Revocation of Suspended Sentence and Conditional Release

Revocation of Suspended Sentence and Conditional Release from Imprisonment

The revocation of the suspended sentence or conditional release according to §53 StGB means that an originally suspended or only partially enforced remainder of the sentence will be subsequently enforced. The court orders the revocation if, during the probationary period, it becomes apparent that the convicted person has not fulfilled the expectations placed in them, for example because they have committed another offense or have significantly violated instructions. The revocation is a measure of judicial protection of the general public and at the same time a reaction to the breach of trust in the granted mitigation of sentence.

A revocation leads to a suspended sentence or a conditional release being subsequently enforced if the person concerned violates conditions or commits a new offense.

Requirements for Revocation

§ 53 StGB names two main reasons that can justify the revocation:

1. New offense during the probationary period
   If the person concerned is convicted of a new punishable act committed during the probationary period, the court may revoke the suspended sentence or release if this is necessary to prevent them from committing further offenses.
   The law does not require an automatic return to prison, but the court must examine whether the revocation is really necessary.
2. Violation of instructions or withdrawal of probation assistance
   Repeated or willful disregard of judicial instructions or persistent refusal to cooperate with the probation service may also justify revocation. Again, the decisive factor is whether the revocation appears necessary in the specific case.

Standard of the Court

The court must only pronounce the revocation if milder means are not sufficient to prevent the convicted person from committing further offenses.
The following in particular may be considered as less severe measures:

• Extension of the probationary period (up to five years, up to fifteen years for life sentences),
• Issuance of new or stricter instructions,
• Order or continuation of probation assistance.

This step-by-step logic serves the proportionality: Revocation is the ultima ratio, not an automatism.

Sebastian Riedlmair
Harlander & Partner Attorneys „Der Widerruf ist kein Strafschärfungsinstrument, sondern ein Mittel zur Sicherung der gerichtlichen Prognose. Er greift nur dann, wenn das ursprünglich gewährte Vertrauen durch neues Fehlverhalten objektiv erschüttert wurde.“

Special Features for Severe or Life Sentences

In the case of a life sentence, the remaining sentence after a revocation is considered the remaining sentence of a ten-year prison sentence in order to make a later renewed conditional release possible at all.
In the case of offenses against sexual integrity or in cases with judicial supervision, the probationary period can exceptionally be extended several times if further testing is required.

Procedure and Process

Before the revocation, the court must:

1. obtain the reports from the probation service and any police reports,
2. hear the convicted person and give them the opportunity to comment,
3. check whether an extension of the probationary period is sufficient,
4. provide the revocation with a clear justification as to why it is “necessary.”

Only then may the sentence or the remainder of the sentence be enforced.
The procedure is usually in writing, but in complex cases it may include an oral hearing.

Revocation Period According to § 56 StGB

The court may make revocation decisions during the probationary period. In the case of an offense committed during the probationary period, a decision is also possible within six months after the expiry of the probationary period or after the end of criminal proceedings pending at the time of its expiry.

Practical Example

A perpetrator conditionally released for grievous bodily harm commits a dangerous threat again within the probationary period. The court finds that the man is employed, but has turned away from his probation officer and has shown no remorse. As the risk of relapse is considered significant, the conditional release is revoked and the remainder of the sentence is enforced.

Legal Assessment and Alternatives

The revocation is not an automatism, but a discretionary act of the court, which always remains bound by the principle of proportionality.
The court may only order the revocation if a continuation of probation no longer offers a realistic prospect of stabilization.
In all other cases, an extension of the probationary period or the issuance of new conditions is preferable.

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 injured parties

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.“

Frequently Asked Questions – FAQ