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Incapacity: When is someone incapable of liability & when not?


If a convicted person suffers from a serious mental illness or is in mortal danger, he is incapable of detention. A prison sentence may not be carried out in the event of incapacity for detention. If the conditions are met, a lawyer can use strong arguments to support the request for suspension or suspension.


At a glance

  • After the final conviction to a custodial sentence, it is normally impossible to avoid going to prison.
  • Exception: the convicted person is incapable of imprisonment.
  • Incapacity to imprisonment exists in the case of a serious mental illness or acute danger to life.
  • Incapacity must be applied for. A medical officer then assesses the state of health with a medical report.
  • If the public prosecutor approves the application, the prison sentence is postponed or interrupted until the convicted person is healthy.
  • The application for incapacity for detention is only granted in extremely rare cases - the higher the prison sentence, the higher the requirements.
  • A criminal law attorney can assess the chances of success of an application and secure the application for incapacity with strong arguments.


Do you consider yourself incapacitated for health reasons or do you suspect that your relative is incapacitated? advocado will find the right lawyer for you for criminal law from a network of over 500 partner lawyers. They will contact you within 2 hours for a free initial assessment of your options for action and chances of success.

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1. What is incapacity?

Can a convict because of his State of health If he does not start a prison sentence in a normal penal institution (JVA), he is incapable of detention. Whether the health impairments of the convicted result in unfit for prison, must be a medical officer in a medical reports determine.

The convicted person or his relatives must do so for the law enforcement authority to check whether he is incapable of detention Apply for incapacity. Whether it is unfit for enforcement, the public prosecutor's office decides as an enforcement authority on the basis of the medical opinion.

Since the public prosecutor's office only accepted the application in exceptions approved, it may be worthwhile for those affected to contact an experienced lawyer in order to justify the application in a comprehensible and convincing manner.


A lifelong incapacity is normally not determined. The public prosecutor usually orders everyone 6 months a new medical report to check whether the illness of the convicted person is still present.


What are the prerequisites for incapacity for detention?

Does someone suffer from one severe mental or physical illness, he is considered incapable of liability if the illness is not appropriate in one Prison hospital treats.

When a mental or physical illness leads to unfit for prison cannot be answered in principle.

Incapacity depends on different requirements from:

  • Conditions in the detention center
  • Severity of illness
  • Length of prison sentence
  • Effects of detention on the convict's health


2. What happens in the event of incapacity for detention?

If the incapacity for detention is confirmed by an independent doctor, the prosecution can make the following decisions:

  • Reprieve: If the convicted person has not yet commenced custody, the public prosecutor temporarily suspends the arrest warrant and sets a later date for commencing custody in the prison.
  • Interruption of punishment: If the convicted person has already been imprisoned, the public prosecutor's office can temporarily waive the execution of the sentence while the prison is in prison.



If the convicted person cannot start the prison sentence for serious health reasons, the public prosecutor postpones the start of the sentence until the convicted person has recovered later appointment.

Is a expect a speedy recovery, the medical treatment and care takes place in one Prison hospital. The sentence continues to be carried out there.

Is a quick recovery unlikelybecause the convict is suffering from a serious illness and the detention hospital cannot adequately treat him, the correctional authority transfers him to a prison public hospital. Correctional officers monitor him there until he recovers.

If he is liable again, he has to serve the sentence in a normal prison.


Interruption of punishment

According to ยง 455 StPO there is an interruption of a custodial sentence if the prisoner becomes seriously ill and it is to be expected that the illness is likely for a considerable time - in comparison to the remaining sentence still to be served - persists.

In this case, too, an interruption of punishment (outstanding offense) due to incapacity for detention is only possible if the illness cannot be identified or treated in a penal institution or hospital. If the prisoner is healthy again, the sentence continues.


For the time of the suspension of the sentence, the convicted person is no longer a prisoner in the legal sense - i.e. H. he goes self-employed for treatment to a public hospital. In this case, it is not the state but the Health insurance come up.


A Interruption of punishment is excluded, if

  • public safety z. B. is at risk from a serial offender,
  • There is a risk of escape,
  • There is a risk of repetition of the offenses,
  • the prisoner is ill because he has refused treatment offered to him in prison.


3. When is incapacity for detention?

A person is incapable of liability, if

  • she suffers from a mental illness,
  • she is in mortal danger because of an illness,
  • the disease is not receiving adequate treatment in a prison hospital.


Mental illness

A convicted person who has participated in a severe form suffers from a mental illness. Is the convicted person demonstrably mentally ill and is the treatment only in one psychiatric clinicbut not possible in the detention hospital, the execution of sentences is prohibited.

These mental illnesses result in incapacity for detention:

  • schizophrenia
  • paranoia
  • depressions
  • Claustrophobia
  • Dementia and Alzheimer's
  • Borderline
  • Panic disorder

If the mental disorder is less pronounced, it is still possible to go to prison. The convicted person is sent to a penal institution, which enables appropriate treatment.

Whether a mental illness leads to unfit for prison must therefore always be Medical report clarify.


Imminent danger to life

If the imprisonment threatens the life of the convicted person so much that his life would be in danger of being imprisoned, is Penal system in the prison due to unfit for prison forbidden.

If treatment in the detention hospital is possible, the execution of the sentence can still take place. In this case, an application for incapacity for custody has no prospect of success.


Appropriate treatment is not possible

The detention center cannot guarantee the convict properly medically too supply, the law enforcement authority must postpone or interrupt the execution of the sentence.

These diseases can lead to incapacity for prison:

  • Chronic heart disease
  • diabetes
  • high blood pressure
  • epilepsy

Does a convict suffer z. B. from a serious heart disease, he is by the execution of the imprisonment incomparably higher life risk exposed than in freedom. If he suffers a heart attack, it may be too late for life-saving measures by the safety measures by the time the emergency doctor arrives.


Section 455 of the Code of Criminal Procedure regulates the prerequisites for incapacity for detention and sets it at the same time very narrow limits. As a rule, the prison authorities only recognize an acute threat to life as a result of a mental or physical illness.

An advocado partner lawyer can check whether imprisonment is unreasonable in a specific case and collects sound evidence to confirm that the person is unfit for a prison sentence. Get an initial assessment now.


4. When is there no incapacity for liability?

The unfit for prison are extreme narrow limits set.

It lies no incapacity before when

  • Adequate medical care for the convicted person is possible in a detention hospital,
  • the convicted person threatens suicide,
  • the convict is pregnant.


Adequate medical care is possible

If the convicted person falls ill, the prison sentence is usually served if the treatment takes place in one Detention hospital is possible. In order for an illness to lead to unfit for prison, a concrete danger for the life of the convicted must arise through the prison system in the prison.

So has z. B. the European Court of Human Rights ruled that a Cancer no incapacity for detention is required if adequate medical care is possible in prison (ECHR, Az. 76512/11).

Also one Severe disability or high age do not necessarily lead to unfit for prison if the detention does not endanger the life of the convicted person.


Risk of suicide

Risk of suicide does not lead to incapacity for prison. If the convicted person threatens to commit suicide, this is no reason, according to the judgment of the Cologne Higher Regional Court, to interrupt the detention or to postpone the execution of the sentence (OLG Cologne, Az. 2 Ws 623/03).



Pregnancy does not necessarily mean that the commencement of the sentence is postponed or interrupted due to incapacity for detention. If a convict is pregnant, the public prosecutor meets one Discretionary decision.

Is the medical care during and after pregnancy z. B. ensured through preventive examinations, birth preparation courses and postnatal gymnastics, the prison sentence is also enforced in the event of pregnancy.


Would you like to apply for incapacity to custody? An advocado partner lawyer will explain your options for action in a free initial assessment. Get an initial assessment now.


5. How do I prove incapacity to custody?

The will check whether someone is incapable of detention and cannot commence prison for health reasons or has to interrupt it Public prosecutor in their capacity as enforcement authority. The convicted person or his lawyer or the relatives must first Incapacityapply for.


How do I apply for incapacity for custody?

Anyone who would like to apply for incapacity for prison can Application detailed enter into the reasons for which he claims that he is unfit for a prison sentence. For this it can be helpful to have the Understandable medical history and attach medical reports as well as the course of diagnosis and treatment.

The application must be submitted to the responsible public prosecutor's office, stating the file number.

In principle, those affected can submit the application without a lawyer. Legal assistance may, however, be advisable in order to the application legally secureand believable to formulate.


Who will determine incapacity?

A doctor uses a medical opinion found in an incapacity investigation. The doctor checks whether the health impairments of the convicted person are so severe that it would be unreasonable to accept the sentence.

The convicted person cannot choose the expert himself. The public prosecutor's office decides which doctor examines the unfit for a prison sentence.

A certificate dated Family doctor of the condemned is therefore unsatisfactory. But it can be the basis for the medical examination. Usually one of the following independent doctors will prepare the report:

  • Medical officer of the judiciary
  • Health Department doctor
  • Mental Health Service Doctor

Unlike general practitioners, these doctors know you strict requirements for the existence of an unfit for enforcement. They know whether imprisonment would cause serious health problems and can demand that the convicted person be permanently looked after by a psychiatrist or an addiction counseling service.


Incapacity check

Whether someone is incapacitated the public prosecutor's office decides as an enforcement authority on the basis of the medical opinion in a Incapacity check.

In the process, the public prosecutor examines:

  • health status
  • Life expectancy
  • Dangerousness of the prisoner
  • Medical reports
  • Expert opinion

Approved the prosecutor's office the request, she orders a suspension or suspension of the sentence. Usually one takes place Briefing of the convict in a hospital.

Rejects the public prosecutor's office the application from, the convicted person has the opportunity to Objection to file with the penal enforcement chamber of the competent regional court and a judicial decision to apply.


Whether the public prosecutor approves incapacity is at their discretion. For those affected who suspect their application wrongly I recommend consulting a lawyer. He can prove beyond any doubt that going to prison is unreasonable for the health of the convicted person. Get an initial assessment now.


Request for a judicial decision

By means of a court decision, the convicted person can Decision of the public prosecutor's office by a court for their legal admissibility have it checked. In principle, the convicted person can submit the application himself; a lawyer is not required.

The responsible district Court decides again on incapacity for detention. If the regional court also rejects the application, the convicted person may Complaint to the Higher Regional Court Submit. This will re-examine the application and decide whether to postpone or interrupt the sentence.


6. Applying for incapacity for prison: this is how a lawyer can help

Both the convict himself and his relatives can apply for incapacity for prison. A lawyer is not required. However, since the hurdles are very high, it can be helpful to use legal support. This ensures that the application believable is and the Arguments true are.

A lawyer can help here. He checks in advance in a conversation with his client how high the Chances of success are for approval of the application and advise on how to proceed.

An experienced one Criminal law attorney

  • checked in free initial consultationwhether the conditions for incapacity are met.
  • has the legal expertise and the necessary Experienceto submit the application for incapacity for detention in a legally secure and well-founded manner
  • supports the person concerned if the public prosecutor rejects the application and goes with a judicial decision against the rejection.

advocado will find the right lawyer for you from one Network with over 500 partner lawyers. He will contact you within 2 hours for a free initial assessment about your options for action and chances of success.