Commencement and postponement of sentence.

Once a criminal judgment becomes final, the public prosecutor's office (Staatsanwaltschaft) takes over enforcement. The competent prison (Justizanstalt) then summons the convicted person in writing to commence the sentence within a set period, typically four weeks from service. Anyone failing to comply risks a committal order (Vorführbefehl) and forcible transfer by the police. Yet those four weeks are also the window within which a postponement under Section 6 of the Austrian Prison Act (Strafvollzugsgesetz / StVG) can be applied for.

What the summons means in concrete terms

The summons states the date, the prison and the sentence to be served. It is the formal start of enforcement, and the point at which defence counsel becomes active again. Three questions need immediate clarification: is the sentence high enough to rule out electronically monitored house arrest (remaining term over 24 months; for the catalogue offences under Section 156c(1)(1) StVG the limit remains twelve months)? Are there grounds capable of sustaining a postponement application? And which prison is organisationally favourable, by reason of proximity to home, work or family ties?

The grounds for postponement under Section 6 StVG

The Act sets out three main groups of grounds for postponement, each with its own threshold and its own burden of substantiation.

Health grounds: A serious illness or a medically necessary course of treatment that cannot, or cannot adequately, be delivered inside the prison will generally carry a postponement. What counts is not subjective perception but a medical certificate with diagnosis, treatment plan and prognosis. We recommend obtaining the certificate from a specialist, GP certificates often do not suffice for more serious diagnoses.

Family grounds: Where immediate commencement would cause unreasonable hardship to close relatives, because a minor child must be cared for, a parent requiring care lives in the household, or a pregnancy is in an advanced stage, postponement comes into consideration. Here too, concrete documentation is what counts: birth certificates, care-allowance decisions, school confirmations, custody orders.

Economic threat to livelihood: The third and, in practice, hardest ground. Where the business would collapse without the convicted person, where a job supporting a family would be lost, or where an important commercial transaction is close to completion, a time-limited postponement can be granted. The hurdle is high: a concrete, not otherwise avoidable economic risk must be shown, not merely a general reference to ongoing professional activity.

How long a postponement can last

Postponements are granted in months, three, six or twelve are typical. A twofold extension is possible, provided the underlying ground persists. Practice varies with the prison and the ground concerned: health-related postponements usually last until treatment is completed, family-related postponements align with specific dates (end of the school year, birth, start of school), economic postponements are as a rule shorter and more tightly limited.

A postponement is not a waiver of the sentence. Enforcement is only deferred. Those who obtain a postponement should use the time to put housing, work, insurance and family matters in order, so that the later commencement is structurally prepared, and to examine whether, in the meantime, the conditions for electronically monitored house arrest can be created.

If the application is refused

Against the refusal of a postponement application, a complaint to the enforcement court (Vollzugsgericht) is available. The deadline is 14 days from service of the refusal decision. The complaint allows new evidence to be submitted, medical statements to be supplemented, or the original reasoning to be sharpened. Experience shows that complaints in well-documented cases are accepted more often than the first refusal would suggest, especially on health grounds, where the prison administration often initially underestimates the need for treatment.

Postponement or electronic tag?

Where the remaining sentence is up to 24 months (for the catalogue offences under Section 156c(1)(1) StVG the limit remains twelve months), it should regularly be examined whether, instead of a postponement, an application for electronically monitored house arrest should be filed directly. The two routes are not mutually exclusive: a postponement can be used to create the conditions for the tag, secure housing, regulated work, consent of fellow residents, so that the sentence need not be served inside a prison at all. This chaining should be thought through early, ideally before the commencement deadline. We cross-refer to the standalone focus on house arrest.

What you should not do

Three mistakes keep appearing in our practice. First: the summons is ignored, a committal order follows, arrest occurs at the point most damaging to family and work, and the postponement application is effectively blocked. Secondly: the application is filed without evidence; a brief reference to "family strain" or "professional obligations" is not sufficient and will be refused. Thirdly: no complaint is lodged because the first refusal is perceived as final. Anyone who lets the 14-day deadline lapse forfeits the second chance.

A case from practice

A client, restaurant owner, convicted to 14 months for negligent bodily harm following a road accident, received the summons three weeks before the start of the season. Immediate service would have brought the business, which secures the livelihoods of five employees, to a halt. Within ten days we filed a postponement application backed by tax assessments, employment contracts and a written statement from the bank on the ongoing business financing. A postponement of nine months was granted, followed by a seamless transition to the tag. The lesson: economic grounds will carry an application if substantiated by concrete figures and third-party evidence, not by general references to professional activity.

Choice of prison and the first steps

The summons names a particular prison, but the prison administration (Vollzugsdirektion) may, on application, assign a different, closer to home or better suited to the individual situation, institution. A person living in Salzburg who is summoned to Stein can apply at an early stage for committal to the prison in Salzburg or Innsbruck. The basis is family ties (minor children, relatives requiring care), medical care or planned therapy. More on this in the article on the transfer application, its criteria apply, with appropriate modifications, already to the initial assignment.

On the first day inside the prison three preparations count: personal documentation (residence registration, proof of health insurance, current diagnoses with medication plan), a contact list with the addresses of relatives, employer and counsel (visitor lists must be registered in advance), and funds for the reserve, to be paid in under the rules of the institution. Those who prepare these things lose less time in the first week with administrative catch-up, and can start building the enforcement strategy sooner.

Postponement, interruption, electronic tag, what applies when

The three instruments are often confused in consultations. The postponement of the sentence (Strafaufschub) takes effect before commencement and defers the start of enforcement. The interruption of the sentence (Strafunterbrechung) takes effect during enforcement and pauses an ongoing period of custody. Electronically monitored house arrest replaces custodial enforcement where the remaining sentence is up to 24 months (for the catalogue offences under Section 156c(1)(1) StVG the limit remains twelve months). Those who act in time can chain the instruments: six months of postponement to build the housing and employment situation, then the electronic tag instead of custody, turning a one-year sentence, in many cases, into enforcement without a single day behind prison walls.