Criminal Procedure Austria

  1. A Criminal procedure starts with/without arrest of the accused.
  2. Then the Trial starts, where the charges are framed, defense statement are made, Evidences and witnesses are produced, final verdict is passed.
  3. Appeal may be made to challenging the verdict passed by the Trial court to the next appellate Court having jurisdiction over the Trial Court which has passed the verdict.
  1. An arrest may be made in the country either with arrest warrant or without warrant.
  2. A person may be arrested under Austrian law without an arrest warrant irrespective of the offence, if
    1. he was caught in the act or immediately after the act of committing a criminal offense, or
    2. he is or is likely to become a fugitive from justice, that is, depart Austria without official authorization, or
    3. he has attempted, or is likely to attempt, to tamper with evidence or influence witnesses or persons accused in the same crime regarding their testimony or
    4. he is likely to repeat or continue the crime charged.
  3. However, a person suspected of having committed a criminal offense calling for a minimum sentence of ten years under the Austrian Criminal Code, such as murder, robbery, rape, kidnapping and arson, including an attempt at these crimes, must be arrested.
  1. After having been arrested, the arrested person must be questioned by police officers without delay and either released unconditionally or pending further court action or transferred to the custody of the competent court within 48 hours.
  2. After having been transferred to the court prison, the arrested person must be questioned by an investigative judge within 24 hours.
  3. At the initial hearing, which is not a trial and which normally takes place within the court prison, the investigative judge informs the arrested person of the offense he is suspected of having committed and asks the suspect whether he pleads guilty or not guilty.
  4. When the person is questioned by the police or by the investigative judge at the initial hearing, he is not entitled to be represented of an attorney.
  5. He may, however, decline to answer any questionsor if he says may be used in further proceedings.
  6. If the arrested person does not understand German and the judge does not speak the arrested person's language, an interpreter must be summoned.
  7. After the initial hearing, the investigative judge decides whether the arrested person should be remanded to custody pending investigation and trial, or be released with or without bail or other security such as, for example, the passport of the arrested person.
  8. Surrendering one's passport can serve the purpose of bail as the Austrian authorities presume the person cannot then leave the country.
  9. If the judge remands the person to continued custody, he must state the valid reasons such as
    1. the person so arrested may be a fugitive from justice or
    2. might influence witnesses or tamper with evidence if released,
    3. might repeat the offense, or
    4. that the offense involved a minimum sentence of ten years.
  1. The arrested person is entitled to file an appeal in writing (Haftbeschwerde) against his being remanded to custody.
  2. The decision on such an appeal is to be made by a board of three judges.
  3. In his appeal, the arrested person may offer bail if he has sufficient funds at his disposal. Bonding corporations or bondsmen are not available in Austria.
  4. In this stage an attorney may be engaged to represent the person at his expenses.
  5. If the arrested person has no funds to pay an attorney, he should apply to the investigative judge for the appointment of a defense attorney without fee.
  6. If the judge is satisfied that the arrested person has insufficient funds, he will instruct the local bar association to appoint an attorney.
  7. This procedure takes some time, however, and it might be one or more weeks until defense counsel visits the arrested person in jail.
  8. One or more days after the initial hearing, the arrested person will ordinarily be questioned in detail by the investigative judge.
  9. The arrested person again has the right to remain silent until he has obtained the advice of an attorney.
  10. The investigative judge may or may not permit the presence of an attorney while questioning the arrested person.
  11. After conclusion of the pre-trial investigation by the investigative judge, the case is refereed to the public prosecutor who will either dismiss the case or prefer formal charges.
  12. In the latter case, a copy of the charge sheet (in German) will be served upon the arrested person by the investigative judge.
  13. The arrested person may request the judge to have the charge sheet translated to him orally, if this is not done routinely.
  14. If the arrested person believes that he is being charged unjustly, he may appeal to the investigative judge and the latter will refer the appeal to the Superior Court for decision.
  15. It is recommended, however, that the advice and assistance of defense counsel be obtained before filing such an appeal.
  1. If no appeal is filed against the charges or the appeal is denied, the case is referred to a trial judge who will schedule the case for trial.
  2. There is no legal time limit for the scheduling of the trial, which may be anywhere from one week to two months or even longer before a case comes up for trial, depending on the court calendar and the seriousness of the offense charged.
  3. If the offense charged calls for imprisonment of not more than three years (in case of larceny, not more than five years), the case comes to trial before a one-man court (Einzelrichter)
  4. If the offense charged calls for imprisonment of not more than ten years, the case is tried before a court composed of two professional judges (one of whom presides) and two lay judges (Schöffengericht).
  5. All cases calling for a minimum of five years and maximum exceeding ten years imprisonment are tried before a court composed of three professional judges and eight jurors (Geschworenengericht).
  6. An interpreter will be furnished by the court, if needed.
  7. Under Austrian law, a victim or his survivors may join the criminal proceedings as a private party claiming damages.
  8. The criminal court may award damages if the accused is found guilty.
  9. The presiding judge will call the names of the accused and the witnesses to determine whether they are present and then orders the witnesses (Except expert witnesses who sit on the bench with the court) to leave the room and wait outside until called.
  10. The accused is then called forward to face the court.           The presiding judge will question him concerning his personal background, such as date and place of birth, religion, education, occupation, income and property he might own and the number of dependents.
  11. The questions on income, property and dependents are pertinent since, under Austrian law, the amount of any fine imposed by the court when sentencing the accused will be in relation to his financial circumstances.
  12. The judge will also ask whether the accused has any previous criminal record.
  13. The presiding judge will then order the charges to be read aloud to the accused by the court stenographer.
  14. If the accused is not competent in the German language, the court interpreter will translate the charges.
  15. The presiding judge will ask the accused whether he understands the charges and whether he wishes to plead "guilty", "not guilty" or to remain silent.
  16. The judge will then question the accused about the facts of the case.
  17. The accused may refuse to make a statement.
  18. Under certain circumstances, this may, however, be considered by the court to be an indication of guilt.
  19. Under Austrian law, an accused may not be sworn, nor may he be prosecuted for making false statements at this own trial.
  20. The judge will advise the accused, however, that telling the truth will be considered a mitigating factor if he is convicted.
  21. After the court has completed the questioning of the accused, the prosecutor, the attorneys for the victim, if any, and the defense counsel may question the accused. Any expert witnesses present, such as doctors, psychiatrists or automotive engineers may also ask questions.
  22. The court then calls the witnesses and obtains their testimony. The judge, prosecutor, attorneys for the victim, expert witnesses, the defense counsel and the accused may also question witnesses.
  23. After each witness has testified, the judge may ask the accused whether he has any comments regarding the statements of the witness.
  24. After all the evidence is presented, any expert witnesses present give their opinions.
  25. Then the prosecutor, attorneys for the victims, if any, and the defense counsel sum up the case in their closing statements.
  26. After the final statement of the accused, a one-man court (Einzelrichter) will normally pronounce his verdict and the sentence immediately,
  27. The other courts (Schöffengericht or Geschworenengericht) will withdraw to another room to determine the verdict and the sentence.
  28. In the case of a Schoeffengericht the presiding judge will pronounce the verdict and the sentence.
  29. At the jury trial (Geschworenengericht), the spokesman for the jurors will first state the verdict of the jury, which has been reached by majority vote.
  30. A unanimous verdict is not required.
  31. A tie vote results in acquittal.
  32. In case of a verdict of "guilty", the court members will withdraw to determine the sentence which may be pronounced the same day or at a subsequent time.
  33. If the verdict of the jury is "not guilty", the court will normally acquit the accused and order his release. 
  1. The prosecutor will normally file an appeal in any case of appeal by the convicted.
  2. Thus, an appeal by the convicted might ultimately result in an increase of the sentence should his appeal be denied by a higher court while the prosecutor's appeal is granted.
  3. Only one appeal is available and it is heard either by the Provincial Court (Landes- or Kreisgericht), Superior Provincial Court (Oberlandesgericht) or the Supreme Court (Oberster Gerichtshof), depending on the seriousness of the offense involved and the nature of the appeal.
  4. In the event of an appeal, the court of first instance decides whether the convicted is remanded to custody pending a decision on the appeal or whether he should be released with or without bail or other security.
  5. Within two weeks from the announcement of an appeal, the accused or his defense counsel must submit a brief supporting the appeal.
  6. he appellate court may either decide the appeal on the basis of the trial record from the court of first instance or it may order a public hearing with prosecutor and defense counsel present to argue their cases.