Constitutional Court removes part of section 196a StPO: how to assess discontinuance for mental incapacity

The Court removed the words “because he committed the act in a state of mental incapacity or” from section 196a(3), first sentence, StPO. It did not abolish section 196a as a whole. The remaining requirements for a contribution towards defence costs therefore still have to be assessed separately.

The announcement also expressly states that earlier statutory provisions do not come back into force. An older version is therefore not revived automatically. The applicable version is the one in force after the announcement.

If an investigation is discontinued under section 108 or section 190 StPO, the Federal Government may, on application, pay the accused a contribution towards defence costs. Necessary cash expenses borne by the accused and, in principle, a contribution towards defence counsel’s fees can be covered.

The amount depends in particular on the scope of the investigation, the complexity of the factual and legal issues, and the necessary or appropriate work of the defence. The judgment does not replace this assessment and does not create a flat-rate claim for every conclusion of proceedings.

In a discontinuance connected with mental incapacity, the reason for ending the investigation must therefore be distinguished from the separate question of costs. Medical or custodial issues are not part of this costs assessment.

Mental incapacity is relevant here as a possible reason for how criminal liability and further prosecution are assessed in the individual case. The judgment does not automatically order detention in a forensic measure and does not decide treatment or a risk prognosis.

For an accused person and their relatives, the written discontinuance decision comes first. It shows which statutory basis the prosecution relied on and what notice was given under section 194 StPO. Only then can the question of a contribution towards defence costs be assessed responsibly.

The removed exclusion must not simply be replaced by a different shorthand with the same effect. The current law requires an independent examination of the statutory wording and the actual course of the proceedings.

Section 196a(4) StPO links the application to the notice of discontinuance under section 194 StPO. The application is filed with the prosecution, which forwards it to the court with any statement. A general oral indication that the case has ended does not replace checking the actual date of service.

The deadline is three years and is an exclusion period. The notice, proof of service and defence-cost documents should therefore be organised without delay. The Constitutional Court judgment does not extend this period and does not replace the application.

A decision already made on an application must be examined separately. Section 196a(5) StPO deals with the suspensive effect of a timely complaint against the decision on the application.