Arrested in Austria: a quick guide to Austrian criminal procedure
(Updated: 16.02.2023. Click here to read this post in Dutch.)
This post offers a (very) brief overview of the things awaiting someone who is detained in Austria as a suspect of a criminal offence. The post will focus on what may typically happen in an average criminal case. Special situations and rules, such as for example those of juvenile criminal law or narcotics law, are not discussed here.
Arrest and remand in custody
Persons who are arrested because they are suspected of having committed a crime will first be escorted to a police station and questioned not long after. The detainment at the police station will take no longer than 48 hours. The suspect is taken to a jail as soon as possible.
There, a judge, the so-called Haft- und Schutzrichter, will decide whether a suspect is to be remanded into custody as soon as possible, in any case within another 48 hours. Upon arrival in a prison, a suspect will therefore quickly be heard by a judge, who will then immediately decide whether the suspect is to be remanded in custody or released.
In order to be remanded in custody, the following conditions must be fulfilled:
There needs to be a serious suspicion of having committed a criminal act
There need to be one or more urgent reasons justifying a suspect´s custody
The purpose of the custody (i.e. that the suspect remains “available” for the authorities) cannot be achieved in another, less far-reaching manner
The following reasons (Haftgründe) may justify the custody:
Risk of absconding: if – due to the penalty he might face if convicted – the risk is high that the suspect will abscond (flee). A flight risk is quickly assumed with persons who do not live and work in Austria.
A risk that the suspect will destroy or hide evidence or attempt to influence witnesses: this risk may be present during ongoing investigations but can no longer be assumed after two months.
A risk that the suspect will commit a criminal act (again) – in order to assume this, several other conditions must be fulfilled.
The custody moreover must be necessary. This means that its purpose cannot be achieved in another way. The law itself provides several alternatives for that: a suspect might also be released on bail or receive certain conditions that he must comply to. Examples of this are handing over travel documents or the requirement to live at a certain location.
In the event of certain severe criminal acts – for which a prison sentence of more than ten years is possible – suspects are always remanded into custody, unless it can be assumed that none of the reasons listed above are present.
If someone is therefore suspected of a criminal act, if there are urgent reasons to remand him into custody and are there no reasonable alternatives for doing so, the judge will – immediately after hearing the suspect – decide that he be remanded into custody (Untersuchungshaft or U-Haft). It is from this point on that the suspect must be represented by an attorney. Those who cannot afford an attorney will be appointed one as part of the so-called Verfahrenshilfe (a “public defender”).
The judge will regularly examine whether a suspect should remain in custody:
14 days after being remanded into custody
One month after the first extension
Every two months after a further extension
He will do so in a short hearing that in practice takes no more than 5 to 10 minutes. A suspect can however petition for his release at any time, also outside of these hearings. Both the suspect himself and the public prosecutor may lodge a complaint against the judge´s decision on the custody.
It is important here to not lose sight of the fact that the judge will only rule on the lawfulness of the custody. Whether someone is guilty or innocent is not decided here.
This (pre-trial) custody may in principle take no more than six months. For more severe crimes, this can be extended up to one or even two years, but such lengths should be the exception to the rule and be necessitated by the complexity of an investigation. In addition, the custody must be proportionate in relation to the possible sentence.
During this custody, it is in principle possible to communicate with the suspect, visit him or send him money. The suspect can also, if there is an opportunity to do so, work. He will always have access to his lawyer. It is however likely that the communication will be limited in order to protect ongoing investigations. This may include having mail opened or having visits from friends and family supervised or – for a certain amount of time – forbidden altogether.
If in the end the custody was not justified or unlawful, you may under certain conditions be eligible for compensation.
The criminal investigation
Of course, while a suspect is in custody, the criminal investigation will continue. The investigation is led by a public prosecutor, who can give instructions to the police.
It is possible that a suspect is questioned multiple times during an investigation. DNA samples may also be taken. Already during the criminal investigation itself, the suspect has several different rights. For instance, he (or rather his attorney) may inspect his casefile and also apply to have evidence collected. If a suspect´s rights are not respected, he can seek recourse against this.
End of the criminal investigation: the indictment
As soon as the public prosecutor has finished the criminal investigation, he will decide whether to formally indict the suspect. In the event of an indictment, he will do this in the form of a formal brief called a Strafantrag or, in case of more serious crimes (felonies), an Anklageschrift. The indictment essentially informs the court what the suspect is formally accused of. It is at this point that the terminology used in the procedure also changes: the Beschuldigte (suspect) becomes the Angeklagte (accused or defendant).
If the public prosecutor submitted an Anklageschrift, the defendant will have 14 days to lodge a complaint against it. This is however only useful if the indictment does not meet certain (mostly technical) requirements. Whether someone is guilty or innocent is not decided during the procedure that follows this complaint.
As soon as the indictment has been submitted to the court, all the custody terms mentioned above no longer apply.
A further possible ending to the investigation is that of an offer to conclude a transaction (a so-called Diversion). This is possible in less severe criminal cases – even in the course of the trial.
The criminal trial: the Hauptverhandlung
It is during the main trial procedure, the criminal trial, in which a court eventually decides on the innocence or guilt of a defendant. Please note that is not the same court (or rather judge) that previously dealt with his custody.
Depending on the severity of the crime, the court will have different compositions:
Einzelrichter: one judge – for less severe offences.
Schöffengericht: one judge and two lay judges (Schöffen). With certain criminal offences, an additional judge will be added. The lay judges will decide together with the judge, both on the suspect´s innocence and the sentencing.
Geschworenengericht: this court, which is competent for severe crimes, consists of a senate of three judges and eight jurors (Geschworenen). The jurors have an important role here: only they rule on the suspect´s innocence. Together with the judges they then decide on the sentencing.
The trial itself, which depending on the facts of the case may be held in one or more court sessions, starts and ends with pleas of both the public prosecutor and the defense. The defendant will always have the last word. If the trial is held before an Einzelrichter, the judgment will be delivered immediately. In other cases the court will withdraw for deliberations, which may take anywhere from a few minutes to many hours, and then deliver the judgment.
In the event of a conviction, the judgment will include a fine or, more often, a prison sentence that may be partially or fully suspended. A judgment may furthermore declare certain assets forfeit. Other measures, such as the confiscation of objects, placement in a mental institution or a ban from certain professions are also possible. The court will also decide on any claims for compensation that a victim may have submitted.
Do I have to appear at my trial hearing?
Austrian criminal procedure only allows for a ruling in absentia in exceptional cases. Indicted persons must as such disappear in person. If they fail to do so, they may be forcibly brought to the hearing. Indicted persons living abroad may, in case of more severe offences, face extradition proceedings.
In cases before the District Court (Bezirksgericht), the indicted can appoint another person to represent him, for instance an attorney. The judge may however decide that the personal appearance of the indicted is required regardless.
Possibilities against the judgment
Immediately after the judgment, both public prosecutor and defendant have three options: they can accept the judgment, lodge an appeal right away or use a three-day period to deliberate. If the public prosecutor appeals against the judgment, a judgment in second instance can also be more severe.
An appeal can target several aspects of a judgment: errors that have been made during the procedure, the defendant´s innocence (in principle not possible if the judgment was delivered by Geschworenen), the severity of the sentence itself and any claim awarded to a victim. These aspects must be strictly separated from one another, meaning that drafting the actual appeal is a very technical matter that should not be underestimated.
After the judgment
After a conviction has become final and binding, the Untersuchungshaft (remand custody) changes into a Strafhaft (criminal custody). This will usually also mean that the defendant – who is now a Verurteilter or a convict – is brought to a prison, where the conditions are often better. The time already spent in remand custody is of course taken into account in the calculation of the final prison sentence.
Anyone not already in custody will, a short time after the judgment, receive a letter with the instruction to appear at a prison at a certain date to start the prison sentence. Under certain conditions, the sentence can be postponed. Similarly, it may be possible to serve the sentence under electronic house arrest if certain other conditions are met.
As soon as half the prison sentence – and at least three months – has been served, the convict may request conditional release. If there is no reason to fear that he may become delinquent again, he will be released. The convict will be conditionally released after he has served two-thirds of his sentence, unless special reasons (relating in particular to the severity of the crime) would make this release ill-advised. In case of a life sentence, a conditional release is only possible after 15 years.
Foreign convicts have, as soon as they have served part of their sentence, an additional possibility for conditional release. As soon as they have also served half, or in exceptional cases two-thirds – but here also at least three months – of their prison sentence, their further sentence may be provisionally suspended if they leave Austria. Amongst other things, this requires that the immigration authorities have banned the convict from a further stay in Austria, which will typically be the case after convictions for more serious crimes. Anyone returning while this ban is in force will be promptly imprisoned.
Peculiarities for convicts of EU member states
Austria and other EU member states have created a procedure that, under certain conditions, allows convicts to serve an “Austrian” sentence in their home country (i.e. their home EU member state). After conviction, the convict will in this case be transported to his home country, where a judge will reconsider the judgment´s prison sentence. For this, the judge will take both countries´ possible sentences and the concrete conviction into account.
More information
This blog also contains information about specific categories of crimes:
For a primer on battery (“assault” or violence against other people) in Austrian law, click here.
For information about human trafficking and sham marriages in Austrian law, click here.
For information on the Austrian drug laws, click here.
Legal guidance recommended
People facing criminal charges are urgently recommended to seek legal counsel as soon as possible. I offer my support and guidance in criminal procedures in Austria. Of course, I do so entirely in English. Feel free to contact me by using the form below, writing me at office@vastenburg.at or calling me at 0043 6804446590.
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