from Wikipedia, the free encyclopedia

Incapacity is a constitution of the accused , which forbids him to be imprisoned in a regular correctional facility with regard to his dignity, personality and health .

Depending on the type and severity of the illness, incapacity for detention can lead to the cancellation of an arrest warrant ( exemption from detention in accordance with Section 116 of the Code of Criminal Procedure ) as well as the interruption of criminal detention ( due to incapacity to enforce according to Section 455 of the Code of Criminal Procedure).

Constitutional significance

Securing legal peace in the form of the administration of criminal justice has always been an important task of state power. The investigation of criminal offenses, the investigation of the perpetrator, the determination of his guilt and his punishment are incumbent on the organs of the criminal justice system, which for this purpose have to initiate and carry out criminal proceedings and to enforce recognized penalties under the statutory requirements. The principle of the rule of law, the duty of the state to protect the security of its citizens and their trust in the functionality of state institutions and the equal treatment of all those convicted in criminal proceedings basically require the enforcement of the state's right to punishment . This also means that legally recognized custodial sentences must be carried out.

This requirement finds its limits in the convicted person's basic right to life and physical integrity ( Article 2, Paragraph 2, Sentence 1 of the Basic Law). If the health of a prisoner is at risk, a tension arises between the state's duty to enforce the criminal claim and the convicted person's interest in safeguarding his constitutionally guaranteed rights. This conflict must be resolved in accordance with the principle of proportionality by weighing up conflicting interests. If this weighing leads to the result that the interests of the convicted person opposing the interference clearly outweigh those interests which the execution of the sentence is intended to protect , the interference violates the principle of proportionality and thus the convicted person's fundamental right under Art. 2 para. 2 sentence 1 GG. In any case, this limit has been reached if, in view of the convicted person's state of health, there is a serious fear that he will lose his life or cause serious damage to his health if the execution of the sentence is carried out.


Mental illness (§ 455 Abs. 1 StPO)

The execution of a prison sentence is to be postponed if the convicted person falls into mental illness. The concept of mental illness in Section 455 (1) of the Code of Criminal Procedure is not to be understood in the narrow sense of an organic brain or organic disease, as it is the inability to guilt according to Article 20 StGB is the basis. However, the mental illness must have reached such a degree that the convicted person can no longer be approached for the purpose of enforcing the sentence , for example because of severe dementia . In the case of a minor mental illness, admission to a penal institution with appropriate treatment options can take place.

Near mortal danger for the convicted person (§ 455 Abs. 2 StPO)

Section 455, Paragraph 2 of the Code of Criminal Procedure prohibits an enforcement that is imminent to life or serious health risks. However, detention does not always have to be interrupted in the event of such a danger, because there is no danger from execution if the means are available to remedy the situation. Such means are not only the examination and treatment in a detention hospital expressly mentioned in Section 455 (4) sentence 1 no. 3 StPO, but also those in an external clinic, which can also take place without interruption of the execution. However, this only applies if the treatment can still be regarded as adequate.

Strict requirements must be placed on the concern of an imminent danger to life that threatens due to illness in the event of an enforcement. In addition, the execution of the prison sentence must also be the cause of this danger.

The risk of suicide is generally not a reason to postpone the execution of a sentence, even if it is seriously expressed. As a rule, this risk can be effectively countered by appropriate treatment and security measures in the penal system. Furthermore, the legally convicted person must not have the power to evade the execution of a sentence by threatening suicide. A perpetrator whose guilt has been legally established must therefore generally be expected to face the negative consequences of his acts associated with the criminal sanction.

Physical condition in which immediate enforcement is incompatible with the establishment of the penal institution (Section 455 (3) StPO)

The term “penal institution” within the meaning of Section 455 (3) StPO includes the term “penal institution” and the term “penal institution” as a general term. According to another view, a prison sentence is not provided in a prison hospital, which is why a prison within the meaning of Section 455 (3) StPO only means a prison.

Section 455, Paragraph 3 of the Code of Criminal Procedure follows the idea that it can be in the interest of both the penal institution and the convicted person if only persons begin to serve prison sentences who are either physically healthy or whose physical illnesses are available to those of a penal institution standing funds can be taken into account. According to this, an incompatibility with immediate enforcement can only exist if the necessary health care or care of the convicted person in the institution is not possible and cannot be guaranteed even through deviations from the enforcement plan. In the case of the pregnancy of a convicted person, the enforcement authority has a discretionary decision.

A summons to commence a sentence in a prison hospital is therefore also possible in cases of chronic illness of the convicted person. The basic exclusion would cause a too far-reaching withdrawal of the state enforcement claim.

A stay of sentence is only possible in the case of physical or mental illnesses which require prior hospital treatment in order to induce or maintain suitability for a prison sentence, for example to treat the consequences of an accident.

Interruption of punishment, § 455 Abs. 4 StPO

The prison system is subject to the requirement to counteract harmful effects on the physical and mental condition of the prisoner as far as possible and to keep the prisoner fit for life. It would be incompatible with human dignity to reduce the concrete and, in principle, feasible chance, demanded by the Federal Constitutional Court even in the event of a conviction to life imprisonment, of enjoying freedom again to a remnant of life marked by infirmity and near death. Depending on the circumstances of the individual case, the prisoner's interest in maintaining his or her fitness for life can be given greater weight than the reasons for further, uninterrupted execution.

A prison sentence can therefore acc. § 455 Abs. 4 Nr. 3 StPO can be interrupted if the convicted person becomes seriously ill and it is to be expected that the illness will probably persist for a considerable period of time and cannot be recognized or treated in a penal institution or an institutional hospital.

An interruption of the sentence according to § 455 Abs. 4 StPO is considered by the specialized courts in particular if the prisoner is terminally ill and there is only a very limited risk of reoffending. An analogous application of Section 455, Paragraph 4, Clause 1, No. 3 of the Code of Criminal Procedure is also being considered if a seriously ill prisoner is liable but can only be treated successfully in the long term outside of the penal system.

For the time of the suspension of the sentence, the convicted person goes to inpatient hospital treatment independently and without the involvement of the enforcement authority. At the same time, the enforcement authority completely relinquishes the power of disposal over the convicted person, with the result that he is not a prisoner in the legal sense during the interruption . The judicial treasury is not responsible for the medical treatment provided during the interruption, but the health insurance.

After the enforcement authority has re-established, the enforcement authority must ensure that the execution of the sentence is continued (Section 46 (5) StVollzO), if necessary by issuing an enforcement arrest warrant .


The public prosecutor's office in its capacity as the enforcement authority ( Section 451 of the Code of Criminal Procedure) decides on an application for postponement or interruption of detention . The Rechtspfleger is functionally responsible ( Section 31 (2) sentence 1 RPflG ). Objections to the negative decision can be raised at the criminal enforcement chamber of the regional court ( Section 458 (2) StPO). This decides as a so-called small penal enforcement chamber with a judge ( Section 78b (1) No. 2 GVG ). Immediate appeal against the decision is possible to the Higher Regional Court ( Section 462 (3) StPO), which in principle decides on the matter itself without referring back to the Regional Court ( Section 309 StPO).

The enforcement authority must clarify details on the state of health, life expectancy and the dangerousness of the convicted person, in particular obtain statements from a medical officer or an expert report (Section 45 StrVollstrO ). If the Federal Armed Forces authorities carry out criminal arrest or imprisonment , Article 6 of the Introductory Act to the Military Criminal Law (WStrGEG) applies to the interruption of the execution of sentences in the event of illness.

In some cases, postponement of punishment is compulsory ( Section 455 (1) and (2) of the Code of Criminal Procedure) and partly at the discretion of the enforcement authority ( Section 455 (3) and (4) of the Code of Criminal Procedure).

The prisoner has no legal entitlement to the interruption of the execution of the sentence according to § 455 Abs. 4 StPO. He can only demand the correct exercise of discretion . In particular, the enforcement may not be interrupted if there are overriding reasons, in particular public safety, against ( Section 455 (4) sentence 2 StPO). This is the case, for example, if, according to the forecast to be made, the convicted person poses a risk of committing new crimes or a risk of flight.

Inpatient treatment outside the prison is included in the sentence unless the convicted person caused the illness himself with the intention of interrupting the execution of the sentence ( Section 461 StPO). In addition, the actual power of disposal of the enforcement authority over the convicted person must continue to exist during the stay, for example through guarding. This is not the case with an interruption of punishment according to § 455 Abs. 4 StPO.

If the rejection is final, the convicted person can still pursue his request by means of a pardon . A recent example is Oskar Gröning .

During the deferred and the interruption which rests by limitation ( § 79a no. 2a CC).


The postponement of the execution of a sentence because of the unfit for execution is regulated in § 5 of the Prison Act (StVG). If the inability to enforce a sentence occurs after the sentence has commenced, the enforcement court decides on the subsequent postponement of the sentence in accordance with § 133 StVG.

The execution of a fine or a custodial sentence not exceeding three years, which is connected with the procurement of addictive substances , is to be postponed for a maximum of two years even after acceptance into the prison system, if the convicted person agrees to a health-related measure which is obviously not futile declared ready (§ 39 SMG ).


With the adhesive-emergence ability abbreviated HEF , the Swiss referred Strafprozessrecht the ability of an accused or convicted person to live in an institution of the penal system to endure the deprivation of liberty without special and serious risk to health and / or life and the whole purpose of having served a To recognize imprisonment . In the penal system, the weighing of interests is carried out by the responsible cantonal prison authorities. The Federal Supreme Court specifies a restrictive practice for this. The possibility of a suspension of punishment should only be used with the greatest reluctance. The public interest in the execution of legally enforceable sentences restricts the discretion of the enforcement authority considerably.

Art. 92 StGB only provides for an interruption of detention for important reasons. If the convicted person can be treated in a detention hospital, for example, he will be transferred there (Art. 80 StGB). Execution is only interrupted in the event of total incapacity to prosecute.

In pre-trial detention, the medical examination takes place in accordance with Art. 251 StPO.

Prominent examples


  • Klaus Laubenthal , Nina Nestler: Execution of prison sentences. In: Enforcement of sentences. Springer-Verlag, Berlin, Heidelberg 2010, pp. 39-104
  • Gunter Widmaier , Eckhart Müller, Reinhold Schlothauer (Eds.): Munich Lawyers Handbook Criminal Defense . Munich, 2014. Section 24 Enforcement, p. 983 ff.

Web links

Individual evidence

  1. Löwe-Rosenberg, Criminal Procedure Code and Courts Constitution Act, Section 112, no. 68
  2. BVerfG, decision of June 19, 1979 - 2 BvR 1060/78 para. 65
  3. BVerfG, decision of June 6, 2011 - 2 BvR 1083/11 marginal no. 8th
  4. BVerfG, decision of June 6, 2011 - 2 BvR 1083/11 marginal no. 9
  5. KK-Appl, 7th edition, § 455 Rn. 6a
  6. Elisabeth Quendler, N. Konrad: Alzheimer's dementia in prison NeuroGeriatrie 2008, pp. 31–33
  7. Munich Higher Regional Court, Decision of 18 June 2012 - Az. 2 Ws 522/12 paragraph. 19 ff.
  8. BVerfG, decision of March 9, 2010 - 2 BvR 3012/09 para. 27
  9. cf. Graalmann-Scheerer in: LR-StPO , 26th edition, Vol. 9 § 455 Rn. 10; Düsseldorf Higher Regional Court, 1 Ws 866/90 of October 16, 1990 - NStZ 1991, 151
  10. Detlef Burhoff : Enforcement of sentences, deferment, risk of suicide. OLG Koblenz, decision of April 21, 2015 - 2 Ws 122/15
  11. OLG Hamm, decision of October 20, 2015 - 3 Ws 392/15
  12. OLG Koblenz, decision of June 25, 2003 - 1 Ws 387/03
  13. OLG Celle, decision of October 26, 2011 - 1 Ws 424/11
  14. BGHSt 19, 150
  15. OLG Koblenz, decision of April 21, 2015 - 2 Ws 122/15
  16. OLG Hamm, decision of October 20, 2015 - 3 Ws 392/15
  17. BVerfG, decision of March 9, 2010 - 2 BvR 3012/09 para. 26th
  18. cf. Hanseatic OLG, decision of May 2, 2006, 1 Ws 59/06, NStZ-RR 2006, p. 285; see. also Appl, in: Karlsruhe Commentary on StPO , 6th edition 2008, § 455 Rn. 17; Arloth, StVollzG , 2nd edition 2008, § 65 Rn. 4; Zeitler, Rpfleger 2009, pp. 205, 207
  19. OLG Hamm, decision of February 26, 2008 - Az. 3 Ws 65/08 marginal no. 13
  20. Alois Wagner: Enforcement of sentences. Textbook for study and practice . 2nd edition, Munich 2009. VI. Interruption of punishment - § 455 Abs. 4 StPO, §§ 45, 46 StVollstrO , pp. 116-117
  21. Leaflet on social security and unemployment insurance for prisoners, the judicial authorities of North Rhine-Westphalia, as of April 1, 2014
  22. cf. For example, Cologne Higher Regional Court, decision of 2 August 2012 - Az. 2 Ws 523/12 paragraph. 13-16, 19 ff.
  23. Introductory Act to the Military Criminal Law of March 30, 1957, Federal Law Gazette III, structure number 452-1, last amended by Art. 6 of the Act of April 13, 1986, Federal Law Gazette I p. 393
  24. cf. For example, Cologne Higher Regional Court, decision of 2 August 2012 - Az. 2 Ws 523/12 paragraph. 36
  25. Meyer-Goßner, Criminal Procedure Code , § 455 Rn. 12; KK-Appl, StPO , 6th edition, § 455 Rn. 15; Löwe-Rosenberg, Criminal Procedure Code and Courts Constitution Act , § 455 Rn. 26th
  26. § 5 StVG, accessed on February 16, 2018
  27. ^ Postponement website of the Federal Chancellery , accessed on February 19, 2018
  28. § 133 StVG, accessed on February 23, 2018
  29. ^ Roland Friis: Illness and Imprisonment May 2, 2008
  30. Nikolaus Rast: "Therapy instead of punishment" - a special form of postponement of punishment in: green circle magazine: Addiction. Therapy instead of punishment. 2013, p. 6
  31. Heidi Hauenstein: Conflicts of fundamental rights in the penal system using the example of force-feeding. Weighting and enforcement of rights and obligations of the judiciary, medicine and the individual Lucerne University of Applied Sciences and Arts 2011, p. 12
  32. Christoph Burz: Mental disorders and the ability to stand in prison Switzerland Med Forum 2007, pp. 146–149
  33. BGE 108 Ia 69 judgment of May 26, 1982
  34. Art. 92 StGB
  35. Art. 80 StGB
  36. Guideline of the Concordat Conference of the Prison Concordat of the Northwestern and Central Switzerland cantons on the ability to hold prison from November 25, 2016. Systematic collection of decrees and documents (SSED), Guidelines / Execution / 17ter.0 Guideline on the ability to hold prison. Link to download
  37. Art. 251 of the Swiss Code of Criminal Procedure of October 5, 2007
  38. Jan Röhmer, Johann Steurer: Assessment of the ability to stand in prison: Analysis of 1037 missions in Switzerland Med Forum 2012, pp. 685–690
  39. Ralph U. Aschwanden: Assessment of the ability to be held liable . Accessed on February 19, 2018.
  40. Life- threatening illness: neo-Nazi Mahler interrupts imprisonment Der Spiegel , July 22, 2015
  41. Manfred Seeh: Elsner: Public Prosecutor Approves Release Die Presse , July 8, 2011