A revocation decision after probation in Austria depends on Section 56 StGB. The offence date, pending proceedings and court decision date matter.
Mag. Christopher Angerer, Rechtsanwalt
Your lawyer for criminal defence
Criminal proceedings are a matter of trust. One lawyer who walks with you from the first consultation through to the trial, everything from one hand.
Section 56 of the Austrian Criminal Code (StGB) limits when a court may make a decision under sections 53 to 55 after probation has ended. For a new offence committed during probation, the statute provides two possible six-month periods.
The second time anchor applies only if criminal proceedings concerning that offence were already pending when probation ended. Establish the offence date, probation expiry, status of the proceedings, their conclusion and the actual date of the court decision separately. Six months after probation ends is not always the final possible date.
First classify the date of the new offence. Then check whether the related criminal proceedings were already pending when probation ended.
Would you like the dates checked against the court order?
Section 53(1) StGB treats certain acts between the first-instance decision granting conditional suspension or release and finality as equivalent to acts committed during probation.
Compare the offence and its alleged period in the revocation order with the decision setting probation. Also check whether Section 53(1) StGB treats the relevant period as equivalent to probation. Only then can the time rule in Section 56 be assessed.
If the offence period clearly falls outside probation and any equivalence under Section 53(1) StGB, that offence does not open the special six-month period after probation. Check the ground stated in the court order. A different ground for revocation must be assessed under its own statutory requirements.
Identify the precise ground stated in the court order. For a new offence during probation, Section 56 sets the relevant time limits. A different ground for revocation must be assessed under its own statutory requirements.
For a qualifying new offence, Section 56 allows a decision within six months after probation ends. Proceedings that begin later do not create the additional period measured from their conclusion. Compare the court decision with the first deadline.
The OGH requires proceedings concerning the new offence to have already begun by the time probation expires for the later conclusion to count as the alternative time anchor. Obtain the relevant case-file chronology. A later conviction alone does not establish that earlier status.
Identify the conclusion of the criminal proceedings concerning the new offence from the case file. Section 56 provides six months after that event if the proceedings were already pending when probation expired. Compare this anchor with the date of the court order. Service may have taken place later and should be recorded separately.
First check the six-month period after probation ended. The additional time period is measured from the conclusion of criminal proceedings that were already pending at expiry. Record the current case status and assess the two dates separately.
Obtain the order, judgment or other documented act that concluded the criminal proceedings. Section 56 uses this later anchor only if those proceedings were already pending when probation expired. Compare the recorded conclusion and the revocation decision against the case file.
Orders under sections 53 to 55 StGB are generally limited to the probation period. For an offence committed during that period, Section 56 permits a decision within six months after probation ends. The statute also names six months after the conclusion of criminal proceedings that were pending against the person when probation expired.
The later conclusion of proceedings is a separate time anchor. It concerns proceedings for the new offence and requires them to have already been pending at the end of probation. A case that begins later does not move the first anchor. While proceedings remain open, check the period from probation expiry first; the later period can only be assessed from the documented conclusion.
The later anchor also depends on the status of the proceedings when probation ended.
| Time anchor | Condition | Dates to compare |
|---|---|---|
| End of probation | A new offence during probation or an act treated by law as equivalent | Probation expiry and the court decision date |
| Conclusion of proceedings | Proceedings for the new offence were already pending at probation expiry | Conclusion date and court decision date |
| No proceedings pending at expiry | Proceedings began only after probation ended | The later-conclusion anchor is unavailable under this wording; assess the first period separately |
A date calculation requires the relevant court and proceedings records.
In its decision of 4 September 2024, 15 Os 81/24m, the Austrian Supreme Court (OGH) held that the later conclusion of criminal proceedings can support the additional six-month period only if proceedings for the new offence were already pending when probation ended. In the case before it, the challenged order did not establish that the proceedings had begun before that date. The OGH set the order aside.
The start of the proceedings is therefore a separate factual issue. A later conviction or conclusion does not by itself show when the case was already pending. The relevant date must be established from the case record. The decision does not provide one universal formula detached from the procedural history of each case.
Compare deadlines only after each relevant date has been established from the case file.
Establish the period of the act and check any statutory equivalence under Section 53 StGB.
Use the court order and the relevant dates to establish when probation ended.
Determine whether proceedings for this offence were already pending on the last day of probation.
Their later conclusion can form the second time anchor only if the proceedings were pending at expiry.
Compare the court decision date with the applicable six-month period.
The case file should provide a clear chronology for the timing review:
Section 53(1) StGB treats certain acts between the first-instance decision granting conditional suspension or release and its becoming final as equivalent to acts during probation. Check whether that rule applies to the actual decision and offence dates.
Section 56 refers to when the court makes the order. Record the date shown on the written decision and, if it was pronounced orally, check the hearing record as well. Service may take place later, so keep it as a separate date in the chronology.
A reliable assessment brings together the offence date, probation expiry, pending status at expiry, conclusion of the proceedings and date of the court decision. If one of these points is missing, do not infer the applicable period from a later service date or conviction alone.
No. For a new offence during probation, Section 56 first allows six months after probation expires. If proceedings for that offence were already pending at expiry, their later conclusion can provide a separate six-month time anchor.
The later-conclusion anchor is not available under the wording of Section 56 if the proceedings were not already pending at probation expiry. The first six-month period after probation ended may still apply if the other conditions are met.
Service is an important file date. Section 56 also requires the date on which the court made its decision. Check the written order and, where relevant, the hearing record.
Background on probation, suspended sentences and conditional release.
How a later conviction relates to an earlier sentence.
An overview of challenging court decisions in Austrian criminal cases.
In criminal matters every hour counts. Call us directly or send an email, callback within one business day, earlier in urgent cases.
Address
BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg
Phone
+43 660 2407152