Definition and Legal Classification of Suspension of Sentence
Suspension of Sentence refers in German legal terminology to a statutory ground for interruption within the context of sentence enforcement, through which the execution of a final custodial sentence or another criminal sanction is temporarily suspended. This measure generally serves certain protection interests of the convicted person or the general public and is governed by the Prison Act (StVollzG) as well as by special legislation. The term is specifically distinguished from the suspension of sentence on probation (often also called sentence suspension), which has different requirements and legal consequences.
Legal Foundations of Suspension of Sentence
National Legislation
The legal basis for suspension of sentence is found primarily in §§ 455 ff. of the Code of Criminal Procedure (StPO), supplemented by the Prison Act (StVollzG). In addition, there are specific statutory provisions, for example in the Juvenile Courts Act (JGG) and the Narcotics Act (BtMG).
Section 455 StPO – Suspension of Sentence Enforcement for Health Reasons
According to Section 455 StPO, the enforcement of a custodial sentence or a court-ordered measure for rehabilitation and security may be suspended if the convicted person is unfit for detention due to health reasons. Suspension is mandatory if the prerequisites for unfitness for imprisonment arise during the enforcement of the sentence.
Other Grounds for Suspension
In addition to unfitness for imprisonment, Section 456 StPO allows for suspension of sentence in cases of pregnancy or motherhood. According to Sections 35 ff. of the BtMG, suspension may also be granted if the convicted person is willing to undergo therapy in connection with narcotics offenses.
Requirements for Suspension of Sentence
General Requirements
The fundamental requirement is the presence of a statutory ground justifying the suspension. Depending on the reason for suspension, the following conditions must be met:
- A final court judgment must be present: Enforcement of the sentence must have already begun or be imminent.
- Existence of a hindrance: This can be, in particular, an acute illness, pregnancy, care for minor children, or an imminent serious disadvantage.
- REVIEW OF ADMISSIBILITY: The competent enforcement authority thoroughly reviews whether the statutory requirements are met, especially whether there is any risk of flight or collusion.
Special Provisions
Special requirements apply in juvenile criminal law (§ 90 JGG) and under the BtMG, primarily to promote therapeutic measures in cases of drug dependency.
Procedure for Ordering Suspension of Sentence
Application and Procedure
An application for suspension of sentence can be submitted by the convicted person themselves or by an authorized representative. The decision is generally made by the public prosecutor’s office as the enforcement authority. For custodial sentences exceeding two years, the court may be involved. The decision can be appealed, and an immediate application for suspension of enforcement is possible.
Duration and Monitoring
The duration of the suspension depends on the individual case and may be ordered for a fixed or indefinite period. The enforcement authority is obliged to regularly review the continued existence of the reasons for suspension.
Legal Effects and Consequences of Suspension of Sentence
Effects on Sentence Enforcement and Remaining Sentence
During suspension, the execution of the sentence is paused. In particular, this means that the period of suspension is not counted toward the remaining sentence (see Section 454b para. 1 StPO). Once the reason for suspension no longer applies, the sentence is resumed.
Exemption from Imprisonment and Special Cases
In certain serious illnesses, permanent exemption from imprisonment may be granted—potentially for an unlimited period. In such cases, continuation of sentence enforcement is not expected if recovery is excluded.
Distinction from Other Criminal Measures
Difference from Suspension of Sentence on Probation
Unlike suspension of sentence on probation, the convicted person is still considered finally convicted during suspension of sentence, whose sentence is only not enforced temporarily. The penalty is not converted into a suspended sentence.
Difference from Clemency Decisions
In the context of clemency procedures, a suspension of sentence may occur; however, this is a decision made solely for reasons of compassion, which exists outside the statutory provisions.
Legal Protection and Legal Remedies in Connection with Suspension of Sentence
Available Legal Remedies
Affected persons may file a complaint against decisions denying suspension of sentence. The competent court is that provided under the relevant provisions of the StPO (§§ 306 ff. StPO).
Practical Relevance and Significance
The practical importance of suspension of sentence lies particularly in cases of health reasons, pregnancies, and addiction issues. It serves to uphold minimum human rights standards and to protect the interests of affected individuals, representing an important corrective mechanism in the sentencing system.
Literature and Further Regulations (Selection)
- Code of Criminal Procedure (StPO), §§ 455-462
- Prison Act (StVollzG)
- Juvenile Courts Act (JGG)
- Narcotics Act (BtMG), §§ 35 ff.
Summary
Suspension of sentence is a statutory, time-limited ground for interruption within the context of sentence enforcement, which—subject to strict requirements—serves to protect legitimate interests. It constitutes an important instrument for taking humanitarian concerns into account in sentence enforcement and ensures a flexible response to exceptional situations in enforcement procedures.
Frequently Asked Questions
When can suspension of sentence be granted?
Suspension of sentence can generally be granted if certain statutory grounds are present that make the immediate further enforcement of the custodial sentence or measure involving deprivation of liberty unreasonable. Frequent reasons include serious illnesses or acute health emergencies of the convicted person that make adequate treatment within the correctional facility impossible. Suspension is also possible for humanitarian reasons—such as imminent death or the need to fulfill indispensable family duties (e.g., funeral of a close relative). The specific assessment of whether the requirements are met is the responsibility of the justice authority or the court, with strict criteria always applied. In addition, a comprehensive balancing of interests between those of the convicted person and public safety must be carried out.
Who decides on the granting of suspension of sentence?
The decision on the granting and duration of suspension of sentence lies primarily with the justice authority, particularly the competent enforcement authority or, in certain cases, the court. In practice, the correctional facility will first review the relevant application and provide an opinion. The final decision is then made by the chamber for sentence execution based on the submitted expert reports, medical certificates, or other evidence. However, if there is imminent danger or it is a very urgent decision, the order can also be made by the head of the institution. In serious cases, such as life-threatening or fatal diseases, an immediate judicial decision pursuant to Section 455 StPO may also be required.
What requirements must be met for a suspension of sentence?
The formal and substantive requirements for suspension of sentence are strictly regulated under German enforcement law, particularly in Sections 455 and 455a StPO. Central is the existence of an ‘important reason’. This especially includes a serious illness, an urgent medical procedure outside the correctional facility, or exceptional family events. The applicant must present this important reason in detail and, if necessary, substantiate it with medical reports or official documents. There is a regular review of proportionality and the public interest in enforcement. Merely citing professional, financial or general social disadvantages is not sufficient. Furthermore, in cases of temporary suspension, there must be no significant security or flight incentive.
How long can a suspension of sentence last?
The duration of a suspension of sentence depends on the individual case and is generally based on the length of the underlying important reason. The law does not specify a maximum duration; however, the suspension must always be limited in time and must not last longer than necessary. An extension is possible if the important reason continues to exist and this is correspondingly proven. As soon as the relevant circumstances cease to exist or a return to enforcement is possible, the suspension ends automatically. In certain cases, such as a life-threatening illness with a fatal course, enforcement of the sentence may be permanently suspended.
What legal remedies are available against the denial of a suspension of sentence?
If the application for suspension of sentence is rejected by the enforcement authority, the applicant generally has recourse to the courts. Initially, the judicial decision according to Section 458 StPO can be requested from the competent chamber for sentence execution. The court then reviews the decision of the authority in both legal and factual aspects. An appeal against the court’s decision is again possible under the general provisions of the Code of Criminal Procedure. In special circumstances, a constitutional complaint may also be lodged if a violation of fundamental rights is claimed. However, the filing of legal remedies does not have suspensive effect unless the court expressly orders otherwise.
What are the consequences of a suspension of sentence for the remaining term?
In the case of suspension of sentence, enforcement of the custodial sentence or measure involving deprivation of liberty is paused. This means the period of suspension is not credited toward the sentence—the sentence is thus suspended during this time, but not completed. The remaining term continues to exist and must be enforced once the suspension ends. Exception: In the case of final suspension of sentence or clemency, the remaining sentence can be remitted, which generally requires a court or administrative decision.
Can an ongoing suspension of sentence be revoked?
A granted suspension of sentence can be revoked at any time if the requirements for granting it no longer exist, if the convicted person grossly violates imposed restrictions or conditions, or if new circumstances arise that must necessarily lead to a different decision after a renewed balancing of interests. In particular, if security interests prevail or the person evades further enforcement, immediate termination of the suspension is possible. Revocation is carried out by the competent enforcement authority or the court, with the convicted person being generally given an opportunity to be heard.
