Additional sentence under sections 31 and 40 StGB: chronology, earlier domestic or foreign conviction, hypothetical overall sentence and key documents.
Mag. Christopher Angerer, Rechtsanwalt
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An additional sentence may arise in Austria where a person has already been convicted and another offence is tried only later, although it could already have been dealt with in the earlier proceedings based on the time when it was committed. Sections 31 and 40 StGB therefore require a precise chronology and a hypothetical joint sentencing assessment.
The relevant material includes the offence date, the date of the earlier judgment, the scope of the indictment and the contents of both criminal files. A later trial does not automatically lead to another full sentence. The decisive question is what overall sentence would have been appropriate if both offences had been dealt with together.
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The sequence of the offences and judgments determines the legal classification.
The key questions are when the later offence was committed and whether it could already have been tried in the earlier proceedings. Only that connection opens the way to an additional sentence under sections 31 and 40 StGB.
If the new offence was committed only after the earlier conviction, this is a different situation. An additional sentence requires an offence that could already have been tried in the earlier proceedings.
When several offences are assessed in one set of proceedings, sentencing follows the rules for concurrent offences. Section 31 StGB, by contrast, concerns a later conviction after a judgment has already been issued.
Under section 31(2) StGB, an earlier foreign conviction is treated like an earlier domestic conviction even where the conditions of section 73 StGB are not met. The judgment, its finality and the offence on which it is based must be established reliably.
Section 31(1) StGB is based on three points: there is already a conviction, another offence is tried later, and that offence could already have been tried in the earlier proceedings based on the time when it was committed. The provision provides for an additional sentence in this situation.
The assessment therefore starts with a timeline. The earlier judgment alone is not enough. The later offence must already have been committed while the first proceedings were still open. The same person must be concerned in both proceedings and the later offence must be identified precisely.
The legal classification of the later offence remains a separate question. An additional sentence does not replace the assessment of the new finding of guilt and does not itself establish that the offence was proved.
Section 40 StGB requires the additional sentence, within the limits of section 31, to be set so that the sum of the earlier and new sentences corresponds to the sentence that would have been imposed after a joint trial. The court must therefore carry out a hypothetical joint sentencing assessment.
The additional sentence may not exceed the statutory maximum threatened for the offence tried later. At the same time, the total of both sentences may not exceed the limit arising from the rules on concurrent offences and the aggregation of values or amounts of loss.
If a joint trial would not have justified a sentence higher than the sentence in the earlier judgment, section 40 StGB provides that no additional sentence is imposed. The later decision can therefore result in an additional sentence of zero even though the later offence is adjudicated.
Repeat offending concerns the relevance of an offence committed after an earlier conviction. Section 31 StGB instead requires the later-tried offence to have been committed before the earlier judgment and to have been capable of being tried at that time. The dates must be established separately before sentencing is assessed.
A joint judgment for several offences is a different situation as well. If all offences are dealt with in one judgment, there is no later additional sentence. The rules on concurrent offences apply directly to sentencing.
This distinction matters in practice because it determines which decision is treated as the earlier conviction and which overall assessment the court must carry out.
Section 31(2) StGB treats an earlier foreign conviction like an earlier domestic conviction. The statutory rule applies even where the conditions of section 73 StGB are not met. An earlier judgment cannot therefore be excluded from the chronology simply because it originated abroad.
The judgment, offence date, finality and scope of the decision must be established for the individual assessment. A translation may be needed so that the offence and sentence can be compared with the Austrian proceedings.
The rule answers the question whether there is an earlier conviction. It does not decide how the Austrian additional sentence must be assessed within the statutory limits.
The complete judgments and indictments from both proceedings are central to the defence. Service records, finality certificates, documents on the offence date and, where needed, a certified translation of the foreign judgment should be added.
The files must show which facts were decided in the earlier case and which offence is now added. A mere similarity between allegations is not enough for the chronological assessment.
The sentencing reasons from both proceedings should also be compared. They show which circumstances have already been considered and what overall sentence might have been imposed after a joint trial.
The additional sentence depends on chronology and joint sentencing.
| Point | Meaning | Document |
|---|---|---|
| Offence date | Was the later offence before or after the earlier judgment? | Indictment and investigation file |
| Earlier conviction | Earlier judgment and finality | Judgment and finality record |
| Capability of joint trial | Could the offence have been tried earlier? | Procedural timeline |
| Overall sentence | What sentence would have been appropriate jointly? | Sentencing reasons |
The assessment follows the chronology of both proceedings.
Record the date of each offence from the files.
Organise the earlier conviction, finality and new finding.
Assess whether a joint decision was possible.
Set the additional sentence within the statutory limits.
Organise the documents completely. The offence date, earlier judgment, finality and sentencing reasons must fit together. A later trial alone does not establish that an additional sentence is due.
When a person has already been convicted and another offence is tried only later, although it could already have been tried in the earlier proceedings based on when it was committed.
No. The court must assess what overall sentence would have been appropriate after a joint trial. The additional sentence is derived from that assessment within the limits of section 31 StGB.
Yes. If a joint trial would not have justified a sentence higher than the earlier sentence, section 40 StGB provides for no additional sentence.
Section 31(2) StGB generally treats an earlier foreign conviction like an earlier domestic conviction. The judgment, offence date and finality must be checked in the individual case.
No. For an additional sentence, the later-tried offence must have been committed before the earlier judgment. An offence committed only afterwards must be assessed separately.
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