Crediting pre-trial detention against the sentence under section 38 StGB, Austria

Under section 38 StGB pre-trial detention must be credited against a custodial sentence, provided it was suffered after the commission of the offence for which the person is sentenced, or otherwise on suspicion of a punishable act. The crediting is not discretionary: the court must carry it out in the judgment. In practice this means the sentence still to be enforced is shorter by the duration of the pre-trial detention. Where crediting is full, the sentence may be regarded as already served.

What to do now: First, check the judgment to confirm that the entire period of pre-trial detention is correctly recorded in the operative part. Second, if there are discrepancies engage the defence immediately, because errors in crediting can only be corrected on appeal. Third, ensure that the same period of detention is not credited in two separate proceedings.

Where a fine has been imposed, the days of pre-trial detention cannot be deducted directly. The law uses the substitute custodial sentence as the conversion measure. Under section 19 para 3 StGB the court must fix in the judgment how many days of substitute custodial sentence correspond to an unpaid fine. The time served in pre-trial detention is credited against this substitute sentence. If the pre-trial detention is longer than the substitute custodial sentence, the fine is regarded as fully discharged. This is particularly relevant where a comparatively short fine was imposed but a longer period of pre-trial detention was suffered.

What to do now: First, read the judgment carefully and check which substitute custodial sentence the court has fixed. Second, compare the duration of pre-trial detention with the substitute sentence to calculate the remaining liability. Third, involve the defence if there are uncertainties or errors in the crediting.

Section 38 StGB expressly excludes double crediting: crediting only takes place to the extent that the detention has not already been credited against another sentence. If the same period of detention has already been taken into account in earlier or concurrent proceedings, it cannot be deducted again in further proceedings. This is particularly relevant where someone is held in pre-trial detention while several criminal proceedings against them run concurrently, or where they are sentenced for several offences.

What to do now: First, establish in which proceedings pre-trial detention was suffered and whether it has already been credited there. Second, ensure that all courts involved in the proceedings are informed of the current state of crediting. Third, coordinate the defence across all proceedings so that no period of detention is lost and no impermissible double credit occurs.

Section 38 StGB prohibits crediting to the extent that the person has already been compensated for the detention. Conversely, crediting a period of detention against a sentence bars a compensation claim under the StEG 2005 for the same period. Anyone who claims compensation under section 2 StEG following an acquittal or discontinuation of proceedings cannot simultaneously have the same period credited against another sentence. This interaction must be considered carefully in complex cases involving several proceedings.

What to do now: First, examine whether a compensation claim under the StEG 2005 exists, since acquittal or discontinuation is a requirement. Second, clarify which periods of detention should be credited and which should be compensated, because both cannot apply to the same period. Third, seek legal advice early to choose the more advantageous option and to avoid missing any deadline.