Conditional indulgence

from Wikipedia, the free encyclopedia

Under -related criminal indulgence is in Austrian criminal law the decision of a court understood, a penalty imposed for a specific time ( probation ) or no (partly partly due to be enforced). Either the entire sentence or part of it is conditionally checked . During the probationary period, the convicted person has the opportunity to justify the trust placed in him. If he does not relapse during the probationary period, the sentence will be finally looked up, i. H. not enforced.

The conditional penalty Tolerance is not, as frequently believed or represented in the media, one of punishment next to or instead of a legal perspective money or imprisonment ( "probation", "conditional sentence"), it is only the execution of the sentence to probation . The actual sentence still exists.

The conditional forbearance of punishment is regulated in Sections 43 to 56 of the  Criminal Code. The most important variants of this legal institution include the conditional leniency of the entire sentence, only part of the sentence, a preventive measure, and the conditional release from prison.

If a court does not issue conditional forbearance, this is referred to as an unconditional penalty .

Since January 1, 2020, punishments for rape can no longer be conditionally investigated (Section 43 (3) StGB).

Conditional forbearance of the entire sentence

If someone is sentenced to a term of imprisonment not exceeding two years, the court must conditionally examine the sentence by determining a trial period of at least one and a maximum of three years, if

  • it can be assumed that the mere threat of execution alone or in conjunction with other measures will be sufficient to deter him from further criminal acts, and
  • the execution of the sentence is not required to counteract the commission of criminal acts by others.

In particular, the type of offense, the person of the offender, the degree of guilt, his past life and his behavior after the offense must be taken into account ( Section 43 StGB).

A prerequisite for the conditional forbearance of a sentence is that the forbearance does not conflict with any special or general preventive considerations: If the court is of the opinion that the execution of the sentence is necessary in order to prevent either the perpetrator himself or other persons from committing (further) To prevent criminal offenses, it may not conditionally look up the punishment, but has to pronounce it.

Conditional forbearance therefore means that the convicted person does not (initially) have to commence the sentence.

In each case of conditional leniency, the court must determine a probationary period . If the perpetrator is convicted of a criminal offense again during this time, the convicting court must revoke the conditional leniency if this appears necessary in order to prevent the criminal from further criminal acts. In this case, the perpetrator has to serve the (initially conditionally reviewed and now revoked) prison sentence. If the forbearance is not withdrawn, the penalty must be examined for good.

In addition to conditional forbearance, the court can always issue instructions or order probation assistance (Section 50 et seq. StGB).

Until December 31, 2010, fines could also be looked up to a limited extent.

Conditional forbearance of part of the sentence

Section 43a StGB provides a very differentiated system of conditional forbearance for part of the sentence. The following options exist:

  1. If the court only imposes a fine and the conditions for conditional forbearance (see above ) are met for part of the penalty, the court must conditionally examine this part, but not more than three quarters of the total penalty.
  2. If a prison sentence of more than six months but not more than two years would have to be imposed and the conditions for a conditional leniency of the entire sentence do not exist, a fine of up to 720 daily rates can be recognized instead of a part of the prison sentence, if with regard to this, the remaining part of the custodial sentence according to Section 43 can be conditionally checked.
  3. If a prison sentence of more than six months but not more than two years is imposed and if, in particular with regard to previous convictions of the perpetrator, neither the entire sentence can be conditionally examined nor proceeded according to point 2, a Part of the penalty to look conditionally. The part of the penalty not conditionally waived must be at least one month and not more than a third of the penalty.
  4. If a custodial sentence of more than two but not more than three years is imposed and there is a high probability that the offender will not commit any further criminal acts, then part of the sentence is conditionally examined under the conditions of Section 43. Here too, the part of the penalty that is not conditionally waived must be at least a month and not more than a third of the penalty.

Legal situation outside of Austria

The legal situation in Germany is similar, essentially only with a different terminology ( suspended sentence for probation ) . There, too, prison sentences of up to two years or subsequently part of the prison sentence can be suspended. With regard to a fine that has not been imposed, but only reserved, one speaks of a warning with penalty .

The Switzerland knows the suspended sentence .

For other legal systems, see Probation .

Individual evidence

  1. RIS - BGBLA_2019_I_105 - Bundesgesetzblatt authentic from 2004. Retrieved on December 25, 2019 .