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4 Eur. J. Probation 6 (2012)

handle is hein.journals/eurjp4 and id is 1 raw text is: 







European Journal of Probation
      University of Bucharest
             www. ejprob. ro
   Vol. 4, No], 2012, pp 6  18
          ISSN: 2006 2203


                      Recalling conditionally released prisoners in Austria

                                        Karin Bruckmiiller'
                                 with assistance of Katrin Forstner

Abstract

The legal justification for the possibility to recall conditionally released is to motivate the
offenders not to commit any further offences. This article discusses whether the practical
implementation of recall might not sometimes prove counterproductive as regards this special
preventative aspect. Additionally, the extraordinarily important role of the staff of the
probation service in the support of the released offender outside prison is emphasized. The
probation service also has a key role when it comes to deciding upon ordering recall.

Keywords: Recall - Probation service- Recidivism - Special prevention.


I) Introduction

L1)     Legal aspects
The proverbial Sword of Damocles hangs over those who are conditionally released - recall.
In Austria, those conditionally released can be - under certain circumstances - recalled to
       2
prison , with the consequence that the offender has to serve the (whole) rest of the prison
term.3

According to the Austrian Criminal Code (Strafgesetzbuch - CC) 4, conditional release has to
be revoked if the offender
        is convicted again for a crime committed during probation time,
        recklessly disregards directives despite formal warnings during probation time, or
        persistently fails to keep in contact with his probation officer during probation time5
and
        if revocation of the conditional release seems advisable because of special prevention
aspects.

I Karin Bruckmiiller is university assistant at the Department for Criminal Law and Criminology at the
University of Viena. Her e-mail address is: karin.bruckmueller@univie.ac.at
2 Recall is also possible for conditionally released offenders of preventative measures (e.g. psychiatric
institutions): They have to return to the detention facility. This aspect will be neglected in this paper which
exclusively deals with recall after having been conditionally released from prison.
3There are limited possibilities of re-release. It has been suggested (by Beclin et al (Workinggroup Youthlaw),
Thamsweger Thesen, forthcoming) that the court should be able to recall only for a part of the open prison term,
whereas currently according to law the whole open term has to be ordered (see also supreme court decicions 19.
1. 2011, 15 Os 178/10f, 11 Os 171/10x).
4 BGB1. Nr. 60/1974 as amended by BGB1. I Nr. 66/2011. Art 53 CCP, details see infra p.8.
5 These rules do not only apply for recall of conditional release, but also for revocation of conditional and semi-
conditional leniency.

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