Old prison sentence due for enforcement: Check the limitation period

The enforceability of the sentences covered expires by limitation pursuant to § 59 Abs. 2 StGB. Once the period has elapsed after all statutory factors are taken into account, the sentence concerned may no longer be enforced. This assessment concerns a final decision. It neither reopens the issue of guilt nor decides whether the conviction is removed from the criminal record.

The period before a conviction becomes final concerns the limitation of prosecution. Distinguishing the two in its case law, starting with its decision of 25 March 1980 (10 Os 23/80), the Austrian Supreme Court states that only the enforcement limitation period begins after finality. A separate, legally available procedural route is needed by anyone seeking to challenge the substance of an old judgment.

The sentence imposed in the judgment is referred to by § 59 Abs. 3 StGB. For imprisonment exceeding one year and not exceeding ten years, the period is fifteen years. For imprisonment exceeding three months and not exceeding one year, the period is ten years. For imprisonment not exceeding three months, the five-year period generally applies.

Under § 59 Abs. 1 StGB, life imprisonment and prison sentences exceeding ten years do not become time-barred. Further exceptions for certain sentences and placements are contained in the law. Where several sentences or measures are imposed together, § 59 Abs. 4 StGB applies the longest relevant period. If imprisonment and a fine were imposed together, the substitute prison term for the fine must be added to the prison sentence when determining the limitation period.

The period under § 59 Abs. 2 StGB begins when the decision imposing the sentence becomes final. The date of the offence, the pronouncement of judgment, and a later order to report to prison constitute different dates. A judgment may become final only after appeal proceedings. Consequently, looking at the year on the first page of the judgment is insufficient.

The file must establish the relevant decision and its date of finality. Identification of the sentence and the specific part thereof that remains to be enforced is also necessary. In the case of very old decisions, the applicable version of the legislation and transitional provisions constitute part of the assessment. That legal analysis cannot be replaced by the current table of periods alone.

Certain periods are excluded from the limitation period by § 60 Abs. 2 StGB, including probation periods following a suspended sentence or conditional release, periods of a granted enforcement deferral subject to the statutory exception for unfitness for imprisonment, detention ordered by an authority, and stays abroad. Granted deferrals of payment of fines are also addressed by the provision.

Particularly important is a stay abroad, for the statutory wording refers to presence abroad and does not require an intention to evade enforcement. Years spent outside Austria therefore cannot simply be counted as elapsed limitation time. The beginning and end of each relevant period must be ascertainable, and overlapping periods must not be deducted twice in the calculation.

An express exception for unfitness for imprisonment is made by § 60 Abs. 2 Z 2 StGB for a granted deferral. A deferral granted for personal or economic reasons must therefore be treated differently from one based on unfitness for imprisonment. This distinction depends on the legal basis of the court decision, rather than the description the person concerned gives it later.

The complete deferral order and the dates for which it applied should be retained. That a deferral was granted is not proven merely by lodging an application. Where a deferral was based on health, additional statutory factors still need checking, and detention ordered by an authority during the same period may be independently relevant under § 60 Abs. 2 Z 3 StGB. A blanket statement that periods of illness always count would therefore be unreliable.

§ 60 Abs. 1 StGB prevents limitation from taking effect before a new sentence or preventive measure imposed on the convicted person within the limitation period also ceases to be enforceable. A report to the police or an investigation is not equivalent to such a decision. The assessment requires the later decisions and their enforcement status.

Limitation under § 60 Abs. 3 StGB is interrupted by the enforcement of imprisonment or a preventive measure involving deprivation of liberty. Should that interruption conclude without the final release of the convicted person, the period recommences, subject to the rules on excluded periods. Where part of a sentence has already been served, the complete enforcement history must therefore be examined. The original date of finality alone no longer provides a sufficient calculation.

A reliable basis is provided by a documented chronology: the judgment with proof of finality, the order to report to prison with proof of service, later sentencing decisions, deferral orders, decisions on probation periods, and records of detention, imprisonment, and release. Existing travel, residence, or employment records can help establish periods abroad. Missing periods should be marked as unresolved rather than silently treated as elapsed limitation time.

The type and length of the sentence, along with any statutory exceptions, are first identified by the lawyer. The starting date is then established, and each relevant event is assessed in law. The result must show which periods were counted and whether an extension or a fresh start applies. Simply subtracting the year of judgment from the current year is not an adequate basis for that assessment.

The order, including its envelope and proof of service, should be kept, and an immediate review should be arranged. For a convicted person at liberty who receives a written reporting order, § 3 Abs. 2 StVG generally requires reporting to prison within one month of service. An order for compulsory production is required upon failure to comply. The specific reporting order and the individual enforcement situation remain decisive.

The decision on the enforcement order is made under § 7 Abs. 1 StVG by the presiding judge or sole judge of the court that rendered the judgment. There, the possible expiry of enforceability should be clarified in good time by means of the file and the calculation. It must not be assumed that an enquiry or objection automatically stops enforcement. Whether an interim judicial measure is necessary and legally available pending a decision must expressly form part of the lawyer’s assessment.