Detention

Detention in Europe

Detention for the Purpose of Incapacitation in Germany

Provisions relating to detention for the purpose of incapacitation in the German Criminal Code [1]: This criminal issue is covered by Chapter Three Sanctionsunder the Sixth Title, Measures of Rehabilitation and Incapacitation,” located in Section 66 Detention for the purpose of incapacitation, which reads: (1) If a person has been sentenced for an intentional offence to a term of imprisonment of not less than two years, the court shall make an incapacitation order in addition to the term of imprisonment if the convicted person has already been sentenced twice, each time to a term of imprisonment of not less than one year for intentional offences which he committed prior to the offence now at trial; 1. as a result of one or more of these prior offences he has served a term of imprisonment or detention under a measure of rehabilitation and incapacitation for a total term of not less than two years; and 2. a comprehensive evaluation of the convicted person and his offences reveals that, due to his propensity to commit serious offences, particularly of a kind resulting in serious emotional trauma or physical injury to the victim or serious economic damage, he poses a danger to the general public. 3. (2) If a person has committed three intentional offences for each of which he incurred a sentence of imprisonment of not less than one year and has been sentenced to a term of imprisonment of not less than three years for one or more of these offences, the court may, under the conditions indicated in subsection (1) No 3 above, make an incapacitation order in addition to the sentence of imprisonment notwithstanding that there was no prior detention (subsection (1) Nos 1 and 2 above). (3) If a person is sentenced to a term of imprisonment of at least two years for a felony or an offence under sectionsection 174 to 174c, section 176, section 179 (1) to (4), section 180, section 182, section 224, section 225 (1) or (2), or section 323a as long as the act committed while intoxicated is a felony or one of the aforementioned offences, the court may make an incapacitation order in addition to the sentence if the offender had already been sentenced to imprisonment of at least three years for one or more of those offences committed prior to the new offence, and if the requirements indicated in subsection (1) Nos 2 and 3 above are fulfilled. If a person has committed two of the offences listed in the 1st sentence of this subsection for each of which he has incurred a sentence of imprisonment of not less than two years and if he is sentenced for one or more of these offences to a term of imprisonment of not less than three years, the court may, under the conditions indicated in subsection (1) No 3 above, make an incapacitation order in addition to the sentence even in the absence of a prior sentence of imprisonment or detention (subsection (1) Nos 1 and 2). Subsections (1) and (2) above shall remain unaffected. (4) Within the meaning of subsection (1) No 1 above an aggregate sentence shall be deemed a single sentence. If time spent in custody on remand or other detention is credited against any term of imprisonment it shall be deemed as time served for the purposes of subsection (1) No 2 above. A previous offence shall not be considered if a period of more than five years has passed between its commission and the subsequent offence. Any term during which the convicted person was kept in detention by order of a public authority shall not be included in that period. An offence adjudicated abroad shall be equivalent to an offence adjudicated in the Federal Republic of Germany as long as it would be an intentional offence under German criminal law, or, in cases under subsection (3) above, it would be one of the offences listed in subsection (3) 1st sentence above.

Deferred Start Date of Detention in Germany

Provisions relating to deferred start date of detention in the German Criminal Code [1]: This criminal issue is covered by Chapter Three Sanctionsunder the Sixth Title, Measures of Rehabilitation and Incapacitation,” located in Section 67c Deferred start date of detention, which reads: (1) If a sentence of imprisonment is served prior to a custodial measure ordered at the same time, the court shall review, before the sentence has been served, whether the purpose of the measure still requires its enforcement. If it does not, the court shall suspend the measure for an operational probationary period; the order for suspension shall automatically lead to the person being subject to supervision. (2) If the custodial measure has not commenced within a period of three years of its order becoming final, and unless a case of subsection (1) above or section 67b exists, the measure must not be enforced unless the court so orders. Time spent by the convicted person in detention by order of a public authority shall not be credited to the period. The court shall order its enforcement if the purpose of the measure still so requires. If the purpose of the measure has not been achieved, yet special circumstances justify the expectation that it may be achieved by a suspension order, the court shall suspend the measure for an operational probationary period; the order for suspension shall automatically lead to the person being subjected to supervision. If the purpose of the measure has been achieved, the court shall declare it terminated.

Resources

Notes

  1. The content of the translated German penal code in relation to deferred start date of detention is current as of 2010

Resources

Notes

  1. The content of the translated German penal code in relation to detention for the purpose of incapacitation is current as of 2010

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