(1) The court shall make an incapacitation order in addition to the term of imprisonment if

1.  a person has been sentenced for an intentional offence to a term of imprisonment of not less than two years, and

a)   the offence was directed against life or limb, personal freedom or sexual self-determination,

b)   the offence falls under Chapters One, Seven, Twenty or Twenty-Eight of the Special Part, or under the Code of International Criminal Law or the Drugs Act, and the maximum sentence threatened is no less than ten years’ imprisonment, or

c)   violates section 145a insofar as the supervision order was made on the basis of an offence under a) or b) above, or if it violates § 323a insofar as the offence committed in the drunken state was one of those mentioned under a) or b) above.

2.  the offender had been convicted for offences under No. 1 above, committed before the present offence, at least twice to a term of imprisonment of no less than one year each,

3.  the offender had for at least one of these offences before the present offence served at least two years in prison or under a custodial measure of rehabilitation and incapacitation, and

4.  a comprehensive evaluation at the time of the present conviction 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, he poses a danger to the general public.

Section 12(3) shall apply mutatis mutandis for the classification of an offence as one falling under the 1st sentence No 1 (b) above, and § 68(1) 4th sentence for the termination of the supervision mentioned under the 1st sentence No 1 (c) above,

(2) If a person has committed three offences under subsection (1) 1st sentence No. 1 above for each of which he incurred a sentence of imprisonment of no less than one year and has been sentenced to a term of imprisonment of no less than three years for one or more of these offences, the court may, under the conditions indicated in subsection (1) 1st sentence No. 4 above, make an incapacitation order in addition to the sentence of imprisonment notwithstanding that there was no prior detention (subsection (1) 1st sentence Nos 2 and 3 above).

(3) If a person is sentenced to a term of imprisonment of at least two years for a felony, which fulfils the criteria under subsection (1) 1st sentence No 1 (a) or (b), or an offence under sections 174 to 174c, section 176, section 179 (1) to (4), section 180, section 182, section 224, section 225 (1) or (2), or for an intentional offence under section 323a insofar as the offence committed in the drunken state is 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) 1st sentence Nos 3 and 4 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 no less than three years, the court may, under the conditions indicated in subsection (1) 1st sentence No. 4 above, make an incapacitation order in addition to the sentence even in the absence of a prior sentence of imprisonment or detention (subsection (1) 1st sentence Nos 2 and 3). Subsections (1) and (2) above shall remain unaffected.

(4) Within the meaning of subsection (1) 1st sentence No 2 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) 1st sentence No 3 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; in the case of offences against sexual slf-determination the period shall be fifteen years. 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 offence under subsection (1) 1st sentence No 1 above under German criminal law, or, in cases under subsection (3) above, it would be an offence listed in subsection (3) 1st sentence above.

Footnote:

Section 66 in its previous form incompatible with the Basic Law (Article 100(1)) according to the operating part of the decision of the Federal Constitutional Court of 4 May 2011, Federal Law Gazette I p. 1003 (2 BvR 2365/09 et al.).