Übersetzung durch Prof. Dr. Michael Bohlander. Vollständige Überarbeitung und laufende Aktualisierung durch Ute Reusch

Translation provided by Prof. Dr Michael Bohlander. Translation completely revised and regularly updated by Ute Reusch

Stand: Die Übersetzung berücksichtigt die Änderung(en) des Gesetzes durch Artikel 2 des Gesetzes vom 19. Juni 2019 (BGBl. I, S. 844)

Version information: The translation includes the amendment(s) to the Act by Article 2 of the Act of 19 June 2019 (Federal Law Gazette I, p. 844)

Zur Nutzung dieser Übersetzung lesen Sie bitte den Hinweis unter "Translations".

For conditions governing use of this translation, please see the information provided under "Translations".

German Criminal Code

(Strafgesetzbuch – StGB)

Full citation: Criminal Code in the version published on 13 November 1998 (Federal Law Gazette I, p. 3322), as last amended by Article 2 of the Act of 19 June 2019 (Federal Law Gazette I, p. 844)

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General Part

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Chapter 1

The criminal law

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Title 1

Scope of application

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Section 1

No punishment without law

An act can only incur a penalty if criminal liability was established by law before the act was committed.

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Section 2

Temporal application

(1) The penalty and any incidental legal consequences are determined by the law which is in force at the time of the act.

(2) If the threatened penalty is amended during the commission of the act, the law which is in force at the time the act is completed is to be applied.

(3) If the law in force at the time of the completion of the act is amended before judgment, the most lenient law is to be applied.

(4) A law which was intended to be in force only for a determinate time is, as a rule, still to be applied to acts committed whilst it was in force even after it ceases to be in force. This does not apply to the extent that a law provides otherwise.

(5) Subsections (1) to (4) apply accordingly to the confiscation and rendering unusable of objects.

(6) Unless otherwise provided by law, decisions as to measures of reform and prevention are to be taken according to the law which is in force at the time of decision.

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Section 3

Application to offences committed on German territory

German criminal law applies to offences committed on German territory.

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Section 4

Application to offences committed on German ships and aircraft

Regardless of which law is applicable at the place where the offence was committed, German criminal law applies to offences committed on a ship or an aircraft which is entitled to fly the federal flag or to carry the national insignia of the Federal Republic of Germany.

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Section 5

Offences committed abroad with specific domestic connection

Regardless of which law is applicable at the place where the offence was committed, German criminal law applies to the following offences committed abroad:

1. (repealed)

2. high treason (sections 81 to 83);

3. endangering the democratic state under the rule of law

a) in the cases under section 89, section 90a (1) and section 90b if the offender is a German national whose livelihood is based within the territorial scope of this statute and

b) in the cases under section 90 and section 90a (2);

4. treason and endangering external security (sections 94 to 100a);

5. offences against national defence

a) in the cases under section 109 and sections 109e to 109g and

b) in the cases under sections 109a, 109d and 109h if the offender is a German national whose livelihood is based within the territorial scope of this statute;

6. offences against personal liberty

a) in the cases under sections 234a and 241a if the offence is directed against a person who is a German national and that person’s domicile or habitual residence is in Germany at the time of the offence,

b) in the cases under section 235 (2) no. 2 if the offence is directed against a person whose domicile or habitual residence is in Germany at the time of the offence and

c) in the cases under section 237 if the offender is a German national at the time of the offence or if the offence is directed against a person whose domicile or habitual residence is in Germany at the time of the offence;

7. violation of the business or trade secrets of a business which is physically located within the territorial scope of this statute or of an enterprise which has its seat therein, or of an enterprise which has its seat abroad and which is dependent on an enterprise which has its seat within the territorial scope of this statute and which forms a corporate group with the latter;

8. offences against sexual self-determination in the cases under section 174 (1), (2) and (4), sections 176 to 178 and section 182 if the offender is a German national at the time of the offence;

9. offences against life

a) in the cases under section 218 (2) sentence 2 no. 1 and (4) sentence 1 if the offender is a German national at the time of the offence and

b) in the other cases under section 218 if the offender is a German national at the time of the offence whose livelihood is based in Germany;

9a. offences against physical integrity

a) in the cases under section 226 (1) no. 1, in conjunction with (2), in the case of loss of the ability to procreate if the offender is a German national at the time of the offence and

b) in the cases under section 226a if the offender is a German national at the time of the offence or if the offence is directed against a person whose domicile or habitual residence is in Germany;

10. false testimony, perjury and false declarations in lieu of an oath (sections 153 to 156) in proceedings pending before a court or another German authority within the territorial scope of this statute which has the authority to administer oaths or declarations in lieu of an oath;

10a. sports betting fraud and manipulation of professional sports competitions (sections 265c and 265d) if the offence relates to a competition which takes place in Germany;

11. offences against the environment under sections 324, 326, 330 and 330a which are committed within Germany’s exclusive economic zone insofar as international conventions on the protection of the sea allow for their prosecution as criminal offences;

11a. offences under section 328 (2) nos. 3 and 4, (4) and (5), also in conjunction with section 330, if the offender is a German national at the time of the offence;

12. acts committed by a German public official or a person entrusted with special public service functions whilst on official business or in connection with official duties;

13. acts committed by a foreigner in the capacity as a public official or a person entrusted with special public service functions;

14. acts committed against public officials, persons entrusted with special public service functions or soldiers in the Federal Armed Forces in the discharge of their duties or in connection with their duties;

15. offences under sections 331 to 337 committed in public office if

a) the offender is a German national at the time of the offence,

b) the offender is a European official whose authority has its seat in Germany at the time of the offence,

c) the offence is committed in relation to a public official, a person entrusted with special public service functions or a soldier in the Federal Armed Forces or

d) the offence is committed in relation to a European official or arbitrator who is a German national at the time of the offence, or a person deemed equal under section 335a who is a German national at the time of the offence;

16. taking of bribes by and giving of bribes to elected officials (section 108e) if

a) the offender is, at the time of the offence, a member of a German parliament or is a German national or

b) the offence is committed against a member of a German parliament or a person who is a German national at the time of the offence;

17. trafficking in human organs and tissue (section 18 of the Transplantation Act (Transplantationsgesetz)) if the offender is a German national at the time of the offence.

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Section 6

Offences committed abroad against internationally protected legal interests

Regardless of which law is applicable at the place where they are committed, German criminal law further applies to the following offences committed abroad:

1. (repealed)

2. serious crimes involving nuclear energy, explosives and radiation under section 307 and section 308 (1) to (4), section 309 (2) and section 310;

3. attacks on air and maritime traffic (section 316c);

4. human trafficking (section 232);

5. unauthorised sale of narcotics;

6. dissemination of pornographic material under section 184a, section 184b (1) and (2) and section 184c (1) and (2), each also in conjunction with section 184d (1) sentence 1;

7. counterfeiting money and securities (sections 146, 151 and 152), counterfeiting guaranteed payment cards and blank Eurocheques (section 152b (1) to (4)) as well as the relevant preparatory acts (sections 149, 151, 152 and section 152b (5));

8. subsidy fraud (section 264);

9. offences which, based on an international agreement which is binding on the Federal Republic of Germany, are to be prosecuted even though they are committed abroad.

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Section 7

Other offences committed abroad

(1) German criminal law applies to offences committed abroad against a German national if the act is a criminal offence at the place of its commission or if that place is not subject to any criminal law jurisdiction.

(2) German criminal law applies to other offences committed abroad if the act is a criminal offence at the place of its commission or if that place is not subject to any criminal law jurisdiction and if the offender

1. was a German national at the time of the offence or became a German national after its commission or

2. was a foreign national at the time of the offence, was found to be staying in Germany and, although extradition legislation would permit extradition for such an offence, is not extradited because no request for extradition is made within a reasonable period, is rejected or the extradition is not feasible.

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Section 8

Time of offence

An offence is deemed to have been committed at the time when the offender or the participant acted or, in the case of an omission, was required to act. The time when the result occurs is irrelevant.

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Section 9

Place of commission of offence

(1) An offence is deemed to have been committed at every place where the offender acted or, in the case of an omission, was required to act or in which the result, if it is an element of the offence, occurs or was to have occurred as envisaged by the offender.

(2) Acts of participation are not only committed at the place where the offence was committed, but also at every place where the participant acted or, in the case of an omission, was required to act or where, as envisaged by the participant, the offence was to have been committed. If the participant to an offence committed abroad acted within the territory of the Federal Republic of Germany, German criminal law applies to the participation even if the act is not a criminal offence according to the law of the place of its commission.

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Section 10

Special provisions for juveniles and young adults

This statute only applies to offences committed by juveniles and young adults to the extent that the Youth Courts Act (Jugendgerichtsgesetz) does not provide otherwise.

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Title 2

Terminology applied

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Section 11

Definitions

(1) For the purposes of this statute,

1. ‘relative’ means any member of the following group of people:

a) relations by blood or marriage in the direct line, the spouse, life partner, fiancé or fiancée, siblings, the spouses or life partners of siblings, siblings of spouses or life partners, even if the marriage or life partnership upon which the relationship is based no longer exists, or if the relationship by blood or marriage has ceased to exist,

b) foster parents and foster children;

2. ‘public official’ means any person who, under German law,

a) is a civil servant or judge,

b) carries out other public official functions or

c) has otherwise been appointed to serve with an authority or other agency or has been commissioned to perform public administrative services, regardless of the organisational form chosen to perform such duties;

2a. ‘European official’ means any person who

a) is a member of the European Commission, the European Central Bank, the European Court of Auditors or any court of the European Union,

b) is a civil servant or other member of staff of the European Union or of an institution established by European Union law or

c) is tasked with carrying out the tasks of the European Union or the tasks of an institution established by European Union law;

3. ‘judge’ means any person who, under German law, is either a professional or an honorary judge;

4. ‘person entrusted with special public service functions’ means any person who, without being a public official, is employed by or acts for

a) an authority or other agency which performs public administrative services or

b) an association or other alliance, business or enterprise which carries out public administrative services for an authority or other agency

and who is formally required by law to perform the duties of those functions in a conscientious manner;

5. ‘unlawful act’ means only an act which fulfils all the elements of a criminal provision;

6. ‘undertaking’ of an offence means both the attempt and its completion;

7. ‘authority’ also means a court;

8. ‘measure’ means any measure of reform and prevention, confiscation and rendering unusable;

9. ‘a consideration’ means any pecuniary benefit given in exchange for someone’s acts.

(2) An act is also deemed intentional for the purposes of this statute if it fulfils the statutory elements of an offence which requires intention in relation to the offender’s conduct but permits negligence to suffice as to a specific result caused thereby.

(3) Audio and visual media, data carriers, images and other depictions are equivalent to material in those provisions which refer to this subsection.

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Section 12

Serious and less serious criminal offences

(1) Serious criminal offences (Verbrechen) are unlawful acts which are punishable by a minimum term of imprisonment of one year.

(2) Less serious criminal offences (Vergehen) are unlawful acts which are punishable by a lesser minimum term of imprisonment or by a fine.

(3) Aggravations or mitigations provided for under the provisions of the General Part or in respect of especially serious or less serious cases are not subject to such classification.

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Chapter 2

The act

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Title 1

Basic principles of criminal liability

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Section 13

Commission by omission

(1) Whoever fails to prevent a result which is an element of a criminal provision is only subject to criminal liability under this law if they are legally responsible for ensuring that the result does not occur and if the omission is equivalent to the realisation of the statutory elements of the offence through a positive act.

(2) The penalty may be mitigated pursuant to section 49 (1).

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Section 14

Acting as agent

(1) If a person acts

1. in the capacity as an organ which is authorised to represent a legal entity or as a member of such an organ,

2. in the capacity as a partner who is authorised to represent a partnership with legal capacity or

3. in the capacity as statutory representative of another,

then any law under which special personal attributes, relationships or circumstances (special personal characteristics) give rise to criminal liability also applies to the representative if these characteristics do not exist in the person of that representative but in the entity, partnership or person represented.

(2) If a person, whether by the owner of a business or somebody delegated by the owner to do so,

1. has been commissioned to manage the business in whole or in part or

2. has been expressly commissioned to perform autonomous duties which are incumbent upon the owner of the business

and that person acts on the basis of this commission, then any law under which special personal characteristics give rise to criminal liability also applies to the person commissioned if these characteristics do not exist in the person commissioned but in the person of the owner of the business. An enterprise is equal to a business within the meaning of sentence 1. If a person acts on the basis of a similar commission for an agency performing public administrative services, sentence 1 applies analogously.

(3) Subsections (1) and (2) apply even if the act of commission intended to create the power of representation or the agency is void.

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Section 15

Intentional and negligent conduct

Unless the law expressly provides for criminal liability for negligent conduct, only intentional conduct attracts criminal liability.

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Section 16

Mistake of fact

(1) Whoever, at the time of the commission of the offence, is unaware of a fact which is a statutory element of the offence is deemed to lack intention. Any criminal liability for negligence remains unaffected.

(2) Whoever, at the time of commission of the offence, mistakenly assumes the existence of facts which would satisfy the elements of a more lenient provision may only be punished for the intentional commission of the offence under the more lenient provision.

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Section 17

Mistake of law

If, at the time of the commission of the offence, the offender lacks the awareness of acting unlawfully, then the offender is deemed to have acted without guilt if the mistake was unavoidable. If the mistake was avoidable, the penalty may be mitigated pursuant to section 49 (1).

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Section 18

More severe penalty based on specific results of offence

If the law imposes a more severe penalty based on a specific result of an offence, the offender or the participant is only liable to the more severe penalty in the event of being charged with at least negligence with respect to that result.

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Section 19

Lack of criminal responsibility of children

Whoever is under 14 years of age at the time of the commission of the offence is deemed to act without guilt.

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Section 20

Lack of criminal responsibility due to mental illness

Whoever, at the time of the commission of the offence, is incapable of appreciating the unlawfulness of their actions or of acting in accordance with any such appreciation due to a pathological mental disorder, a profound disturbance of consciousness, mental deficiency or any other serious mental abnormality is deemed to act without guilt.

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Section 21

Diminished responsibility

If the offender’s capacity to appreciate the unlawfulness of the act or to act in accordance with any such appreciation is substantially diminished at the time of the commission of the offence due to one of the reasons indicated in section 20, the penalty may be mitigated pursuant to section 49 (1).

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Title 2

Attempt

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Section 22

Definition

Whoever takes a direct and immediate step towards the realisation of the offence as envisaged by them attempts to commit an offence.

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Section 23

Criminal liability for attempt

(1) An attempt to commit a serious criminal offence always entails criminal liability, an attempt to commit a less serious criminal offence only if expressly so provided by law.

(2) A more lenient penalty may be imposed for an attempt than for a completed offence (section 49 (1)).

(3) If the offender fails to realise, due to gross ignorance, that the attempt could under no circumstances have led to the completion of the offence on account of the nature of its object or the means by which it was to be committed, the court may dispense with imposing a penalty or may mitigate the penalty at its discretion (section 49 (2)).

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Section 24

Abandonment of attempt

(1) Whoever voluntarily abandons the further commission of the offence or prevents its completion incurs no penalty for attempt. If the offence is not completed without any action on the part of the person abandoning the attempt, no penalty is incurred if that person has made voluntary and earnest efforts to prevent the completion of the offence.

(2) If more than one person participates in the offence, then whoever voluntarily prevents its completion incurs no penalty for attempt. That person’s voluntary and earnest efforts to prevent the completion of the offence suffice for exemption from punishment if the offence is not completed without any action on that person’s part or it is committed independently of that person’s earlier contribution to the offence.

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Title 3

Commission and participation

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Section 25

Commission of offence

(1) Whoever commits an offence themselves or through another incurs a penalty as an offender.

(2) If several persons commit an offence jointly, each person incurs a penalty as an offender (joint offenders).

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Section 26

Abetting

Whoever intentionally induces another to intentionally commit an unlawful act (abettor) incurs the same penalty as an offender.

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Section 27

Aiding

(1) Whoever intentionally assists another in the intentional commission of an unlawful act incurs a penalty as an aider.

(2) The penalty for the aider is determined in accordance with the penalty threatened for the offender. It must be mitigated pursuant to section 49 (1).

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Section 28

Special personal characteristics

(1) If special personal characteristics (section 14 (1)) which establish the offender’s criminal liability are absent in the participant (abettor or aider), the penalty must be mitigated pursuant to section 49 (1).

(2) If the law provides that special personal characteristics aggravate, mitigate or rule out punishment, then this applies only to that party to the offence (offender or participant) in whom they are present.

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Section 29

Separate criminal liability of parties to offence

Each party to an offence incurs a penalty according to the measure of their own guilt and irrespective of the guilt of another.

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Section 30

Attempted participation

(1) Whoever attempts to induce or incite another to commit a serious criminal offence incurs a penalty under the terms of the provisions governing attempted serious criminal offences. The penalty must, however, be mitigated pursuant to section 49 (1). Section 23 (3) applies accordingly.

(2) Whoever declares their willingness or accepts the offer of another or agrees with another to commit or incite to the commission of a serious criminal offence incurs the same penalty.

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Section 31

Withdrawal from attempted participation

(1) Whoever voluntarily

1. abandons the attempt to induce another to commit a serious criminal offence and averts any existing danger that the other may commit the offence,

2. abandons their plans after previously having declared their willingness to commit a serious criminal offence or

3. prevents the commission of an offence after previously having agreed to commit a serious criminal offence or having accepted the offer of another to commit a serious criminal offence

does not incur the penalty under section 30.

(2) If the offence is not completed without any action on the offender’s part or if it is committed independently of his or her previous conduct, the offender’s voluntary and earnest efforts to prevent the completion of the offence suffices for exemption from punishment.

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Title 4

Self-defence and necessity

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Section 32

Self-defence

(1) Whoever commits an act in self-defence does not act unlawfully.

(2) ‘Self-defence’ means any defensive action which is necessary to avert a present unlawful attack on oneself or another.

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Section 33

Excessive self-defence

Whoever exceeds the limits of self-defence due to confusion, fear or fright incurs no penalty.

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Section 34

Necessity as justification

Whoever, when faced with a present danger to life, limb, liberty, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from themselves or another is not deemed to act unlawfully if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. However, this only applies to the extent that the act committed is an adequate means to avert the danger.

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Section 35

Necessity as defence

(1) Whoever, when faced with a present danger to life, limb or liberty which cannot otherwise be averted, commits an unlawful act to avert the danger from themselves, a relative or close person acts without guilt. This does not apply to the extent that the offender could be expected, under the circumstances, to accept the danger, in particular because said offender caused the danger or because of the existence of a special legal relationship; the penalty may, however, be mitigated pursuant to section 49 (1), unless the offender was required to accept the danger on account of the existence of a special legal relationship.

(2) If, at the time of the commission of the act, a person mistakenly assumes that circumstances exist which would provide an excuse under the terms of subsection (1), that person incurs a penalty only if the mistake was avoidable. The penalty must be mitigated pursuant to section 49 (1).

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Title 5

Immunity for statements and reports made in parliament

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Section 36

Parliamentary statements

Members of the Bundestag, the Federal Convention or of a legislative body of one of the Länder may at no time be held liable outside of the body on account of a vote they cast or a statement they made within one of those bodies or one of their committees. This does not apply to defamatory insults.

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Section 37

Parliamentary reports

Truthful reports about the public sessions of the bodies referred to in section 36 or their committees do not give rise to any liability.

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Chapter 3

Legal consequences

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Title 1

Penalties

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Imprisonment

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Section 38

Term of imprisonment

(1) Imprisonment is for a fixed term, unless the law provides for imprisonment for life.

(2) The maximum term of a fixed-term period of imprisonment is 15 years, the minimum term one month.

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Section 39

Determination of term of imprisonment

Imprisonment for a term of less than one year is determined in full weeks and months, imprisonment for a longer term in full months and years.

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Fine

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Section 40

Daily rates

(1) A fine is imposed in daily rates. The minimum fine is five and, unless otherwise provided by law, the maximum is 360 full daily rates.

(2) The court determines the amount of the daily rate having regard to the offender’s personal and financial circumstances. In doing so, it typically bases its assessment on the average net income which the offender earns or could earn in one day. A daily rate is set at no less than 1 euro and no more than 30,000 euros.

(3) The offender’s income and assets and other relevant assessment factors may be estimated when setting the amount of the daily rate.

(4) The number and amount of the daily rates are indicated in the decision.

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Section 41

Fine in addition to imprisonment

If the offence has led to the actual or attempted enrichment of the offender, then, in addition to a term of imprisonment, a fine which would not otherwise have been provided for, or only in the alternative, may be imposed if, having regard to the offender’s personal and financial circumstances, this appears appropriate.

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Section 42

Relaxation of payment conditions

If a convicted person cannot, due to personal or financial circumstances, be expected to pay the full fine immediately, the court is to allow a certain time for payment or is to allow payment in specified instalments. The court may order that the privilege of paying the fine in specified instalments is to be revoked if the convicted person fails to pay an instalment in time. The court is also, as a rule, to relax payment conditions if otherwise the offender’s restitution of any damage caused by the offence would be substantially impaired; the court may require the convicted person to present proof of restitution having been made.

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Section 43

Default imprisonment

If a fine cannot be recovered, it is to be substituted by imprisonment. One daily rate corresponds to one day of imprisonment. The minimum term of default imprisonment for failure to pay a fine is one day.

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Additional penalty

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Section 44

Driving ban

(1) If a person has been sentenced to imprisonment or to a fine for an offence, the court may ban the offender from driving all classes of motor vehicle or a specific class of motor vehicle on public roads for a period of between one month and six months. Imposition of a driving ban may in particular be considered in cases where the offence was not committed whilst or in connection with the driving of a motor vehicle or in breach of the duties of a driver of a motor vehicle if this appears necessary either to have an influence on the offender or to defend the legal order or if it means imposition of a sentence of imprisonment or its enforcement can thereby be avoided. A driving ban is typically to be imposed in the cases of conviction pursuant to section 315c (1) no. 1 (a), (3) or section 316 if disqualification from driving pursuant to section 69 is not ordered.

(2) The driving ban takes effect when the driving licence is confiscated upon the judgment having become final, but no later than one month after the judgment has become final. National and international driving licences issued by a German authority are to be confiscated for the duration of the ban. This also applies if the driving licence was issued by an authority of a Member State of the European Union or another Contracting Party to the Agreement on the European Economic Area if the holder is ordinarily resident in Germany. The driving ban is endorsed on any other foreign driving licences.

(3) If a driving licence is to be confiscated or the driving ban to be endorsed on a foreign driving licence, the duration of the ban is calculated from the day on which those conditions are met. Any period during which the offender was detained in an institution by official order does not count towards the duration.

(4) If the court has imposed several driving bans against an offender which have become final, the durations of these bans are to be calculated consecutively. The duration of the ban which has become final first runs first. If more than one driving ban becomes final at the same time, the duration of the ban which was imposed first runs first, and if the driving bans were ordered at the same time, the time of the earlier offence is decisive.

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Incidental legal consequences

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Section 45

Loss of ability to hold public office, to vote and be elected

(1) Whoever is sentenced to imprisonment for a term of at least one year for a serious criminal offence loses the ability, for a period of five years, to hold public office and be elected in public elections.

(2) The court may deprive a convicted person of the abilities referred to in subsection (1) for a period of between two and five years insofar as the law expressly so provides.

(3) At the same time that the loss of ability to hold public office takes effect, the convicted person also loses any corresponding legal positions and rights which he or she may be holding at that time.

(4) At the same time that the loss of ability to be elected in public elections takes effect, the convicted person loses any corresponding legal positions and rights which they may be holding, unless otherwise provided by law.

(5) The court may deprive the convicted person of the right to vote on public matters for a period of between two and five years insofar as the law expressly so provides.

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Section 45a

Entry into effect and calculation of duration

(1) The loss of the abilities, legal status and rights takes effect upon the judgment becoming final.

(2) The duration of the loss of an ability or of a right is calculated from the day on which the sentence of imprisonment has been served, barred by the statute of limitations or remitted. If a measure of reform and prevention involving deprivation of liberty was ordered in addition to imprisonment, the duration begins on the day on which that measure was disposed of.

(3) If enforcement of the sentence, the remainder of the sentence or the measure was suspended on probation or by an act of clemency, any probation period is included when calculating the duration if, after its expiry, the sentence or the remainder thereof was remitted or the measure was disposed of.

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Section 45b

Reinstatement of abilities and rights

(1) The court may reinstate any abilities and rights lost pursuant to section 45 (1) and (2) and any rights lost pursuant to section 45 (5) if

1. the loss has been in effect for half of its intended duration and

2. it is to be expected that the convicted person will commit no further intentional offences.

(2) Any period during which the convicted person was detained in an institution by official order is not taken into account.

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Title 2

Fixing of penalties

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Section 46

General principles

(1) The offender’s guilt provides the basis on which the penalty is fixed. The effects which the penalty can be expected to have on the offender’s future life in society are to be taken into account.

(2) When fixing the penalty the court weighs the circumstances which speak in favour of and those which speak against the offender. The following, in particular, may be taken into consideration:

the offender’s motives and objectives, in particular including racist, xenophobic or other motives evidencing contempt for humanity,

the attitude reflected in the offence and the degree of force of will involved in its commission,

the degree of the breach of the offender’s duties,

the modus operandi and the consequences caused by the offence to the extent that the offender is to blame for them,

the offender’s prior history, personal and financial circumstances, and

the offender’s conduct in the period following the offence, in particular efforts to make restitution for the harm caused as well as efforts at reconciliation with the victim.

(3) No consideration may be given to circumstances which are already statutory elements of the offence.

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Section 46a

Victim–offender mediation, restitution

If the offender,

1. in an effort to achieve reconciliation with the victim (victim–offender mediation), has made restitution for the act committed in full or to a substantial degree or has earnestly striven to make restitution or

2. in a case in which making restitution for the harm caused required substantial personal effort or personal sacrifice on the offender’s part, has made compensation to the victim in full or to a substantial degree,

then the court may mitigate the penalty pursuant to section 49 (1) or, if the sentence to be imposed on the offender is no more than imprisonment for a term not exceeding one year or a fine not exceeding 360 daily rates, it may dispense with imposing a penalty.

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Section 46b

Contributing to discovery or prevention of serious crimes

(1) If the perpetrator of a criminal offence which is punishable by an increased minimum sentence of imprisonment or imprisonment for life

1. has, by voluntarily disclosing what he or she knows, contributed substantially to the detection of one of the offences under section 100a (2) of the Code of Criminal Procedure (Strafprozeßordnung) which is related to his or her own offence or

2. voluntarily discloses what he or she knows to an authority in time to prevent the completion of one of the offences under section 100a (2) of the Code of Criminal Procedure which is related to his or her own offence, the planning of which the perpetrator is aware of,

then the court may mitigate the penalty pursuant to section 49 (1), whereby the threatened penalty of imprisonment for life is substituted by imprisonment for a term of at least 10 years. In order to determine whether an offence is punishable by an increased minimum sentence of imprisonment, only aggravations for especially serious cases are taken into account but no mitigations. If the offender participated in the act, the contribution made to its detection in accordance with sentence 1 no. 1 must exceed the offender’s own contribution to the act. Instead of reducing the sentence, the court may dispense with imposing a penalty if the threatened penalty for the offence is only a determinate sentence of imprisonment and the offender would not be sentenced to a term exceeding three years.

(2) In arriving at its decision under subsection (1), the court must have particular regard to:

1. the nature and scope of the disclosed facts and their relevance to the discovery or prevention of the offence, the time of disclosure, the degree of support which the offender gave to the prosecuting authorities and the severity of the offence to which the offender’s disclosure relates as well as

2. the relationship between the circumstances referred to in no. 1 and the severity of the offence committed and the degree of the offender’s guilt.

(3) Mitigation of penalty or dispensing with imposing a penalty in accordance with subsection (1) is ruled out if the offender does not disclose what he or she knows until after main proceedings have been opened against him or her (section 207 of the Code of Criminal Procedure).

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Section 47

Short terms of imprisonment only as exception

(1) The court only imposes a term of imprisonment of less than six months where special circumstances exist, either in the offence or the offender’s character, which strictly require the imposition of imprisonment either to have an influence on the offender or to defend the legal order.

(2) If the law does not provide for a fine and a term of imprisonment of six months or more is ruled out, the court imposes a fine, unless the imposition of a sentence of imprisonment is strictly required under subsection (1). If the law provides for an increased minimum sentence of imprisonment, the minimum fine in the cases under sentence 1 is determined by the minimum sentence of imprisonment; 30 daily rates correspond to one month’s imprisonment.

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Section 48

(repealed)

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Section 49

Special mitigating circumstances established by law

(1) If the law requires or allows for mitigation under this provision, the following applies:

1. Imprisonment for life is substituted by imprisonment for a term of at least three years.

2. In cases of imprisonment for a fixed term, no more than three quarters of the statutory maximum sentence may be imposed. In case of a fine, the same applies to the maximum number of daily rates.

3. Any increased minimum statutory term of imprisonment is reduced as follows:

in the case of a minimum term of ten or five years, to two years,

in the case of a minimum term of three or two years, to six months,

in the case of a minimum term of one year, to three months,

in all other cases to the statutory minimum.

(2) If the court may, at its discretion, mitigate the penalty pursuant to a law which refers to this provision, it may reduce the penalty to the statutory minimum or impose a fine instead of imprisonment.

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Section 50

Multiple mitigating circumstances

A circumstance which, alone or together with other circumstances, justifies the assumption that the case is a less serious one and which simultaneously represents a special statutory mitigating circumstance as referred to in section 49 may only be considered once.

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Section 51

Crediting of time spent in remand detention

(1) If a convicted person was remanded in detention or otherwise subjected to deprivation of liberty because of an offence which is or was the subject of the proceedings, that time is credited against a determinate sentence of imprisonment or a fine. The court may, however, order that such time not be credited in whole or in part if, in the light of the convicted person’s conduct after the offence, this is not justified.

(2) If, in subsequent proceedings, another sentence is substituted for a previously imposed sentence after that sentence becomes final, time served under or credited against the earlier sentence is credited against the new sentence.

(3) If a convicted person has already been sentenced abroad for the same offence, the foreign sentence, to the extent it has been enforced, is credited against the new sentence. Subsection (1) applies accordingly to any other deprivation of liberty suffered abroad.

(4) When crediting a fine against time spent in remand detention or vice versa, one day in which a person is deprived of their liberty corresponds to one daily rate. Where a foreign penalty or deprivation of liberty is to be credited, the court determines the rate at its discretion.

(5) When crediting a period of provisional disqualification from driving (section 111a of the Code of Criminal Procedure) against a driving ban in accordance with section 44, subsection (1) applies accordingly. To that end, the taking into custody, securing or seizure of the driving licence (section 94 of the Code of Criminal Procedure) is equivalent to provisional disqualification from driving.

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Title 3

Fixing of penalties for multiple offences

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Section 52

Several offences committed by one act

(1) If the same act violates more than one criminal statute or the same criminal statute more than once, only one penalty is imposed.

(2) If more than one criminal statute has been violated, the penalty is determined according to the statute which provides for the most severe penalty. The penalty may not be more lenient than the other applicable statutes permit.

(3) Under the conditions of section 41, the court may separately impose a fine in addition to a sentence of imprisonment.

(4) Additional penalties, incidental legal consequences and measures (section 11 (1) no. 8) must or may be imposed if one of the applicable statutes so requires or allows.

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Section 53

Joinder of offences

(1) If a person has committed several offences, all of which are to be adjudicated at the same time, and that person has incurred more than one sentence of imprisonment or more than one fine, an aggregate sentence is imposed.

(2) If a sentence of imprisonment concurs with a fine, an aggregate sentence is imposed. The court may, however, impose a separate fine; where a fine is to be imposed in such cases for more than one offence, an aggregate fine is imposed.

(3) Section 52 (3) and (4) applies analogously.

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Section 54

Fixing of aggregate sentence

(1) If one of the penalties for the individual offences is imprisonment for life, an aggregate sentence of imprisonment for life is imposed. In all other cases, the aggregate sentence is fixed by increasing the most severe individual sentence incurred and, in the case of different kinds of penalties, by increasing the sentence which is most severe in nature. The person of the offender and the individual offences are considered in their totality.

(2) The aggregate sentence may not exceed the sum of the individual sentences. In the case of determinate sentences of imprisonment, it may not exceed 15 years and in the case of a fine 720 daily rates.

(3) Where an aggregate sentence is to be formed of a sentence of imprisonment and a fine, one daily rate corresponds to one day’s imprisonment for the purpose of calculating the sum of the individual sentences.

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Section 55

Subsequent fixing of aggregate sentence

(1) Sections 53 and 54 also apply to a convicted person who has had a sentence imposed by final judgment if that person is convicted of another offence committed prior to the earlier conviction before the original sentence is enforced, barred by the statute of limitations or remitted. The earlier conviction is the judgment in those proceedings in which the underlying findings of fact were last examined.

(2) Additional penalties, incidental legal consequences and measures (section 11 (1) no. 8) imposed in the earlier decision are to be upheld to the extent they have not been rendered moot by the new decision.

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Title 4

Suspension of sentence on probation

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Section 56

Suspension of sentence

(1) If a person is sentenced to imprisonment for a term not exceeding one year, the court suspends enforcement of the sentence on probation if there are reasons to believe that the sentence itself will serve as sufficient warning to the convicted person and that the convicted person will commit no further offences even without having to serve the sentence. The court is, in particular, to take account of the convicted person’s character and previous history, the circumstances of the offence committed, the convicted person’s circumstances and conduct in the period following the offence, and the effects to be expected from the suspension.

(2) Under the conditions of subsection (1), the court may also suspend enforcement of a sentence of imprisonment not exceeding two years on probation if, after an overall evaluation of the offence and of the convicted person’s character, special circumstances are deemed to exist. In making its decision, the court is, in particular, to take account of any efforts on the convicted person’s part to make restitution for the harm caused by the offence.

(3) Enforcement of imprisonment for a term of at least six months is not suspended if the defence of the legal order so requires.

(4) The suspension may not be limited to a part of the sentence. It is not ruled out by any crediting of time spent in remand detention or another form of deprivation of liberty.

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Section 56a

Probation period

(1) The court determines the length of the period of probation. It may not exceed five years nor be less than two years.

(2) The probation period commences when the decision to suspend the sentence becomes final. It may subsequently be reduced to the minimum or extended to the maximum before its expiry.

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Section 56b

Conditions

(1) The court may impose conditions on the convicted person which serve to make amends for the harm caused. No unreasonable demands may be made of the convicted person.

(2) The court may require the convicted person

1. to make every effort at restitution for the harm caused by the offence,

2. to pay a sum of money to a charitable organisation if this appears appropriate in the light of the offence and the offender’s character,

3. to perform community service or

4. to pay a sum of money to the Treasury.

The court is, as a rule, only to impose a condition as required by sentence 1 nos. 2 to 4 if fulfilment of the condition poses no obstacle to the making of restitution for the harm caused.

(3) If the convicted person offers to render appropriate services for the purpose of making amends for the harm caused, the court typically preliminarily dispenses with imposing conditions if it is to be expected that the offer will be fulfilled.

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Section 56c

Directions

(1) The court is to issue directions to the convicted person for the duration of the probation period if that person requires such assistance in order to abstain from committing further offences. No unreasonable demands may be made in respect of the convicted person’s lifestyle.

(2) The court may, in particular, direct the convicted person

1. to follow instructions relating to residence, education, work or leisure, or to getting his or her financial affairs in order,

2. to report at certain times to the court or another authority,

3. not to make contact or associate with the injured party or specific persons or persons from a specific group who may induce the convicted person to commit further offences, nor to employ, train or accommodate them,

4. not to possess, carry or entrust to another for safekeeping certain objects which could induce the convicted person to commit further offences or

5. to meet maintenance obligations.

(3) A direction

1. to undergo medical treatment of an invasive nature or addiction treatment or

2. to take up residence in a suitable home or suitable institution

may only be given with the convicted person’s consent.

(4) If the convicted person gives assurances relating to his or her future conduct, the court typically provisionally refrains from issuing directions if it is to be expected that the assurances will be fulfilled.

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Section 56d

Probation services

(1) The court places the convicted person under the supervision and guidance of a probation officer for all or part of the probation period if this appears necessary to prevent the convicted person from committing criminal offences.

(2) The court typically issues directions as required by subsection (1) if it suspends a sentence of imprisonment of more than nine months and the convicted person is under 27 years of age.

(3) The probation officer offers assistance and support to the convicted person. In consultation with the court, the probation officer monitors compliance with conditions and directions as well as with offers and assurances made and, at intervals determined by the court, reports on the convicted person’s conduct. The probation officer must inform the court about serious or persistent breaches of the conditions, directions, offers or assurances.

(4) The probation officer is appointed by the court. The court may give the probation officer instructions in regard to the functions under subsection (3).

(5) The functions of a probation officer are exercised as a main occupation or in an honorary capacity.

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Section 56e

Subsequent decisions

The court may also make, modify or set aside decisions pursuant to sections 56b to 56d at a later date.

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Section 56f

Revocation of suspension of sentence

(1) The court is to revoke the suspension of the sentence on probation if the convicted person

1. commits an offence during the probation period, and thereby shows that the expectation on which the suspension was based has not been fulfilled,

2. grossly or persistently violates directions or persistently evades the probation officer’s supervision and guidance, thereby giving reason to fear that the convicted person will re-offend or

3. grossly or persistently violates conditions.

Sentence 1 no. 1 applies accordingly if the offence was committed in the period between the decision to suspend the sentence being taken and its becoming final or, in the case of subsequent fixing of an aggregate sentence, in the period between the decision to suspend the sentence in a judgment which was included in the aggregate sentence and the date on which the aggregate sentence became final.

(2) The court is, however, not to revoke the suspension of the sentence on probation if it is of the opinion that it would suffice

1. to impose further conditions or issue further directions, in particular to place the convicted person under the supervision and guidance of a probation officer or

2. to extend the probation period or period of supervision of conduct.

In the cases under no. 2, the probation period may not be extended for more than one half of the originally imposed period.

(3) The convicted person is not to be compensated for services rendered in the fulfilment of conditions, offers, directions or assurances. If the suspension on probation is revoked, the court may, however, credit services towards the sentence which the convicted person has rendered to comply with conditions issued under section 56b (2) sentence 1 nos. 2 to 4 or related offers in accordance with section 56b (3).

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Section 56g

Remission of sentence

(1) If the court does not revoke the suspension of the sentence, the sentence is to be remitted after expiry of the probation period. Section 56f (3) sentence 1 applies.

(2) The court may revoke such remission if the convicted person has been sentenced to imprisonment for a term of at least six months for an intentional offence committed during the probation period. The revocation may only be declared within one year after expiry of the probation period and six months after the new judgment has become final. Section 56f (1) sentence 2 and (3) applies accordingly.

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Section 57

Suspension of remainder of determinate sentence of imprisonment

(1) The court suspends enforcement of the remainder of a determinate sentence of imprisonment on probation if

1. two thirds of the imposed sentence, but at least two months, have been served,

2. this can be justified having regard to public security interests and

3. the convicted person consents thereto.

The decision is, in particular, to take into consideration the convicted person’s character, previous history, the circumstances of the offence, the importance of the legal interest endangered should the convicted person re-offend, the convicted person’s life circumstances and conduct whilst serving the sentence imposed, and the effects which such suspension are expected to have on the convicted person.

(2) After one half of a determinate sentence of imprisonment has been served, but at least six months, the court may suspend enforcement of the remainder of the sentence on probation if

1. the convicted person is serving a first sentence of imprisonment and the term does not exceed two years or

2. following an overall evaluation of the offence, the convicted person’s character and development whilst serving the sentence imposed, special circumstances are deemed to exist

and the remaining conditions of subsection (1) are met.

(3) Sections 56a to 56g apply accordingly; the probation period, even if subsequently reduced, may not be less than the remainder of the sentence. If the convicted person has served at least one year of the sentence imposed before the remainder is suspended on probation, the court typically places the convicted person under the supervision and guidance of a probation officer for all or a part of the probation period.

(4) Where a sentence of imprisonment has been reduced by crediting time served, it is deemed to have been served within the meaning of subsections (1) to (3).

(5) Sections 56f and 56g apply accordingly. The court is also to revoke the suspension of the sentence if, in the period between the conviction and the decision to suspend the sentence, the convicted person has committed an offence which could for factual reasons not be taken into account by the court when deciding to suspend the sentence and which would have led to a denial of such suspension had it been known at that time; the judgment in those proceedings in which the underlying findings of fact were last examined counts as the conviction.

(6) The court may dispense with suspending enforcement of the remainder of a determinate sentence of imprisonment on probation if the convicted person makes insufficient or false statements concerning the whereabouts of objects which are subject to confiscation of the proceeds of crime.

(7) The court may fix a term not exceeding six months before the expiry of which an application by the convicted person for the suspension of sentence on probation is inadmissible.

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Section 57a

Suspension of remainder of imprisonment for life

(1) The court suspends enforcement of the remainder of a sentence of imprisonment for life on probation where

1. 15 years of the sentence have been served,

2. the particular severity of the convicted person’s guilt does not require its continued enforcement and

3. the conditions of section 57 (1) sentence 1 nos. 2 and 3 are met.

Section 57 (1) sentence 2 and (6) applies accordingly.

(2) Any deprivation of liberty suffered by the convicted person as a result of the offence qualifies as a sentence served within the meaning of subsection (1) sentence 1 no. 1.

(3) The probation period is five years. Section 56a (2) sentence 1, sections 56b to 56g and section 57 (3) sentence 2 and (5) sentence 2 apply accordingly.

(4) The court may fix terms not exceeding two years before the expiry of which an application by the convicted person for the suspension of sentence on probation is inadmissible.

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Section 57b

Suspension of remainder of aggregate sentence of imprisonment for life

If imprisonment for life has been imposed as an aggregate sentence, the individual offences are assessed collectively when determining the particular severity of guilt (section 57a (1) sentence 1 no. 2).

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Section 58

Aggregate sentence and suspension of sentence

(1) If a person has committed more than one offence, the length of the aggregate sentence is decisive as regards the suspension of sentence in accordance with section 56.

(2) If, in the cases under section 55 (1), enforcement of the previous sentence of imprisonment has been suspended on probation or the remainder of the sentence has been suspended on probation, and if the aggregate sentence has also been suspended on probation, the minimum new probation period is reduced by any probation period which has already expired, but not to less than one year. If the aggregate sentence is not suspended on probation, section 56f (3) applies accordingly.

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Title 5

Warning with sentence reserved, dispensing with penalty

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Section 59

Conditions for warning with sentence reserved

(1) If a person has incurred a fine not exceeding 180 daily rates, the court may issue a warning at the time of conviction, may indicate the sentence and reserve imposition of the penalty if

1. it is to be expected that the offender will commit no further criminal offences even without the immediate imposition of the sentence,

2. following an overall evaluation of the offence and the offender’s character, special circumstances are deemed to exist which render the imposition of a sentence unnecessary and

3. the defence of the legal order does not demand the imposition of a penalty.

Section 56 (1) sentence 2 applies accordingly.

(2) Ancillary orders for confiscation or rendering unusable may be imposed in addition to a warning. A warning with sentence reserved is not permissible in addition to measures of reform and prevention.

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Section 59a

Probation period, conditions and directions

(1) The court determines the length of the probation period. It may not exceed two years nor be less than one year.

(2) The court may direct the convicted person

1. to make efforts at reconciliation with the victim or make restitution by other means for the harm caused by the offence,

2. to meet maintenance obligations,

3. to pay a sum of money to a charitable organisation or the Treasury,

4. to undergo outpatient medical treatment or outpatient addiction treatment,

5. to participate in a social training course or

6. to participate in road traffic training.

No unreasonable demands may be made in respect of the convicted person’s lifestyle; the conditions and directions referred to in sentence 1 nos. 3 to 6 may also not be disproportionate to the significance of the offence committed. Section 56c (3) and (4) and section 56e apply accordingly.

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Section 59b

Imposition of sentence reserved

(1) Section 56f applies accordingly to the imposition of a sentence reserved.

(2) If no reserved sentence is imposed, then upon expiry of the probation period the court declares that the warning is sufficient.

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Section 59c

Aggregate sentence and warning with sentence reserved

(1) If a person has committed more than one offence, then, in the case of a warning with sentence reserved, sections 53 to 55 apply accordingly when determining the penalty.

(2) If the convicted person is subsequently sentenced to a fine or to a term of imprisonment for an offence committed before the warning was given, the provisions for fixing an aggregate sentence (sections 53 to 55 and 58) apply, with the proviso that the sentence reserved is, for the purposes of section 55, deemed equivalent to a penalty imposed.

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Section 60

Dispensing with penalty

The court dispenses with imposing a penalty if the consequences of the offence suffered by the offender are so serious that the imposition of penalties would clearly be inappropriate. This does not apply if the offender has incurred a penalty of imprisonment for a term of more than one year for the offence.

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Title 6

Measures of reform and prevention

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Section 61

Overview

Measures of reform and prevention are

1. placement in a psychiatric hospital,

2. placement in an addiction treatment facility,

3. placement in preventive detention,

4. supervision of conduct,

5. disqualification from driving,

6. disqualification from exercising a profession.

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Section 62

Principle of proportionality

A measure of reform and prevention may not be ordered if it is disproportionate to the severity of the offence committed by or expected to be committed by the offender and to the degree of danger which the offender poses to society.

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Measures involving deprivation of liberty

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Section 63

Placement in psychiatric hospital

If a person has committed an unlawful act in a state of criminal irresponsibility (section 20) or in a state of diminished responsibility (section 21), the court orders that person’s placement in a psychiatric hospital if the overall evaluation of the offender and of the offence reveals that, due to the offender’s condition, he or she represents a danger to the general public on account of it being expected that he or she will in future commit serious unlawful acts which will result in the victims of the offence suffering or being exposed to the considerable danger of severe emotional trauma or physical injury or which will cause serious economic damage. If the unlawful act which has been committed is not an offence as referred to in sentence 1, the court only makes such an order if special circumstances justify the expectation that, due to the offender’s condition, the offender will in future commit such serious offences.

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Section 64

Placement in addiction treatment facility

If a person has an addiction to alcoholic drinks or other intoxicating substances and is convicted of an unlawful act which was committed in a state of intoxication or as a result of an addiction, or the person is not convicted only on account of the finding of a lack criminal responsibility or the lack of criminal responsibility cannot be ruled out on the evidence, the court is, as a rule, to order placement in an addiction treatment facility if there is a danger that said person will in future commit serious unlawful acts as a consequence of this proclivity. Such order is only to be made if there is a sufficiently reasonable prospect that the person can be cured within the period referred to in section 67d (1) sentence 1 or 3 by way of placement in an addiction treatment facility or that a relapse into addictive behaviour and the commission of serious unlawful acts caused by that proclivity can be prevented for a substantial period of time.

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Section 65

(repealed)

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Section 66

Placement in preventive detention

(1) The court orders preventive detention in addition to a sentence of imprisonment where

1. a person has been sentenced for an intentional offence to imprisonment for a term of at least two years and

a) the offence was directed against life, physical integrity, personal liberty or sexual self-determination,

b) the offence falls under Chapter 1, 7, 20 or 28 of the Special Part or under the Code of Crimes against International Law (Völkerstrafgesetzbuch) or the Narcotics Act (Betäubungsmittelgesetz) and the maximum possible sentence is imprisonment for a term of at least 10 years or

c) the conditions of section 145a are met insofar as an order was made for the supervision of conduct on the basis of an offence under letter (a) or (b), or if the conditions of section 323a are met insofar as the offence committed in a state of intoxication was one of those referred to in letter (a) or (b),

2. the offender has twice been sentenced to imprisonment for a term of at least one year in each case for offences under no. 1 which were committed prior to the present offence,

3. the offender has served at least a two-year sentence of imprisonment or was under a measure of reform and prevention involving deprivation of liberty for at least one of these offences prior to the present offence and

4. an overall evaluation of the offender and the offences committed leads to the conclusion that, on account of the propensity to commit serious crimes, in particular of a type which results in severe emotional trauma or physical injury to the victim, the offender poses a danger to the general public at the time of the conviction.

Section 12 (3) applies accordingly in respect of the classification of an offence under sentence 1 no. 1 (b) and section 68 (1) sentence 4 for the termination of the supervision of conduct referred to in sentence 1 no. 1 (c).

(2) If a person has committed three offences of the type referred to in subsection (1) sentence 1 no. 1, for each of which a penalty of imprisonment for a term of at least one year was incurred and a sentence of imprisonment for a term of at least three years for one or more of these offences was imposed, the court may, under the conditions of subsection (1) sentence 1 no. 4, order preventive detention in addition to the sentence of imprisonment even if there was no prior deprivation of liberty (subsection (1) sentence 1 nos. 2 and 3).

(3) If a person is sentenced to imprisonment for a term of at least two years for a serious criminal offence which fulfils the conditions of subsection (1) sentence 1 no. 1 (a) or (b), or for an offence under section 89a (1) to (3), section 89c (1) to (3), section 129a (5) sentence 1 alternative 1, also in conjunction with section 129b (1), sections 174 to 174c, section 176, section 177 (2) no. 1, (3) and (6), sections 180, 182 and 224 and section 225 (1) or (2), or for an intentional offence under section 323a, insofar as the offence committed in a state of intoxication is one of the aforementioned unlawful acts, then the court may order preventive detention in addition to the sentence if the offender was already sentenced to imprisonment for a term of at least three years for one or more such offences committed prior to the new offence and if the conditions of subsection (1) sentence 1 nos. 3 and 4 are met. If a person has committed two of the offences referred to in sentence 1 for each of which they have incurred a penalty of imprisonment for a term of at least two years, and if they are sentenced to imprisonment for a term of at least three years for one or more such offences, then the court may, under the conditions of subsection (1) sentence 1 no. 4, order preventive detention in addition to the sentence even in the absence of a prior conviction or deprivation of liberty (subsection (1) sentence 1 nos. 2 and 3). Subsections (1) and (2) remain unaffected.

(4) Within the meaning of subsection (1) sentence 1 no. 2, an aggregate sentence is deemed to be a single sentence. If time spent in remand detention or other deprivation of liberty is credited against a sentence of imprisonment, it is deemed to be time served for the purposes of subsection (1) sentence 1 no. 3. A previous offence is not considered if more than five years have elapsed between its commission and the subsequent offence; in the case of offences against sexual self-determination, this period is 15 years. Any period during which the offender was detained in an institution by official order is not included is not taken into account. An offence adjudicated outside the territorial scope of this statute is deemed to be equivalent to an offence adjudicated within the territorial scope of this statute if it would represent an offence of the type referred to in subsection (1) sentence 1 no. 1, under German criminal law or, in the cases under subsection (3), it would be a criminal offence of the type referred to in subsection (3) sentence 1.

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Section 66a

Preventive detention reserved

(1) The court may reserve preventive detention if

1. a person is convicted of one of the offences under section 66 (3) sentence 1,

2. the remaining conditions of section 66 (3) are met, unless that provision makes reference to section 66 (1) sentence 1 no. 4 and

3. it is not possible to determine with sufficient certainty but it is probable that the conditions of section 66 (1) sentence 1 no. 4 are met.

(2) The court may also reserve preventive detention if

1. a person is sentenced to imprisonment for a term of at least five years for one or more serious criminal offences directed against life, physical integrity, personal liberty, sexual self-determination, under Chapter 28 or under sections 250 and 251, also in conjunction with section 252 or 255,

2. the conditions of section 66b are not met and

3. it is possible to determine with sufficient certainty or it is at least probable that the conditions of section 66 (1) sentence 1 no. 4 are met.

(3) The court of first instance may take a decision in regard to preventive detention reserved in accordance with subsections (1) or (2) no later than the date on which the prisoner will have served the sentence imposed in full; this also applies where enforcement of the remainder of the sentence was suspended on probation and the remainder of the sentence is being enforced. The court makes the order if an overall evaluation of the convicted person, the offence or offences committed and also the convicted person’s development up until the date of the decision indicate that there is less likelihood of any further serious offences being committed by that person resulting in severe emotional trauma or physical injury to the victims.

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Section 66b

Subsequent order of preventive detention

If placement in a psychiatric hospital has been declared disposed of in accordance with section 67d (6) on account of the condition leading to a lack of criminal responsibility or diminished responsibility on which the order was based not existing at the time of that declaration, the court may subsequently order preventive detention where

1. placement in a psychiatric hospital in accordance with section 63 was ordered based on more than one of the offences set forth in section 66 (3) sentence 1 or if the person had either previously been sentenced to imprisonment for a term of at least three years or was placed in a psychiatric hospital on account of having committed one or more such offences prior to the offence leading to placement in a psychiatric hospital in accordance with section 63 and

2. an overall evaluation of the person concerned, the offences committed and that person’s development up until the date of the decision indicate that it is highly likely that said person will commit serious crimes resulting in severe emotional trauma or physical injury to the victims.

This also applies where, following a period of placement pursuant to section 63, a sentence of imprisonment imposed at the same time is to be enforced in full or in part.

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Section 66c

Organisation of preventive detention and preceding imprisonment

(1) Preventive detention is carried out in institutions which

1. offer a level of support to the detainee, based on a comprehensive treatment examination and of a regularly updated detention plan,

a) which is individualised and intensive and suitable for incentivising and fostering the detainee’s cooperation, in particular psychiatric, psychotherapeutic or socio-therapeutic treatment which is tailored to the detainee’s needs, insofar as standardised offers do not appear promising and

b) whose aim is to minimise the detainee’s dangerousness to the public to a degree that the measure may be suspended on probation or declared disposed of as soon as possible,

2. guarantee that the placement

a) burdens the detainee as little as possible, matches the requirements of support under no. 1 and, security interests notwithstanding, is adapted to general conditions of life and

b) is carried out in special buildings or wings which are separate from the prison regime, unless the treatment under no. 1 exceptionally requires otherwise and

3. in order to achieve the goal referred to in no. 1 (b),

a) offer measures for an open detention regime and preparations for the detainee’s release, unless compelling objections exist, in particular specific factors indicating a danger that the detainee might abscond or use the measures to commit serious offences and

b) provide follow-up support, in close cooperation with state or private providers, once the detainee is at liberty.

(2) If the court has, in its judgment, ordered preventive detention (section 66), either reserved (section 66a (3)) or subsequently (section 66b), or has reserved such an order for preventive detention (section 66a (1) and (2)), the offender must, during the term of imprisonment imposed, be offered support within the meaning of subsection (1) no. 1, in particular socio-therapeutic treatment, with the aim of making enforcement of the placement (section 67c (1) sentence 1 no. 1) or its order (section 66a (3)) unnecessary wherever possible.

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Section 67

Sequence of enforcement

(1) If placement in an institution in accordance with section 63 and section 64 is ordered in addition to a sentence of imprisonment, the measure is enforced before the sentence of imprisonment.

(2) However, the court is to order that all or part of the sentence be enforced before the measure if the purpose of the measure will thereby be more readily achieved. When making the order for placement in an addiction treatment facility in addition to imprisonment for a term of at least three years, the court is, as a rule, to order that a part of the sentence be enforced before the measure. That part of the sentence is to be calculated in a manner which enables a decision under subsection (5) sentence 1 to be made after the part of the sentence and the measure have been enforced. The court is, as a rule, to further determine that the sentence is to be enforced before the measure if the convicted person is required to leave the country and may be deported from the Federal Republic of Germany and if there is reason to believe that the convicted person’s residence within the territorial scope of this statute will be terminated whilst serving the sentence or immediately after the sentence has been served.

(3) The court may subsequently make, modify or set aside an order under subsection (2) sentence 1 or 2 if that is deemed appropriate based on the convicted person’s circumstances. The court may also subsequently make the order under subsection (2) sentence 4. If it has made an order in accordance with subsection (2) sentence 4, it then revokes such order if there is reason to believe that the convicted person’s residence within the territorial scope of this statute will no longer be terminated whilst serving the sentence or immediately after the sentence has been served.

(4) If the measure is enforced in full or in part before the sentence, the period of enforcement is credited against the sentence up to a maximum of two thirds of the penalty.

(5) If the measure is enforced before the sentence or a remainder of the sentence, the court may suspend enforcement of the remainder of the sentence under the conditions of section 57 (1) sentences 1 and 2 if half of the sentence has been served. If the remainder of the sentence is not suspended, enforcement of the measure continues; the court may, however, order that the sentence be served if this is deemed appropriate based on the convicted person’s circumstances.

(6) The court orders that any crediting in accordance with subsection (4) is also to be made in regard to a sentence arising from a separate criminal conviction if its enforcement would mean undue hardship for the convicted person. In particular, consideration is to be given, when taking this decision, to the relationship between the length of the previous deprivation of liberty and the length of the newly imposed sentence, the therapeutic success achieved thus far and the concrete danger the person poses, as well as that person’s conduct during enforcement. A measure is, as a rule, not credited against a sentence of the separate criminal conviction where the underlying offence has been committed after the measure was ordered. Subsection (5) sentence 2 applies accordingly.

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Section 67a

Transfer to another measure

(1) If placement in a psychiatric hospital or in an addiction treatment facility has been ordered, the court may subsequently transfer the detained person to the other of those two measures if this would improve the chances of that person’s successful social rehabilitation.

(2) Under the conditions of subsection (1), the court may also subsequently transfer a person subject to preventive detention to one of the measures referred to in subsection (1). Subsequent transfer may be ordered where the conditions of subsection (1) are met and the transfer is indicated for the purposes of carrying out medical or addiction treatment, including for those persons who are still serving a sentence of imprisonment and whose preventive detention has been ordered or reserved.

(3) The court may modify or set aside a decision taken in accordance with subsections (1) and (2) if it subsequently transpires that this would improve the chances of the detained person’s successful social rehabilitation. Further, the court may set aside a decision made in accordance with subsection (2) if it subsequently transpires that enforcing the measures referred to in subsection (1) will not lead to the desired result.

(4) The length of the terms of placement and the periods of review are determined in accordance with the provisions which apply to an order made in a judgment. In the case under subsection (2) sentence 2, up until enforcement of the measure commences the court is required to carry out a review at regular intervals of no more than one year as to whether the conditions for a decision under subsection (3) sentence 2 are met.

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Section 67b

Simultaneous suspension of measure

(1) If the court orders placement in a psychiatric hospital or in an addiction treatment facility, it simultaneously suspends the measure on probation if special circumstances justify the expectation that the purpose of the measure can also be achieved in this manner. Suspension is not to be ordered if the person still has to serve a sentence of imprisonment which was imposed at the same time as the measure and which has not been suspended on probation.

(2) The order for suspension automatically leads to the supervision of conduct.

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Section 67c

Deferred start of placement

(1) If a sentence of imprisonment is served prior to a period of placement which has been ordered for the same offence or offences and the review required before the end of the term of imprisonment shows that

1. the purpose of the placement no longer requires its enforcement or

2. placement in preventive detention would be disproportionate because the offender was not, in an overall evaluation of the course of the sentence of imprisonment served, offered sufficient support within the meaning of section 66c (2) in conjunction with section 66c (1) no. 1,

then the court suspends the measure on probation; the order for suspension automatically leads to the supervision of conduct. The review under sentence 1 no. 1 is not required if the preventive detention was ordered by the court of first instance less than one year before the end of the term of imprisonment.

(2) If enforcement of placement has not yet commenced within three years after its order becomes final and if a case under subsection (1) or section 67b does not exist, then the measure may only be enforced if the court so orders. Any period during which the offender was detained in an institution by official order is not taken into account. The court orders enforcement if the purpose of the placement still so requires. If the purpose of the placement has not been achieved yet special circumstances justify the expectation that it may be achieved by suspending enforcement, the court suspends the measure on probation; the order for suspension automatically leads to the supervision of conduct. If the purpose of the measure has been achieved, the court declares it disposed of.

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Section 67d

Period of placement

(1) The period of placement in an addiction treatment facility may not exceed two years. This term runs from the start of the measure. Where a measure involving deprivation of liberty is enforced before a sentence of imprisonment imposed at the same time, the maximum period is extended by the length of the term of imprisonment to the extent that the time spent in the measure is credited against the sentence.

(2) If no maximum period is provided for or the period has not yet expired, the court suspends the remainder of the measure on probation if it is to be expected that the person subject to the measure will no longer commit any serious unlawful acts if released. The same applies if, after enforcement of preventive detention has begun, the court finds that its further enforcement would be disproportionate because the preventive detainee was not offered sufficient support within the meaning of section 66c (1) no. 1 before a period set by the court not exceeding six months has elapsed; if sufficient support was not offered, the court is to set such a period when reviewing the suspension of enforcement, indicating the measures to be offered. Suspension under sentence 1 or 2 automatically leads to the supervision of conduct.

(3) Where 10 years of preventive detention have been served, the court declares the measure disposed of if there is no danger that the preventive detainee will commit further serious crimes resulting in severe emotional trauma or physical injury to the victims. The order for release automatically leads to the supervision of conduct.

(4) Once the maximum period has expired, the detainee is released. The measure is thus disposed of. Release from detention automatically leads to the supervision of conduct.

(5) The court declares the placement in an addiction treatment facility disposed of where the conditions of section 64 sentence 2 are no longer met. Release from an addiction treatment facility automatically leads to the supervision of conduct.

(6) If, after enforcement of placement in a psychiatric hospital has begun, the court finds that the conditions for the measure no longer exist or that continued enforcement of the measure would be disproportionate, the court declares it disposed of. Once the measure has lasted six years, its continuation is generally no longer proportionate, unless there is a danger that the detainee will, as a result of his or her condition, commit serious unlawful acts causing severe emotional trauma or physical injury to the victims or exposing the victims to the danger of severe physical injury or emotional trauma. After 10 years of detention, subsection (3) sentence 1 applies accordingly. Release from the measure automatically leads to the supervision of conduct. The court waives supervision of conduct if it is to be expected that the person will no longer commit any further offences even without the measure.

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Section 67e

Review

(1) The court may at any time review whether further enforcement of the measure involving deprivation of liberty is to be suspended on probation or the measure is to be declared disposed of. It is required to perform the review within specified periods.

(2) The specified periods are

six months in the case of placement in an addiction treatment facility,

one year in the case of placement in a psychiatric hospital,

one year in the case of preventive detention, nine months after 10 years of preventive detention.

(3) The court may reduce these periods. It may also set dates within the statutory limits for review before the expiry of which an application for review is inadmissible.

(4) The periods run from the commencement of the detention. If the court denies suspension or disposal, the period commences anew with that decision.

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Section 67f

Multiple orders

If the court orders placement in an addiction treatment facility, any previous such order is deemed to be disposed of.

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Section 67g

Revocation of suspended measures

(1) The court revokes the suspension of a measure involving deprivation of liberty if the convicted person

1. commits an unlawful act during the period of supervision of conduct,

2. grossly or persistently breaches directions as referred to in section 68b or

3. persistently evades the supervision and guidance of the probation officer or of the supervisory authority,

and as a result the purpose of the measure requires the convicted person’s detention. Sentence 1 no. 1 applies accordingly if the reason for revocation arose in the period between the decision on suspension and the start of supervision of conduct (section 68c (4)).

(2) The court even revokes the suspension of a measure involving deprivation of liberty in accordance with sections 63 and 64 if evidence arises during the period of the supervision of conduct that the convicted person is expected to commit unlawful acts as a result of his or her condition and the purpose of the measure therefore requires the convicted person’s detention.

(3) The court further revokes the suspension if circumstances which have come to its attention during the period of the supervision of conduct and which would have led to the suspension being denied show that the purpose of the measure requires the convicted person’s detention.

(4) The period of placement before and after the revocation may not, in its totality, exceed the maximum statutory period for the measure.

(5) If the court does not revoke suspension of the placement, it is deemed disposed of upon conclusion of the period of supervision of conduct.

(6) Payments which the convicted person has made in the fulfilment of directions are not to be reimbursed.

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Section 67h

Limited order for measure to take effect; crisis intervention

(1) During the period of supervision of conduct the court may order that the suspended placement under section 63 or 64 take effect for a duration not exceeding three months if there has been an acute deterioration in the released person’s condition or a relapse into addictive behaviour and the measure is necessary in order to avoid a revocation under section 67g. Under the conditions of sentence 1, it may order the renewal of the measure or extend its duration; the maximum duration of the measure may not exceed a total of six months. Section 67g (4) applies accordingly.

(2) The court sets aside the measure before the expiry of the period set under subsection (1) if its purpose has been achieved.

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Supervision of conduct

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Section 68

Preconditions

(1) If a person has incurred a determinate sentence of imprisonment of at least six months for an offence for which the law specifically provides for the supervision of conduct, the court may order supervision of conduct in addition to the penalty if there is a danger that the person will commit further offences.

(2) The statutory provisions providing for supervision of conduct (section 67b, section 67c, section 67d (2) to (6) and section 68f) remain unaffected.

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Section 68a

Supervisory authority, probation service, forensic outpatient service

(1) The convicted person is assigned to a supervisory authority; the court appoints a probation officer to support the convicted person for the period of the supervision of conduct.

(2) The probation officer and the supervisory authority act together to offer the convicted person assistance and support.

(3) The supervisory authority, in consultation with the court and with the support of the probation officer, supervises the convicted person’s conduct and compliance with directions issued.

(4) Where there is any disagreement between the supervisory authority and the probation officer as to questions which affect the assistance and support given to the convicted person, it is for the court to resolve the matter.

(5) The court may issue instructions to the supervisory authority and the probation officer in regard to their functions.

(6) Before filing a request to prosecute under section 145a sentence 2, the supervisory authority is to hear the probation officer; subsection (4) does not apply.

(7) Where a direction as referred to in section 68b (2) sentences 2 and 3 has been issued, the forensic outpatient service is to work together with the parties referred to in subsection (2). In all other cases, subsections (3) and (6) concerning the probation officer’s status also apply to the forensic outpatient service.

(8) The parties referred to in subsection (1) and the staff of the forensic outpatient service referred to in section 203 (1) nos. 1, 2 and 6 are to disclose third-party secrets to each other which have come to their attention in the course of their activities within the relationship indicated in section 203 or otherwise to the extent that this is necessary to support the convicted person in avoiding the commission of further offences. Moreover, the staff of the forensic outpatient service referred to in section 203 (1) nos. 1, 2 and 6 are required to disclose such secrets to the supervisory authority and the court if, in their opinion,

1. this is necessary for the purpose of monitoring whether the convicted person is complying with a direction as referred to in section 68b (1) sentence 1 no. 11 to report in person at certain intervals or is participating, within the remit of a direction as referred to in section 68b (2) sentences 2 and 3, in treatment,

2. the convicted person’s conduct or condition are deemed to necessitate the measures under section 67g, section 67h or section 68c (2) or (3) or

3. if this is necessary to avert a serious and present danger to the life, physical integrity, personal liberty or sexual self-determination of third parties.

In the cases under sentence 1 and sentence 2 nos. 2 and 3, facts within the meaning of section 203 (1) which were disclosed by staff of the forensic outpatient service may only be used for the purposes mentioned therein.

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Section 68b

Directions

(1) The court may, for the duration of the supervision of conduct or for a shorter period, direct convicted persons

1. not to leave their domicile or habitual residence or a specified area without the permission of the supervisory authority,

2. not to frequent specific places which may offer them the opportunity or incentive to commit further offences,

3. not to make contact or associate with the injured person or with specific persons or persons from a specific group who may offer them the opportunity or incentive to commit further offences, nor to employ, train or accommodate them,

4. not to engage in specific activities which may in certain circumstances be misused for criminal purposes,

5. not to possess, carry or entrust to another for safekeeping particular objects which may offer them the opportunity or incentive to commit further offences,

6. not to possess or drive motor vehicles or particular types of motor vehicles or other vehicles which may in certain circumstances be misused for criminal purposes,

7. to report at specific times to the supervisory authority, to a specific authority or to the probation officer,

8. to report promptly each change of address or employment to the supervisory authority,

9. to report, in the case of unemployment, to the Federal Employment Agency or to another authorised employment agency,

10. not to consume alcoholic drinks or other intoxicating substances if, based on specific facts, there is reason to believe that their consumption will contribute to the commission of further offences, and to undergo alcohol and drug tests of a non-invasive nature,

11. to present themselves at specific times or at specific intervals to a physician, a psychotherapist or the forensic outpatient service or

12. to carry the technical means for the electronic monitoring of their whereabouts in working order with them at all times and not to tamper with them.

The court is required to precisely specify the prohibited or required conduct in its direction. Notwithstanding sentence 5, a direction under sentence 1 no. 12 is only admissible if

1. the supervision of conduct was triggered by having served in full a sentence of imprisonment or an aggregate sentence of imprisonment of at least three years or on the basis of a measure which was declared disposed of,

2. the sentence or aggregate sentence of imprisonment or the measure involving deprivation of liberty was ordered for one or more offences referred to in section 66 (3) sentence 1,

3. there is a danger that the convicted person may commit further offences under section 66 (3) sentence 1 and

4. the direction appears necessary to prevent the convicted person from committing further offences of the type referred to in section 66 (3) sentence 1 by means of the possibility of using data in accordance with section 463a (4) sentence 2 of the Code of Criminal Procedure, in particular for the purposes of monitoring compliance with directions issued in accordance with sentence 1 no. 1 or 2.

The conditions of sentence 3 no. 1 in conjunction with no. 2 are met irrespective of whether the supervision of conduct under section 68e (1) sentence 1 referred to therein has ended. In derogation from sentence 3 no. 1, a sentence of imprisonment or aggregate sentence of imprisonment of two years suffices if these were imposed for one or more offences falling under Chapter 1 or 7 of the Special Part; the offences referred to in sentence 3 nos. 2 to 4 include the offence under section 129a (5) sentence 2, also in conjunction with section 129b (1).

(2) The court may, for the duration of the supervision of conduct or for a shorter period, issue directions to the convicted person, in particular in relation to education and training, employment, leisure time, getting his or her financial affairs in order or meeting maintenance obligations. The court may, in particular, direct the convicted person to receive psychiatric, psychotherapeutic or socio-therapeutic care and treatment (therapy direction). The care or treatment may be provided by a forensic outpatient service. Section 56c (3) applies accordingly, including to the direction in respect of invasive alcohol or drug tests.

(3) The directions may not make unreasonable demands in respect of the convicted person’s lifestyle.

(4) If, upon a period of supervision of conduct beginning, an existing supervision of conduct is deemed ended under the terms of section 68e (1) sentence 1 no. 3, the court order must include the directions issued in the context of the previous supervision of conduct.

(5) To the extent that the support given to a convicted person in the cases under subsection (1) no. 11 or treatment in accordance with subsection (2) is not provided by a forensic outpatient service, section 68a (8) applies accordingly.

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Section 68c

Period of supervision of conduct

(1) The period of supervision of conduct is no less than two years and no more than five years. The court may reduce the maximum period.

(2) The court may make an order for the supervision of conduct for an indeterminate period exceeding the maximum period under subsection (1) sentence 1 if the convicted person

1. does not consent to a direction under section 56c (3) no. 1 or

2. does not comply with a direction to undergo medical or addiction treatment or a therapy direction,

and if there is reason to believe that there is a danger to the general public on account of that person committing further serious crimes. If, in the cases under sentence 1 no. 1, the convicted person subsequently consents, the court determines the further period of the supervision of conduct. Otherwise, section 68e (3) applies.

(3) The court may extend the supervision of conduct for an indeterminate period exceeding the maximum in subsection (1) sentence 1 if

1. there is reason to believe, in the case of a suspended order for placement in a psychiatric hospital under section 67d (2), that the convicted person is otherwise about to lapse into a condition as indicated in section 20 or 21 which will result in a danger to the general public on account of that person committing further serious unlawful acts or

2. there is reason to believe, on account of non-compliance with directions under section 68b (1) or (2) or other specific circumstances, that there is a danger to the general public on account of that person committing further serious crimes and

a) the convicted person has been sentenced to a single or aggregate sentence of imprisonment of at least two years or has been placed in a psychiatric hospital or in an addiction treatment facility for offences under section 181b or

b) supervision of conduct under the conditions of section 68b (1) sentence 3 no. 1 was triggered and the single or aggregate sentence of imprisonment or the placement was imposed or ordered for one or more serious criminal offences against life, physical integrity, personal liberty or under sections 250 and 251, also in conjunction with section 252 or 255.

Section 68b (1) sentence 4 applies accordingly to the termination of supervision of conduct.

(4) In the cases under section 68b (1), supervision of conduct commences once the order becomes final, in the cases under section 67b (2), section 67c (1) sentence 1 and (2) sentence 4 and under section 67d (2) sentence 3, it commences when the order for suspension becomes final or at a later date to be specified by the court. Any time during which the person was at large, was in hiding or was detained in an institution by official order is not credited against its duratio