court ruled that the original decision to transfer Mollath to a psychiatric hospital was constitutionally flawed.

Oringinal decision in Gustl Mollath case was flawed  © ferkelraggae-Fotolia

Oringinal decision in Gustl Mollath case was flawed © ferkelraggae-Fotolia


In 2006 Mollath was accused of grievous bodily harm, unlawful imprisonment and criminal damage. 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.

Germany’s constitutional court (Bundesverfassungsgericht, BVerfG) has now ruled that the decision to incarcerate Gustl Mollath breached the German constitution.

Gustl Mollath’s constitutional challenge

The BVerfG decided to hear the constitutional appeal despite Mollath’s recent release from the psychiatric hospital, as his case concerns fundamental constitutional questions of individual freedom and false imprisonment by the state.

The court reached the conclusion that the decision of the Nuremberg court breached Gustl Mollath’s right to freedom under article 2(2) and the principle of proportionality under article 20 of the German constitution (Grundgesetz).

Judicial scrutiny

The BVerfG made clear that in cases where individuals’ civil rights are at a high risk of being violated, judges must counterbalance the risk by scrutinising the evidence in light of heightened right to freedom.

The court also clarified that it is for judges to reach a decision based on the evidence and not for experts giving evidence to pronounce their views on the appropriate decision.

Judicial failings

In Mollath’s case the judges in the original proceedings had failed to properly weigh up the evidence, the BVerfG concluded.

In particular, the court noted that the expert report which was used as a basis for the decision on Mollath’s mental state of health contradicted expert evidence given in court.

The court also found that the judges in the original proceedings had failed to satisfy themselves of the concrete risks Mollath posed to society, including which particular crimes may be committed in the future.

Furthermore the judges in the original proceedings failed to consider mitigating circumstances or the appropriateness of less severe punishments.

Next steps

The case has now been remitted to Bamberg’s Higher Regional Court to be re-heard.

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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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