The police found a small amount of a drug in your pocket at a festival in Vienna. A package addressed to you was intercepted at customs. Or you have already been convicted, and the summons to begin your prison sentence (Ladung zum Strafantritt) is lying on the kitchen table. From one moment to the next, the question is no longer whether you made a mistake — it is whether you now go to prison for it.

What many people caught with drugs in Austria do not know: a prison sentence for a drug offence does not always have to be served behind bars. Austrian law contains a route of its own, built into the Narcotic Substances Act (Suchtmittelgesetz, SMG) and known as treatment instead of punishment (Therapie statt Strafe). It is the Austrian answer to what English speakers often call “rehab instead of jail” — but it runs on precise statutory rules, not on good intentions. The prosecutor can drop the case, and the court can postpone the sentence, if the person undergoes a supervised drug treatment.

This route never opens automatically. It has to be applied for — in time, in the correct form and with the right argument. The Austrian Supreme Court (Oberster Gerichtshof, OGH) has held that an application filed after the sentence has already begun is, in principle, too late (OGH 12 Os 34/21y). On this page I explain, as a criminal defense lawyer in Vienna, how the two main mechanisms — § 35 SMG and § 39 SMG — work, which treatments the court recognises, who pays, what a foreign national in particular has to watch out for, and where an English-speaking defense lawyer makes the difference.

Caught with drugs in Austria: what happens?

Being caught with drugs in Austria does not mean an automatic trip to prison. The Narcotic Substances Act treats drug consumers primarily as people who need treatment, not punishment. For a first offence involving a drug held for your own use, the case is usually dropped without any conviction. Prison only comes into play for trafficking or for repeated, serious offending — and even then, treatment instead of punishment can keep you out of custody.

The law draws its central line between drugs held for personal use and drugs handled as trafficking. Where an amount exceeds the statutory threshold quantity (Grenzmenge), the case shifts from simple possession (§ 27 SMG) towards drug trafficking under § 28a SMG, with far heavier penalties. Which side of that line your case falls on decides almost everything — including whether the treatment route is open to you.

The mechanism itself is a drug-specific form of what Austrian law calls diversion. For readers used to the US or UK systems, it is similar in spirit to a deferred prosecution or a drug-court disposition: complete the programme, and the prosecution ends. The SMG offers three entry points, depending on how far the case has already gone.

All three routes require the person to undergo a health-related measure (gesundheitsbezogene Maßnahme) under § 11 para 2 SMG. Which measure fits is determined by a medical opinion (ärztliche Stellungnahme). The application is filed by the defense lawyer — and the earlier that happens, the better.

How the treatment route runs — step by step

From the first application to the conditional remission of the sentence, the path to treatment instead of punishment passes through four stages. Each of them belongs in the hands of a defense lawyer.

§ 35 SMG — the prosecutor drops the case

§ 35 SMG applies during the investigation — before the Public Prosecutor’s Office (Staatsanwaltschaft) brings charges. The prosecutor provisionally withdraws from prosecution (vorläufiger Rücktritt von der Verfolgung) and sets a probationary period (Probezeit) of one to two years. If that period passes without incident, the case is finally discontinued. No trial, no conviction, no entry in the criminal record (Strafregister). This is the cleanest outcome the SMG offers.

Mandatory withdrawal — the prosecutor must (para 1)

For offences under § 27 para 1 or 2 SMG (possession or acquisition for personal use) or § 30 SMG, committed exclusively for personal use and without the accused having drawn a profit, the withdrawal is compulsory. The prosecutor has no discretion. This is the answer for the typical drug possession first offense in Austria: someone is stopped with a small amount of cannabis or cocaine for their own use. Here there is a genuine legal entitlement to have the prosecution dropped.

Discretionary withdrawal — the prosecutor may (para 2)

For other offences under §§ 27 or 30 to 31a SMG, for offences under §§ 28 or 28a SMG themselves where the accused is addicted to drugs, or for offences committed in connection with obtaining drugs (Beschaffungskriminalität), the prosecutor may also withdraw. Three conditions must be met together:

1. The offence does not fall within the jurisdiction of the lay-judge or jury court (Schöffen- oder Geschworenengericht)
2. The accused’s guilt is not to be regarded as serious
3. The withdrawal appears no less suitable than a conviction to deter the accused from further offences

The distinction matters. The Supreme Court drew a sharp line between the two in 14 Os 93/02: only a breach of the mandatory rule in § 35 para 1 SMG founds a nullity (under § 281 para 1 Z 9 lit b StPO). With the discretionary withdrawal under para 2 there is no legal entitlement — which is precisely why a convincing, well-documented application by the defense lawyer is decisive.

When the medical opinion is dispensed with (para 4)

§ 35 para 4 SMG contains a real relief for first-time cases: where the accused is prosecuted only for cannabis or psilocybin (or the cultivation of such plants) for exclusively personal use, the medical opinion must be dispensed with — unless an SMG investigation was already conducted against the person within the previous five years. The provision is mandatory, not a matter of the prosecutor’s discretion. In practice this speeds the process up considerably for genuine first offenders.

§ 37 SMG: the court can do the same after charges

If the prosecutor has not already ended the case in the investigation, the court can make the same decision once charges have been brought. § 37 SMG refers back to §§ 35 and 36 SMG and lets the court suspend the case by order up to the close of the main trial. The requirements are the same as under § 35 SMG. In other words: the treatment door does not close the moment an indictment lands.

§ 39 SMG — postponing a prison sentence

§ 39 SMG applies after a conviction — and before the sentence begins. The court postpones the enforcement of a custodial sentence of no more than three years for a maximum of two years, provided the convicted person undergoes a health-related measure. For many people this is the last route left to avoid actually going to prison. It is the closest Austrian equivalent to “therapy instead of prison” after a conviction has already been handed down.

The five requirements

1. A sentence under the SMG: the conviction must be for an offence under the Narcotic Substances Act — or for an acquisitive offence (for example theft to finance drug consumption). The serious forms of drug trafficking under § 28a para 2, 4 and 5 SMG are expressly excluded.
2. A prison sentence of up to three years: the sentence imposed or to be served must not exceed three years. The Supreme Court held in 11 Os 98/19z that this limit applies to the sum of all custodial sentences that are the subject of an enforcement order — including sentence parts revived by revocation.
3. Drug dependence: the convicted person must be addicted to a drug (an ein Suchtmittel gewöhnt). This is established through a medical opinion. Unlike the § 35 personal-use route, dependence here is a hard condition.
4. Willingness to undergo treatment: the person must agree to complete a necessary, appropriate, possible and reasonable health-related measure that is not obviously hopeless.
5. The application before the sentence begins: the application must be filed before the person is taken into the prison system. The Supreme Court held in 12 Os 34/21y that an application nine months after admission to prison is too late. The narrow exception: where an application was already filed, or an ex-officio review already started, before the sentence began.

Special case: acquisitive crime

For acquisitive crime — offences committed to finance drug consumption — stricter limits apply. Where the prison sentence exceeds 18 months, enforcement may be postponed only if it is not required in view of the dangerousness of the offender.

Special case: a mixed conviction

A problem that comes up often in practice: what happens when someone is convicted of a drug offence and another offence at the same time? The Supreme Court decided in 14 Os 102/06s that § 39 SMG applies only where the sentence was imposed under the SMG. In a mixed conviction — say an SMG offence together with aggravated burglary under § 129 StGB — no postponement can be granted if the sentence was measured under the other statute. The law provides no weighting of the offences.

Special case: trafficking and the “addiction privilege”

Even a conviction for drug trafficking does not automatically shut the door. In a decision of its reinforced panel (verstärkter Senat), the Supreme Court held in 12 Os 21/17f that a postponement under § 39 SMG is possible for a conviction under § 28a para 3 SMG. This so-called addiction privilege (Gewöhnungsprivileg) covers trafficking carried out predominantly to finance the person’s own consumption — a ruling that widened the defense options in trafficking cases considerably.

What is a “health-related measure” — and who pays?

A health-related measure (gesundheitsbezogene Maßnahme) is the treatment you undertake in exchange for the case being dropped or the sentence being postponed. § 11 para 2 SMG lists five of them, ranging from simple medical monitoring to full psychotherapy. The treatment can be outpatient or inpatient (up to six months). Which measure is suitable is set out in the medical opinion — but the defense lawyer can work towards a particular form.

In practice the choice of treatment is decisive. Outpatient psychotherapy will hardly convince a court in the case of a heroin user; a six-month inpatient stay would be disproportionate for an occasional user. Matching the measure to the individual case is part of the application strategy — and a frequent reason applications succeed or fail.

Who pays for the treatment?

Because this is a health measure rather than a penalty, statutory health insurance (Krankenversicherung) covers medical treatment as it would for any other illness. Where the person has no such cover and paying would jeopardise their livelihood, the federal government (Bund) bears the cost of the first four measures (nos. 1 to 4) under § 41 SMG — provided the measure is undertaken at an approved facility (§ 15 SMG); psychosocial counselling and care (no. 5) falls outside this federal funding. The cost the state assumes is capped, and the person may be asked for a flat-rate contribution, but only where this does not endanger their basic support or that of their dependents.

What happens if you drop out of treatment

Dropping out of the treatment brings the criminal proceedings straight back. Treatment instead of punishment is a conditional benefit: complete the measure and the case ends, abandon it and the original consequence returns. The exact fallback depends on which route you were on.

• Under § 35 SMG: the prosecutor resumes the prosecution (§ 38 SMG). That means charges, a trial and a possible conviction — the case simply picks up where it left off.
• Under § 39 SMG: the court revokes the postponement (§ 39 para 4 SMG). The prison sentence must then be served. The same applies if the convicted person is again convicted of an SMG offence during the postponement and enforcement then appears necessary to deter them from further offences (§ 39 para 4 no 2 SMG).

The prosecutor (§ 36 para 2 SMG) and the court (§ 39 para 3 SMG) may demand confirmations of the start and course of the measure at any time. This is why staying in genuine, documented treatment matters just as much as getting the application right in the first place.

When treatment instead of punishment is excluded

Not every drug user can claim treatment instead of punishment. The law sets clear bars, and whether one of them applies has to be checked before the application is filed — a misjudged application can do more harm than good.

For the § 35 route in the investigation stage, the discretionary bars of para 2 apply instead: jurisdiction of the lay-judge or jury court, serious guilt, and a lack of deterrent suitability.

After successful treatment (§ 40 SMG)

If the postponement is not to be revoked and the convicted person has successfully undergone the health-related measure, the court must conditionally remit the sentence (bedingte Strafnachsicht). This is not a matter of discretion — the court must remit. The probationary period is one to three years, and §§ 43 para 2 and 49 to 52 StGB (probation assistance, conditions) apply mutatis mutandis. In effect, the postponement becomes a permanent escape from prison.

What does “successfully” mean?

The Supreme Court held in 14 Os 144/07v that the success of a health-related measure is not a rigid concept — it depends on the concrete treatment goal. A mere partial success (for example, being drug-free at a single test but having completed only part of the planned sessions) does not suffice for a conditional remission. The treatment has to be undertaken seriously and completed in full.

Sparing the revocation of an earlier suspended sentence

§ 40 para 3 SMG adds a further, often overlooked safeguard. Where a conditional remission would otherwise have to be revoked under § 53 StGB, the court can refrain from doing so — wholly or in part — if the person has undergone a health-related measure that significantly restricted their self-determined way of life. It is a second chance the defense lawyer has to claim actively; it does not arrive on its own.

Foreign nationals: drugs, treatment and your residence permit

For an expat, the criminal case is only half the story — the other half is your right to stay in Austria. A drug conviction can put a residence permit at risk, because the immigration authority (the Federal Office for Immigration and Asylum, Bundesamt für Fremdenwesen und Asyl) examines whether your continued residence runs counter to the public interest in order and security. This is exactly why the choice between the § 35 route and the § 39 route matters so much for non-Austrians: it is the conviction that triggers that scrutiny.

A case dropped under § 35 SMG ends without a conviction and without an entry in the criminal record. A postponement under § 39 SMG, by contrast, leaves the conviction standing — it is remitted conditionally, but it remains on record. For a foreign national, steering the case towards the § 35 route, where the facts allow it, is often the single most protective step available, because it removes the very trigger the immigration authority relies on.

A conviction is not an automatic deportation

Even where a conviction stands, a residence-ending measure is never automatic — but the standard the authority has to meet depends on your status. For an EEA citizen, a Swiss national or a beneficiary third-country family member, a residence ban (Aufenthaltsverbot, § 67 FPG) requires an actual, present and sufficiently serious threat to a fundamental interest of society, and a criminal conviction on its own is not enough. For an ordinary third-country national, a return decision (Rückkehrentscheidung) with an entry ban (Einreiseverbot, § 53 FPG) turns on an individual assessment of the danger you pose to public order or security — here a conviction can already carry decisive weight, and § 53 para 3 FPG treats certain sentences as facts indicating a serious threat. In every case the Federal Office must still make an individualised prognosis and carry out the balancing of interests under Article 8 ECHR (§ 9 BFA-VG), weighing the nature and seriousness of the offence against your ties to Austria — and a valid entry or residence ban of this kind, in turn, blocks the grant or renewal of a residence permit.

The balancing of interests under Article 8 ECHR

That weighing exercise is the balancing of interests (Interessenabwägung) under Article 8 of the European Convention on Human Rights, which protects private and family life. The European Court of Human Rights set out the relevant criteria in Maslov v. Austria (Grand Chamber, 23 June 2008): the nature and seriousness of the offence, the length of your stay in Austria, the time that has passed since the offence and your conduct since, and the strength of your social, cultural and family ties here and in the country of return. Completed drug treatment and a clean subsequent record weigh directly in your favour in this balance — another reason treatment instead of punishment can protect more than just your liberty.

The precise consequences always depend on your residence title, how long you have lived here and the individual assessment. If you are not an Austrian national, the criminal defense and the residence question have to be handled together from the first day — a decision that looks harmless in the criminal file can be the one that costs you your residence permit.

Frequently asked questions on treatment instead of punishment

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