Crediting of pre-trial detention
Crediting of Pre-Trial Detention
§ 38 StGB obliges the court to credit periods of detention that a person has spent prior to final conviction against the imposed sentence. This includes both pre-trial detention and detention pending trial ordered by courts and administrative authorities. Under certain circumstances, detention spent abroad may also be taken into account. The regulation is intended to ensure that no one remains in detention longer than the sentence actually imposed.
Pre-trial detention is credited against prison sentences and fines to avoid double punishment.
Principle
The court must credit the pre-trial detention. It may neither disregard nor restrict the crediting. Any period of detention that is factually or temporally related to the adjudicated offense is included in the sentencing.
Whether the court imposes an unconditional or conditional prison sentence does not change this. Even if it conditionally suspends part of the sentence, it fully credits the pre-trial detention.
The purpose of this regulation is to safeguard material justice: The state may only deprive a person of their freedom once for the same offense. Therefore, anything suffered in terms of deprivation of liberty prior to the judgment reduces the sentence still to be served.
Creditable Detention Periods
According to § 38 para. 1 StGB several forms of detention must be taken into account:
- Pre-trial detention imposed for the offense that was later adjudicated,
- Detention pending trial ordered by a court, if it was carried out in the course of the same criminal proceedings,
- Detention pending trial ordered by an administrative authority, provided that it was directly related to the offense,
- Foreign pre-trial detention or extradition detention, if it clearly related to the Austrian proceedings.
The crediting is always only to the extent that these periods of detention have not already been credited against another sentence or compensated for. Double consideration is not permitted.
Periods of detention from other, completely independent proceedings or mere administrative detention without reference to the criminal act are not credited.
Procedure and Jurisdiction
The court of first instance decides on the crediting, namely according to § 400 para. 1 StPO by decision. In practice, the crediting usually takes place at the time of the pronouncement of the judgment. If it was overlooked, the court can make up the decision as long as the sentence has not yet been fully enforced.
According to § 400 para. 3 StPO , the public prosecutor’s office must also be notified of the crediting. The examination takes place ex officio. This means that neither the defendant nor the defense counsel must file an application, but the court is obliged to carry out the crediting independently.
In order for the crediting to take place lawfully, the duration of the detention must be precisely determined. The date and time of the beginning and end of the detention must be documented. If this exact determination is missing, no crediting may take place.
Sebastian RiedlmairHarlander & Partner Attorneys „Die Anrechnung der Vorhaft ist Ausdruck eines fairen Strafverfahrens. Sie sorgt dafür, dass jede Stunde, die jemand in Haft verbringt, rechtlich Gewicht hat und nicht verloren geht.“
Special Cases and Exceptions
Not every detention counts towards the crediting. The Fiscal Penal Act excludes the crediting if the detention originates from administrative fiscal penal proceedings and has no direct reference to the criminal offense. If another proceeding has already taken the detention period into account or there is compensation, the court will not make any further crediting.
If the judiciary conducts several proceedings in parallel, the court can only credit pre-trial detention if it could objectively combine the proceedings. If this connection is missing, the court treats each detention separately and decides on it separately.
Crediting against Fines
§ 38 para. 2 StGB extends the crediting to fines as well. The substitute custodial sentence is decisive. If the person concerned does not pay the fine, the court credits each day of pre-trial detention against the corresponding number of daily rates; otherwise, the authority enforces the substitute custodial sentence. This ensures that people with low incomes do not fare worse. The crediting compensates for economic disadvantages so that the penalty has the same effect in the end.
Practical Significance
The crediting of pre-trial detention can decide on the actual duration of the deprivation of liberty. In many cases, it leads to the person concerned being released immediately after the pronouncement of the judgment because the credited time corresponds to the sentence.
It also has great practical significance for the penal enforcement authorities: It serves as a basis for calculating the end of the sentence and influences the time of possible releases.
The provision is therefore not only a computational detail, but a central component of sentencing. It links the principle of proportionality with the principle of fair procedure and ensures a precise and just implementation of the penalty.
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.“
