Applying to reopen a case from prison: When sentence enforcement can stop

Criminal proceedings that have already ended with a final decision are the subject of the application. The judgment’s enforceability is not initially removed by filing it. That a convicted person’s reopening application does not stay enforcement of the sentence is expressly stated in § 357(3) StPO. A stay order cannot be substituted by proof of filing or an acknowledgement from the court. Consequently, a request for prompt examination of new evidence gives no entitlement to remain at liberty until the decision. While the reopening proceedings are pending, the detention position requires its own assessment.

If the court considers a stay appropriate in the circumstances of the case, it may order one. Before doing so, it must first hear the public prosecutor or the private prosecutor. The decision takes the form of a court order. § 357(3) StPO sets neither a fixed waiting period nor an automatic rule for particular types of evidence. The defence can set out concrete reasons for a stay and invite the court to make that decision. This does not replace the court’s assessment or create a statutory entitlement to suspension. For a reopening application following a final judgment, § 357(1) StPO specifies the regional court that had jurisdiction over the trial.

A reasoned request for the court to consider a stay should connect the final judgment, the new fact or evidence, and its significance for the earlier decision. Explain what was already in the file and which exculpatory connection the new material is intended to establish. Make sure the current enforcement position and all available court orders are added. This preparation provides a basis for legal work; it is not a statutory checklist of conditions for a stay. If evidence of a significant fact risks being lost, the regional court may, under § 357(2) StPO, order criminal police investigations or take evidence itself to avert that risk. Securing evidence and staying enforcement remain separate decisions.

Upon the granting of reopening, the earlier judgment is declared set aside to the extent that it concerns the offence for which reopening has been allowed. § 358(1) StPO also requires sentence enforcement to cease immediately. This consequence is no longer governed by the earlier discretionary rule on a stay. However, the statutory consequences of the conviction pronounced in the first judgment remain in place until a fresh decision. Where a judgment covers several offences, the scope of the order must be read carefully. Partial reopening must not be understood as setting aside all other convictions or grounds for enforcement.

A separate detention decision under Chapter 9 of the Austrian Code of Criminal Procedure is required by § 358(1) StPO. Consequently, ending enforcement of the affected sentence must be distinguished from possible pre-trial detention. Under § 173(1) StPO, an application by the public prosecutor, strong suspicion of an offence, judicial questioning, and a statutory ground for detention are required, among other things, for pre-trial detention. It may not be ordered or continued if disproportionate or if less restrictive measures suffice. Consequently, the defence must prepare the new evidence for this detention assessment too. Separate clarification is required for any other detention or enforcement grounds.

A substantiated reopening application and a reasoned invitation to the court to stay enforcement constitute the focus before reopening is granted. Once granted, attention shifts to the scope of the judgment being set aside, the cessation of the affected enforcement, and the new detention decision. Have the complete order, its transmission to the prison, and the detention basis used there checked. Under § 358(2) StPO, the case generally returns to the investigation stage, subject to a statutory exception. If a fresh conviction follows, punishment already served must be credited under § 358(4) StPO. Where reopening was granted solely in the accused person’s favour, paragraph 5 prohibits a change for the worse.