Later sentence reduction: release during an ongoing prison sentence

The sentencing assessment in the final judgment serves as the starting point. Defence counsel must explain which circumstance arose or became known later and why it would have supported a more lenient sentence at the time. That new circumstance is not supplied by simply believing that the court gave too much weight to facts already known. An application should therefore compare the original sentencing reasons with the new facts.

Should the requirements of § 31a Abs. 1 StGB be met, the court must reduce the sentence appropriately. Neither a fixed discount nor a guaranteed remaining term is specified by the law. The significance of the new circumstance for the particular sentencing assessment must justify the extent of the reduction. The possibility of applying therefore does not establish a specific release date.

This assessment may be affected by compensation paid after the judgment. As a mitigating circumstance, § 34 Abs. 1 Z 14 StGB identifies reparation by the offender or by a third party on the offender's behalf. Serious efforts to repair the harm or prevent further adverse consequences are also addressed in Z 15. Under § 31a Abs. 1 StGB, the question remains which new development justifies a more lenient sentence in the particular case.

Payment records, receipts, and evidence linking the payment to the harm caused can help. When payment was made, which harm it addressed, and whether the original judgment already took payments or efforts into account should be shown by the documents. An announced payment is not yet proven reparation. A particular reduction is not automatically produced by every partial payment. Family members can preserve evidence; the complete case file is required by the legal assessment.

Responsibility under § 410 Abs. 1 StPO lies with the court that decided the case at first instance. That court can act either on application or of its own motion. It establishes the circumstances relevant to its decision and decides by court order. The prison does not itself reassess the sentence imposed by a final judgment. A transfer to another prison therefore does not make that institution the competent court.

The judgment and case reference are connected by a reasoned application to the new fact, its chronology, and the available evidence. The application explains how the new situation affects the original sentencing assessment. For an ongoing prison sentence, the start of custody, credited periods, current enforcement status, and any known further convictions should also be examined by counsel. This information makes it possible to assess how a potential reduction would affect the time still to be served.

The purpose of a decision that is not yet final is protected by § 410 Abs. 3 StPO. Where that purpose could otherwise be defeated wholly or partly, enforcement must be provisionally stayed or interrupted by the court until its decision becomes final. An application that is manifestly without prospects is excepted. Where a prison sentence has already begun, the relevant form of protection is provisional interruption. The necessary court order is not replaced by the application alone.

Defence counsel should explain concretely why the possible benefit of a reduction would be impaired by continued imprisonment. This requires that the remaining term be considered together with the significance of the new circumstance. Merely pointing to the general burden of imprisonment is insufficient. The sentence is not finally determined by interruption under § 410 Abs. 3 StPO; rather, the effect of the later final decision is preserved.

The enforcement calculation must be based on the amended sentence after a final reduction. What matters is the amount of the applicable sentence already served, including custody that must be credited. Continued detention cannot be supported by that sentence if it has already been fully discharged. Detention under that sentence generally ends after the remaining term is served if time remains, unless another statutory route to release applies.

Immediate release can be prevented by another prison sentence or a different legal basis for detention. Therefore, defence counsel must compare the complete order, its finality, and the current custody record with the prison. It is also important that enforcement reflects the amended decision. An oral message about an anticipated reduction is insufficient for that assessment. Clarification of all the relevant grounds is required for a reliable statement about actual release.

The sanction based on the existing conviction is the subject of subsequent sentence reduction. Where new material is intended to alter the finding of guilt or the legal classification of the offence, the appropriate procedural route must be examined separately. Reopening proceedings are not replaced by a sentence-reduction application. Likewise, conditional release constitutes a separate decision regarding continued enforcement, not a reassessment of the original sentence under § 31a StGB.

A temporary pause in enforcement of an unchanged prison sentence constitutes an interruption under § 99 StVG. The procedure discussed here instead combines a possible change in sentence length with interim protection under § 410 Abs. 3 StPO. First, clarify the purpose of your request: does it concern a new sentencing fact, a temporary pause in enforcement, or review of the conviction? The answer determines the court, the reasoning, and the applications needed.