Imprisonment in Austria: start of the sentence, execution, rights and routes to release

Imprisonment is the execution of a custodial sentence imposed by a final judgment. It is fundamentally different from pre-trial detention. Pre-trial detention is imposed on a person against whom no final guilty verdict has yet been handed down, and who is presumed innocent until conviction; it secures the ongoing criminal proceedings and is governed by sections 173 to 179 of the Code of Criminal Procedure (StPO). Imprisonment, by contrast, presupposes a final judgment and executes the sentence imposed; it is governed by the Sentence Enforcement Act. An overview of pre-trial detention can be found in the separate article on pre-trial detention.

This distinction has tangible consequences. In pre-trial detention everything turns on the suspicion, the grounds for detention and the question whether a less restrictive measure can replace detention. In imprisonment the question of guilt is no longer at issue; what is now central is the shaping of execution and the preparation of release. From a lawyer’s perspective the emphasis therefore shifts from defending against the charge towards actively shaping execution: the execution plan, relaxations, transfer, therapy and the early build-up of a sustainable release perspective.

The crediting of time also matters: pre-trial detention served before the judgment is credited against the custodial sentence under section 38 StGB. Anyone who was already in pre-trial detention has therefore served part of the sentence before imprisonment in the narrow sense begins. This has a direct effect on calculating the half-way point, the two-thirds mark and the remaining duration for electronically monitored house arrest.

As soon as the judgment is final, the public prosecutor acts as the enforcement authority. The competent prison facility issues a summons to begin the sentence to the convicted person; it names the date, the facility and the sentence to be served, and as a rule must be complied with within four weeks of service. Anyone who does not comply risks an order to be brought in by force and a forced committal to the facility. This period is therefore not a mere formality but the decisive window in which there is still room to act.

Within this window three questions must be clarified at once. First: does electronically monitored house arrest come into consideration instead of custody in the facility? It is possible under sections 156b et seq. StVG up to a remaining duration of 24 months; for the serious offences listed in section 156c paragraph 1 number 1 StVG it stays at twelve months. Second: are there grounds for a deferral under section 6 StVG? The statute recognises health, family and economic grounds for deferral, each with its own burden of reasoning. Third: which facility is organisationally favourable, for example because of proximity to home, a work place or family ties?

To be distinguished from the deferral is the later interruption of the sentence, that is, the temporary suspension of an execution already under way for a concrete, definable reason. Both instruments buy time but do not remit the sentence. Clearly distinct again is a pardon by the Federal President, an act of grace without any legal entitlement that is attainable only in exceptional cases. Anyone aiming at a shortening of the sentence should not confuse these routes; the calculable regular route is conditional release.

After committal comes classification: the enforcement authority assigns the convicted person, according to the length of the sentence, the offence, gender, age and treatment needs, to a suitable facility and form of execution. Austria has closed, semi-open and open facilities as well as special facilities, for example for juvenile prisoners or for the execution of preventive measures. The choice of facility type is not a mere matter of comfort: it determines the available therapy and education offer, the practice on relaxations and thus, indirectly, the prospects of conditional release.

For longer sentences, in practice from about twelve months, the facility management draws up an execution plan under section 135 StVG. It sets out how the sentence will run: the form of execution, work or training, medical care, contact with the outside world, therapy where appropriate, levels of relaxation and preparation for release. The execution plan is not a one-sided document of the facility: the imprisoned person writes their own biography and must be heard before it is drawn up. A transfer to another facility or a deviation from the classification recommendations requires the approval of the Federal Ministry of Justice.

In practice the execution plan is one of the most important steering instruments. Anyone who brings in concrete wishes early, often already in the first execution interview, a work place in the facility, an educational measure, a planned therapy, shapes the course of the months or years ahead. Anyone who stays passive leaves the decision to the facility. From a lawyer’s perspective it pays not to treat the execution plan as an administrative formality but as the first building block of a release strategy that begins years before the first possible release.

Even in custody the imprisoned person remains a holder of fundamental rights. The Sentence Enforcement Act and the constitution guarantee a range of entitlements, which however do not take effect automatically but must be actively asserted.

Execution complaint under section 121 StVG. Against decisions of the facility management the complaint to the execution chamber of the competent Regional Court is open, deadline two weeks from service or oral pronouncement. Open to complaint are, for example, refused relaxations, disciplinary decisions, transfers against the will of the person, or restrictions of visit, letter and telephone rights. A carefully reasoned complaint does not just challenge the facts but works out the legal basis.

Petition right and Human Rights Advisory Board. Alongside the execution complaint there is a petition right to the Ombudsman Board (Volksanwaltschaft), which is not tied to the complaint deadline and is effective precisely in cases of recurring practice. The Human Rights Advisory Board attached to the Ombudsman Board examines the facilities on site through its commissions. In serious cases, after exhaustion of the domestic appeals, the route to the European Court of Human Rights is open, often based on Article 3 ECHR (prohibition of inhuman or degrading treatment) or Article 8 ECHR (private and family life).

Medical care. It is ensured through the prison doctor; where specialised needs arise, external treatment is possible, for example in the prison hospital or in civilian specialist clinics. Anyone who has an existing diagnosis or therapy should bring the documents into execution early so that continuity is ensured.

Work and remuneration. Prisoners fit for work are in principle subject to the obligation to work; the activity takes place in the facility’s own enterprise or in an outside operation. The remuneration is regulated by law and low, part is paid out immediately and part is saved as a reserve for release. Anyone unfit for work is exempt from the obligation to work.

Contact with the outside world. Prisoners are entitled to regular visits and to correspondence with relatives, lawyer and other persons of reference; telephone calls are possible to a limited extent. Correspondence with the lawyer is exempt from the letter check and thus confidential.

Beyond ongoing execution there are several instruments with which imprisonment can be adapted to the individual situation. Relaxations of execution under sections 99 et seq. StVG, from accompanied leave to day release, serve to maintain social ties and to prepare release in a structured way; as a rule they build on one another and should be planned as a staged track over many months.

The transfer to another facility under sections 134 et seq. StVG is possible, for example for proximity to home and family ties, for access to a particular therapy, to improve the prospects for relaxations in an open facility, or as a protective measure in case of conflict. The application is directed through the current facility management to the enforcement authority; a good reasoning supported by evidence markedly improves the prospects of success.

The electronically monitored house arrest under sections 156b et seq. StVG allows the sentence to be served in the person’s own home, up to a remaining duration of 24 months, and for the catalogue offences under section 156c paragraph 1 number 1 StVG up to twelve months. Housing, regular occupation and a sustainable social environment are examined; the monitoring is the responsibility of NEUSTART together with the prison facilities. These instruments are deepened on the linked topic pages; here they serve as orientation and outlook.

Conditional release under sections 46 and 47 StGB is the most common and most calculable route out of imprisonment. As a rule the execution court examines release after serving two thirds of the sentence; in particularly favourable constellations a release after half is possible, though subject to stricter requirements. The central question is always the social prognosis, whether it can be assumed that the person will commit no further offences in future. Conduct in execution, the housing situation, a work or training perspective and, for relevant prior offences, the therapeutic engagement with the offence are examined.

Conditional release rests on the idea of special prevention: the sentence is not served out of retribution but in order to prevent future offences. As soon as this purpose appears attainable, the continuation of custody is no longer justified. With release a probationary period begins, as a rule three years, in special cases up to five years, during which the court can issue directions, for example probation supervision, regular therapy or a contact ban. Breaches can trigger revocation and a return to serving the remainder of the sentence.

Against a rejecting decision of the execution court the appeal to the Higher Regional Court is open, deadline fourteen days from service. The Supreme Court has repeatedly stressed that a rejection must name concrete points of reference relating to the person; generic references to the gravity of the offence or to prior convictions do not carry on their own. Anyone who receives a rejection should read it as a challengeable legal document and at the same time clarify what can concretely be improved before the next application.

Imprisonment cannot be undone, but it can be shaped, and all the more effectively the earlier the preparation begins. Four points stand out as the most important, and they can also be carried by relatives.

First: use the window before the start of the sentence. Once the summons has been served, the deadline runs. In this time it must be clarified whether a deferral under section 6 StVG or electronically monitored house arrest comes into consideration, and which facility is organisationally favourable. The necessary evidence, medical reports, proof of the family and work situation, should be assembled early.

Second: secure the evidence for the release perspective. A concrete address, a written employer commitment or a training place and, for relevant prior offences, a therapy begun during execution are the supporting pillars of any conditional release. All commitments in writing, with a date and signature, because oral promises carry no weight in the proceedings.

Third: involve the probation service and the social service early. NEUSTART and the facility’s social service are not opponents but often the most important allies in building up relaxations and preparing release. Anyone who actively maintains contact avoids escalation and lays the basis for a favourable prognosis.

Fourth: document observations and communicate confidentially. Relatives often notice changes first; a written chronology helps to make grievances provable. Sensitive topics belong in the confidential correspondence with the lawyer, which is exempt from the letter check, not in ordinary post or telephone calls that may be monitored.