Statement on the publication of the expert opinion by lawyers Kaleck & Co. on Monday 25/2/2008

Statement on the publication of the expert opinion by lawyers Kaleck & Co. on Monday 25/2/2008 concerning the irreconcilableness of the Berlin mental heath law with the UN Disability Convention

by René Talbot
Board member of the
Bundesarbeitsgemeinschaft Psychiatrie-Erfahrener e.V.

from left to right:
Dr. D. Behrendt, Prof. Dr. W.-D. Narr, R. Talbot

Ten years ago the Foucault Tribunal and 7 years ago the Russell Tribunal took place in Berlin. Both tribunals included in its verdict:
We demand the abolition of the "mental patients" laws as a first step toward making psychiatry accountable to society.
Now a fulfillment of this demand might be reached by the fact that on 30/3/2007 the German government signed the UN Disability Convention passed by the UN General Assembly on 13.12.2006. With the intended ratification of this convention by both houses of the German lawmaking system, our assumption is that implicitly coercive psychiatry can entirely be brought to fall and because of this hope, we commissioned a legal expert opinion on this, using the Berlin PsychKG (the mental health law in Berlin) as an example. For this purpose we contracted the law firm of the renowned specialist lawyer in human rights questions and the chairman of the “Republican Lawyers' Association”, Wolfgang Kaleck.

This expert opinion published today in the regional state Berlin Parliament already has considerable support from commentators such as tenured professor Wolf-Dieter Narr and tenured professor Eckard Rohrmann. We were particularly pleased by the comments of Law Professor Theresia Degener, who supports the expert opinion in its conclusion. Mrs. Professor Degener is a special expert for the UN Disability Convention because as part of the German delegation, she participated considerably in it's development.

The Federal Government and its supporting parties, by signing it, have documented that they too want the ratification of the convention.
Because the abolishment of coercive psychiatry - to our regret - was unfortunately not explicitly stipulated in the convention, the implicit logic of the convention is now pointed out by the expert opinion, which leads to the same result: the legislator should only ratify the convention if, in doing so, at the same time it eliminates the three legal columns of coercive psychiatry. Although the expert opinion quite specifically only examines the reconcilableness of the convention with the Berlin PsychKG, it is transferable to all other PsychKG's of all other federal states. The second column of coercive psychiatry, the incapacitation against the will of the individual, euphemistically called "guardianship" ("Betreuung"), is explicitly contradicted by Article 12. In addition, regarding the UN Disability Convention, the law will have to be changed by the abolishment of § 63 of the penal code [forensic psychiatry after a insanity defence], as proved by the dissertation by Annelie Prapolinat. This dissertation is unreservedly supported by the expert opinion by tenured professor Wolf-Dieter Narr commissioned by the “Committee for Constitutional Rights and Democracy” [a highly respected human rights organisation], quote: If one reads Annelie Prapolinat's work and again studies § 63 of the penal code, then it rapidly falls apart like mouldy mushrooms and leaves nothing.

Although I am extraordinarily satisfied with the result of the expert opinion by lawyers Kaleck, Hilbrans and Scharmer, I would like to refer to the points in which it substantially deviates from the opinion of the Bundesarbeitsgemeinschaft Psychiatrie-Erfahrener (die-BPE, an organisation of German survivors of psychiatry:

as mentioned in footnote 54 of the expert opinion, die-BPE has always denied the existence of mental illness, but rather regards it as an invention for the mystification of medical violence. Therefore in the expert opinion, the term "so-called mentally ill" should be replaced by "alleged mentally ill".
die-BPE does in fact see the criteria for torture as being fulfilled in psychiatric coercive treatment as designated in the UN Anti-Torture Convention of 10.12.1984 and has another opinion with regard to the statement on page 27 of the expert opinion concerning Art. 15 of the UN Disability Convention.

I am very pleased by the fact that Member of Parliament Mr. Behrendt and the Berlin Green parliamentary group is publicly presenting this expert opinion together with us and in doing so shows their readiness to discuss the implicit consequences of the UN Disability Convention. In this regard, one thing is certain: with the publication of this expert opinion we link the demand on the legislators in the federal states and on a federal level to get rid of coercive psychiatry immediately, so that the UN Disability Convention can then be ratified.

We would be very pleased if the Berlin parliament would abolish at short notice and without substitution all coercive passages of the Berlin PsychKG.

If you can read German or want to translate it into your own language, here is the complete expert opinion on the internet.
Here are the commentators statements - only in German.
Our first press statement issued on 29th of March in German.
This first press statement is very similar to the IAAPA statement in English, Italian and Swedish.
German Press reports on the publication last Monday:
the "taz" and "Neues Deutschland"

For further explanation, in case you are not familiar with the word "ratification" in the international law language:
one might compare it with buying a house: the first step after the negotiation is the signature of the contract. But the deal is not completed until the money has changed hands and the house is handed over to the new owner. This fulfillment of an international agreement in national laws could be called the ratification.

The distinction between the signature of the convention and the ratification is very important, because of course we are all in favour of all nations signing the convention. But in my opinion, the best time to forward our claims is BEFORE the ratification, because at that time we can illustrate e.g. with expert opinions what it means to ratify the convention. The time before the ratifications is the right time for making demands; after the ratification it becomes the time for begging only. Before the ratification, the lawmaking system has the choice to say, yes we want the consequences of the convention and therefore abolish all coercive psychiatric measures. After the ratification the lawmaking system has an easy time doing nothing and it is almost impossible to force the lawmaker to overcome this. They simply don't respond because they like the psychiatric control of the citizens as a governing paternalistic force. Our hope, that judges would force them into action is extremely doubtful, because judges now always help the psychiatrists to legalize their evil doings. They feel comfortable to continue with the existing laws and their answer to our demands would be: "as long as we have the old laws, we can base our verdicts on them. If there should be a contradiction in the laws, o.k. find a judge on a higher level to force the lawmaker to abolish the old law."

I am sure that the "begging tour" will be a worthless, a completely exhausting enterprise with frustrating final results. I am convinced that anticipating this frustration of our hopes is the reason why the pro-force World Federation for Mental Health endorses the UN Disability Convention, as you can read here:

Member Assembly Endorses UN Convention On The Rights Of Persons With Disabilities
The WFMH Member Assembly, meeting in Hong Kong SAR China on August 20, 2007, endorsed the United Nations Convention on the Rights of Persons with Disabilities and urged national governments throughout the world to embrace and implement the provisions of […]

I hope you understand now why I am warning against a "Treaty Ratification Campaign" before our demands for abolishment of the mental health laws are supported in the parliaments.

Proof of my warnings are the 17 nations which already ratified the convention, although nothing at all has changed:
Bangladesh, Croatia, Cuba, El Salvador, Gabon, Guinea, Hungary, India, Jamaica, Mexico, Namibia, Nicaragua, Panama, Peru, San Marino, South Africa, Spain [here is the current list]. Not a single person less is incarcerated, bodily harmed by forced psychiatric treatment or humiliated by forced custodianship.

Read these nations lips: they say "convention" but mean "coercion".