Conditional Release

Bedingte Strafnachsicht

Sections 46 and 47 of the Criminal Code regulate the possibility of early termination of a custodial sentence or a measure involving deprivation of liberty under certain conditions. The aim is to enable convicted persons with a positive future prognosis to gradually re-enter a crime-free life. The court decides whether the mere threat of continued imprisonment is sufficient to deter from further criminality. Release occurs under probation and can be linked to conditions or probation assistance.

Conditional release allows for early release from custody if a positive prognosis exists. § 46 StGB concerns the execution of sentences, while § 47 StGB concerns the execution of preventive measures.

Principle

Austrian criminal law does not operate with a rigidly enforced penal system but offers differentiated possibilities to adapt the execution of sentences to the individual development of the convicted person. Sections 46 and 47 StGB are central to resocialization and controlled reintegration into society. They allow custodial sentences or preventive measures to be terminated early if the legal conditions are met and a positive future prognosis exists.

The judicial decision regarding conditional release is not an act of clemency but the result of a strict legal review. It requires a careful balancing act between the public’s safety interest and the individual’s interest in resocialization. Behavior, therapeutic successes, social stability, and the risk of recidivism are comprehensively assessed in this process.

The following sections explain the conditions, procedures, and legal consequences of conditional release, as well as the associated control mechanisms. This is intended to clarify that § 46 and § 47 StGB do not abolish the punishment but rather specifically govern its execution.

§ 46 StGB Conditional Release from a Custodial Sentence

Basic Idea and Objective

§ 46 StGB aims to offer a perspective to those convicted persons who have already served a significant part of their sentence and demonstrate that they will live lawfully in the future. This provision combines punishment with reintegration and shows that the execution of sentences should not only serve retribution but also foster rehabilitation.

Conditions for Conditional Release

Conditional release may be granted if half of the imposed or pardoned custodial sentence has been served, but at least three months. The court must be able to assume that the convicted person will not commit new offenses even without further imprisonment. The assessment includes behavior during imprisonment, participation in treatment programs, educational or work activities, and the family and social situation.

Gravity of the Offense and Exceptions

In the case of particularly serious offenses, no release may be granted, even if the conditions are met, as long as further execution of the sentence is necessary for general preventive reasons. This restriction applies particularly to serious violent or sexual offenses, if further imprisonment appears necessary to maintain public trust in the legal order.

Special Provisions for Life Imprisonment

Anyone sentenced to life imprisonment may be conditionally released no earlier than after fifteen years. A particularly favorable prognosis regarding recidivism is a prerequisite. The court examines both the development during imprisonment and the psychological stability and social integration.

Multiple Convictions and Additional Sentences

If a convicted person is serving multiple custodial sentences or remaining sentences, their total duration is taken as the basis. In these cases too, the court decides after a unified consideration. A decision on conditional release must be made no later than after fifteen years. For additional sentences, the time already served is credited accordingly.

Role of Treatment and Probation Assistance

The court considers whether the convicted person voluntarily participated in treatment during imprisonment or is willing to continue it in freedom. Measures according to §§ 50 to 52 StGB, particularly directives and probation assistance, can be ordered to minimize the risk of recidivism and promote social stabilization.

§ 47 StGB Release from a Preventive Measure Involving Deprivation of Liberty

Specifics of Preventive Measures

§ 47 StGB does not concern penal detention but rather release from measures that serve security and treatment. These include forensic-therapeutic centers, institutions for offenders requiring addiction treatment, and institutions for dangerous recidivists. Here too, the prognosis is paramount: release is possible if the dangerousness, which the measure addresses, no longer exists.

Release from Forensic-Therapeutic Centers

Persons committed to a forensic-therapeutic center can only be conditionally released. A probation period must always be set. The goal is to manage the transition to freedom in a controlled manner and prevent recidivism.

Release from Institutions for Offenders Requiring Addiction Treatment

For persons with addiction, unconditional release may occur if treatment promises no further success or the statutory detention period has expired. Otherwise, release occurs under probation to ensure stable abstinence and social reintegration.

Release from the Institution for Dangerous Recidivists

Conditional release is also possible for dangerous recidivists as soon as their transfer to the institution is no longer necessary. The prerequisite is that the danger to the public no longer exists and suitable care measures can ensure the protection of society.

Common Conditions

For all types of release, the following applies: The court examines the personality, health development, behavior during imprisonment, and social prospects. It is crucial whether the risk of renewed delinquency is sufficiently controllable through conditions, treatment, or supervision. Only if these conditions are met will conditional release be ordered.

Judicial Oversight, Probation Period, and Probation

Every conditional release is subject to a probation period. Its duration is determined by the court. During this time, no new offense may be committed, and no directive may be violated. If the probation period is successfully completed, the sentence is considered finally discharged. In case of violations, the release can be revoked, meaning the remainder of the sentence or measure must be served.

Probation means that the released person behaves lawfully and fulfills any conditions. These include, for example, regular reporting obligations, therapy requirements, or proof of employment. In many cases, probation assistance is ordered to support the return to a stable life and prevent recidivism.

Revocation and Legal Consequences for Violations

Violations of conditions, directives, or new offenses during the probation period have consequences. The court examines, in accordance with §§ 53 to 56 StGB, whether the conditional clemency or conditional release is to be revoked, or whether milder reactions – such as an extension of the probation period or additional directives – are sufficient.

• § 53 StGB regulates the conditions under which a revocation is pronounced. A clear determination is required that probation has failed or that new offenses refute the earlier prognosis.
• § 54 StGB describes the legal consequences of a revocation and allows for alternative measures if the revocation would be disproportionate.
• § 55 StGB enables the adjustment of the probation period, such as its extension, if this is necessary to secure probation.
• § 56 StGB regulates the final discharge after the expiration of the probation period and the crediting of services already rendered or periods of detention in the event of a revocation.

In practice, revocations are only pronounced if there is a clear breach of duty or a new offense. The court always examines whether milder means are sufficient before ordering the execution of the remaining sentence.

Practical Significance

Sections 46 to 47 StGB, as well as the revocation regulations in §§ 53 to 56 StGB, form a coherent system that connects punishment, probation, and resocialization. They enable a differentiated enforcement practice that aims at both security and reintegration. For those affected, this means: Anyone who shows positive development during imprisonment can be released early – but every leniency is subject to the condition that they prove themselves in everyday life.

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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