Implementation of measures

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The correctional facility in Vienna Mittersteig with a treatment order for sane, mentally abnormal lawbreakers

The enforcement of measures (officially preventive measures associated with deprivation of liberty ) in Austria and Liechtenstein denotes several preventive, custodial measures to accommodate dangerous criminals and offenders who cannot be convicted due to a lack of culpability. The implementation of measures is largely comparable to the implementation of measures in German criminal law . The possibility of placement in the penal system was first created in Austria with the criminal law reform of January 1, 1975 and is regulated in the Penal Enforcement Act (StVG), the Criminal Code (StGB) and the Code of Criminal Procedure (StPO). In Liechtenstein, the possibility of accommodation was only introduced in 1996.

As of December 1, 2006, there were 725 people in Austria in one form of implementation of measures; In 2017/18 there were 917. 523 of them are considered to be insane under Section 21 (1) of the Criminal Code, the other 394 as sane under Section 21 (2) of the Criminal Code. Josef Moser , Austrian Minister of Justice from 2017 to 2019 , has announced a reform.

General

The Austrian penal code knows three types of measures. These are the implementation of measures against dangerous recidivists ( § 23 StGB), against lawbreakers who need to be weaned ( § 22 StGB) and against mentally abnormal lawbreakers ( § 21 StGB). Since the Liechtenstein Criminal Code largely corresponds verbatim with the Austrian version, there is also the possibility of detention in the "execution of measures" in Sections 21 to 23 of the Criminal Code.

The order for the implementation of the measures is issued at the same time as the judgment is announced. In contrast to criminal detention, the measure is not limited in time. In Austria, however, mentally abnormal lawbreakers have the opportunity to issue a conditional briefing with a probationary period. In the case of an unconditional admission to an institution for mentally abnormal lawbreakers, the court must subsequently check at least once a year, in the case of lawbreakers who need to be weaned every 6 months, whether a further detention of the prisoner is necessary. The time spent in the execution of measures is credited to the actual sentence of the convicted person in the event of placement in the execution of measures against mentally abnormal lawbreakers as well as against lawbreakers in need of weaning. Measures against dangerous recidivists will only be carried out after the normal prison sentence has been served.

Types of action implementation

Dangerous recidivists

"The placement in an institution for dangerous recidivists is supposed to prevent the detainees from pursuing harmful inclinations and help them to adopt a righteous attitude towards life that is adapted to the requirements of community life."

- Section 171 of the Prison Act

Habitual criminals and offenders with an increased security risk are referred to as dangerous recidivists. The measure of placement in an institution for dangerous recidivism offenders is directed solely against the danger posed by the convicted person and is carried out after the actual prison sentence has been served. In this case, the prerequisite for instruction in the implementation of measures is a conviction of at least two years' imprisonment and the completion of the 24th year of life. The prisoners may be detained in the implementation of measures against dangerous recidivists for a maximum of 10 years. Dangerous recidivists are mostly housed in the Sonnberg Prison . This form of the measure can best be compared with preventive detention under German criminal law.

Since the enactment of the Criminal Law Amendment Act in 1987, this form of placement of measures can be described as an obsolete model. On December 1, 2006, only two people were stopped while taking measures against dangerous recidivists. Thus, de facto, one can speak of “dead law”. In case of doubt, the perpetrator will be admitted to an institution for mentally abnormal lawbreakers, simply an extended prison sentence or an aggravated penalty in the event of relapse ( Section 39 StGB).

Lawbreakers in need of weaning

"Placement in an institution for lawbreakers in need of weaning is intended to wean the detainees from the abuse of intoxicating substances or addictive substances, depending on their condition, to help the detainees to a righteous attitude towards life that is adapted to the requirements of community life and to prevent them from pursuing harmful inclinations."

- Section 168 (1) of the Prison Act
Special facility Favoriten for accommodating § 22 inmates.

In contrast to the other two forms, placement in an institution is limited to a period of 2 years for law breakers who need to be weaned. In this case, discharge from the implementation of measures is also possible if continuation of the treatment appears hopeless. Usually, in institutions for the execution of measures on lawbreakers in need of weaning, mainly addicts are admitted, the largest such prison in Austria is the Vienna Favoriten prison , where prisoners in need of weaning can also be accommodated in accordance with Section 159 (2) StVG. In principle, however, the measure can be carried out in almost every Austrian prison.

In practice, it has been shown that withdrawal treatment based on judicial compulsion has little chance of success in most cases. For this reason, almost 90% of all prisoners in the execution of measures against lawbreakers in need of weaning are unconditionally released because of hopelessness and returned to the usual prison system. Usually, such convicts are offered voluntary withdrawal treatment according to § 68 StVG . On December 1, 2006, 14 people were arrested in the Austrian prisons in the execution of measures against lawbreakers in need of weaning.

Mentally abnormal lawbreakers

“Placement in an institution for mentally abnormal lawbreakers is intended to prevent the detainees from committing criminal acts under the influence of their mental or emotional abnormality. The placement is intended to improve the condition of the detainees to such an extent that they can no longer be expected to commit acts threatened by a penalty, and to help the detainees to adopt a righteous attitude towards life that is adapted to the requirements of community life. "

- Section 164 (1) of the Prison Act

Basically, a distinction can be made between the execution of measures against sane, mentally abnormal lawbreakers ( Section 21, Paragraph 1 of the Criminal Code) and the execution of measures against sane, mentally abnormal lawbreakers ( Section 21, Paragraph 2 of the Criminal Code).

Pavilion 23 at the Otto Wagner Hospital in Vienna

In 2008, there were 411 people in action against the unfit and 449 against the sane, mentally abnormal lawbreakers.

This measure is imposed on offenders if they are not culpable due to a mental impairment, but are nevertheless dangerous. It has the character of a psychiatric treatment and is not bound by time. Discharge is only possible if there is a clear improvement in mental health. The majority of the patients are in the specially set up prisons Göllersdorf and Mittersteig as well as the forensic center Asten , which is attached to the Linz Prison as a branch. In addition, the prisoners can also be accommodated in closed departments in various hospitals - such as Pavilion 23 at the Otto Wagner Hospital in Vienna . Responsible, mentally abnormal lawbreakers can also be detained in the separate measures departments of various penal institutions in Germany.

Establishing the implementation of measures

Locations of the Austrian prisons (special prisons are highlighted in green).

The placement of detainees in certain prisons is regulated by law in the Sprengelverordnung for the penal system from 1997 (with amendment 1998). This ordinance of the Federal Minister of Justice provides for accommodation in special institutions for the various types of measures taken.

According to this, male incapable, mentally abnormal lawbreakers are to be accommodated in the Göllersdorf Prison , while male sane mentally abnormal lawbreakers are to be accommodated in the Prison in Vienna Mittersteig or in its closed department of the Otto Wagner Hospital in Vienna. There are also specially set up departments for the accommodation of sane, mentally abnormal lawbreakers in the Stein , Garsten and Graz-Karlau prisons . The decision as to whether placement in a public psychiatric hospital appears more appropriate in individual cases is left to the Federal Ministry of Justice .

In 2010, a forensic psychiatry was set up on the premises of the Asten branch of the Linz Prison , in which mentally abnormal lawbreakers are accommodated for long-term rehabilitation. This Asten Forensic Center was converted into an independent Asten Prison on January 1st, 2019 .

Lawbreakers who need to be weaned are generally brought to the Vienna Favoriten Prison , but can also be accommodated in the “special departments for lawbreakers who need to be weaned” in various other prisons.

In accordance with the flexibility program of the Sonnberg Prison from 2003 (last change in 2006), the Sonnberg Prison is responsible for executing measures on dangerous recidivists.

Female sane, mentally abnormal lawbreakers are generally kept in the specially established department of the Asten Prison . Female prisoners involved in the implementation of measures against lawbreakers who need to be weaned are also housed in a separate department of the Schwarzau prison.

In the case of juvenile offenders, female juveniles are to be accommodated in the corresponding youth department of the Schwarzau Prison in both cases of the implementation of measures (measures against dangerous recidivists are excluded for juveniles). Male juvenile offenders, on the other hand, are to be treated in the case of measures against sane, mentally abnormal lawbreakers in the Gerasdorf Prison , and in the case of measures against lawbreakers in need of weaning in the Vienna-Favoriten prison.

criticism

The application of the implementation of measures in Austria has been criticized several times by NGOs and lawyers, as a steady increase in prisoners was observed in the implementation of measures and it allows people to be held for an indefinite period of time without further decisions about their future. The necessity of a further suspension only requires an annual individual examination. In 2015 Austria was convicted by the European Court of Human Rights . The Viennese lawyer and complainant Helmut Graupner was found to be right and various aspects of the application of the implementation of measures in Austria were criticized. a. that the principle of "therapy instead of punishment" would be turned into its opposite in the implementation of measures if detainees were detained for minor offenses. In addition, according to the ECHR, the classification as "mentally abnormal" is used to "circumvent the restrictive legal requirements for placement as a dangerous recidivist and potentially for life".

literature

  • GDR. Maria A. Eder-Rieder: The custodial preventive measures. Manz Verlag, Vienna 1985, ISBN 978-3-214-06025-1 .
  • Markus Drechsler (ed.): Implementation of measures: human rights locked away and forcibly treated . Mandelbaum Verlag, Vienna 2016, ISBN 978-3-85476-527-1 .

Web links

Footnotes

  1. ↑ zeit.de July 15, 2018 / Judith E. Innerhofer: In jail with an uncertain prospect
  2. ↑ Inquiry response (PDF; 33 kB) from Federal Minister Dr. Claudia Bandion-Ortner on the subject of "the placement of insane, mentally abnormal lawbreakers (Section 21 (1) of the Criminal Code)".
  3. ↑ Inquiry response (PDF; 40 kB) from Federal Minister Dr. Claudia Bandion-Ortner on the subject of "the placement of sane, mentally abnormal lawbreakers (Section 21 (2) StGB)".
  4. ↑ Inquiry response (PDF; 22 kB) from the Federal Minister of Justice on the subject of establishing a forensic psychiatry on the premises of the Asten Prison .
  5. ↑ Herbert Schorn: Life as a mentally abnormal offender in Asten: From lethargy to courage . Article in the Oberösterreichische Nachrichten on May 27, 2010.
  6. ↑ Funk: "Serious grievances" in the execution. In: Ö1 Online. May 21, 2014, accessed May 10, 2017 .
  7. ↑ Irene Brickner : Implementation of measures: Austria risks the Strasbourg judgment. In: derStandard.at . December 26, 2014, accessed May 10, 2017 .
  8. ^ Report of the Working Group Implementation of Measures. (PDF) Austrian Federal Ministry of Justice, accessed in January 2015 .
  9. ↑ Austria condemned by ECHR in matters of enforcement. In: Salzburger Nachrichten. May 10, 2017, accessed September 10, 2015 .
  10. ↑ a b Implementation of measures: Austria convicted in Strasbourg. In: derStandard.at . September 10, 2015, accessed May 10, 2017 .