Time limits for prison disciplinary allegations in Austria

If no prosecution step is taken against the person within one year, the prosecution limit in § 31 Abs 1 VStG applies. A timely step may allow prosecution to continue even if the decision comes later, and the authority does not necessarily have to impose a disciplinary penalty during that first year.

The limit in § 31 Abs 2 VStG establishes a separate barrier. Liability to punishment expires after three years unless statutory excluded periods result in a later expiry date. A timely prosecution step neither removes this limit nor allows proceedings to continue indefinitely.

Both periods begin with the completion of the punishable activity or the end of the punishable conduct. Should a consequence forming part of the offence occur later, the period starts at that time. Consequently, the date of a report to the prison governor or of later discovery is not a general substitute for the end of the conduct.

A report may help establish the relevant time for a single incident. If continuing conduct is alleged, one must establish its end separately. An imprecise allegation period can affect the assessment. Therefore, the first task is to identify the specific allegation and its time boundaries from the file.

§ 32 Abs 2 VStG requires an authority to take official action directed against a specific person as an accused person. The statute lists examples such as a summons, questioning, a request for questioning, and a penalty order. The question remains whether the particular action pursues the relevant allegation against that person. Calling a document an investigation record or file note does not settle this issue.

A prosecution step may count even if the authority lacked competence, the action failed to achieve its purpose, or the accused person never learned of it. Conversely, a purely internal note recording an incident does not automatically qualify as a step. Assess the action based on its content, its direction against the accused person, and its timing, not merely on the date appearing on a document.

§ 31 Abs 2 VStG excludes periods when a statutory rule prevents prosecution from starting or continuing. It also excludes periods of criminal or administrative penal proceedings concerning the same act against the same offender before a public prosecutor, a court or another administrative authority. The provision further excludes periods of suspension pending a final decision on a preliminary issue. Finally, it excludes proceedings before VwGH, VfGH or the Court of Justice of the European Union. Each claimed exclusion requires an applicable legal basis and a documented period.

To establish parallel proceedings, one must confirm the same act, the same person concerned, and the start and end dates of the proceedings. Merely referencing a complaint to the authorities does not answer these questions. Ordinary inactivity or workload at the prison authority does not, by itself, constitute one of these exclusions. Furthermore, the exclusions in Abs 2 may not simply be transferred to the one-year prosecution period in Abs 1.

The prosecution and liability limits determine whether the allegation can lawfully be punished. Once a final decision imposes a penalty, enforcement raises an additional issue. § 31 Abs 3 VStG contains a separate rule, and one must also consider special prison law provisions. § 116 Abs 6 StVG generally requires the enforcement of penalties without delay.

Therefore, one must not treat a reference to six months as a general prosecution limit for a disciplinary allegation. Similarly, a late start to enforcement does not itself establish that the original allegation was time-barred. The defence must first identify whether it challenges the imposition of the penalty or its subsequent enforcement.

For legal assessment, construct a chronology that arranges the alleged offence period, the end of the conduct, and any later consequence forming part of the offence in order. Include every possible prosecution step with its date and content, along with documents on parallel proceedings or suspensions, and distinguish dates established by documents from information provided only orally.

This chronology helps assess a specific request for discontinuance on limitation grounds. § 107 Abs 4 StVG also refers to § 45 VStG, which provides for discontinuance where circumstances exclude liability to punishment or prosecution. The argument should explain the relevant starting point and the missing or late prosecution step, or the expiry of the liability period.

A limitation argument cannot substitute for a timely legal remedy. § 120 Abs 2 StVG generally grants fourteen days for a complaint against a decision, following the oral announcement or service. Should a party request a written copy no later than the third day after the day of oral announcement, the service of that copy then starts the period. A disciplinary penalty order, however, requires an assessment of an objection under § 116a StVG.

§ 120 Abs 3 StVG provides that a complaint does not automatically suspend enforcement. If the penalty is already being implemented, a separate request for suspensive effect must be considered. Mag. Christopher Angerer examines the chronology, the appropriate remedy, and the evidence supporting the limitation argument. Retain the decision, the proof of service, and any request for a written copy.