Section 133b StVG: prison enforcement and deportation without willingness to leave

Section 133b(1) StVG incorporates the conditions of section 133a(1) with the exception of item 2. The convicted person must have served half the sentence, but at least three months. An entry ban or residence ban must exist, and no legal or factual obstacles to departure may remain. The convicted person must also be obliged to leave Austria. This provision does not require the willingness to leave immediately or the corresponding expectation found in item 2.

EEA citizens, Swiss citizens, privileged third-country nationals, and holders of a “Long-term resident-EU” permit issued by another EU Member State are excluded. Therefore, the decision requires establishing nationality, residence status, and any protection under EU law beforehand.

Section 133b grants the enforcement court discretion by permitting provisional non-enforcement without making it mandatory. The regional court responsible for criminal matters where the sentence is being served decides under section 16(1) and (2) item 10 StVG. By contrast, section 133a requires willingness to leave and provides a separate route.

Section 133b(2) also renders section 133a(2) applicable. For the convictions expressly listed there, the seriousness of the offence may exceptionally necessitate continued enforcement of between half and two thirds of the sentence to deter others. The conviction and this statutory restriction require separate assessment.

Section 133a(3), which also applies here, requires the immigration authority to inform the prison governor early about the ban, the obligation to leave, and any obstacles. If prisoners subject to such a ban will meet the conditions in section 133a(1) and (2) within the next three months, the governor must inform them about the other conditions.

The prison governor notifies the competent immigration authority after the court decision. That authority then takes over the person from prison and ensures deportation under the Aliens Police Act 2005, and it must inform both the prison and the enforcement court that deportation has been carried out.

Public security officers must take the person back into custody and transfer them to the nearest prison if deportation cannot be carried out for factual or legal reasons or does not take place for other reasons, as section 133b(3) requires. This obligation also applies to a return to Austria while the entry ban remains in force.

Non-enforcement is initially provisional. The immigration authority notifies the prison under section 133a(6) when the entry ban or residence ban expires or is lifted, and the custodial sentence is deemed to have been served only at that point.

The assessment requires the sentence calculation, judgment, immigration decisions, residence documents, and travel documents. It also considers the intended destination and concrete obstacles to deportation. The court and immigration authority require substantiation of such obstacles.

Keep the complete documents and service dates if a decision already exists or transfer is imminent. Legal review should establish whether conditions are missing, an excluded group is affected, or the court exercised its discretion incorrectly. Immigration-law remedies need separate assessment alongside this review.