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 (Aufforderung 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. If the drugs were held only for personal use, the prosecutor must drop the case provisionally (§ 35 SMG). After a conviction, the court must postpone the sentence if the conditions of § 39 SMG are met, among them that the person is habituated to narcotics and willing to undergo a health-related measure. Habituation is not a condition for the withdrawal under § 35 para 1 SMG.

For the postponement under § 39 SMG, timing is everything. The application has to be filed 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. Where drugs were held exclusively for your own use, the prosecutor must drop the case provisionally, and it usually ends 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. The statutory threshold quantity (Grenzmenge) matters only where drugs are supplied, imported, exported or produced (drug trafficking under § 28a SMG, with far heavier penalties) or held with intent to put them into circulation (§ 28 SMG). For possession purely for your own use it plays no role: you remain under § 27 para 2 SMG, and the prosecutor must withdraw under § 35 para 1 SMG, whatever the amount.

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.

Under § 39 SMG, willingness to undergo a health-related measure (gesundheitsbezogene Maßnahme) under § 11 para 2 SMG is a condition. Under §§ 35 and 37 SMG, the withdrawal and the discontinuance depend on such a measure only if you need one (§ 35 para 6 SMG). Under § 35 SMG, which measure comes into question follows from the medical opinion (ärztliche Stellungnahme, § 35 para 3 no 2 SMG). For the postponement, the court can determine the type of measure (§ 39 para 2 SMG). For the postponement, the defense lawyer files the application — and the earlier that happens, the better.

How the treatment route runs — step by step

From the investigation to the conditional remission of the sentence, the path to treatment instead of punishment passes through four stages. For the postponement under § 39 SMG, the defense lawyer files the application. The withdrawal under § 35 SMG needs no application: the prosecutor examines it of its own motion, and where the case concerns only an offence under § 27 para 1 or 2 or § 30 SMG for personal use without any profit, it is mandatory.

§ 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 covers the typical drug possession first offense in Austria, but it is not limited to first offences or small amounts. It applies to anyone who acquires or holds drugs only for their own use, whatever the amount, and to anyone who passes drugs to someone else for that person’s use without any profit, as long as the threshold quantity is not exceeded. Passing on more than the threshold quantity falls under § 28a SMG, even without profit. Previous convictions do not stand in the way (OGH 12 Os 146/18i of 24 January 2019). 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 habituated to narcotics (an Suchtmittel gewöhnt), 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 such offences

The distinction matters. § 35 para 1 SMG contains an unconditional statutory command that does not depend on discretion (OGH 11 Os 119/25x of 16 December 2025). Proceeding under para 2, by contrast, is optional even where the conditions are met and lies within the duty-bound discretion of the prosecutor or the court (RIS-Justiz RS0121807). If the court should have discontinued the case after charges (§ 37 SMG) and convicts nonetheless, the judgment can be challenged for nullity (§ 281 para 1 Z 10a StPO; against judgments of the district court or of a single judge by an appeal for nullity, §§ 468 para 1 Z 4, 489 para 1 StPO). Under para 2 this applies only where the decision rests on a wrong view of the law or the discretion was exercised arbitrarily (RIS-Justiz RS0121807) — which is precisely why a convincing, well-documented argument by the defense lawyer is decisive.

When the medical opinion is dispensed with (para 4)

§ 35 para 4 SMG contains a real relief: where the accused is prosecuted only for cannabis, psilocybin mushrooms or psychotropic substances for exclusively personal use, the prosecutor must dispense with the medical opinion. The same applies to passing them on without profit and to growing them for personal use. Exception: 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.

§ 37 SMG: the court does the same after charges

If the prosecutor has not already ended the case in the investigation, the court decides once charges have been brought. § 37 SMG refers back to §§ 35 and 36 SMG: the court must discontinue 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 fine or of a prison sentence of no more than three years for a maximum of two years if the convicted person agrees to undergo a health-related measure (§ 39 para 1 SMG). 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. Habituation to narcotics: the convicted person must be habituated to narcotics (an Suchtmittel gewöhnt). If a medical opinion under § 35 para 3 no 2 SMG or the result of an examination by the doctor of a facility or association under § 15 SMG already exists, the court must rely on it, unless the relevant circumstances have changed (§ 39 para 2 SMG). Unlike the § 35 personal-use route, habituation 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? If the conviction also covers offences not named in § 39 SMG, the higher penalty range is decisive: it must come from the SMG or concern an offence committed to obtain drugs (OGH 11 Os 98/19z of 8 October 2019, referring to 14 Os 102/06s of 8 May 2007). In the case 14 Os 102/06s, still decided under the law before 2008, a burglary (§ 129 StGB) was added to the drug offence, and the trial court did not treat it as an offence committed to obtain drugs. The sentence had to be determined under § 129 StGB, and postponement under § 39 para 1 SMG was not available. If, by contrast, the higher penalty range comes from an offence committed to obtain drugs, such as a burglary to finance drug consumption, § 39 SMG comes into consideration. 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. The so-called addiction privilege (Gewöhnungsprivileg, § 28a para 3 SMG) requires that the offender is habituated to narcotics and commits the offence mainly to obtain narcotics, or the means to buy them, for personal use (§ 27 para 5 SMG). The ruling 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. The treatment can be outpatient or inpatient (up to six months). Which measure is suitable follows from the medical opinion; for the postponement, the court can determine the type of measure (§ 39 para 2 SMG) — 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 can bring the criminal proceedings back. Treatment instead of punishment is a conditional benefit: complete the measure and the case ends, abandon it and the original consequence can return. The exact fallback depends on which route you were on.

• Under § 35 SMG: if you persistently evade the measure, the proceedings are resumed where this appears necessary to keep you from further narcotics offences (§ 38 para 1 no 2 SMG). If the prosecutor withdrew after an Abtretungsbericht, the proceedings are resumed if the health authority reports within one year that you are not undergoing the medical examination or the measures (§ 38 para 1a SMG). That means charges, a trial and a possible conviction.
• Under § 39 SMG: if you do not undergo the measure or stop undergoing it, the court revokes the postponement where enforcement appears necessary to keep you from further offences (§ 39 para 4 no 1 SMG). The prison sentence must then be served. The same applies if you are convicted again of an SMG offence or of an offence connected with your habituation to narcotics (§ 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, it depends on the paragraph. Under para 1 (personal use without profit) the law provides no special-prevention bars, and previous convictions do not stand in the way (OGH 12 Os 146/18i). Under para 2 the offence must not fall within the jurisdiction of the lay-judge or jury court, the guilt must not be regarded as serious, and the withdrawal must appear no less suitable than a conviction to deter you from such offences. For §§ 28 and 28a SMG you must also be habituated to narcotics.

After successful treatment (§ 40 SMG)

If the postponement is not to be revoked (§ 39 para 4 SMG), or if a convicted person habituated to narcotics has otherwise successfully undergone a health-related measure, the court must conditionally remit the sentence (bedingte Strafnachsicht, § 40 para 1 SMG). 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. Success exists where the treatment goal achievable in the individual case has been reached. A mere partial success does not suffice for a conditional remission. In the case decided, a postponement under § 39 SMG had been refused; contrary to the recommended inpatient therapy with aftercare, the convicted person had attended only 24 sessions, which did not change the causes of her drug use. That she was drug-free at one test was not enough for the OGH.

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

Related articles