Basic information on imprisonment
Penalties are state reactions to criminal behavior. In Austrian criminal law, custodial sentences and/or fines are imposed depending on the severity of the offense. Imprisonment is the most severe form of punishment. This is understood to mean the restriction of an offender’s personal freedom, through imprisonment in a prison. Custodial sentences are imposed by court judgment and can be imposed either for a specific period of time or for life. The range of punishment is specified in the law and always depends on the severity of the offense committed and ranges from a minimum of one day to a maximum of 20 years. The maximum sentence – life imprisonment – is imposed for particularly serious crimes, such as murder.
Conditional and unconditional prison sentence
In criminal law, a distinction is made between conditional and unconditional prison sentences. The term “probation” is also frequently used. In the case of a conditional custodial sentence, the execution of the sentence is suspended subject to a probationary period. This means that the convicted person is given the opportunity to prove themselves during a fixed probationary period and thus prevent the custodial sentence being imposed. However, if the offender commits another offense during the probationary period, there is a risk that the conditional suspension of the custodial sentence will be revoked and the offender has to serve the custodial sentence.
Requirements for conditional suspension of sentence (Sec 43 of the Austiran Criminal Code (StGB))
The following requirements must be met for conditional suspension to be granted:
- The convict was sentenced to a maximum of two years’ imprisonment or a fine.
- The mere threat of punishment is sufficient to deter the offender from committing another crime (special prevention).
- It is not necessary to enforce the sentence in order to counteract the commission of criminal acts by others (general prevention).
- The court must consider the nature of the offense, the offender’s personality, the degree of his guilt, his previous life and his behavior after the offense.
Conditioanl partial suspension of sentence (Sec 43a StGB)
Under certain circumstances, the court may also grant conditional partial suspension for part of the sentence:
- If a fine is imposed and the conditions for a conditional suspended sentence are met, the court can impose up to three quarters of the sentence conditionally.
- If a custodial sentence of more than six months but not more than two years would have to be imposed and the conditions for a conditional reduction of the entire sentence are not met, a fine of up to 720 daily rates may be imposed instead of part of the custodial sentence if the remaining part of the sentence can be conditionally reduced in accordance with Sec 43 StGB.
- If a custodial sentence of more than six months but not more than two years is imposed and, in view of the offender’s previous convictions, neither the entire sentence can be conditionally suspended nor a fine imposed as in point 2, part of the sentence shall be conditionally suspended if the requirements for conditional suspended sentences are met. The part of the sentence that is not conditionally suspended must be at least one month and may not exceed one third of the sentence.
- If a custodial sentence of more than two, but less than three years is imposed and there is a high probability that the offender will not commit any further criminal acts, part of the sentence can also be conditionally suspended in accordance with the requirements of Section 43 StGB. Here too, the unconditional part of the sentence must be at least one month and may not exceed one third of the sentence.
Conditional release from imprisonment (Sec 46 StGB)
Conditional release from a prison sentence is a central measure of Austrian penitentiary law, which is intended to promote the resocialization of the convicted person. It makes it easier for the offender to return to society without having to serve the entire sentence.
Conditional release from imprisonment is possible if the convicted person has already served half of the custodial sentence, but at least three months, and it can also be assumed, taking into account the effect of instructions and probation assistance, that the convicted person will be deterred from committing criminal acts by the conditional release no less than by continuing to serve the sentence. In this context, one speaks of the so-called “half-release”.
If a convicted person has served half, but not yet two thirds of a prison sentence, they are not to be conditionally released, despite the existence of the requirement, as long as, in view of the seriousness of the offense, further execution of the sentence is exceptionally necessary in order to counteract the commission of criminal acts by others. If a convicted person is released after serving two thirds of the prison sentence, this is referred to as “two-third release”.
The prerequisite for conditional release is that the court is convinced that there is no risk of reoffending. This assessment includes, among other things, the offender’s criminal history, his behavior while in prison and his social and professional prospects after release. Release is always subject to a probationary period, the duration of which is determined by the court. During this period, the person released must behave without committing any crimes and possibly fulfill other conditions.
Ankle bracelet / electronically monitored house arrest (Sec 156b of the Austrian Penitentiary Act (StVG))
Electronically monitored house arrest, also known as “ankle bracelet”, is an alternative to traditional imprisonment and has proven particularly effective for convictions in white-collar crime. In this case, the convicted person can serve their sentence outside a prison by staying at a fixed location – usually their own home. An electronic ankle bracelet continuously monitors whether the convicted person complies with the specified spatial restrictions.
Certain conditions must be met for electronically monitored house arrest to be granted. The convicted person must be in suitable employment and comply with the lifestyle requirements. In addition, the prison sentence to be served or still to be served may not exceed twelve months. Leaving the accommodation is only permitted in strictly defined exceptional cases, for example to work, to obtain essential goods or to seek medical help.
It is important that the convicted person pays for the costs associated with electronic monitoring. If the convicted person breaches the conditions, for example by leaving the designated area without authorization, the house arrest can be revoked and the sentence will be carried out in a regular prison.
The role of the defense lawyer
An experienced criminal defense lawyer should be consulted as early as possible in order to protect the rights of the accused person and, in the event of a conviction, to work towards a sentence that is as lenient as possible. The defense lawyer can help to argue for a conditional suspended sentence or apply for conditional release or electronically monitored house arrest. In addition, the defense lawyer ensures that all legal requirements are met and supports the convicted person in fulfilling conditions in order to avoid revocation of the measures. In this way, the defense lawyer ensures that his client is treated fairly and justly.
