The court date is set. You have never been in trouble before, and the single question that keeps you awake is a simple one: will I go to jail for a first offence in Austria? A charge sounds like the end of everything – a criminal record, a lost job, for foreigners the fear of having to leave the country. In that frame of mind, the most important word in Austrian sentencing law often goes unheard.

That word is the suspended sentence (bedingte Strafnachsicht). It means the court can find you guilty, pronounce a prison term – and then suspend it. You walk out of the courtroom. Nothing is served, as long as you keep out of trouble for a set period. For most first offenders in Austria, this is not the exception; it is the rule. The real contest in the courtroom is therefore not only guilt or innocence, but whether the sentence is suspended and how long the probationary period runs.

On this page I explain, as a criminal defense lawyer in Vienna, when a sentence is suspended, what a probationary period and its conditions actually mean, what happens if you re-offend, and the two consequences most people underestimate: what a suspended sentence does to your criminal record and, if you are not an Austrian national, to your residence permit. Where the case can be resolved without a conviction at all, a diversion (Diversion) is the better outcome still.

What is a suspended sentence in Austria?

A suspended sentence (bedingte Strafnachsicht) is a prison sentence that the court imposes but does not carry out. Instead of sending you to prison, the court suspends the whole term for a probationary period (Probezeit). If you commit no new offence and keep any conditions, the sentence is never served. The legal basis is § 43 of the Criminal Code (Strafgesetzbuch, StGB). In practice most Austrian prison sentences are pronounced this way, particularly for first offenders – the idea is that the mere threat of the sentence is enough to keep you from re-offending.

The key point that reassures some clients and alarms others: a suspended sentence is a conviction. It settles whether you go to prison, not whether you are guilty. You are found guilty, a sentence is fixed, and the entry goes into the criminal record – the suspension only spares you the cell. That is why the record and immigration consequences further down this page matter even when no one ever spends a night in a Justizanstalt (prison).

„Suspended sentence“ or „probation“? A terminology trap

English-speaking clients arrive with different mental pictures. UK readers search for a „suspended sentence“ and mean exactly the Austrian institution. US readers often say „probation“ – but in Austria „probation“ as a stand-alone supervision sentence does not exist in that form. What Austria has is the probationary period attached to a suspended sentence, and a probation service (Bewährungshilfe) that can be ordered alongside it. Be careful with the bare word „probation“: in Austrian everyday language it also means the trial period in an employment contract, which has nothing to do with criminal law.

Not the same as conditional early release (§ 46 StGB)

A suspended sentence is decided at the moment of conviction and keeps you out of prison from the start. It should not be confused with conditional early release (bedingte Entlassung, § 46 StGB), which applies only once someone is already serving a prison term – typically after half of the sentence has been served (at least three months). This page is about the first situation: keeping the prison term suspended in the first place.

How a sentence becomes suspended

The suspension is not a separate procedure. It is part of the sentencing decision at the end of the trial. Four stages lead from the courtroom to a clean slate – and the decisive work happens before the judge fixes the term.

When do you qualify? (§§ 43–43a StGB)

Full suspension is possible where the court imposes a prison sentence of not more than two years and assumes that the mere threat of enforcement – on its own or combined with other measures – will be enough to keep you from further offences (§ 43 Abs 1 StGB). Two conditions therefore have to line up: the sentence has to be low enough, and the prognosis has to be favourable. General-deterrence concerns must not stand in the way either.

The two-year line is a hard ceiling for full suspension. Above it, the law switches to partial suspension (teilbedingte Strafe, § 43a StGB): a part of the sentence is served, the rest is suspended. The table shows how the length of the sentence controls what is available.

The prognosis: why first offenders usually qualify

The court weighs the nature of the offence, your personality, the degree of your fault, your previous life and your conduct after the offence. For someone with no prior convictions, the assumption of future good behaviour is the natural starting point, which is why suspension is the norm rather than the exception. Prior convictions cut the other way: they make it more likely the court concludes, on special-prevention grounds, that the threat of a sentence is not enough.

Where suspension is ruled out

Three things can close the door. First, the sheer weight of the sentence: for the gravest offences the term exceeds three years, so there is nothing left to suspend. Second, general prevention: for particularly serious offences a court may impose an unconditional term to deter others, even for a first offender. Third, an express statutory bar: since 2020, full suspension of a sentence imposed for rape (§ 201 StGB) is excluded by law, regardless of the prognosis or the length of the sentence – only a partial suspension under § 43a StGB remains possible (§ 43 Abs 3 StGB). A diversion (Diversion) – a resolution without any conviction at all – runs on a different track and is reserved for less serious cases, but where it is available it is the stronger result, because it leaves no conviction behind.

Probationary period, conditions & probation service

Every suspended sentence comes with a probationary period (Probezeit). Under § 43 StGB it runs for at least one and at most three years. During that time the suspension hangs over the sentence: keep clean and it lapses for good; slip, and it can be called in. The court sets the exact length, and a shorter period can later be extended (see the section on revocation below).

Conditions the court can attach (Weisungen)

The court may pair the suspension with instructions (Weisungen) under §§ 50–51 StGB, and it may order a probation service (Bewährungshilfe, § 52 StGB) – a probation officer who supports and supervises you. Instructions are not punishment for its own sake; their purpose is to remove the conditions that led to the offence. Typical instructions include:

• Living at a particular place, or staying away from certain places, premises or people
• Abstaining from alcohol
• Learning or pursuing suitable work, and reporting changes of residence or job
• Reporting to the court or another body at regular intervals
• Making good the damage caused by the offence

Treatment instructions are a special case. A withdrawal treatment, psychotherapy or medical treatment may only be imposed with your consent, and never one that involves a surgical intervention (§ 51 Abs 3 StGB). Instructions that would be an unreasonable intrusion into your personal rights or way of life are not permitted at all. In practice, in drug cases a withdrawal or therapy instruction is common – and a genuine willingness to take it up often helps to secure the suspension in the first place.

Re-offending and revocation (§ 53 StGB)

This is the question every client with a suspended sentence eventually asks: what happens if I get into trouble again? The answer surprises many. A new conviction during the probationary period does not revoke the suspension automatically. Revocation (Widerruf) under § 53 StGB is a separate decision, and the court makes it only if, in light of the new conviction, revocation appears necessary to keep you from further offences.

So the court has a graded response. It can leave the suspension untouched, it can extend the probationary period (to a total of at most five years) instead of revoking, or – in the more serious case – it can revoke, in which case the suspended prison term must be served. A breach of instructions can also lead to revocation, but only after a formal warning has gone unheeded; missing a single appointment with the probation officer is not, by itself, the end of the suspension. The lesson for the probationary period is practical: a further allegation is dangerous but not automatically fatal, and how it is handled in court decides whether the old sentence is called in.

Criminal record: certificate, jobs & visas

A suspended sentence is entered in the criminal record (Strafregister) like any other conviction. What decides whether an employer – or a foreign authority – ever sees it is a different question: whether it appears on the criminal record certificate (Strafregisterbescheinigung) you can be asked to produce, and when it is finally expunged (Tilgung).

Limited disclosure: what the certificate shows

Not every conviction appears on the ordinary certificate. Under the rules on limited disclosure (beschränkte Auskunft, § 6 Tilgungsgesetz), shorter sentences drop out of the certificate that private parties such as employers receive, even before the conviction is expunged. A prison sentence of up to three months is not shown at all; a sentence of up to six months ceases to appear once three years have passed; further graduated rules follow from there. Where a conviction no longer appears, you are not obliged to disclose it. Because the finer thresholds turn on the exact length of the sentence, your age at the time of the offence and your prior record, the treatment of a particular suspended sentence should be checked in the concrete case.

Expungement: when the conviction disappears

After the expungement period (Tilgungsfrist) the conviction is deleted and counts, in law, as never having happened – from then on you may lawfully deny it. Under § 3 Tilgungsgesetz the standard periods are:

For a suspended sentence, expungement presupposes that the probationary period has ended without revocation. The period itself, however, runs from the date the conviction became final (Rechtskraft) – not from the end of the probation (§ 43 Abs 2 StGB). A wholly suspended sentence of up to one year is therefore expunged, as a rule, five years after the conviction became final, and it stays on the record until then.

Jobs and visas abroad: a warning

Austrian limited disclosure and expungement bind only Austrian authorities. A foreign consulate deciding a visa, or an immigration authority abroad, applies its own law and asks its own questions – and those questions routinely ask about any conviction, whether or not it was suspended and whether or not it is already expunged in Austria. An Austrian suspended sentence that has quietly dropped off your domestic certificate can still have to be declared for a visa, a work permit or a naturalisation in another country. If you travel or hold ties abroad, treat the conviction as real even after it disappears at home.

Foreigners: residence permit & deportation

For foreign nationals the suspended sentence carries a second layer that Austrian citizens never face. A criminal conviction can trigger consequences under residence and immigration law – the loss or refusal of a residence permit, a residence ban (Aufenthaltsverbot) or a return decision (Rückkehrentscheidung). These are decided in a separate administrative procedure by the immigration authority, not by the criminal court, and they follow the residence law (Niederlassungs- und Aufenthaltsgesetz, NAG) and the Aliens Police Act (Fremdenpolizeigesetz, FPG), not the Criminal Code.

The good news first: a suspended sentence is materially better for your status than an unconditional prison term. Because you are not sent to prison and the sentence is comparatively low, the ground for an immigration measure is weaker. But „weaker“ is not „none“. The immigration authority makes its own assessment, and it is not bound by the criminal court’s decision to suspend.

The standard differs by status

• EU/EEA citizens and their family members enjoy the strongest protection. A conviction alone is never enough; the authority must show that your personal conduct represents a genuine, present and sufficiently serious threat to a fundamental interest of society. General deterrence is expressly not a valid ground, and after long lawful residence the threshold rises further.
• Third-country nationals are more exposed. A conviction can lead to the refusal or non-renewal of a residence title under the NAG, and to a return decision, potentially with an entry ban (Einreiseverbot), under the FPG. Here the length and nature of the sentence weigh heavily, alongside your ties to Austria and your family life.

A residence ban may as a rule be imposed for up to ten years and only exceptionally without a time limit – for instance after an unconditional prison sentence of more than five years, which a suspended sentence by definition is not. The precise threshold for your case depends on your status, how long you have lived in Austria and which title you hold, so this needs an individual assessment. The message is simple: if you are not an Austrian national, never treat even a modest suspended sentence as a purely criminal matter – the immigration file has to be defended in parallel.

Frequently asked questions on suspended sentences in Austria

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