Bedingte Strafnachsicht

Bedingte Strafnachsicht

Sections 43 to 45 StGB regulate the conditional remission of sentence and enable the court to fully or partially suspend the execution of an imposed sentence if it can be assumed that the mere threat is sufficient to deter the offender from committing further offenses. While Section 43 StGB permits full remission, Section 43a StGB creates the possibility of partial remission, whereby a portion of the sentence is executed and the remainder is suspended on probation. Section 44 StGB allows for a unified decision regarding multiple sentences, and Section 45 StGB permits the conditional remission of preventive measures if their purpose can be achieved even without execution. Overall, these provisions serve the purpose of resocialization and aim to prevent recidivism without jeopardizing public safety.

Sections 43–45 StGB regulate the conditional remission of sentence. They allow the court to fully 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 Sections 43 to 45 StGB of not immediately executing custodial sentences or fines under certain conditions. The court can conditionally remit the sentence if there is a prospect that the convicted person will not commit further offenses in the future, even without imprisonment. The aim of these regulations is to avoid the risk of recidivism and to promote resocialization. The system of conditional remission combines the idea of punishment with the chance for a second start – under clear conditions and judicial control.

§ 43 StGB – Conditional Suspension of Sentence

Basic Idea and Objective

Section 43 StGB allows the court to conditionally remit a 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 period, they must not commit any further criminal offenses. If they comply with the conditions, the sentence is considered definitively remitted.

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

Section 43a StGB offers the court the possibility to conditionally remit only a portion of the sentence. The other portion 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 Riedlmair
Harlander & 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

Section 44 StGB regulates cases where multiple sentences coincide. The court must make a unified decision regarding the conditional remission. The aim is to avoid contradictory concurrent probationary periods and to create a clear legal situation.

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

Section 45 StGB also permits conditional remission for 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 a favorable prognosis exists 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)

Section 45 StGB is closely related to Section 46 StGB, which regulates conditional release. Both provisions are based on the idea of continuing deprivation of liberty only when it is necessary for the protection of society. While Section 46 StGB concerns release from an already commenced detention, Section 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 Harlander
Harlander & 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.“

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