Dangerous repeat offenders: detention under § 23 StGB and its maximum duration

Conviction after completion of the twenty-fourth year of life and a prison sentence of at least two years are required by § 23 Abs. 1 StGB. The conviction must also be exclusively or predominantly for intentional offences within the statutory catalogue. Included in the area covered here are offences against life and physical integrity or liberty, and property offences involving the use or threat of violence against a person. That violence requirement is not itself satisfied by ordinary theft.

Age and sentence length constitute separate requirements. Multiple previous convictions do not suffice if the current conviction falls short of the statutory thresholds or does not concern the required types of offence. Conversely, where all requirements are met, the statute requires detention. The defence must therefore examine each requirement against the findings in the judgment.

The rule requires two earlier convictions, each carrying a prison sentence of more than six months and again exclusively or predominantly for offences of the relevant kind. Because of those convictions, the person must have spent at least eighteen months in prison before committing the offences now being adjudicated. Under § 23 Abs. 1 Z 2 StGB, the relevant time must have been served after completion of the nineteenth year of life.

Often, a criminal-record extract alone cannot establish these requirements. To allocate the time precisely, the earlier judgments and prison records are needed. In 9 Os 93/75 of 16 July 1975, the Austrian Supreme Court stressed that the eighteen months must have been served because of the two qualifying convictions. Unrelated periods of detention cannot simply be added to reach the threshold.

If more than five years passed between the completion of an earlier sentence and the following offence, that earlier sentence is disregarded under § 23 Abs. 4 StGB. From that interval, periods of detention ordered by an authority are excluded. Should the sentence have been served solely through credit for earlier detention, the interval begins only when the judgment becomes final. Consequently, the examination requires a complete chronology rather than a comparison of judgment dates alone.

Under § 23 Abs. 5 StGB, foreign convictions may be taken into account. In particular, § 73 StGB requires that the conduct be punishable by a criminal court in Austria and that proceedings be consistent with Art. 6 ECHR. The further questions are whether an Austrian court would have imposed more than six months in prison and whether the required time would have been served. These questions are not answered by the foreign offence label alone.

A fear of further qualifying offences with serious consequences is additionally required by § 23 Abs. 1 Z 3 StGB: because of a propensity to commit such offences or because the person habitually obtains most of their livelihood through them. That forward-looking assessment is not replaced by the formal previous-conviction thresholds. The facts supporting the danger defined by the statute must be identified by the judgment.

The defence therefore examines the coherence of the assessment regarding earlier offending, personal development and current living conditions. While evidence of employment, housing or changed social ties may matter, such evidence does not guarantee an outcome. In legal principle RS0090223, originating in 9 Os 131/76 of 17 November 1976, the Austrian Supreme Court emphasises that the measure is confined to exceptionally serious criminality; repeated petty offending is insufficient.

After the prison sentence, detention for dangerous repeat offenders is enforced under § 24 Abs. 2 StGB. Before transfer, the court must of its own motion examine whether detention remains necessary. Consequently, an order in the criminal judgment does not lead to later detention without further examination. Changes during the prison sentence belong in this fresh assessment.

Different rules govern the requirements and the order of enforcement for detention in a forensic therapeutic centre. Where the requirements for that form of criminal-law detention are met, § 23 Abs. 2 StGB excludes repeat-offender detention. Consequently, the legal basis in the judgment must be distinguished carefully from later enforcement.

§ 25 Abs. 1 StGB combines an order for an indefinite period with a ten-year maximum for detention of dangerous repeat offenders. Enforcement is permitted only for as long as the purpose of the measure requires it. Therefore, ten years is an upper limit, not a period that must automatically be served. The prison sentence enforced beforehand is not shortened by it either.

Whether to lift the measure is decided by the court. Under § 25 Abs. 3 StGB, a decision of its own motion at least annually regarding the continued necessity of detention must be made by the court. Under Abs. 5, the interval commences with the last first-instance decision. Preparation should focus on that decision, its factual basis, and new documented developments. The current situation is not described by merely referring back to the original criminal judgment.

Generally, the court decides the measure in the criminal judgment under § 435 Abs. 1 StPO. Part of the sentencing ruling is its imposition, which can be challenged by a nullity appeal and a sentencing appeal under Abs. 2. The remedy that addresses a particular error depends on the court, the decision and the kind of error. If judgment has already been pronounced, seek immediate examination of the available remedies and their deadlines.

The indictment or judgment, the two earlier judgments relied upon, records of time served, and documents relevant to the risk assessment should be provided for legal assessment. Evidence of current development becomes relevant during the prison sentence, and continuing necessity is examined before transfer. Which arguments and documents help now is determined by the distinction between an unlawful original order and a measure whose necessity has later ceased.