Disciplinary house arrest: the ban in Austrian juvenile detention

Section 1 JGG defines juveniles as individuals who have reached the age of 14 but are not yet 18. Section 58(9) JGG excludes disciplinary house arrest for juvenile prisoners, and the seriousness of the allegation does not create an exception. Section 58(10) JGG applies paragraphs 1 to 9, with the necessary adaptations, to juveniles held under a preventive measure involving deprivation of liberty.

Protection may continue after the eighteenth birthday. Section 55(6) JGG extends the provisions for juvenile prisoners to older prisoners subject to the juvenile detention regime. Therefore, one must check the date of birth and the current detention regime together. A conviction for an offence committed as a juvenile does not, on its own, establish which regime applies today. The name of the prison cannot answer that question either.

Section 114 StVG permits simple or strict disciplinary house arrest outside this protected group only where aggravating circumstances predominate. This measure must not exceed two weeks and generally involves detention in a special single room along with further restrictions specified by law. This general provision does not permit a shorter period of house arrest for people protected by the JGG ban, and for them, choosing this disciplinary sanction is already unlawful.

Under section 116(1) StVG, the first-instance prison enforcement authority generally decides on disciplinary punishments, but the Federal Ministry of Justice decides if the alleged offence is directed against the prison governor personally. Before punishment, the accused prisoner must be heard on the allegation and may request further inquiries. If additional inquiries yield findings that would justify punishment, the prisoner must be heard again. Prisoners who do not understand German sufficiently are entitled to the necessary translation assistance in the disciplinary proceedings.

The authority must announce the disciplinary decision along with information regarding the right to complain. Upon request, a written copy must be served. The house arrest ban generally does not exclude other disciplinary punishments under section 109 StVG, yet those sanctions still require a legal basis and a proper procedure. At the hearing, the legal representative should expressly raise section 58(9) JGG and provide evidence of the applicable detention regime.

Section 120(2) StVG allows a complaint against a decision to be lodged no later than the fourteenth day after the day of its announcement or service. Should the prisoner request a written copy by the third day following the announcement, the service of that copy sets the start of the complaint period. Retain proof of the request and its date, and do not delay checking the deadline until relatives receive a copy.

The complaint must identify the challenged decision and the grounds of complaint. The complainant must lodge it with the responsible prison officer, either in writing or orally at the designated time of day. If the prison governor does not remedy a complaint against their decision, the enforcement court at the seat of the competent Higher Regional Court decides under section 121(1), read with section 16(3) StVG. A complaint does not automatically suspend enforcement. If enforcement threatens disproportionate harm, one should also consider an application for suspensive effect under section 120(3) StVG.

A legal basis for holding a prisoner alone may exist beyond disciplinary punishment. Special security measures under section 103 StVG require a specific danger covered by the law and may continue only to the extent and for as long as that danger makes them strictly necessary. Section 116(2) StVG also provides for separation to maintain security and order or preserve evidence in disciplinary proceedings. Therefore, the reason, legal basis, and actual implementation matter. Simply calling an unlawful punishment a security measure does not make it lawful.

Retain the full disciplinary decision, the dates of announcement and service, and proof of the request for a written copy. The date of birth, documents verifying the juvenile detention regime, and the hearing record are also important. Should the measure already be in progress, accurately document its start, accommodation details, contact limitations, and the reasons provided. These records assist in determining whether the complaint should address a violation of the house arrest ban, a procedural mistake, or the conditions governing a separate security measure.