Serving an Austrian prison sentence in another EU state: transferring enforcement

A final prison sentence or preventive measure involving deprivation of liberty imposed by an Austrian court following criminal proceedings falls within the scope of § 42 EU-JZG. The sentenced person must be located in Austria or in the proposed executing state, which is the member state intended to take over enforcement. This procedure is distinct from surrender under a European Arrest Warrant, a warrant that concerns surrender for prosecution or enforcement of a sentence and follows its own rules. Moving between Austrian prisons constitutes a different issue. For a state outside the EU, the applicable treaty and statutory basis must be assessed separately, and the EU rules described here cannot simply be applied to that situation.

Three situations independent of the sentenced person’s consent are set out in § 42 Z 1 EU-JZG. First, the person is a national of the executing state and has their residence or permanent stay there. Second, the person has their residence or permanent stay there and has fled or otherwise returned there in connection with the Austrian criminal proceedings or judgment. Third, following completion of the sentence or preventive measure, the person would be deported to that state under an expulsion decision, deportation order or residence ban. The relevant decision must be contained in the judgment or be a judicial or administrative decision issued as a consequence of that judgment. The first situation is not satisfied by foreign nationality alone. The transfer is not automatically prevented by refusing consent in one of these situations. Actual residence arrangements and all relevant decisions therefore need to be assessed together.

§ 42 Z 2 EU-JZG provides another route for people who are not nationals of the destination state. Required are their consent, a corresponding declaration by the executing state, at least five years of uninterrupted lawful residence there, and retention of the right of permanent or long-term residence despite the conviction. Z 3 may apply if the conditions of Z 1 and Z 2 are absent. Consent must then be given by both the sentenced person and the competent foreign authority. For enforcement there to facilitate social rehabilitation, specific ties must be sufficiently strong. Evidence of the actual centre of life, sustained family contact, available accommodation or employment prospects may help. These examples illustrate possible evidence rather than a fixed statutory checklist. A personal preference or a nominal registration of residence often does not adequately explain the rehabilitation prospects.

The assessment also encompasses ties to Austria. Pursuant to § 42b Abs. 3 EU-JZG, a decision may be rendered in an individual case to forego seeking enforcement abroad where strong ties to Austria indicate that enforcement here would facilitate rehabilitation and reintegration. Specific circumstances matter. Actual childcare responsibilities, family life maintained here, or a realistic post-release plan may be included. An automatic exception is not created solely by having relatives in Austria. The account should explain which relationships exist, how they are maintained, and why the place of enforcement matters to them. Ties abroad and ties to Austria should be presented consistently so that the individual circumstances can be assessed.

Where the requirements of § 42 EU-JZG are met or are expected to be met, § 42a obliges the prison administration to record the statement of the sentenced person without unnecessary delay after admission. The exact residence or permanent stay in the executing state must be specified in the record, along with, where applicable, relevant immigration decisions already issued on the basis of the Austrian judgment. For examination, the record is submitted to the Federal Ministry of Justice. This step does not yet approve a transfer. Before the statement is made, the destination state, residence details and consent requirements should be checked against the available files. Relatives can provide documents and contact details, but doing so cannot replace any legally required consent of the sentenced person.

Under § 42b EU-JZG, the requirements are examined by the Federal Ministry of Justice, which, where appropriate, refers the matter to the other member state. In a case under § 42 Z 3, the foreign authority must first be consulted, its consent obtained, and the rehabilitation reasons explained. The judgment, the completed and signed certificate, and the record of the statement constitute the documents to be forwarded. Statutory requirements govern translations and the information form. Under § 42b Abs. 6, no obligation to forward the documents is created by a request from the sentenced person or the foreign authority. Forwarding, recognition by the foreign authority, and physical transfer are therefore separate steps. Simultaneous referral of the matter to another member state is prohibited. In cases under Z 1 and Z 2, a reasoned opinion from the executing state challenging the rehabilitation benefit requires the Ministry to review whether the certificate should be withdrawn. A person in Austria must be informed of the decision in a language they understand.

The prison sentence is not automatically shortened by a transfer, nor is release brought forward. Pursuant to § 42b Abs. 4 Z 2 EU-JZG, the Ministry of Justice transmits the certificate accompanied by a request for information regarding the executing state’s rules on conditional or early release. The effect of these rules on the specific judgment must be examined. For advice, conditions of enforcement, family access, and necessary care may also be relevant. A reliable legal assessment requires the complete judgment including finality details, the current sentence calculation, evidence of residence, relevant immigration decisions, and existing correspondence. If you receive a refusal, retain the full communication and the date of receipt. Available legal remedies depend on the particular decision and the competent body; a wish to transfer alone does not establish a single appeal deadline.