Complaint for delay under section 121c StVG: start of the period at receipt, predominant authority responsibility, three-month supplementary period and court continuation.
Mag. Christopher Angerer, Rechtsanwalt
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If an application for a decision in prison enforcement remains undecided for too long, a complaint for breach of the duty to decide under section 121c StVG may be available. The key points are receipt of the proper application, the statutory decision period and whether the delay is predominantly attributable to the prison authority.
This provision creates a specific route for administrative silence. It addresses the failure to decide. It does not review the merits of an existing decision and does not replace general pre-trial detention review under the StPO.
The decision tree separates the start of the period, predominant responsibility, the supplementary period and the court stage under section 121c StVG.
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Section 121c StVG links the start of the period to the time when the application for a decision was received by the office where it had to be filed. The review therefore needs the application, proof of receipt and the competent office. A later reminder does not resolve that timing question.
A long processing time is not enough on its own. The complaint must be dismissed if the delay is not predominantly attributable to the prison authority. The procedural steps, requests for further information, referrals and the applicant's own cooperation should therefore be arranged in chronological order.
Section 121c(3) StVG gives the prison authority three months to make up the decision. If it issues the decision, the proceedings concerning the failure to decide are discontinued. The merits of that decision have to be reviewed through their own legal route.
If the prison authority does not make up the decision, it must submit the complaint to the court together with the records of the administrative prison-enforcement procedure. The application, receipt evidence, correspondence and complete file therefore matter for the next stage.
The six-month period in section 121c StVG is the starting point where no shorter or longer statutory decision period applies to the matter. The decisive event is receipt of the application for a decision by the office where it had to be filed. Showing that a letter was sent therefore does not always answer the timing question in full.
The filing process should be traceable from beginning to end. Keep the application, date, delivery or receipt proof, the filing office and any referral together. A separate reminder may prompt action, yet it does not move the statutory start date to its later receipt.
Section 121c StVG requires predominant responsibility on the part of the prison authority. The delay is therefore assessed against the actual course of the procedure. The relevant questions include which steps the authority took, whether the matter was ready for a decision and whether the applicant contributed to the delay.
A useful chronology separates the authority's share from missing cooperation, later submissions and outside circumstances. Record every filing, reply, request for information, referral and announced processing step with its date and supporting document. This shows whether the outstanding decision is predominantly within the authority's area of responsibility.
After the complaint for delay is lodged, the prison authority may make up the decision within three months. If it issues the decision, the proceedings concerning the breach of the duty to decide are discontinued. The same applies where the decision was issued before the court proceedings were initiated.
The later decision answers the original substantive question. Its operative part, reasoning, service and information on legal remedies therefore require a separate review. The complaint for delay concerns the failure to decide and does not replace a challenge to the later decision.
The route under section 121c StVG depends on receipt of the application and the prison authority's later response.
| Stage | What must be clarified | Legal consequence |
|---|---|---|
| Application The application for a decision reached the correct office. | Secure receipt, filing office and any special period. | The statutory decision period starts. |
| Delay The authority has not decided within the applicable period. | Document the procedure and both sides' cooperation. | A complaint under section 121c StVG may become available. |
| Supplementary period The authority may still issue the decision within three months. | Keep the decision and service proof complete. | The delay proceedings are discontinued. |
| Court The decision remains outstanding. | The authority submits the complaint and procedural records. | The court proceedings continue. |
If the prison authority does not make up the decision, it must submit the complaint and the records of the administrative prison-enforcement procedure to the court. Section 121c refers to the jurisdiction rules in section 16(3)(3) and section 16a(1)(3) StVG. The competent court therefore depends on the authority concerned and the type of prison-enforcement procedure.
A clear application, proof of receipt and complete chronology are particularly important. The court's subject remains the alleged breach of the duty to decide. An existing decision, its merits, suspensive effect of a measure and pre-trial detention review under the StPO require separate legal assessments.
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Under section 121c StVG, a complaint can generally be lodged only after the prison authority has failed to decide for six months. If the law provides a shorter or longer decision period for the matter, that period applies. The period starts when the application for a decision reaches the office where it had to be filed.
No. The complaint must be dismissed if the delay is not predominantly attributable to the prison authority. The procedural course, the applicant's cooperation and the authority's steps should therefore be documented separately.
The prison authority can make up the decision within three months. If it issues the decision, the proceedings concerning the duty to decide are discontinued. If it does not, it submits the complaint and the procedural records to the court.
The important documents are the application for a decision, the date and proof of receipt, the correct filing office and any statutory special period. Referrals, requests for information and your replies should also be arranged in a chronology.
The complaint for delay addresses the failure to decide. If the authority issues a decision, the delay proceedings are discontinued. Whether that decision can be challenged on its merits is a separate question governed by its own legal route.
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