Depending on the initial situation, a conviction in criminal proceedings is often unavoidable. In such cases, comprehensive and professional criminal defence does not end with the final conviction. Rather, we continue to represent our clients during the execution of the custodial sentence (so-called imprisonment) and make use of all available legal avenues in order to achieve the earliest possible release from custody. This article explains under which conditions conditional release is possible, who decides on it, and which aspects are particularly important in the procedure.
Conditional release: does a final conviction require the full custodial sentence to be served?
A final conviction to a custodial sentence does not automatically mean that the entire sentence must be served. Within the prison system, there are various mechanisms by which early release can be achieved. What is crucial is that the necessary steps are planned at an early stage, carefully prepared and substantiated on sound legal grounds. The correct timing must also be taken into account.
In this context, conditional release from a custodial sentence must be distinguished from a “suspended custodial sentence“. In the case of a suspended sentence, the custodial sentence is wholly or partly suspended from the outset, subject to a probationary period (probation). Conditional release, by contrast, concerns early release from an ongoing sentence of imprisonment after part of the sentence has already been served.
Since 1 January 2026, a new legal framework for conditional release has been in force in Austria. It is specifically designed to relieve pressure on the prison system and to align decisions more closely with the individual development of the convicted person.
Which requirements have applied since 1 January 2026 for conditional release?
With effect from 1 January 2026, the government has relaxed the requirements for conditional release after half of the custodial sentence has been served (Section 46 (1) of the Austrian Criminal Code ). The decisive consideration remains that, taking all circumstances into account, it can be assumed that the convicted person will be deterred from committing further criminal offences by conditional release no less effectively than by continued imprisonment.
What is therefore required is a positive prognosis based on the principle of special prevention. Key assessment criteria include, in particular, conduct during imprisonment, personal development, insight into the wrongdoing committed, and prospects for a law-abiding life after release.
As a rule, conditional release involves suspending the remaining part of the sentence subject to a probationary period. During this probationary period, instructions and conditions may be imposed in order to support reintegration and prevent further offences.
The central reform introduced on 1 January 2026 is that considerations of general prevention no longer play any role in decisions on conditional release. The focus is now primarily on resocialisation and the individual prognosis. Eligibility dates for conditional release arise at the earliest after half of the sentence has been served (the so-called half-term date) and after two thirds of the sentence has been served (the so-called two-thirds date).
Special prevention and general prevention explained simply
Special prevention refers to an assessment focused on the individual convicted person. The question is whether this specific individual can be prevented from committing further offences through conditional release and the associated conditions. What matters, therefore, is the individual prognosis.
General prevention, by contrast, concerns the impact of a decision on the general public, such as its deterrent effect or its signalling function to others. Since 1 January 2026, such general preventive considerations no longer play any role in decisions on conditional release.
Who decides on conditional release?
Responsibility for decisions on conditional release continues to lie with the competent enforcement court. This is the regional court with criminal jurisdiction in whose district the custodial sentence is being served. Since 1 January 2026, however, sentences exceeding three years and life sentences require a decision by a judicial panel.
The competent panel consists of a presiding professional judge and two expert lay judges. The lay judges must have practical experience in the prison system or in probation services, for example as prison governors, experienced prison officers or probation officers. They are independent and have equal voting rights to the professional judge.
In formal cases, for example where an application must be dismissed because the half-term date has not yet been reached, the presiding judge may decide alone.
What is the significance of electronically monitored home detention (electronic tag)?
Electronically monitored home detention, commonly referred to as an electronic tag, is a special form of executing a custodial sentence. It must therefore be distinguished from conditional release, as it does not constitute release from custody but rather an alternative manner of serving a custodial sentence.
The requirements for electronically monitored home detention are set out in §§ 156b et seq. of the Austrian Execution of Sentences Act (StVG). Serving a sentence under electronically monitored home detention is, in particular, linked to the pursuit of suitable employment or activity (such as paid work, education or training, childcare, or community service). This creates a structured daily routine which supports social reintegration and helps to maintain existing social ties.
As a rule, the individual must remain at the designated accommodation. Leaving the accommodation is permitted only in specified cases, for example for the purposes of the aforementioned activities, essential errands or medical treatment. In addition, certain relaxations apply with regard to time spent outdoors.
Prisoners in electronically monitored home detention are entitled to one hour of outdoor exercise per day. On Saturdays, Sundays and public holidays, this may be extended to up to three hours, provided that the outdoor time is not misused.
Conditional release: when does an electronic tag come into consideration?
Since 1 September 2025, electronically monitored home detention may already be considered if the remaining custodial sentence to be served, or, taking into account a possible conditional release, the sentence likely to remain, does not exceed 24 months. This form of execution may be applied for either before the commencement of the sentence or during ongoing imprisonment.
An application submitted before the sentence is commenced generally results in a provisional suspension of imprisonment. This means that the custodial sentence does not have to be started until a final decision on the electronic tagging application has been made ( Section 156d (4) of the Austrian Prison Act . ). It should be noted that for certain offences there are extensive restrictions on the use of electronically monitored home detention (see Section 156c (1) (1) of the Austrian Prison Act).
Given that the statutory framework governing electronically monitored home detention is complex and often varies depending on the conviction, we strongly recommend seeking the advice of a criminal defence lawyer at an early stage.
What happens after conditional release?
Where conditional release is granted, the court sets a probationary period. This amounts to:
- at least one year and no more than three years,
- up to five years in the case of longer remaining sentences that are conditionally suspended,
- ten years in the case of life sentences.
During the probationary period, conditions and instructions may be imposed, such as probation supervision, in order to prevent further offences and to support reintegration.
Additional options exist for juveniles and young adults up to the age of 21, such as a release conference at which further measures to stabilise the individual after release can be agreed.
Why should a lawyer be involved in an application for conditional release?
For the competent enforcement court to approve an application for conditional release, careful preparation is essential in addition to a precise knowledge of the legal framework. In practice, this involves not only choosing the correct time to submit the application, but above all ensuring that the documents and arguments presented set out a positive prognosis in a clear and convincing manner.
Our criminal law firm assists you in matters relating to the execution of sentences, in particular with:
- the legal assessment of your individual situation,
- the careful preparation of your application,
- the compilation and review of all relevant documentation,
- the substantiation of a positive prognosis and demonstrable personal improvement,
- representation before the competent enforcement court, and
- lodging an appeal in the event that conditional release is refused.
We would be pleased to provide you with individual legal advice in connection with conditional release from a custodial sentence. In addition, we continue to support you throughout the execution of the sentence.
Contact usFAQ – Frequently Asked Questions on Conditional Release
Since 1 January 2026, the key focus in decisions on conditional release has been whether you are likely to refrain from committing further criminal offences (special prevention).
Since 1 January 2026, courts may no longer refuse conditional release on the basis of general prevention. Decisions must instead be based solely on the individual prognosis in the specific case.
In principle, you may seek conditional release at the earliest after serving half of the custodial sentence. The court will then examine whether the requirements for conditional release are met, in particular whether a favourable prognosis for the future can be established.
Where conditional release is granted, the court sets a probationary period during which you must demonstrate good conduct. If you breach conditions during this time or commit further criminal offences, you risk revocation of the conditional release.
The court may impose specific conditions and directions designed to prevent reoffending and to support your reintegration. You are required to comply with these requirements, as failure to do so may result in the conditional release being revoked.
The court may order probation supervision to provide you with support and oversight during the probationary period. This can be beneficial, as it allows issues to be addressed at an early stage and helps to reduce the risk of reoffending.
Conditional release is, in principle, also possible in cases of life imprisonment, provided that the statutory requirements are met. Since 1 January 2026, courts no longer take considerations of general prevention into account when deciding on such applications.
