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Applying to reopen a case from prison: When sentence enforcement can stop

New exculpatory evidence in an Austrian prison: a judicial stay under § 357(3) StPO, termination under § 358(1) and further detention.

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Mag. Christopher Angerer, Rechtsanwalt

Your lawyer for detention and deprivation of liberty

When someone is in custody, every hour counts. One lawyer who accompanies you personally, from the detention review hearing to release.

16 October 2026. Mag. Christopher Angerer, Rechtsanwalt

An ongoing prison sentence in Austria is not automatically ended by an application to reopen criminal proceedings. While the application is pending, enforcement may be stayed by court order under § 357(3) StPO. Once reopening is granted, enforcement of the affected sentence must cease immediately under § 358(1) StPO. The court must then separately decide on the accused person’s detention.

For people finally convicted who have new exculpatory facts, the current legal basis for detention is therefore crucial. Against the same case file, a person still in prison needs the reopening application and the enforcement issue assessed. Neither a later acquittal nor immediate release from every form of detention is guaranteed by permission to reopen.

Your current detention position

Which court decision matters next?

This selection identifies the procedural stage. Assessing detention requires the complete court file.

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01 Question 1

What stage have the reopening proceedings reached?

Select the latest documented stage, rather than the outcome you expect.

All paths

Which court decision matters next?

01

Prepare the reopening application and enforcement issue together.

The case file needs to connect the judgment and the new material. Also have the concrete circumstances that could be presented to the court in favour of staying the ongoing sentence examined.

02

Have a judicial stay before reopening is granted assessed.

Sentence enforcement continues despite the application until a stay order is issued. Have a reasoned invitation under § 357(3) StPO and the current decision stage assessed.

03

Check cessation of the affected enforcement and the new detention decision.

Upon the granting of reopening, enforcement of the affected sentence must cease immediately under § 358(1) StPO. Check the scope of the judgment being set aside and the separate decision on further detention.

Why the prison sentence continues despite a reopening application

Criminal proceedings that have already ended with a final decision are the subject of the application. The judgment’s enforceability is not initially removed by filing it. That a convicted person’s reopening application does not stay enforcement of the sentence is expressly stated in § 357(3) StPO. A stay order cannot be substituted by proof of filing or an acknowledgement from the court. Consequently, a request for prompt examination of new evidence gives no entitlement to remain at liberty until the decision. While the reopening proceedings are pending, the detention position requires its own assessment.

When the court may stay enforcement of the sentence

If the court considers a stay appropriate in the circumstances of the case, it may order one. Before doing so, it must first hear the public prosecutor or the private prosecutor. The decision takes the form of a court order. § 357(3) StPO sets neither a fixed waiting period nor an automatic rule for particular types of evidence. The defence can set out concrete reasons for a stay and invite the court to make that decision. This does not replace the court’s assessment or create a statutory entitlement to suspension. For a reopening application following a final judgment, § 357(1) StPO specifies the regional court that had jurisdiction over the trial.

Which evidence helps explain the current enforcement issue

A reasoned request for the court to consider a stay should connect the final judgment, the new fact or evidence, and its significance for the earlier decision. Explain what was already in the file and which exculpatory connection the new material is intended to establish. Make sure the current enforcement position and all available court orders are added. This preparation provides a basis for legal work; it is not a statutory checklist of conditions for a stay. If evidence of a significant fact risks being lost, the regional court may, under § 357(2) StPO, order criminal police investigations or take evidence itself to avert that risk. Securing evidence and staying enforcement remain separate decisions.

What granting reopening changes for the judgment and sentence

Upon the granting of reopening, the earlier judgment is declared set aside to the extent that it concerns the offence for which reopening has been allowed. § 358(1) StPO also requires sentence enforcement to cease immediately. This consequence is no longer governed by the earlier discretionary rule on a stay. However, the statutory consequences of the conviction pronounced in the first judgment remain in place until a fresh decision. Where a judgment covers several offences, the scope of the order must be read carefully. Partial reopening must not be understood as setting aside all other convictions or grounds for enforcement.

Why ending sentence enforcement does not guarantee release

A separate detention decision under Chapter 9 of the Austrian Code of Criminal Procedure is required by § 358(1) StPO. Consequently, ending enforcement of the affected sentence must be distinguished from possible pre-trial detention. Under § 173(1) StPO, an application by the public prosecutor, strong suspicion of an offence, judicial questioning, and a statutory ground for detention are required, among other things, for pre-trial detention. It may not be ordered or continued if disproportionate or if less restrictive measures suffice. Consequently, the defence must prepare the new evidence for this detention assessment too. Separate clarification is required for any other detention or enforcement grounds.

What a lawyer needs to clarify before and after the order

A substantiated reopening application and a reasoned invitation to the court to stay enforcement constitute the focus before reopening is granted. Once granted, attention shifts to the scope of the judgment being set aside, the cessation of the affected enforcement, and the new detention decision. Have the complete order, its transmission to the prison, and the detention basis used there checked. Under § 358(2) StPO, the case generally returns to the investigation stage, subject to a statutory exception. If a fresh conviction follows, punishment already served must be credited under § 358(4) StPO. Where reopening was granted solely in the accused person’s favour, paragraph 5 prohibits a change for the worse.

Frequently asked questions

Questions about imprisonment during reopening proceedings

Must I remain in prison after filing the reopening application? +

Enforcement is not stayed by filing alone. For that purpose, a judicial stay order under § 357(3) StPO is required before reopening is granted. Any other basis for detention must also be examined.

How quickly must the court order a stay? +

No fixed decision deadline is set by § 357(3) StPO. The court hears the public prosecutor or private prosecutor and assesses appropriateness in the circumstances of the case. The provision cannot support a promise of a particular processing time.

Does granting reopening set aside every conviction? +

Pursuant to § 358(1) StPO, the judgment is set aside only to the extent that reopening has been granted for an offence. Where several convictions are involved, the scope of the order must be checked. Until a fresh decision is rendered, the statutory consequences of the conviction remain.

Is permission to reopen already an acquittal? +

The proceedings are reopened by permission. Guilt and punishment have not yet been finally decided afresh. For current liberty, the cessation of the affected sentence enforcement and the separate detention decision are decisive.

Topics
StPO 357StPO 358Reopening proceedingsSentence enforcement

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