From Report to Indictment: How Criminal Law Works in Austria

When the police suddenly appear at the door, a summons arrives, or an investigation is initiated, the uncertainty is often great. What does it mean to be considered a suspect? When does it lead to an indictment – and who can be held accountable at all? Austrian criminal law has clear procedures and rules that those affected should be aware of. We have an overview of the most important questions and answers about the course of criminal investigations and court proceedings.

Course of Investigations

How are investigations initiated?

The criminal police or the public prosecutor's office are obliged to investigate any crime brought to their attention ex officio in an investigation procedure. The prerequisite for this is an initial suspicion. Such a suspicion exists if, based on certain indications, it can be assumed that a crime has been committed. This means there must be sufficient reason - such as certain indications - to assume a crime. This can be based on a report or the criminal police's or public prosecutor's own observations.

Authorities and, in certain cases, doctors are obliged to report a crime if they become aware of criminal acts in the course of their work - for example, in cases of suspected violence against women or abuse of minors. Private individuals are entitled, but not obliged, to report a crime to the police or prosecution authority. Reports concerning official offenses - such as murder, bodily harm, robbery, or fraud - cannot be withdrawn but are pursued ex officio.

When is someone considered a suspect?

As soon as a person is specifically suspected of having committed a criminal act based on certain facts, the term suspect is used by the police and public prosecutor's office. To clarify this specific suspicion, evidence is collected, or investigative measures are ordered or carried out - such as house searches, seizure of objects, physical examination, arrest, or imposition of pre-trial detention.

When is pre-trial detention imposed?

Pre-trial detention is imposed when there is an urgent suspicion of a crime and a reason for detention exists. These include the risk of committing a crime, the risk of collusion or obstruction, and the risk of flight. The public prosecutor's office submits the application for this. Every arrested person must be brought before a judge within 48 hours, who then decides whether the suspect will be released or whether pre-trial detention will be imposed. Pre-trial detention must be proportionate and may only be ordered if other, milder means are not sufficient to achieve the purpose of the detention. In the case of the imposition of pre-trial detention, the detention period is 14 days from the imposition of pre-trial detention, one month from the first continuation of pre-trial detention, and two months from further continuation of pre-trial detention. Detention hearings take place at these regular intervals.

Are people exempt from investigations?

Yes, children who were not yet 14 years old at the time of the offense are generally considered incapable of guilt. Special regulations also apply to adolescents between the ages of 14 and 18, for example, if they are not yet mature enough to understand the wrongfulness of the act or to act according to this understanding.

For persons of criminal responsibility, unlawful acts can be justified by certain reasons, such as if the person is in a self-defense situation. If a court deems an unlawful act justified, the perpetrator is not punished but acquitted.

An unlawful act is also not punished if the perpetrator is not culpable or if there are grounds for excuse. For example, those who are legally designated as mentally ill or people who, at the time of the act, suffered from a profound disturbance of consciousness and were therefore unable to recognize the wrongfulness of their act, are not culpable. A ground for excuse that negates the guilt for the unlawful act can also be, for example, if a person denies another person a life-saving measure to save their own life.

In Austria, however, certain groups of people are exempt from investigations due to immunity or other regulations or are subject to special procedures. These include members of the National Council, who may only be arrested with the consent of the National Council, and diplomatic representatives.

Indictment and Trial

When does it come to an indictment?

The public prosecutor's office, in cooperation with the criminal police, gains a detailed understanding of the act during the investigation process. The prosecution authority has a leading role and decides on the continuation or termination of the criminal proceedings. The public prosecutor's office can also issue investigation orders to the police. However, the criminal police can determine the implementation of the orders based on tactical considerations.

Certain interventions relevant to fundamental rights during the investigation process - such as house searches or telephone surveillance - must be applied for by the prosecution authority in court. If the court approves the requested measure, it must be implemented within a certain period. If a suspect receives a summons for questioning, he or she is obliged to comply.

In Austria, an indictment is filed when the public prosecutor's office concludes, after completing the investigations, that a conviction is more likely than an acquittal. This is referred to as "sufficient suspicion of a crime."

When do trials take place before a lay judge panel and when before a jury court?

For minor offenses such as theft, a single judge decides. Lay judge panels - consisting of one or two professional judges and two lay judges - are convened for offenses with a penalty of more than five years. Here, professional and lay judges jointly decide on guilt and sentencing. Jury courts are used for particularly serious crimes such as murder. Although a professional judge leads the trial, they are not involved in the decision on the question of guilt, along with two associate professional judges. Here, the jury alone decides on guilt or innocence. This is called a verdict. It does not need to be justified. However, there is the possibility of overturning a jury verdict due to error and submitting it to the Supreme Court (OGH). The OGH then refers the case to a completely newly composed jury court to be retried.

Does a Defendant Have to Testify in Court?

No, the defendant can refuse to testify and does not have to provide any information. They can exercise the right to remain silent. A defendant is also not required to tell the truth; however, a confession is the most significant mitigating factor.

Do Witnesses Have to Tell the Truth?

Yes, witnesses must tell the truth. They are obligated to testify correctly and completely. A false testimony is punishable by law. However, a witness also has the right to refuse to testify if truthful statements could incriminate themselves or close relatives, or if they are bound by professional confidentiality. This applies, for example, to defense attorneys, lawyers, patent attorneys, procedural attorneys in parliamentary inquiry committees, notaries, and trustees if they have information obtained in their professional capacity. This also includes specialists in psychiatry, psychotherapists, psychologists, probation officers, registered mediators under the Civil Law Mediation Act, and employees of recognized institutions for psychosocial counseling and support. Journalists, media owners, and media employees are also not required to answer questions concerning the identity of the author, sender, or informant of contributions and documents, or communications made to them in the context of their work. As a witness, one is also not required to incriminate oneself.

Clergy cannot be questioned as witnesses about what was entrusted to them in confession or under the seal of spiritual confidentiality, officials about matters subject to official secrecy unless they have been released from the duty of confidentiality, and persons granted access to classified information of the National Council or Federal Council, as long as they are bound to secrecy under the Federal Act on the Information Order of the National Council and Federal Council. Additionally, persons who are unable to tell the truth due to a mental illness, a comparable impairment of their decision-making ability, or another reason cannot be used as witnesses.

Types and Extent of Penalties

What is the Difference Between a Conditional and an Unconditional Sentence?

An unconditional prison sentence must generally be served. In the case of a conditional prison sentence, the convicted person is given a certain probation period. The suspended prison sentence is only to be served if the convicted person commits another offense during the probation period or violates any other condition. This is the case, for example, if they do not comply with their probation conditions. One of these conditions could be probation assistance, anti-violence training, or drug therapy. There is also the possibility of imposing partially conditional sentences, where only part of the sentence is served in prison, followed by release on probation.

How Severe Can Penalties Be?

The severity of a prison sentence in a criminal trial depends on the type of offense. A prison sentence can be imposed for a specific period - from one day to 20 years or life imprisonment. Additionally, the behavior of the accused before and during the trial can have a mitigating or aggravating effect on the verdict. Mitigating factors include a confession, a decent lifestyle, or a contribution to clarifying the facts.

In criminal court, fines can also be imposed, although this is more commonly applied in administrative courts. To ensure an even burden on those punished with different income and wealth levels, fines are measured in daily rates. The number of daily rates imposed is determined by the court as part of the actual sentencing. Fines amount to at least two daily rates. The daily rate is determined based on the personal circumstances and economic capacity of the convicted person at the time of the first-instance judgment. A daily rate can be at least four euros and at most 5,000 euros. In the event of the fine being uncollectible, a substitute prison sentence must be set.

What is the difference between a fine and a penalty?

A fine can only be imposed based on a judicial or administrative decision. It is the most common case of an administrative penalty. Fines for traffic offenses are usually collected through organ mandates (organ penalty orders) or an anonymous order. Particularly serious violations can lead to criminal proceedings.

Can a procedure end without a verdict?

Yes, because there is also the possibility, in the case of minor and medium offenses, where the penalty range is less than five years, to resolve a procedure through diversion. The facts must be sufficiently clarified, and the accused must take responsibility for the act attributed to him or her. Diversion offers the possibility to end a criminal procedure without a criminal court deciding on the guilt or innocence of the accused. The procedure ends without a verdict, and the accused remains formally unblemished. Instead, he or she voluntarily submits to certain burdensome measures - this can be a monetary amount, a reconciliation, community service, or a probation period. If this is not adhered to, the public prosecutor can request the continuation of the criminal procedure.

Is there the death penalty in Austria?

No. According to Article 85 of the Federal Constitutional Law, the death penalty is considered abolished in Austria.

What does it mean when someone is admitted to a forensic-therapeutic center?

Anyone who, at the time of the offense, is unable to recognize the wrongfulness of their act or act according to this insight due to a mental illness, intellectual disability, profound consciousness disorder, or another severe mental disorder equivalent to one of these conditions, does not act culpably and is thus considered not responsible. These individuals are not treated as defendants but as affected persons. If someone commits an act in a state excluding responsibility that is punishable by more than one year of imprisonment, they can be admitted to a forensic-therapeutic center for treatment for an indefinite period according to Paragraph 21/1 of the Penal Code. The affected individuals are held there until a significant improvement in their mental state is evident and a conditional release is possible. The courts conduct an annual review of this.

Can a defendant be responsible and still be admitted to preventive detention?

Yes, because if someone commits an act under the influence of a mental or emotional abnormality of a higher degree that is punishable by more than one year of imprisonment, but according to a psychiatric report was responsible at the time of the offense, the accused can be admitted to a forensic-therapeutic center in addition to a prison sentence. Even if the prison sentence is served, the inmate is held there until their mental state has improved. The courts also regularly review the progress. This mostly concerns dangerous or addicted offenders.

(APA/Red)

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