Refusing prison work: fitness for work and disciplinary proceedings

Convicted prisoners who are fit for work are subject to the obligation to work under § 44 Abs. 1 StVG, and the work assigned to them must be performed by those subject to that obligation. Simultaneously, § 44 Abs. 2 StVG prohibits requiring work that involves danger to life or a risk of serious harm to health. Consequently, a work-refusal allegation requires the task, relevant period and actual working conditions to be established.

A warning and intentional conduct are also required for the allegation under § 107 Abs. 1 Z 7 StVG. For legal assessment, the absence of work on a particular day is insufficient by itself. Defence counsel examines whether a statutory duty existed for this task and whether the failure to perform it despite a warning was intentional. A lawful penalty follows only from examining these requirements in the individual case.

The work assignment must take appropriate account of health and other personal circumstances under § 47 Abs. 1 StVG. Therefore, a general ability to work must be distinguished from the ability to perform a particular demanding task. Prolonged standing, repeated lifting or a particular movement may be relevant. These demands must be connected by defence counsel with the documented restrictions at the time of the alleged conduct.

Should a convicted prisoner report illness or should the other circumstances listed in § 68 Abs. 1 StVG be present, the prison doctor must be informed. The person is examined by the doctor, who, under § 68 Abs. 2 StVG, determines among other matters whether and to what extent they can work. Important indications may be provided by an older medical report. If symptoms have changed, it remains necessary to clarify whether the report still covers the condition on the relevant day and the particular assigned task.

An expressly stated element of the work-refusal offence is a warning. The chronology used to examine it must include its wording, time, relevant task, and persons present. Which warning preceded the particular failure to work is not established by documented general dissatisfaction by the prison. A general written-warning requirement is not imposed by the law here; therefore, an exclusively oral warning cannot be treated as ineffective solely because of its form.

For intent, the explanation provided by the person concerned and known medical circumstances are also relevant. A statement that a specific movement is impossible due to pain carries a different meaning than a general refusal of all work. Both accounts must be evaluated in light of medical findings, reports, and witness statements. A health objection by itself does not result in automatic exemption. Where German language skills are insufficient, the necessary translation assistance must be furnished in disciplinary proceedings pursuant to § 116 Abs. 5 StVG.

Under § 116 Abs. 3 StVG, the convicted prisoner must be heard on the allegation and may request further inquiries. Further inquiries must take place if the facts remain insufficiently clarified. The person must be heard again if the results of such inquiries would lead to a penalty. A medical issue should therefore be raised in the proceedings with a specific question to be proved: which exertion was possible on the relevant day, and which restriction prevented the assigned work?

Obtaining existing medical reports, clarifying a finding by the prison doctor, and hearing people who observed symptoms or the work process may be included in requests. The request should explain which fact the evidence is intended to prove. A general reference to illness leaves its effect on this work unresolved. Whether additional specialist clarification is required depends on the outstanding medical issue; a particular examination is not automatically guaranteed by requesting it.

The penalty decision must be announced under § 116 Abs. 4 StVG, and information about the right to complain must be given. A written copy must be served on request. Under § 120 Abs. 2 StVG, a complaint against a decision may be lodged no later than the fourteenth day after the day of its oral announcement or service. Service of that copy governs the deadline if a written copy is requested no later than the third day after the announcement day. The start of the period is not automatically shifted by a later request.

The challenged decision is identified and the grounds are given by the complaint unless they are obvious. In a work-refusal case, unresolved fitness for work, missing findings about the warning, or insufficient examination of intent should be explained specifically. The complaint is lodged in writing or orally at the prescribed time with the responsible prison officer. If the complaint challenges a decision by the prison governor and the governor does not remedy it, the enforcement court decides under § 121 Abs. 1 StVG.

Acute symptoms should be reported promptly to arrange medical clarification under § 68 StVG. Simultaneously, the legal response to a disciplinary penalty requires examination. Unless the law provides otherwise, penalties must generally be enforced promptly under § 116 Abs. 6 StVG. Under § 120 Abs. 3 StVG, lodging a complaint has no automatic suspensive effect. Therefore, anyone seeking to stop enforcement must address that question separately.

If no overriding public interests prevent it and enforcement would cause disproportionate detriment after weighing all interests concerned, suspensive effect can be granted by the prison governor and the court handling the complaint. Specific information about the impending burden is required for such an application. A complaint about the type of medical treatment is a separate matter, for which § 120 Abs. 1 StVG refers to § 122. Medical help, a changed work assignment and challenging a penalty each have their own subject of examination.