Legal remedies and complaints in prison enforcement in Austria

Legal protection in prison enforcement is graduated. At the start there is often the informal request under Section 119 StVG, by which a concern is brought to the prison governor. It is not a legal remedy but the simple way to bring about a decision or prompt a measure. If it remains unsuccessful or a burdensome decision is issued, the actual complaint follows.

The complaint under Section 120 StVG is the central legal remedy. It is available against decisions, orders and the conduct of enforcement staff, in so far as the prisoner's rights are thereby violated. The complaint must identify and substantiate the contested measure. Complaints about medical treatment, by contrast, follow the separate path of Section 122 StVG.

To be distinguished from this are the enforcement court's judicial decisions in its own proceedings, for example on conditional release or deferral of the sentence. These follow their own procedural rules with their own legal remedies and are not the subject of the complaint under Section 120 StVG. Anyone unsure which path applies should assign the concern correctly early on, because the paths differ in deadline and form.

Against a decision, the complaint under Section 120 StVG must be lodged within fourteen days of announcement or service. If it is directed against conduct without a formal decision, the fourteen-day deadline runs from the point at which the ground for complaint became known. The complaint is lodged in writing or orally at a time set by the prison governor. A late complaint is rejected, so observing the deadline is decisive.

Under Section 121 StVG, the complaint is decided first by the prison governor, in so far as it is directed against subordinate staff or their orders. If the complaint is directed against a decision of the governor and he does not remedy it, the enforcement court decides. The complainant must be heard before the decision, unless this is unnecessary. The decision is communicated in writing and contains information about the further legal path.

The complaint has no suspensory effect. Enforcement of the contested measure therefore continues until the complaint is decided. The prison governor or the court can, however, grant suspensory effect ex officio or on request, where no compelling public interest opposes it and enforcement of the measure would cause disproportionate harm. With incisive measures, a request for suspensory effect should therefore be considered.

If the enforcement court dismisses the complaint, the decision is only open to limited challenge. The prisoner and the Federal Minister of Justice can lodge a complaint for illegality to the Vienna Higher Regional Court within six weeks. Since the 2014 reform, this court decides such point-of-principle complaints for the entire federal territory.

The point-of-principle complaint is not admissible in every case. It requires that the decision depend on the resolution of a legal question of significant importance for maintaining legal unity, legal certainty or legal development. That is the case, for example, where the enforcement court departs from settled case law or such case law is lacking. A merely different assessment of the facts or dissatisfaction with the outcome is not enough.

If the enforcement court exercised its discretion within the bounds of the law, there is no illegality. The point-of-principle complaint thus serves to clarify significant legal questions, not to fully review every individual decision. Anyone wishing to lodge it should set out the illegality concretely and in relation to the decisive legal question.