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Suspended sentence and conditional release (Sections 43, 43a, 46 StGB)

Suspended sentence under Section 43 StGB, partial suspension under Section 43a and conditional release under Section 46 StGB: requirements, probation period and revocation.

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28 June 2026 · Mag. Christopher Angerer, Rechtsanwalt

Not every conviction leads to custody, and not every prison sentence has to be served in full. With the suspended sentence and conditional release the law provides important instruments for suspending a term of imprisonment in whole or in part on probation. The decisive factors are the length of the sentence, the time already served and the prognosis about future conduct.

This post explains from a legal perspective when a sentence can be suspended under Section 43 StGB, what the partial suspension under Section 43a StGB means, under what conditions conditional release under Section 46 StGB is possible and what applies during the probation period. This is general information, not advice in an individual case.

Which situation applies to you?

Four situations, one clear next step.

Whether a sentence can be suspended or early release is possible depends on the length of the sentence, the time served and the prognosis. Choose your situation and you will receive the key points and the next concrete step.

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01 Question 1

What does your case involve?

Whether a sentence can be suspended or early release is possible depends on the length of the sentence, the time served and the prognosis. Choose your situation and you will receive the key points and the next concrete step.

All paths at a glance

Overview of all answers.

01

Suspended sentence under Section 43 StGB: length of sentence and a favourable prognosis decide.

Under Section 43 StGB a term of imprisonment not exceeding two years is to be suspended with the determination of a probation period if it can be assumed that the mere threat of enforcement is sufficient to deter the offender from committing further offences. The probation period is at least one and at most three years.

From a legal perspective the situation relevant to the prognosis can often be presented favourably, for instance through a clean record, settled circumstances and conduct after the offence. These circumstances should be prepared early.

In depth: the suspended sentence →
02

Partial suspension under Section 43a StGB: part is served, part is suspended.

Section 43a StGB makes it possible to enforce part of the sentence and to suspend part of it with the determination of a probation period. This solution comes into consideration where full suspension is not possible or does not appear sufficient, but a fully unconditional sentence is not necessary.

From a legal perspective the partial suspension is often an important middle way. The argument should aim to keep the unconditional part as small as possible.

In depth: the partial suspension →
03

Conditional release under Section 46 StGB: after serving half, at least three months.

Under Section 46 StGB a convicted person may be conditionally released if they have served half of the temporary term of imprisonment, but at least three months, and it can be assumed that they will not commit further offences. In the case of life imprisonment, conditional release is only possible after serving at least fifteen years.

From a legal perspective the bases of the prognosis, such as the development during enforcement and the circumstances after release, must be prepared carefully. The application should be well prepared.

In depth: conditional release →
04

Running probation period: instructions, probation assistance and the risk of revocation.

During the probation period the convicted person may be given instructions and probation assistance may be ordered. If the convicted person commits an offence during the probation period or fails to comply with instructions, the suspension may be revoked.

From a legal perspective it is important to take instructions seriously and to react early if difficulties threaten. A revocation can often be avoided if action is taken in time.

In depth: revocation of the suspension →

The suspended sentence under Section 43 StGB

The suspended sentence makes it possible not to enforce an imposed sentence but to suspend it on probation.

Requirement as to the length of the sentence. If an offender is sentenced to a term of imprisonment not exceeding two years, the sentence is to be suspended with the determination of a probation period if the requirements are met.

Favourable prognosis. What is required is the assumption that the mere threat of enforcement, where appropriate in combination with other measures, is sufficient to deter the offender from committing further offences.

Probation period. The probation period is at least one and at most three years. From a legal perspective it is worth preparing the circumstances relevant to the prognosis early.

The partial suspension under Section 43a StGB

Between the fully suspended and the unconditional sentence there is a middle way.

Splitting the sentence. Section 43a StGB makes it possible to enforce part of the sentence and to suspend another part with the determination of a probation period.

Scope. This solution comes into consideration where full suspension is not sufficient but a fully unconditional sentence is not necessary.

From a legal perspective the partial suspension is an important sentencing instrument in which the unconditional part should be kept as small as possible.

Conditional release under Section 46 StGB

A term of imprisonment that has already begun can also be suspended on probation early.

Time served. Under Section 46 StGB a convicted person may be conditionally released if they have served half of the temporary term of imprisonment imposed by the judgment or fixed by way of clemency, but at least three months.

Life imprisonment. A person sentenced to life imprisonment may be conditionally released only if they have served at least fifteen years.

Prognosis. In addition, it must be assumed that conditional release is not less suitable for deterring the convicted person from committing further offences than continued enforcement. From a legal perspective the bases of the prognosis should be set out carefully.

Probation period, instructions and probation assistance

A probation period is regularly linked to the suspension or release.

Instructions. The court may give the convicted person instructions, for instance on the conduct of life, on therapies or on making good the damage. These instructions must be observed during the probation period.

Probation assistance. In addition, probation assistance may be ordered, which supports and accompanies the convicted person during the probation period.

From a legal perspective serious compliance with the instructions is the best protection against the suspension later being revoked.

Revocation of the suspension

The suspension or release is not final as long as the probation period is running.

Grounds for revocation. If the convicted person commits an offence during the probation period or fails to comply with instructions despite a formal warning, the suspension may be revoked, which can result in enforcement of the sentence.

Extension instead of revocation. Instead of a revocation, an extension of the probation period may, in certain circumstances, also come into consideration.

From a legal perspective it is important to react early if difficulties threaten, because a revocation can often be avoided.

The most common mistakes in connection with suspended sentences. Assuming that a suspended sentence is meaningless and without consequences. Failing to take instructions during the probation period seriously. Failing to react to a threatened new complaint during the probation period. In all cases the rule is: take the probation period and the associated duties seriously and seek advice early if problems arise.

Frequently asked questions

What you need to know about suspended sentences.

Up to what length of sentence is suspension possible? +

Under Section 43 StGB a term of imprisonment not exceeding two years can be suspended if it can be assumed that the mere threat of enforcement is sufficient to deter the offender from committing further offences. The probation period is one to three years.

What is a partial suspension? +

In the case of partial suspension under Section 43a StGB, part of the sentence is enforced and another part is suspended with the determination of a probation period. This solution comes into consideration where full suspension is not sufficient but a fully unconditional sentence is not necessary.

After how long is conditional release possible? +

Under Section 46 StGB a convicted person may be conditionally released if they have served half of the temporary term of imprisonment, but at least three months, and a favourable prognosis exists. In the case of life imprisonment, conditional release is only possible after at least fifteen years.

What happens during the probation period? +

During the probation period the convicted person may be given instructions and probation assistance may be ordered. These duties must be observed. If they are not complied with or a new offence is committed during the probation period, the suspension may be revoked.

Can a suspended sentence be revoked? +

Yes. If the convicted person commits an offence during the probation period or fails to comply with instructions despite a formal warning, the suspension may be revoked. Instead of a revocation, an extension of the probation period may, in certain circumstances, also come into consideration.

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Topics
suspended-sentencepartial-suspensionconditional-releasesection-43section-46probation-period

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