How can I be involved in the trial?

What are my rights as a witness?

I am a minor. Do I have additional rights?

Can I receive legal aid?

How can I get protection, if I am in danger?

How can I claim damages from the offender or receive compensation from the state?

Are there opportunities to reach settlement/conciliation or to start mediation between the offender and myself?

I am a foreigner. How are my rights and interests protected?

More information

How can I be involved in the trial?

You can participate in the trial as a victim without a specific legal status, as a civil claimant (1), witness, subsidiary prosecutor (2) or private prosecutor (3).

If you are civil claimant, subsidiary prosecutor, or private prosecutor, you will be given due notice about the fixed dates of hearings. Otherwise you will just be called to the court when you have to give testimony. As a witness, you are obliged to obey the summons and testify.

If you make use of victim assistance services (4), the organisation providing the service will be informed about the dates of the hearings.

If you were heard during the investigation at a considerate indirect interrogation with participation of the parties (5) you will be informed about the date of the hearing only if you have requested so.

You can obtain other information by inspecting the files. You do not need to be a civil claimant in order to get access. It is possible to duplicate the file against a fee.

Irrespective of whether the trial is public or not, you are allowed to be present and to be accompanied by confidants – a lawyer, a member of a victim support organisation or another qualified person. You have the right to put questions to the defendant, witnesses and experts as well as to be heard regarding your title to compensation.

If you are a civil claimant you may choose not to attend the hearing. If you are private prosecutor and you do not attend the hearing the court will assume that you are no longer interested in a conviction and will close the case.

In cases where you have joined or are willing to join the proceedings as a civil claimant and the public prosecutor decides to close the case after the arraignment is served, you may take over the prosecution as subsidiary prosecutor.

If the court drops the proceedings upon a petition from the offender you as a civil claimant have the right to appeal against the court’s decision. The appeal is heard by the court of appeal. There is a time limit of 14 days.

The court will hold a private hearing if your private affairs or secrets are being discussed or if your identity has to be kept anonymous for safety reasons.

While the court interviews a person with mental disability or illness a confidant has to be present. The judge can also order the offender to leave the courtroom during your interview.

If you do not speak German (or another official language) you have the right to interpretation free of charge. Interpretation will be provided when you are informed about your rights and during the hearings you attend.

Victim assistance services for those who do not speak German include interpretation funded by the Federal Ministry of Justice.

The expenses for the necessary journey to court or to the place of the interview will be reimbursed as well as an indemnification for the time spent at court. If you as a witness must stay overnight or have meals outside the place you live the costs will be reimbursed up to a certain limit. There is a deadline of 14 days for filing the request for reimbursement.

What are my rights as a witness?

If you are witness your testimony before the court has to be given in person. However, you can give testimony in the absence of the offender if:

• you are a victim of a deliberate act of violence or dangerous threat; or
• your sexual integrity may have been violated.

You can testify in a separate room in the presence of the judge and a confidant. Your testimony can be followed on a screen in the courtroom via video coverage. If an identity parade is considered necessary or if the confrontation seems to be needed because of contradictory statements, you as a witness cannot refuse to participate.

If you are not able to go to court because of an illness, disability or other considerable obstacles (e.g. you live abroad), you can be interrogated during the trial with use of picture- and sound-programme transmission. You do not have to appear directly before the court.

I am a minor. Do I have additional rights?

If you are under 14 years of age and you could have been hurt by the crime or your sexual integrity could have been violated, you have the right to deny a repeated statement during the trial if you were heard during the investigation at a considerate indirect interrogation with participation of the parties (5). If your sexual integrity may have been violated you have to be interrogated in this way.

A confidant has to be present.

Can I receive legal aid?

If you have the right to victim assistance services (4) you can receive legal aid and representation before the court. The services are provided by lawyers in cooperation with specialised victims’ protection organisations free of charge.

If you do not have access to victim assistance services, you may apply for legal representation free of charge. It has to be granted by the court if the legal representation is necessary (in particular in order to avoid a subsequent civil claim action) and if your income is not enough to pay for the legal representation without endangering subsistence.

How can I get protection, if I am in danger?

If you need prolonged protection against the person threatening you, you can apply for an interim injunction for the "Protection against violence in apartments” or “General protection against violence" or “Protection against invasion of privacy”. The injunctions are issued by the court and can be enforced by the police. An interim injunction can cover a period from six months up to the termination of the proceedings.

If you are a witness and you are afraid for your or another’s life, health, physical well-being or freedom, you have the right to give your statement anonymously. In this case you are not obliged to give answers that could give a clue as to who you are. You do not have to disclose your name and you are allowed to testify in disguise. Facial expression has to be observable for the judge to estimate credibility of the statement. You can give the testimony during the trial in the absence of the defendant if you are an adult who might have become victim of deliberate acts of violence or dangerous threats or whose sexual integrity could have been violated. In these cases you also have the right to legal and psychosocial victim assistance services (4).

Access to the files may be limited in these cases. All parts of the file that could include a clue as to who you are will be exempted from the other participants’ right of access to the file. Copies of these parts of the file have to be made anonymous. Just those edited parts of the file may be inspected and copied by the other participants.

If you are in danger you could be protected additionally through the special Witness Protection Programme (6) of the Austrian Federal Criminal Police Office.

You can also get specific protection from the media. Television, radio, film and photo equipment is not allowed in courtrooms. If your there is a publication of your name, picture or other facts that make it possible for a larger group of persons to identify you, you are entitled to compensation of up to 20.000 Euro.

How can I claim damages from the offender or receive compensation from the State?

You can claim damages if you file a civil claim and thus join the proceedings as a civil claimant (1). The court may ask an expert to verify the impact of the crime on your health.

If the court convicts the defendant it will also decide on your civil claim. Depending on the evidence collected the court will

• order the offender to pay you the full amount of the requested compensation;
• order the offender to pay you part of the requested compensation; or
• forward the case to a civil court to decide on it (usually when there is no enough evidence supporting the claim or when the examination of the claim would considerably prolong the proceedings).

If the court acquits the defendant it will forward your civil claim to a civil court.

You are entitled to state-provided compensation if you are a victim of violent intentional crime. Please consult the factsheet on compensation to crime victims in Austria (available in English, German and other languages) of the European Judicial Network.

Are there opportunities to reach settlement/conciliation or to start mediation between the offender and myself?

During the trial the court can work towards a settlement. If you are civil claimant (1) the judge can summon the offender and you to discuss a settlement. The judge can actually come forward with a proposal. Should a settlement be achieved, it has to be recorded in writing and handed over to the offender, the public prosecutor and to you.

The judge has to order an alternative measures to conventional criminal proceedings (7), if:

• the facts of the case are clear enough;
• the case cannot just be closed without a reaction of the authorities; and
• an alternative measure will suffice to prevent the offender from committing crimes in the future.

One of the alternative measures the judge can choose is the Victim-Offender-Mediation. Regularly a qualified mediator of a specialised organisation will be entrusted. You can be involved in the mediation only if you want to. You have the right to be accompanied by a confidant during the Victim-Offender-Mediation. You have to be informed about your rights and victim support organisations as soon as possible.

An alternative measure is excluded in specific cases defined by law.

I am a foreigner. How are my rights and interests protected?

If you are foreigner and do not speak German or any other official languages (8), you have the right to interpretation free of charge. Interpretation will be available at least when you are informed about your rights and during all the hearings you take part in. Generally, parts of files will not be translated unless there are special reasons for this.

Victim assistance services (4) include interpretation for your contact with the legal and psychosocial adviser funded by the Federal Ministry of Justice.

If you are living abroad and you are witness, but you are not willing or able to attend the hearing you may be heard in the way of indirect interrogation if the foreign authorities assist.

More information:

• Code of Criminal Procedure (Strafprozessordnung) – in German
• Penal Code (Strafgesetzbuch) – in German
• Victim Compensation Act (Verbrechensopfergesetz) – in German
• Youth and Crime Act (Jugendgerichtsgesetz) – in German

Notes:

1. Civil Claimant:

To become a civil claimant it is necessary to submit a declaration. The declaration has to comprise the exact estimate of the loss caused by the crime in financial terms and justification. During the investigation the declaration has to be addressed to the police or the public prosecutor. It can be handed in written form or made orally. During the trial the declaration has to be submitted before all the evidence is compiled and before the court closes the main proceeding for sentencing.

As a civil claimant you will have the following additional rights:

· to request the collection of evidence that may serve to convict the offender or to justify the claim for compensation;

· to appeal against the court’s decision to close the case.

2. Subsidiary prosecutor:

To become a subsidiary prosecutor you have to be or to become a civil claimant and to declare the subsidiary prosecution. If the offender is a young person as defined by law, subsidiary prosecution is excluded.

You can become a subsidiary prosecutor by a declaration. If the public prosecutor drops the proceedings during a court hearing, you need to declare immediately whether you were summoned in due form. If you have not followed the summons or do not declare the subsidiary prosecution, the offender will be found not guilty.

If the public prosecutor drops the proceedings outside a court hearing or if you as a civil claimant have not been summoned, the court has to inform you. You will then have one month for the declaration of the subsidiary prosecution.

When you continue the prosecution instead of the public prosecutor the latter can have access to the information regarding the court proceedings and may decide to undertake the prosecution again. In this case you can continue to be involved in the trial but in a position of a private party.

3. Private Prosecutor:

Some less serious crimes are not prosecuted by the public prosecutor, but by the victim himself/herself. If you are a victim of such a crime the trial could start only if you lodge a complaint before the court. By lodging a complaint you will become a private prosecutor. There will be no investigation stage and you as a private prosecutor will have to prove all the facts essential for a conviction and cover the costs in case the alleged offender is acquitted.

4. Victim assistance services:

If you are a victim of a deliberate act of violence or dangerous threat or your sexual integrity may have been violated you have a right to victim assistance services. Assistance is also available to you if you are a close relative of a person who died because of the crime or you are a relative who has witnessed the crime.

Victim assistance services include psychosocial support, which includes accompanying you to the police and to court for your interview and preparation for the trial.

Victim assistance services are provided by established specialised victims’ protection organisations (such as child protection centres, counselling centres or intervention centres). The members of staff are social workers, psychologists or comparable professionals with additional – obligatory – legal training regarding criminal proceedings.

Victim assistance services also include the legal services, including legal aid and representation before the authorities. Lawyers in cooperation with established specialised victims’ protection organisations provide these services.

The Federal Ministry of Justice funds the victim assistance services.

5. Considerate indirect interrogation during the investigation stage with participation of the parties:

When you are a vulnerable victim, your interview has to be carried out indirectly and in a very considerate manner. You can then testify in the presence of the examining magistrate and your confidant. The offender, his/her lawyer and the other participants can follow the interview on a screen in a separate room. You may ask questions. The testimony is videotaped and can be shown during the trial. All courts in Austria have the necessary audio-visual equipment. You will not be asked to testify again.

The interview has to be arranged in a way that you do not meet the offender. In newer courthouses there are special waiting-areas for witnesses.

If you are under the age of 14 and your sexual integrity may have been violated by the crime, you must be heard in this way. An expert (for example a psychiatrist) can perform the interview.

If you have to testify due to an offence assumedly committed by a relative or if your sexual integrity may have been violated by the crime, you have to be interrogated this way if you or the public prosecutor so request.

6. Witness Protection Programme

The inclusion in the Witness Protection Programme means that you will be “reconfigured” – you and your relatives will get new identification documents, new residence, new biography, etc. A precondition to be allowed to the programme is the existence of a crime – especially in the context of organised crime, terrorism or hard core crime in general – and the willingness of the witness to testify. The reliability and suitability of the witness will be scrutinised.

The Austrian police collaborate in these cases closely with the authorities of other states.

7. Alternative measures to conventional criminal proceedings

Alternative measures to conventional criminal proceedings are non-punitive responding to delinquency. In addition to the Victim-Offender-Mediation such measures are a fine (offender’s payment of an amount of money), community work, and time of probation with or without special duties. A non-punitive handling of delinquency implicates that the name of the offender will not appear in the criminal records. He/she will not be held convicted.

8. Official languages:

The official language in Austria is German. In parts of Styria and Burgenland the official language is also Croatian. In parts of Carinthia Slovene and in parts of Burgenland the official language is also Hungarian.