Section 104 of the Austrian Prison Act limits immediate force in prison to defined situations. This article explains the reason, warning, necessary extent and key evidence.
Mag. Christopher Angerer, Rechtsanwalt
Your lawyer for detention and deprivation of liberty
When someone is in custody, every hour counts. One lawyer who accompanies you personally, from the detention review hearing to release.
Immediate force in an Austrian prison is tied to five statutory situations under section 104 of the Austrian Prison Act. They include self-defence, overcoming resistance or an assault, preventing or recapturing an escapee, protecting the institution against entry or a release attempt, and overcoming a failure to comply with an order that threatens prison security or order.
Even in those situations, force must remain limited to what is necessary. It must generally be preceded by a warning. The warning may be omitted where it would jeopardise the purpose of using force. A case review therefore needs to separate the reason, the danger, the warning, the intensity, the duration and the end of the measure.
Choose the situation that best describes the case. You will receive the key points for the next step.
Would you like to describe your situation? Go straight to the enquiry form.
The selection cannot replace a review of the specific events, but it identifies the key facts.
Section 104(1)(1) and (2) of the Austrian Prison Act cover self-defence and overcoming resistance against state authority or an assault on an officer. The review should record the specific attack, the timing of the response, the force used and the point at which the danger ended.
The statute refers to overcoming resistance against state authority or an assault on an officer. General dissatisfaction or a verbal objection does not by itself establish this statutory case. Secure the exact course of events and the act to which the force was directed.
Section 104(1)(3) and (4) cover preventing an imprisoned person from escaping or recapturing that person, as well as entry into the institution, an attempt to enter or an attempt to free an imprisoned person. The review turns on the concrete situation and the connection between the measure and that purpose.
Section 104(1)(5) concerns overcoming a failure to comply with an order where that failure threatens the security and order of prison administration. The failure alone does not complete the review. Secure the content of the order, the specific threat and the prior warning or the reason why a warning could not be given.
Section 104(1) of the Austrian Prison Act lists the situations in which prison officers may use immediate force. Number 1 concerns self-defence. Number 2 refers to overcoming resistance against state authority or an assault on an officer. Number 3 concerns preventing the escape of an imprisoned person or recapturing that person.
Number 4 covers a person entering the institution, attempting to enter or attempting to free an imprisoned person. Number 5 concerns another failure to comply with an order where that failure threatens the security and order of prison administration. This list provides the statutory framework for the individual review.
The reason must fit one of these situations. Calling a measure a security measure does not by itself establish its legality. The decisive question is what actually happened and which statutory purpose the force was meant to serve.
The review begins with a factual question: what happened immediately before force was used? In an alleged self-defence situation, the attack and defensive act must be described. In a case of resistance or assault, the specific conduct and the officer affected matter. In an escape or release attempt, the movement, place and purpose must be established.
For section 104(1)(5), a finding of non-compliance is not enough. There must also be a threat to the security and order of prison administration. The order, its meaning, the response and the specific danger should therefore appear in the same chronological account. A general reference to order does not establish that connection.
This distinction also separates section 104 from other measures. Searches, special security measures, restraints as a separate measure and the use of firearms have their own legal tests. Section 104 addresses immediate force only in the situations listed there.
The individual requirements should remain distinct in the reasoning.
| Review step | Specific question | Evidence |
|---|---|---|
| Statutory reason Which of the five situations applies? | Timeline, people involved and specific conduct | |
| Security purpose What purpose was the measure meant to achieve? | Danger to a person, institution, security or order | |
| Warning Was force announced beforehand? | Wording, time and response or a reasoned exception | |
| Necessary extent How much force was needed for the purpose? | Type, intensity, duration and end of the measure |
The legality of the individual measure depends on the actual events and the reasons recorded for it.
Section 104(2) expressly limits force to what is necessary. Establishing a permitted reason is therefore only the first step. The review must also show what danger existed and why the chosen intensity was necessary to prevent or end that danger.
The record should cover the beginning, individual acts, duration and end. The purpose may change during the incident or may already have been achieved. Further force then requires its own justification. The fact that a measure could be started does not automatically justify every later moment of it.
The actual result of the measure should also be recorded. Was the danger ended, the resistance overcome or the person recaptured? These facts make it possible to identify when the statutory purpose was achieved and when the force had to end.
Section 104(2) generally permits immediate force only after a prior warning. The warning should make the impending measure clear and give the person an opportunity to respond. For a later review, its content, timing and comprehensibility should be recorded.
The statute allows an exception where a warning would jeopardise the purpose of using force. The reason must fit the specific situation. General urgency or a reference to tension does not by itself explain why a warning would have defeated the purpose. In an immediate danger situation, however, events may move so quickly that a warning would lose its protective function.
The warning is a separate issue from the statutory reason and the necessary extent. A clear warning cannot make force lawful where section 104 does not cover the situation. A permitted reason likewise does not remove the need to examine whether a warning was possible.
A sound assessment needs a complete chronology. It should include the triggering situation, the people involved, any order, the response, the alleged danger, the warning and the start of the force. The individual acts, duration, end and result are equally important.
Secure written orders, incident records, notices, medical documents and personal notes with dates. Where injuries are alleged, medical findings, photographs and treatment details should be organised as close to the event as possible. The records should distinguish personal observations from later assessments.
A four-column table can help: time, observed event, response by prison staff and supporting evidence. This makes it clear where the statutory reason, warning or limitation to the necessary extent remains unresolved.
A complaint or other legal review should examine the requirements of section 104 separately. The key issues are the statutory reason, the specific purpose, the danger, the warning or reason for omitting it, and the intensity, duration and end of the force. Calling conduct abuse is no substitute for this analysis, just as calling it a security measure does not resolve the issue.
The correct remedy and any applicable time limit depend on the form of the event. It may matter whether there is a decision or order, whether actual conduct is being challenged and when the person became aware of it. The documents should therefore be complete and arranged chronologically.
The article Legal remedies and complaints in prison enforcement explains how to prepare a prison complaint. Questions concerning pre-trial detention belong in the separate overview on detention review and appeal.
Important: The legality of force depends on the connection between the reason, the danger, the warning and the necessary extent. A general reference to security or order does not replace a review of the actual events.
No. Section 104(1)(5) also requires the failure to threaten the security and order of prison administration. The order, specific danger, warning and necessary extent must be reviewed separately.
As a rule, yes. Section 104(2) permits the warning to be omitted only where it would jeopardise the purpose of using force. The exception must fit the specific situation.
A dispute alone does not answer the question. The review turns on the specific attack or resistance, the immediate danger, the statutory purpose and the necessary extent of the response.
Section 104(2) limits force to what is necessary. Once the statutory purpose has been achieved and the specific danger has ended, any continuation requires its own justification.
Secure orders, records, the chronology, the warning, the actual course of events, medical findings and personal notes. The key is to separate reason, danger, measure and result.
Documents, preparation and classification of a prison complaint.
The distinction and preparation in pre-trial detention.
A separate legal framework for special measures in prison.
Further rights and basic information on Austrian prison enforcement.
Subscribe to legal updates: Receive new articles and legal information from the firm through BRANDaktuelle Rechtsnews.
When liberty is at stake, every hour counts. Call us directly or send an email, callback within one business day. In urgent cases, we are also available outside office hours.
Address
BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg
Phone
+43 660 2407152