Conditional Suspension of Sentence
- Conditional Suspension of Sentence
- Principle
- § 43a StGB – Conditional Suspension of Part of the Sentence
- § 44 StGB – Conditional Suspension in Cases of Multiple Sentences
- § 45 StGB – Conditional Suspension of Preventive Measures
- Probationary Period and Probation
- Your Benefits with Legal Assistance
- Frequently Asked Questions – FAQ
Conditional Suspension of Sentence
The §§ 43 to 45 StGB regulate the conditional suspension of sentence and allow the court to wholly or partially not execute an imposed sentence if it can be assumed that the mere threat is sufficient to deter the offender from further criminal acts. While
The §§ 43–45 StGB regulate the conditional suspension of sentence. They allow the court to wholly or partially suspend a sentence on probation if it can be expected that the mere threat is sufficient to prevent further misconduct and promote reintegration.
Principle
Austrian criminal law provides for the possibility in the §§ 43 to 45 StGB not to immediately execute custodial or monetary penalties under certain conditions. The court can
§ 43 StGB – Conditional Suspension of Sentence
Basic Idea and Objective
§ 43 StGB allows the court to conditionally suspend an imposed custodial sentence of up to two years. This means that the execution of the sentence is suspended. The convicted person receives a probationary period of at least one and at most three years. During this time, they must not commit any further criminal acts. If they prove themselves, the sentence is considered definitively suspended.
Conditions for Suspension
The court examines whether the mere threat of punishment is sufficient to deter the offender from future wrongdoing. In doing so, it considers the nature and severity of the offense, the offender’s personality, their previous life, their conduct after the offense, and their social circumstances. The decision is based on a positive prognosis regarding future conduct.
Significance of the Probationary Period
The probationary period is the probation phase. It begins with the legal force of the judgment. During this time, the convicted person is under judicial observation and, if applicable, under the supervision of a probation officer. If they violate court orders or commit a new offense, the court can revoke the suspension and execute the sentence.
Grounds for Exclusion and Limitations
Conditional suspension is excluded for particularly serious offenses. In cases of rape under § 201 StGB, the court may not grant suspension. It is also rejected if the offender is a repeat offender or their act demonstrates particular ruthlessness.
§ 43a StGB – Conditional Suspension of Part of the Sentence
Partial Suspension as a Tiered Probation Decision
§ 43a StGB opens up the possibility for the court to conditionally suspend only a part of the sentence. The other part is executed. This combination of execution and probation allows for a differentiated response to the offender’s criminal act and personality profile.
Combination of Custodial and Probationary Components
Application is typical for custodial sentences exceeding six months. The court can, for example, execute half and conditionally suspend the rest. This emphasizes both the effect of the punishment and the chance for improvement. The conditionally suspended part is subject to the same rules as under § 43 StGB; in particular, a probationary period of one to three years applies.
Significance for Resocialization and Prevention
Partial suspension makes it possible to maintain the educational and deterrent purpose of imprisonment without jeopardizing social reintegration. It is particularly useful if the offender already shows signs of insight, but partial execution remains necessary for specific or general preventive reasons.
Sebastian RiedlmairHarlander & Partner Attorneys „Eine bedingte Nachsicht ist kein Freibrief, sondern ein klarer Auftrag an den Verurteilten, Verantwortung zu übernehmen und seine Lebensführung dauerhaft zu stabilisieren.“
§ 44 StGB – Conditional Suspension in Cases of Multiple Sentences
Unified Decision on Multiple Sentences
§ 44 StGB regulates cases where multiple sentences coincide. The court must make a
Joint Probationary Period and Coordination
For the aggregated sentences, a joint probationary period is set. This period is at least one year and at most five years. The court can issue directives or order probation assistance to monitor the conduct of the convicted person during this time. This ensures a unified treatment of the entire complex of offenses.
Practical Application in Cases of Multiple Convictions
This provision is of great importance for cases involving multiple courts. A joint decision requires that all sentences are known and legally binding. In practice, it may be necessary to consult previous judgments to correctly determine the overall sentencing framework.
§ 45 StGB – Conditional Suspension of Preventive Measures
Suspension in Cases of Placement or Detention
§ 45 StGB also allows for conditional suspension in cases of preventive measures, such as placement in an institution for mentally abnormal offenders or drug addicts. The court can suspend the execution of this measure if there is a favorable prognosis and the purpose of the measure can be achieved even without execution.
Prognosis and the Public Interest in Protection
The decision requires careful consideration: on the one hand, the resocialization interest of the person concerned, on the other hand, the security interest of the general public. The court examines whether the danger can be eliminated through suitable conditions or supervision. Only with a reliable prospect of stability will the measure be suspended.
Relationship to § 46 StGB (Conditional Release)
§ 45 StGB is closely related to § 46 StGB, which regulates conditional release. Both provisions are based on the idea of continuing deprivation of liberty only if it is necessary for the protection of society. While § 46 StGB concerns release from imprisonment that has already begun, § 45 StGB applies even before execution.
Probationary Period and Probation
Duration and Start of the Probationary Period
The probationary period begins with the legal force of the judgment and lasts, depending on the regulation, between one and three years, or up to five years for multiple sentences. During this time, no new offense may be committed. Any violation can lead to the revocation of the suspension.
Significance of Probation
Probation means that the convicted person behaves lawfully and is socially stable during the probationary period. In many cases, the court orders probation assistance, which supports reintegration and monitors compliance with directives. Violations generally lead to a revocation.
Your Benefits with Legal Assistance
A criminal proceeding is a significant burden for those affected. Serious consequences threaten right from the start – from coercive measures such as house searches or arrests, to entries in the criminal register, to custodial or monetary penalties. Errors in the initial phase, such as thoughtless statements or insufficient preservation of evidence, often cannot be corrected later. Economic risks such as claims for damages or procedural costs can also be substantial.
Specialized criminal defense ensures that your rights are protected from the outset. It provides security in dealing with the police and public prosecutor’s office, protects against self-incrimination, and creates the basis for a clear defense strategy.
Our law firm:
- examines whether and to what extent the accusation is legally sustainable,
- accompanies you through investigation proceedings and main hearing,
- ensures legally sound applications, statements, and procedural steps,
- assists in defending against or settling civil law claims,
- protects your rights and interests vis-à-vis the court, public prosecutor’s office, and victims.
Peter HarlanderHarlander & Partner Rechtsanwälte „Machen Sie keine inhaltlichen Aussagen ohne vorherige Rücksprache mit Ihrer Verteidigung. Sie haben jederzeit das Recht zu schweigen und eine Anwältin oder einen Anwalt beizuziehen. Dieses Recht gilt bereits bei der ersten polizeilichen Kontaktaufnahme. Erst nach Akteneinsicht lässt sich klären, ob und welche Einlassung sinnvoll ist.“
