In addition to imposing criminal penalties for drug-related offenses, Austrian drug law also takes a health-oriented approach. This is reflected in particular in Section 39 of the Narcotics Act (SMG) (“Treatment Instead of Punishment in Austria”), which, under certain conditions, allows for the suspension of a prison sentence in favor of a health-related measure. While Sections 27, 28, and 28a of the SMG address cases in which criminal drug-related conduct is punished, Section 39 of the SMG addresses a different question: namely, whether a sentence that has already been imposed need not be enforced for the time being because the legislature focuses not exclusively on punishment but also on treatment.
Note: In connection with § 39 SMG, the phrase “treatment instead of punishment” is often used. Legally speaking, this is only partially correct. § 39 SMG primarily governs the suspension of the execution of a sentence. Whether the sentence is ultimately suspended on probation following a successful intervention is governed by § 40 SMG.
Treatment Instead of Punishment: Conditions for Probation as a Key Feature of Its Application
Proceedings under § 39 SMG are not applicable to every conviction under the Narcotics Act. This provision covers fines and prison sentences of up to three years that the court imposes either under the SMG or for a criminal offense related to the procurement of narcotics. However, convictions under § 28a Abs. 2, 4 oder 5 SMG , that is, particularly serious forms of drug trafficking. In addition, the law requires that the convicted person be addicted to drugs and agree to undergo necessary, appropriate, feasible, and reasonable health-related treatment that is not, from the outset, doomed to failure. If necessary, this may also include inpatient treatment for up to six months.
However, this is not sufficient if a person is sentenced to a prison term of more than eighteen months for a drug offense. In such cases, the court additionally examines whether the imposition of the prison sentence is nevertheless justified in light of the offender’s dangerousness. In this context, the law explicitly cites convictions for crimes committed with the use of significant violence against persons as a negative prognostic factor.
Health-related measures
Health-related measures may include, in particular, medical monitoring of the individual’s health status, medical treatment—including detoxification and situational treatment—clinical-psychological counseling and care, psychotherapy, as well as psychosocial counseling and care. These measures must be carried out by qualified individuals who are sufficiently familiar with issues related to substance abuse. The court may determine the type of health-related measure and must, as a general rule, take into account any existing expert opinions or assessments. As a rule, the health-related measure consists of inpatient or outpatient withdrawal therapy.
Section 39 Austrian Narcotic Substances Act (SMG)
If the legal requirements are met, the execution of the sentence must be suspended for a maximum of two years. In addition, the court may require the convicted person to submit documentation confirming the start and progress of the health-related measure. Section 39 of the SMG is thus not merely a formal concession, but is contingent upon a measure that has actually been initiated and is verifiably documented.
However, the suspended sentence must be revoked if the convicted person fails to comply with or continue the measure to which he or she has agreed. The same applies if the person is convicted again of an offense under the Narcotics Act or of an offense committed in connection with substance abuse, and the imposition of a prison sentence appears necessary to prevent further offenses.
Section 40 Austrian Narcotic Substances Act (SMG)
It is precisely here that it becomes clear why the term “therapy instead of punishment” is inaccurate. Section 39 of the SMG does not directly replace the punishment, but merely defers its enforcement for the time being. If the deferral is not revoked, the court must, pursuant to Section 40 of the SMG, conditionally waive the punishment, subject to a probationary period of at least one and at most three years. Only at this stage does the suspension of the sentence become an actual waiver of the unconditional enforcement of the sentence.
Therapie statt Strafe in Österreich: Hinweise aus der Verteidigungspraxis
Section 39 of the Social Security Act (SMG) is not an automatic requirement. The statutory requirements alone make it clear that a mere general statement of willingness to undergo therapy will generally not suffice. Rather, it is necessary to demonstrate in a comprehensible manner the addiction to the substance, the suitability of the intended measure, and its practical feasibility in the specific case. This is precisely why medical or therapeutic opinions, evidence of the start of treatment, and a consistent account of the personal situation are of considerable importance.
Equally crucial is the correct legal classification of the original conviction. Not every conviction involving controlled substances falls within the scope of § 39 SMG; particularly serious cases of drug trafficking are expressly excluded. Furthermore, in cases of longer prison sentences for drug-related offenses, questions regarding the offender’s dangerousness may come to the fore. An early and well-founded defense can therefore play a decisive role in addressing and demonstrating the fulfillment of the legal requirements in a timely manner and securing a suspended sentence.
Summary
Distinction from Sections 27, 28, and 28a of the Narcotics Act (SMG): While these provisions govern criminal forms of drug-related conduct, Section 39 of the Narcotics Act (SMG) does not address the criminality of the act itself, but rather the question of whether a sentence that has already been imposed may or must be provisionally suspended in favor of a health-related measure.
Requirements: Section 39 of the Narcotics Act (SMG) requires, in particular, that a fine or a prison sentence of no more than three years has been imposed, that there is no conviction under Section 28a(2), (4), or (5) of the SMG, that the convicted person is addicted to narcotics, and that the convicted person agrees to undergo a necessary, appropriate, and not manifestly futile health-related treatment.
Legal consequences: The execution of the sentence may be suspended for a maximum of two years. The court may (and will) require proof of the start date and progress of the measure. If the conditions are not met or if the defendant is convicted again under the statutory requirements, the suspension must be revoked.
Meaning of Section 40 SMG: Only if the suspension of sentence is irrevocable does Section 40 SMG provide for a conditional suspension of sentence with a probationary period of one to three years. The commonly used phrase “therapy instead of punishment” therefore only provides a brief description of the legal mechanism.
Importance of the defense: Whether Section 39 of the German Narcotics Act (SMG) can actually be successfully invoked in a specific case depends largely on the conviction, the presentation of a viable treatment plan, and an early strategic assessment of the individual’s personal circumstances.
Please contact us to have the eligibility criteria for treatment instead of punishment reviewed at an early stage
Section 39 of the German Medical Act (SMG) provides, in appropriate cases, a particularly valuable opportunity to defer immediate imprisonment in favor of a serious health-related intervention. Whether this opportunity can actually be utilized in a specific case, however, depends on clear legal requirements and their convincing demonstration. Unprepared and ill-considered statements can destroy any chance of a deferral of punishment under Section 39 SMG right from the start of proceedings.
If you or someone close to you is facing such a conviction or the possibility of a suspended sentence, seeking legal advice at an early stage is of the utmost importance. In addition, our experts maintain ongoing contact with appropriate treatment facilities and can therefore help you secure a spot at the facility best suited to your needs even at an early stage of the proceedings.
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