General Principles of Sentencing

General Principles of Sentencing

§ 32 StGB contains the principles of sentencing in Austrian criminal law. It specifies the constitutional principle of guilt and forms the bridge between the abstract penalty range of an offense and the specific penalty in individual cases.
The standard obliges the court to weigh aggravating and mitigating circumstances against each other, to take into account the personality of the offender and the consequences of the punishment for his life, and to ensure that the punishment is neither excessively harsh nor trivializing.
Thus, the punishment becomes a fair balance between the injustice of the act, the guilt of the perpetrator and social responsibility.

Sentencing is the part of the judgment in which the court determines the amount and type of punishment. The sole criterion is the guilt of the perpetrator and not the public interest, not the coincidence of the consequences of the act. § 32 StGB obliges the court to determine each punishment individually and commensurate with guilt.

Principle

The guilt of the perpetrator is the sole basis for sentencing. The court must impose the penalty that corresponds to the injustice of the act and the personal responsibility.
It takes into account the severity of the damage, the extent of the breach of duty, the preparation and planning of the act, and the manner in which it was carried out. The more deliberate and reckless the act, the more severe the punishment.

Austrian criminal law rejects rigid sentencing schemes. Each sentence must be individually assessed and justified.

Balancing Aggravating and Mitigating Circumstances

Aggravating and mitigating circumstances are central elements of sentencing. They must not be used twice if they are already inherent in the offense.

Aggravating circumstances include:

• Multiple commission of the act or repetition,
• particular recklessness or brutality,
• systematic preparation,
• self-serving motives,
• indifference to legally protected values.

Mitigating circumstances include:

• Confession or admission of guilt,
• lengthy proceedings,
• previous integrity,
• compensation for damages, remorse or cooperation in the investigation,
• acting in a particular personal emergency.

The weighting of these factors is a discretionary decision of the court, but must always be justified in a comprehensible manner.

Significance of Personality and Social Consequences

The court is also obliged to take into account the effects of the punishment on the future life of the perpetrator.
The decisive factor is whether and how the punishment enables social reintegration.
The aim is not retribution, but a punishment that guides the perpetrator to uphold the law without permanently displacing him from society.

Severity of the Punishment

Paragraph 3 of § 32 StGB names objective criteria for the severity of the punishment. The punishment is all the more severe,

• the greater the damage or danger caused,
• the more duties were violated,
• the more carefully the act was considered or prepared,
• the more recklessly it was carried out,
• and the less caution was exercised against it.

This is to ensure that the punishment corresponds to both the unjustness of the act and the unjustness of the attitude of the act.

Sebastian Riedlmair
Harlander & Partner Attorneys „Gerechtigkeit entsteht nicht durch Härte, sondern durch die Abwägung von Tat, Schuld und menschlicher Verantwortung.“

Practical example

Example 1 – Repeated property offenses:
An accused commits several similar cases of fraud. The court takes the repeated commission of the act into account as an aggravating factor and imposes a severe prison sentence, as persistent delinquency shows an increased risk.

Example 2 – Confession and reparation:
A perpetrator fully compensates for the damage caused and makes a credible confession. The court sees this as a significant mitigating factor and significantly reduces the prison sentence.

Example 3 – Serious violent crime:
In the case of a sexual offense against minors, a long prison sentence is imposed in order to reflect the high injustice of the act and the massive social disruption.

Example 4 – Excessive length of proceedings:
Proceedings drag on for many years without the accused being responsible for this. This excessive duration has a mitigating effect on the sentence.

Prohibition of Double Jeopardy

The prohibition of double jeopardy protects against a double burden from the same circumstance.
If a characteristic, such as “multiple commission of the act,” is already taken into account in an aggravating manner in the wording of a criminal standard, it may not be assessed again as an aggravating factor in sentencing.
A violation of this is a reason for nullity under § 281 para 1 Z 11 third case StPO.

Relationship to Prevention and Purpose of Punishment

§ 32 StGB makes it clear that punishments must not only have a general deterrent effect.
They primarily serve as a fair sanction for individual guilt (special prevention as a consequence, not a purpose).
The court must strike a balance between deterrence, rehabilitation and appropriateness of guilt.
Thus, Austrian criminal law remains focused on people and not on mere severity of punishment.

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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