If pursuant to section 67d (6) a mental hospital order has been declared moot because the condition causing insanity or diminished responsibility on which the order was based did not exist at the time of that declaration, the court may subsequently make an incapacitation order

1.  if the mental hospital order pursuant to section 63 was made based upon more than one of the offences set forth in section 66 (3) 1st sentence or if the person had either previously been sentenced to a term of imprisonment of no less than three years or had a mental hospital order made against him because of one or more such offences having been committed by him prior to the offence leading to the mental hospital order pursuant to section 63, and

2.  if a comprehensive evaluation of the person, his offences and his development until the date of the decision indicate a high likelihood of his committing serious offences resulting in serious emotional trauma or physical injury to the victims.

This shall apply mutatis mutandis if after serving an order under section 63 a term of imprisonment imposed at the same time is to be enforced in its entirety or in part.

Footnote:

Section 66b 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.).