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Defendants (criminal proceedings)

Austria

The purpose of criminal investigation is to determine the facts so that the prosecuting authorities can decide whether charges should be brought or the case should be closed. If charges are brought the preliminary proceedings are also intended to facilitate the swift completion of the trial.

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Austria

What are the stages of the criminal investigation?

  • The purpose of criminal investigation is to determine whether a criminal offence has been committed and if so by whom.
  • Once investigations are conducted against a person suspected of a specific offence, that person is deemed to be accused.
  • The court must take certain steps in the investigation. It must reconstruct the offence and conduct what is known as adversarial proceedings. The public prosecutor and the accused, together with his/her defence counsel, are present during these proceedings and have the right to put questions to the person under interrogation.  The prosecuting authorities may also request the court to take further evidence, if they consider this necessary in the public interest.
  • The prosecuting authorities and/or the criminal investigation department may take most investigative steps on their own initiative without the consent of the court. These steps include, in particular, inquiries and interrogation, as well as establishing the identity of persons, searches, etc.
  • A court order is required to impose and to extend pre-trial detention. The same applies to the use of coercive measures in connection with fundamental rights (e.g. searching places protected by householder’s rights, accessing bank accounts, telephone tapping, or analysing phone data).
  • The prosecuting authorities must discontinue the investigation if no criminal offence has been committed, or if the established facts are insufficient to convict the accused. In all other cases where the facts have been sufficiently determined, the prosecuting authorities must file an indictment with the competent court.
  • The prosecuting authorities may withdraw from further prosecution (diversion) in cases that cannot be discontinued, but where sentencing does not appear to be necessary because the accused (in most cases) pays a fine. Diversion is not possible if the offence resulted in the death of a person or if it falls within the jurisdiction of a lay judges’ court or a jury court, in other words in cases carrying a prison term of more than five years (as a rule).

My rights during the investigation

You have different rights depending on the various steps and stages of the investigation:

In any event you have the following rights irrespective of the specific stage of the proceedings:

  • You must be informed as early as possible of the fact that investigations are being conducted against you, of the offence of which you are suspected and of your principal procedural rights.
  • During every stage of the proceedings you have the right to defence counsel of your choice or to apply for legal-aid defence counsel (see Factsheet 1). If the facts or the legal issues are complex, you may ask for legal-aid defence counsel to be assigned to you for the entire proceedings. In criminal proceedings against foreigners, unfamiliar with the Austrian legal system, this will most likely be the case. In all cases requiring what is known as mandatory defence, defence counsel will be assigned to you in any event if you do not appoint one yourself. If you are not represented by legal-aid defence counsel, you must bear the cost of the assigned defence counsel.

The most important stages where you must have defence counsel are: the entire period of pre-trial detention, throughout proceedings for the institutionalisation of mentally abnormal offenders, proceedings before a lay judges’ court or a jury court, or trial before a single judge if the offence may carry a prison sentence of more than three years.

  • To consult your file;
  • To comment on the allegations raised against you, or to remain silent;
  • To request the taking of evidence;
  • To appeal against measures taken by the prosecuting authorities or the criminal investigation department, as well as against court decisions;
  • To be assigned a translator/interpreter.

Investigation and taking of evidence (1)

Who carries out the investigations?

The prosecuting authorities directing the criminal investigation department are responsible for conducting investigations. The criminal investigation department will start the investigation on its own initiative, if a third person files a report with the police, or by order of the public prosecutor.

What information will I receive?

The prosecuting authorities or the criminal investigation department must inform you in every case that you are under investigation and why. Moreover, you must be informed that as an accused person you are not obliged to make a statement and that if you do make a statement it may be used in evidence against you.

If you have committed the offence, of which you are accused and if you confess (if you plead guilty), this will be an important mitigating factor when the court decides on your sentence. However, a plea of guilty will not affect the course of the trial.

What happens if I don’t speak German?

If you cannot communicate adequately in German, you have the right to request an interpreter who will be appointed free of charge during your interrogation. You need not and you should not answer any questions if the interpreter is not present. The interpreter will interpret the questions put to you into a language you can understand. The interpreter will also interpret your answers back into German.

The interpreter must in any case interpret the information and the instructions on points of law which you are required to be given by law. If you so wish the interpreter will also assist you in your contacts with assigned defence counsel (not a lawyer of your choice).

If you are informed of an order by the prosecuting authorities or of a court decision, you may also request assistance in having these documents translated. If you wish to consult your file, a translator will only assist you if you do not have defence counsel and it is unreasonable to expect you to arrange for the translation of the relevant parts of the file yourself.

Are you allowed to contact a lawyer?

You do not require a lawyer, except in cases requiring representation by defence counsel. However, irrespective of whether you are being detained or not, you have the right to consult a lawyer at any time, if you wish. An interpreter must also be made available for your contacts with the assigned defence counsel.

If you are arrested and know the name of a lawyer whom you wish to defend you, you may also contact him/her direct or through the police. If you do not know any defence lawyer, you can use the standby service of the bar association (Factsheet 1).

Will they take my fingerprints or DNA samples?

The police have the right to search your clothes and any objects in your possession. The consent of the court and a subsequent order by the public prosecutor is required for any further physical examination.

The police may take your fingerprints if necessary to establish your identity. The criminal investigation department may take a saliva smear for the purpose of DNA analysis. The consent of the court is required to conduct the DNA analysis itself.

Can my home, my office, my car, etc. be searched?

Places and objects may be searched if it can be assumed that suspicious persons are present or that evidence may be secured there. The consent of the court is required to search places protected by householder’s rights. The police may search other places and objects by order of the public prosecutor.

Will I receive information about evidence against me?

As an accused person you have the right to consult your file. In this way you will learn about the evidence against you. In exceptional cases, individual parts of the file may not be accessible for consultation. You have the right to present your own evidence at any time.

What legal remedies do I have during investigation proceedings?

You may defend yourself against any measure taken by the criminal investigation department or the prosecuting authorities during the investigation procedure by filing an objection (not subject to deadline), if you consider that any of your rights have been violated.

The court will rule on your objection unless the prosecuting authorities confirm your opinion. An appeal may be filed against a court decision to the Higher Regional Court. The objection must be filed with the prosecuting authorities.

You have the right to appeal against court decisions to the Higher Regional Court, especially those showing an impact on basic rights.

Appeals may be filed both with the prosecuting authorities and the court of first instance within a period of 14 days.

Do I have to be present during the investigations?

There is no obligation for you to remain in Austria throughout the entire investigation procedure. Your counsel can also ensure that your rights are observed during the investigation (if you wish him/her to do so).

You must travel to Austria for interrogation. There is no provision for video transmission of the investigation procedure; nor is it technically feasible.

Arrest and pre-trial detention (including the European Arrest Warrant) (2)

Why might I be taken into custody?

You may only be taken into pre-trial detention if you are strongly suspected of having committed an offence, and if there is also a reason for detention (risk of absconding, risk of evidence being destroyed, or risk of committing an offence). The consent of the court is required for your arrest (by criminal investigation department officers) (unless you are caught in the act, or there is imminent danger).

Pre-trial detention must be imposed by the court and it must be enforced in a prison. The criminal investigation department may detain you for a maximum of 48 hours before transferring you to the court without undue delay.

The law does not specify whether and how you may inform your family or friends about your detention. Social services are available in every prison to assist you in such matters.

What information must I be given if I am taken into pre-trial detention?

The decision concerning your pre-trial detention must be read out to you, if necessary with the help of an interpreter. You must be handed a written copy of this decision. The decision must state the nature of the offence of which you are strongly suspected. It must also mention all facts which in the opinion of the court justify your detention.

You must be represented by defence counsel throughout the full period of your pre-trial detention. If you do not appoint one yourself, counsel will be assigned to you.

The decision of the court to impose pre-trial detention is taken during an oral hearing.

Within a period of three days, you may appeal to the Higher Regional Court against the decision to impose or later extend pre-trial detention.

How long can I be kept in pre-trial detention?

Any decision concerning pre-trial detention is for a limited period of time. The decision to impose pre-trial detention is effective for fourteen days. The decision extending your pre-trial detention for the first time is effective for one month. Any subsequent decision extending your detention is effective for two months.

Pre-trial detention should not be longer than six months in total, but it may be extended owing to the seriousness of the offence. You will find more information here.

Can I receive visits during pre-trial detention, will I obtain medical treatment?

Every person detained in pre-trial custody has the right to receive visitors twice per week. Your lawyer may visit you at any time during your detention irrespective of the ruling on visitors.

Medical services are available in every prison. The law states that you may receive treatment by medical specialists as required.

May I contact my embassy as a citizen of another country?

You have the right to contact your embassy and you will find its address here. The police and the prosecuting authorities are obliged to contact your diplomatic representative if you so wish.

What happens if I am taken into custody subject to a European Arrest Warrant?

If a Member State issues a European Arrest Warrant, you may be arrested in another Member State and extradited to the country issuing the arrest warrant.  Austrian law requires that you are kept in custody until extradited. A court will issue an order to this effect. You are entitled to defence counsel and, if necessary, to an interpreter at that hearing.

Criminal charges (3)

After conducting investigations, the prosecuting authorities may conclude that conviction is likely. If so, charges will be brought against you before the competent court.

The charges must be brought in the form of a reasoned bill of indictment to a lay judges’ court or a jury court if the offence with which you are charged carries a prison sentence of more than five years. For offences carrying shorter sentences, the prosecuting authorities must only file charges in writing without giving reasons with a single judge at a regional court or with the district court.

How can I defend myself against the charges?

You may file an objection against a bill of indictment within fourteen days after it has been served. The Higher Regional Court will decide on your objection (You will find further details on the grounds to object here). You may file your objection in written or oral form.

If the Higher Regional Court considers your objection to be justified, it may suspend criminal proceedings or instruct the prosecuting authorities to continue investigations.

If your objection is overruled, or if you do not file an objection, the charges against you become effective and the court seized of the matter must prepare the trial.

If the action against you is brought in the form of criminal charges, you cannot file an objection. However, the law requires the court seized of the matter to assess the validity of the charges. If the court holds that the charges are not justified on one of the grounds mentioned in the law it may decide to discontinue criminal proceedings.

Preparation for the trial by the defence (4)

What happens before the trial?

Once charges have been brought against you, it is no longer possible to restrict access to the files. At this point at the latest you have access to the complete file which is also available to the court. The court prepares to conduct the trial.

If you wish you may request evidence to help you to prepare for the trial. In particular, you may request the hearing of witnesses. In your request for evidence you must indicate the facts you wish to prove with the evidence in question. You may also be asked to state the reason why you think the evidence you request is appropriate.

How should I cooperate with my defence counsel?

If a bill of indictment is issued you must be represented by defence counsel during the trial. In this case you will be assigned counsel if you do not appoint one yourself.

In trials before single judges or at district courts involving criminal charges it is not mandatory to appoint counsel. However, you may be represented by counsel of your choice at any time, or request the assignment of defence counsel if the case is a difficult one.  As a rule, this will be the case with foreign defendants, who are not familiar with the Austrian legal system.

You should inform your defence counsel of any evidence you think you have available to clear you of the charges. Your counsel will then file the necessary requests for evidence in the appropriate manner.

What happens if I have been previously convicted or acquitted of the offence with which I am now charged in another Member State?

If a court in a Member State has already taken a final decision on the same charges, those charges cannot be brought against you a second time in another Member State.

You should file the necessary requests on this fact as early as possible (during the investigation). Conversely, if you have been convicted or acquitted of an offence in Austria you may not be taken to court again for the same offence in any other Member State.

Related links

Pre-trial detention

Criminal-law compensation act

Last update: 22/06/2018

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

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