Transfer to Another Prison in Austria: Grounds, Application and Remedies

The starting point is classification under section 134 StVG: after admission the Federal Ministry of Justice determines in which institution, in which form and according to which principles the sentence is served. This first determination of the place of imprisonment is the basis from which a later transfer departs.

The transfer itself is governed by section 10 StVG, the change of the place of imprisonment. Such a change comes into consideration from two directions: on grounds of expediency or security, for example for the better use of the institutions, and on grounds of reintegration, where the transfer promotes reintegration and no grounds of expediency or security stand against it. For a transfer based on reintegration there is a bar: while a complaint directed at it is pending, no further application of the same kind is admissible.

To be distinguished from this is the transfer on medical grounds (Ueberstellung) under section 71 StVG. It applies where a sick or injured person cannot be treated adequately in the current institution; the person is then to be transferred to the nearest suitable institution or, if that too is insufficient, admitted under guard to a public hospital (Krankenanstalt). This medically prompted transfer follows its own rules and is not a transfer application in the narrower sense.

Proximity to home and family ties are the practically most important ground. Anyone imprisoned far from the family can barely keep up regular visits. A transfer closer to home secures the contact that is central to reintegration. To be attached are proof of residence, school confirmations for the children and statements that show the importance of the contact.

Access to therapy is the second major ground. Specialised treatments are offered only in individual institutions. Anyone who demonstrably needs a particular therapy can apply for a transfer to the corresponding institution, ideally with a specialist statement and an admission commitment from the target institution. In addition, a better prospect of relaxations in an open institution, a serious conflict situation as a protective concern, and special personal circumstances such as language barriers or a needed accessibility all carry.

Common to all grounds is that a mere wish does not carry. What is decisive is a concrete, substantiated justification that establishes the link to reintegration or to an objective interest of the sentence. The more clearly the occasion, justification and goal are named, the more likely the application succeeds.

The prisoner submits the application to the current prison governor (Anstaltsleitung). The governor forwards it together with its own statement to the prison administration directorate (Vollzugsdirektion), which decides on the change of the place of imprisonment. In practice it is advisable to make the application in writing, structured and well supported, and to send a copy to the directorate.

To be attached are a concrete justification with evidence, depending on the ground therefore family records, specialist statements or therapy confirmations, and where possible an admission commitment from the target institution. A clear structure into occasion, justification and desired goal noticeably raises the prospect of success, because the deciding body recognises the value of the transfer for the sentence directly.

Statements from relatives carry the application, but should be submitted through the lawyer correspondence so that they are secured as part of the file. Persuasive in content are concrete details: how often a visit was recently possible, which obstacles exist, what consequences the distance has for family stability.

A complaint (Beschwerde) under section 120 StVG lies against a refusing decision. It must be brought within two weeks of learning of it. Where no remedy is granted, the enforcement court (Vollzugsgericht) decides on complaints against decisions of the prison governor (section 121, section 16 StVG). A further complaint to the Higher Regional Court Vienna is admissible only where a question of law of fundamental importance arises (section 16a StVG).

In the complaint new facts can be added, missing evidence supplied or the reasoning challenged in law. Open to challenge in particular is a refusal that relies on blanket organisational arguments, for example a lack of capacity, without establishing a concrete link to the transfer applied for.

Often the better-supported renewed application is the more effective route. If the circumstances of life change, for example through the birth of a child, a new therapy diagnosis or an intensified conflict situation, a new application can be made at any time. The only thing to note is the bar under section 10 StVG: as long as a complaint based on reintegration is pending, no further application of the same kind is admissible.