Concept and meaning of postponement of sentence enforcement
Die Postponement of sentence enforcement is a term from German criminal law. It refers to a formal decision to suspend or defer the enforcement of a final prison sentence, a therapeutic or preventive measure, or an ancillary penalty (e.g., driving ban) for a specified period of time. Unlike suspension on probation, postponement particularly concerns cases where there are special legally regulated obstacles. The objective is to temporarily defer the enforcement of the sentence while considering superior legal interests or statutory purposes.
Legal basis and statutory framework
Criminal Code (StGB)
The Criminal Code (StGB) regulates the postponement of sentence enforcement only indirectly. More specifically, relevant provisions for this matter are predominantly found in the law on the enforcement of sentences.
Sentence Enforcement Ordinance (StVollstrO)
The Sentence Enforcement Ordinance (StVollstrO) contains the essential legal basis. It sets forth both substantive and formal requirements for the procedure.
Narcotics Act (BtMG) – Section 35 Postponement due to willingness to undergo therapy
An important area of application is the postponement of sentence enforcement under Section 35 BtMG. This provision allows offenders convicted of a drug-related offense to postpone commencement of their sentence provided they participate in therapy to treat their addiction.
Other legal bases
In addition, the law provides for further possibilities for postponement of sentence enforcement in individual cases. Notable examples are postponement for health, humanitarian, or other compelling reasons (Sections 455, 456 StPO).
Specific grounds and categories for postponement of sentence enforcement
1. Postponement due to addiction treatment – Section 35 BtMG
Requirements
The enforcement of prison sentences based on a final conviction for offenses under the BtMG can be postponed if the convicted person agrees to undergo therapy to treat their existing addiction. Key conditions include:
- The total prison sentence imposed by the court does not exceed two years.
- The offense is closely linked to the substance addiction.
- There is a binding commitment to a therapy place, and commencement of treatment is assured.
- There are no significant concerns about the willingness to undergo therapy, and nothing indicates a lack of prospects of success for the treatment.
Procedure and process
The application for postponement can be submitted by the convicted person or the public prosecutor. The enforcement authority reviews the personal, factual, and formal requirements as well as the therapy plan and the likelihood of treatment success. As a rule, the postponement is granted for the duration of the treatment. If therapy is discontinued or not properly carried out, enforcement of the sentence will resume.
2. Postponement for medical, humanitarian, or personal reasons
Under Section 455 StPO, sentence enforcement can be postponed if the convicted person has an acute illness or serious medical reasons that make the commencement of the sentence impossible or unreasonable. Typical categories include:
- Serious acute or chronic illness
- Pregnancy or imminent childbirth
- Care of a seriously ill close relative
The postponement is generally for a limited period. A medical report is usually a prerequisite for the prosecutor’s decision.
3. Other case groups
Under certain circumstances, postponement may also be granted for other compelling reasons, such as:
- Completion of professional or family matters (only in exceptional cases)
- Death of a close relative
- Fulfillment of civic duties
Procedure for postponement of sentence enforcement
Jurisdiction
The decision to postpone sentence enforcement is generally made by the public prosecutor as the enforcement authority. In more complex cases or in the event of disputes, the court may decide upon request.
Application and documentation
Postponement can be applied for in writing. All documents relevant to the review, such as confirmation of a therapy place, medical certificates, or other evidence, must be attached.
Duration and binding effect
The postponement is generally limited in time. After expiration of the set period, either the sentence is commenced or it is re-examined whether a further postponement is indicated. A legally binding decision is binding on the authorities. If conditions are violated, the postponement can be revoked.
Legal remedies
As a rule, there are no formal legal remedies against decisions on postponement. In individual cases, however, a judicial decision may be requested.
Legal consequences and significance of postponement
The postponement of sentence enforcement means that execution of the sentence is temporarily suspended. However, it has no effect on the legal validity of the conviction or on probation decisions. During the postponement period, enforcement limitation periods are suspended. If the postponement is revoked or expires, the sentence must be enforced unless a further postponement or other hindering circumstances apply.
Distinction from suspension of enforcement on probation
Postponement of sentence enforcement fundamentally differs from suspension on probation. While the probation decision affects the enforcement of a sentence and its entry in the criminal record, postponement merely suspends enforcement for special, legally regulated reasons—with subsequent possible commencement of the sentence.
Significance in practice
Postponement of sentence enforcement serves, on the one hand, resocialization, especially in the area of drug therapy, but also promotes humanitarian interests and maintains proportionality in the state’s claim to punishment. It is an indispensable part of criminal policy instruments and helps to prevent additional social disadvantages due to criminality combined with chronic illness or exceptional social situations.
Literature and references
- Criminal Code (StGB)
- Code of Criminal Procedure (StPO)
- Sentence Enforcement Ordinance (StVollstrO)
- Narcotics Act (BtMG), especially Section 35
- Commentary literature, for example MüKo-StGB and Schönke/Schröder
Summary
The postponement of sentence enforcement is a statutory instrument that temporarily suspends the enforcement of final sentences or measures. The legal requirements, procedures, and consequences are comprehensively defined in various statutes. Its purpose is to protect special interests of the convicted person or third parties and it may be requested and granted particularly in cases of willingness to undergo therapy, for health, or for humanitarian reasons.
Frequently asked questions
What legal requirements must be met for postponement of sentence enforcement under Section 35 BtMG?
For postponement of sentence enforcement due to narcotics addiction under Section 35 BtMG, several statutory requirements must be met. First, the convicted person must have been sentenced to imprisonment for an offense under Sections 29 to 30a BtMG or, as stated in Section 35 (1) sentence 1 BtMG, for another crime connected with substance addiction. The total sentence may not exceed two years. Furthermore, the convicted person must demonstrate willingness to undergo therapy by means of a postponement application and credible evidence, such as a cost commitment or a place in a treatment facility, to show immediate pursuit of a therapeutic measure. The court will then review whether there is a prospect of treatment success and that no legal exclusion grounds (such as serious endangerment of public safety, risk of recidivism, or a serious other crime) exist.
What types of therapies or measures are recognized for postponement under Section 35 BtMG?
Within the context of postponement of sentence enforcement, only inpatient and outpatient therapies aimed at treating drug addiction and conducted by authorized, qualified institutions are generally recognized. These include detoxification and rehabilitation therapy in specialized clinics as well as certain partial inpatient or recognized outpatient addiction support facilities, provided they ensure intensive, structured addiction treatment. The measure must be intended to overcome or reduce the addiction and to achieve a lasting change in consumption habits. Pure counseling or discussion services without a comprehensive therapy concept are generally not recognized as sufficient. The responsible enforcement authority or court also individually checks whether the proposed form of therapy is appropriate and suitable.
How does the actual application procedure for postponement of sentence enforcement work?
The application for postponement of sentence enforcement must be submitted in writing and may be filed either by the convicted person or by their defense counsel with the enforcement authority—which is usually the public prosecutor’s office enforcing the sentence. Supporting documents are to be included showing willingness and opportunity for therapy, such as confirmation of acceptance from the treatment facility, possibly a cost commitment by a social service provider, and a medical certificate confirming the need for treatment. The enforcement authority examines the application and decides at its discretion whether all requirements are met and no exclusion grounds exist. Against negative decisions, either immediate complaint or an application for a court decision can be filed.
What are the legal consequences of postponement of sentence enforcement?
If postponement is granted, enforcement of the prison sentence or the remainder of the sentence is suspended for the duration of the therapy and any subsequent aftercare phase. During this time, the convicted person must comply with the therapy and fulfill aftercare requirements. If the therapy is successfully completed and the risk of relapse is assessed as reduced, the court may decide to suspend part of the sentence on probation or, under certain conditions, remit it. However, if the person discontinues therapy without excuse or fails to meet requirements, the postponement is revoked and the sentence must be commenced immediately. During the postponement period, limitation periods for enforcement are suspended.
Is multiple postponement of sentence enforcement possible?
In principle, repeated use of postponement under Section 35 BtMG is legally possible, but courts and prosecutors impose stricter requirements. It must be credibly demonstrated that a new therapy carries a higher chance of success this time. Often, further proof is required that the previous relapses have been addressed by the convicted person and that they now show serious willingness and a sound access strategy for addiction treatment. Repeated unsuccessful attempts or demonstrable abuse of the postponement option may result in permanent refusal.
What role do judicial reviews and controls play during the postponement phase?
During the postponement period, the enforcement authority (usually the prosecutor) is obliged to monitor compliance with conditions and progress of the therapy. This includes regular feedback from the treatment institution, evidence of regular participation, and, where needed, interim reports. If irregularities occur, such as discontinuation, serious violations of the rules, or breaches of therapy conditions, the court may promptly order revocation of the postponement and resume enforcement of the sentence. Judicial oversight serves to protect the rule of law and to verify the likelihood of the measure’s success for the person’s resocialization.
Are there exclusion grounds that make postponement of sentence enforcement impossible?
Yes, certain constellations preclude application of Section 35 BtMG. These include, in particular, cases in which the convicted person was sentenced for a crime not directly related to their addiction problem (e.g., violent crime, serious sexual offenses). Postponement may also be refused if, despite addiction, the person presents a significant danger to the public or a risk of reoffending exists. Furthermore, postponement is excluded if there is no willingness to undergo therapy, if the proposed therapy does not offer sufficient prospects of success, or if there is no available therapy place. The exclusion grounds must be reviewed by the authority or the court on a case-by-case basis.
