Defending theHuman Rightto a Fair Trial
The information below is designed to provide answers to some of the most frequently asked questions regarding criminal proceedings and defence rights in Austria.
We have prepared this guide with the assistance of local experts including Stefan Schumann and Karin Bruckmüller, both of Johannes Kepler Universität, Linz, who tried to describe how things happen in practice. Even within one country, however, practice can vary greatly from one place to another, and your experience could differ from the description below.
This information was last updated in March 2016. The information here is provided for information purposes only and is not intended as legal advice, nor does it constitute legal advice. Whilst we endeavour to keep the information up to date and correct, Fair Trials makes no representations or warranties of any kind, express or implied about the completeness, accuracy, reliability, suitability or applicability to individual cases of the information contained here. Any reliance you place on such material is therefore strictly at your own risk. Fair Trials disclaims any liability to the fullest extent permissible by law for any loss or damage of any kind arising from the use of the information provided. You should always seek professional legal advice from a lawyer qualified to practice in the jurisdiction you are in.
You can download a copy of this information to print here.
You can find details of local sources of support in Austria in this document.
If you are currently outside of Austria, but you think you are being accused of a crime in Austria, we have prepared some basic guidance to help you decide what to do.
For general guidance on what to do if you have been arrested, please refer to the Frequently Asked Questions on our website.
The laws of Austria apply to the Federal State consisting of the nine Federal Provinces of Vienna, Lower Austria, Upper Austria, Salzburg, Tyrol, Vorarlberg, Carinthia, Styria and Burgenland.
Under Austrian law, you can only be arrested if there is warrant, unless:
Following your arrest, you can be held in detention for an initial period of 48 hours, during which a judge may decide to detain you for another 14 days.
(a) Right to information:
(i) Will the police inform me of my rights? Will this be done orally or in writing?
The police must inform you of your rights at the moment of arrest, or immediately afterwards.
The information must be provided in writing in a language and in a way you are able to understand.
A “letter of information for arrested persons” is available in many languages, and it must be provided to you. You have the right to keep this letter with you.
If no written information is available at the time of your arrest, you will be informed orally instead, and written information must be provided as soon as possible.
(ii) Do I have the right to be informed of the allegations / charges against me?
The accusations against you must be made known to you as soon as possible, and within 24 hours.
You must be informed about the accusations against you before any interrogation can take place.
If, following investigations, the prosecuting authorities believe that there is enough evidence to convict you for an offence, you will be charged before a court.
(b) The right to inform people:
(i) Do I have a right to have the consulate informed of the arrest?
Yes, you have the right to contact your consulate or embassy, if you are not an Austrian national. You may ask your lawyer to contact the consulate on your behalf if you do not believe this has already been done.
(ii) Do I have a right to inform my family of the arrest?
Yes, you have the right to request a family member to be notified at the time of your arrest.
(c) Do I have a right to a lawyer?
You have a right to seek advice from a lawyer at any point during your criminal proceedings.
You should be given information about the ‘Standby Legal Counselling Service’ of the Austrian Federal Bar Association. This service provides a duty lawyer 24 hours a day, seven days a week. You can speak to the duty lawyer free of charge, and s/he may come to the police station to attend your police interrogation.
(d) Do I have a right to a translator/interpreter?
Yes, you are entitled to an interpreter at during your interview, if you are unable to communicate in German. The services of the interpreter should be provided for free.
An interpreter must also be made available for correspondence between you and your lawyer, free of charge.
(e) Do I have to talk to the police or can I remain silent during police interrogation? Will it work against me if I am silent?
You do not have to answer any questions in the absence of your lawyer. You always have the right to remain silent, and you must be informed of this right.
You have the right to access the case file, but you will not automatically receive a copy of the file immediately after your arrest.
The public prosecutor may however, order parts of the file to be kept from you and your lawyer, if there are reasons to believe that it would undermine any ongoing investigations.
However, if the court has ordered your pre-trial detention, you must be given access to parts of the file which you need to evaluate the reasons for suspicion or the reasons for your arrest or detention.
Once you have been charged, you must be given access to the entire case file.
(a) How do I find a lawyer?
The Austrian Federal Bar Association keeps a register of lawyers, which you could use to identify a local criminal lawyer. You could also get in touch with local bar associations and ask for their assistance in finding a lawyer.
If you are arrested, the police must provide you information about the ‘Standby Legal Counselling Service’ of the Austrian Federal Bar Association. You can use this service at any time to call a lawyer on duty.
(b) I cannot afford to pay for a private lawyer, what should I do?
If you are unable to pay for a lawyer, you will be appointed a lawyer by order of the court by the bar if you are in detention, or in serious cases at the main trial, on a mandatory basis. If you are convicted at the end of your trial, you will need to pay back the costs of the court-appointed lawyer, unless you are granted legal aid.
In other cases, if you are unable to pay for a lawyer, you may be appointed one registered with the local bar association on legal aid by a court order, if it believes that it is in the interests of justice to so. You will need to complete an application form in order to be assigned a legal aid lawyer, and you may need to provide evidence of your income and your assets.
If you are relying on legal aid, you can express a preference for a specific lawyer, but there is no guarantee that the specific lawyer you identified will take on your case.
(c) What is the role of my lawyer? Will s/he investigate the case?
Your lawyer can offer legal advice throughout the whole proceedings and represent you in court. However s/he has no formal power to investigate your case.
(d) I am unhappy with my lawyer: How can I change lawyer? How can I complain about my lawyer?
If you are paying for your own lawyer, you may appoint or change your lawyer, as you wish.
In order to request a different legal aid lawyer, you must request one from the Bar Association.
Complaints about your lawyer can be addressed to the Bar Association, who may take disciplinary action, if they think it is necessary.
The information given below is specific to Austria. For general information and tips about how to obtain your release prior to your trial, please refer to our note of advice on Applying for Release Pending Trial.
(a) Will I have to stay in prison until my trial starts? What are the alternatives?
The court may order your detention if there is a valid reason to keep you in prison until your trial goes ahead. These reasons may include:
(b) How long can I be kept in prison before my trial starts?
If the court orders your detention, it can be extended for an initial period of 1 month. Subsequent decisions extending your detention are for 2 months.
In most cases, pre-trial detention should last no longer than 6 months in total. However, in the certain serious cases, pre-trial detention can last for up to 2 years.
(c) How and when can I apply for release while waiting for trial?
You may file an application to challenge the court decision to order, or to extend your detention. This application must be made within two weeks of the delivery of the decision in writing.
The decision on your application will be made by the Higher Regional Court.
(d) Can I go back to my home country if I have been released pending my trial?
Unless it is one of the conditions of your release to remain in Austria, you should be able to go back to your home country. However, you must make sure you have fully understood the conditions of your release before you make any decision to leave Austria.
(e) What will happen if I breach the conditions of my release?
If pre-trial detention is ordered, you will be provided a lawyer if you do not have one already. The lawyer will assist you in applying for bail.
(f) Do I need a lawyer to apply for release?
The timing of your trial is affected by a number of different factors, so it can be difficult to predict when it might go ahead. You may need to wait from anything between one week to several years, depending on the seriousness and the complexity of your case. There is no legal timeframe in which your trial should take place.
(a) There are always delays with my case, does that mean my lawyer is doing a bad job?
Delays could be caused as a result of numerous reasons, and they may not necessarily be caused by your lawyer.
If you made a confession before the trial, and you do not contest the accusations against you, it may help to reduce your sentence. However, your trial will still take place.
Plea bargaining, in the form of making an agreement with the prosecution on your sentence in exchange for accepting the accusations against you, is not recognised under Austrian law.
Depending on the seriousness of the charges against you, you may be tried either a District Court (‘Bezirksgericht’) or the Regional Court (‘Landesgericht’).
The District Court tends to hear cases for which the penalty is likely to be no more than a one year prison sentence. The District Court is composed of a single judge.
All other cases are heard at the Regional Court, which can be composed of a single judge, a panel consisting of one professional judge and two lay judges, a panel consisting of two professional judges and two lay judges, or a panel of three professional judges and a jury.
(a) Do I have to be present?
Main trials at the Regional Court usually cannot take place in your absence. There are no facilities for trial by video-link.
Under certain preconditions there is a newly introduced written proceeding instead of oral main trial.
(b) Can I ask for the trial to take place in my home country?
(c) Is there a jury?
Jury trials are reserved for serious offences.
As a general rule, if you have been charged with a crime that carries a minimum sentence of 5 years’ imprisonment or more, and a maximum sentence of more than 10 years’ imprisonment, your case will be heard by three professional judges and eight jurors.
(d) Can my lawyer call and cross-examine witnesses?
(e) I don’t speak the language of the court, do I have a right to an interpreter? Is it free?
An interpreter should be provided by the court at no cost, if needed. The court interpreter is also able to translate the charges against you, which will be read out at the start of the trial.
(f) Will the written evidence be translated for me?
Normally, you have the right to a written translation of an arrest warrant, any court decision ordering or extending your detention, the charges, and the verdict. You may request further written translations if necessary, but you should give reasons why they are needed.
By way of exception, you could be given oral interpretations of documents instead of written translations.
The translation is free of charge.
(g) Will the interpreter also help me if I need to talk to my lawyer?
Yes, when necessary the interpreter should help you to talk to your lawyer. It is free of charge.
(h) Why is the victim taking part in the trial?
The victim or his/her survivors can join the trial, especially, but not limited to that, as a private party claiming compensation. The victim has the right to be present at the trial, and to be represented by a lawyer. The victim’s lawyer, and the victim themselves can also question you during the trial.
(i) Will I be informed of the decision of the court on the day of the trial?
In the District Court, the judge will normally pronounce a verdict and sentence immediately after your trial.
If you were tried by a panel of three or four judges at the Regional Court, the court usually delivers the verdict and sentence, on the same day.
You may not be informed of the decision in your case on the same day if you were tried by a jury. It may take a few days for the jurors to deliberate and make a decision on your case.
(j) Can I receive a copy of the judgment in my mother tongue?
Yes, in due course, but not immediately.
(k) I was tried in my absence and was not informed of this, what can I do?
You could be tried in your absence if you are accused of a misdemeanour (‘Vergehen’) (an offence for which you can be punished with no more than 3 years’ imprisonment). This could happen if you have already been interrogated as a suspect, and you were summoned to attend court. Furthermore, it is precondition that you were interrogated pre-trial as a suspect, so you had the possibility to reply to the allegation. Trials that take place in the absence of the accused (also called ‘trials in absentia’) can take place either at the District Court or the Regional Court.
You may file a complaint against a District Court’s decision issued in absentia, claiming that you were not summoned properly, or you were not able to attend main trial due to unavoidable circumstances beyond your control.
If you are tried in your absence by the Regional Court, you may file a ‘plea of nullity’ claiming that you were not summoned in person. The plea of nullity should be announced within three days after you were notified of the verdict. The plea of nullity must be submitted within an additional four weeks.
If you were not able to attend the main trial at the Regional Court due to circumstances beyond your control, you may file a complaint within 14 days from the date you were informed of the verdict. Your plea of nullity or appeal may be announced together with the complaint. The three-day-rule is not applicable in this case.
You must be represented by a lawyer if you wish to file a plea of nullity against a verdict made by a jury or a panel at the Regional Court.
Yes. The grounds on which an appeal can be made depend on the type of Court which held your conviction. If you were tried in a District Court a full appeal against both the verdict and the sentence can be made.
If you were tried at the Regional Court, you can appeal the sentence but not the verdict. You can however, challenge the decision on the basis that there were procedural errors, or errors of law at your trial (plea of nullity).
You must announce your intention to appeal against the judgment, or file a plea of nullity within three days of the judgment being made. The court will then issue its judgment in writing.
Your appeal must then be filed in writing within four weeks of the announcement, or the delivery of the written judgment.
(a) Do I need to pay my lawyer more money if there is an appeal?
Yes, your lawyer may ask you to pay for further assistance. If you are unable to pay for a lawyer’s fees, you may be entitled to legal aid.
(b) What is the time frame for the appeal to take place?
There is no specific timeframe defined by law in which appeals should take place.
(c) Could things get worse during the appeal? If I am acquitted, can the prosecution appeal?
Things cannot get worse if you are the only one who appeals. However, you could end up with a harsher outcome, if the public prosecutor either appeals or files a plea of nullity. The prosecution can appeal against acquittals.
(a) Is it possible to get my case reviewed?
No. After you have exhausted your appeals, you only may complain to the European Court of Human Rights if you wish to complain about a violation of your rights protected by the European Convention of Human Rights and Fundamental Freedoms.
Exceptionally, you can demand for a review of the case. There is a specific grounds on which such reviews can take place. You may apply for a review if you can show that certain evidence were produced in violation of criminal law, if you can produce new facts or new evidence that challenges your conviction; or if two or more persons were convicted in different cases, the factual bases for these convictions is contradictory.
In certain cases, it may also be possible to request the General Prosecutors Office to launch a plea for nullity, if the law was wrongly applied.
(b) Can I apply for a pardon?
Clemency is offered by the Federal President of Austria on recommendation by the Federal Government. Traditionally, a few hundred prisoners are pardoned at Christmas every year. A plea for clemency can be submitted to the Minister of Justice.
(a) Do I have rights as a prisoner? Where can I find out about my rights?
Yes, you have a variety of rights including but not limited to the right to food and water, and the right to security. There are also specific rules on your rights to correspond with the outside world, to receive visits in prison and to correspond with your lawyer.
(b) What can I do if my rights are violated? Where can I get assistance regarding my welfare issues, regarding abuse and mistreatment?
You should speak to a lawyer who may be able to take up the issue with the Police any justified complaint regarding ill treatment. You can also complain to the prison administration and the prisoners’ social service, or to the court. You can also complain to the federal ombudsman (‘Volksanwaltschaft’), which may investigate the alleged violations of your rights.
You may wish to seek assistance in the first instance with your lawyer. Your embassy or consulate (if you are not an Austrian national) may also be able to help.
It may be possible to get your sentence reduced, if there has been a change in circumstances that could affect the appropriate sentence.
If you are a resident of Austria, you may, under certain circumstances, also be entitled to serve your prison sentence by way of house arrest with electronic tagging. You should speak to your lawyer about this possibility.
There is also the possibility of early release on parole.
(a) What would help me get early release?
The public prosecutor has to consider whether you should be released:
Good conduct in prison could be taken into consideration by the public prosecutor when deciding on early release.
(b) I have been sentenced to pay a fine, what will happen if I don’t pay it?
If you are unable to pay a fine you should immediately notify the Court and ask whether the fine can be paid in instalments.
The Court may take enforcement action against you which could involve the seizure your assets. If you are unable to satisfy the fine, you may be required to engage in unpaid community service or a lengthier prison sentence.
If your economic or personal circumstances change considerably after you have been sentenced, the court may be obliged to review the fine or seizure.
(a) Can I serve my prison sentence in my home country?
This could be possible if there is an agreement between Austria and your home country allowing such transfers to take place. If you reside in another EU country, you could be transferred to a prison in your home country with or without your consent.
Please refer to our ‘Prisoner Transfers’ note of advice for further information.
(b) Can I be expelled instead of serving my sentence?
If you are not an EU resident, you have served half of your prison sentence (so long as this amounts to at least 3 months), and you are subject to a deportation or an expulsion order, it is likely that you will be released and expelled. You may have to wait until you have served two thirds of your sentence in certain cases, in which it is considered necessary to
If it is considered to be necessary in order to prevent others from offending, this decision may be prolonged until you will have served two thirds of the sentence.
(c) Is there a risk that I will be deported after serving my sentence?
Depending on the seriousness of the crime, and the length of your sentence, you may be deported once you have served your sentence. If you do not wish to be deported, you should seek advice from an immigration lawyer.
Appeal (Rechtsmittel): An opportunity to dispute a decision made at trial by asking a higher court to review it. This can result in the decision being overturned or changed.
Arrest Warrant (Haftbefehl): A document authorising the police to make an arrest, search premises, or carry out some other action relating to the administration of justice.
Bail (Freilassung gegen Auflagen): The temporary release from police custody or prison of a person accused of a crime and awaiting trial.
Bar Association (Rechtsanwaltskammer): An organisation whose role is to represent lawyers and help people in their dealings with lawyers.
Charge/Indictment (Anklage): An official statement accusing a person of committing an offence.
Consulate (Konsulat): The section of the embassy whose task is to assist its citizens.
Court of Appeal (Rechtsmittelgericht): The court that is competent to hear appeals (i.e. challenges) made to decisions of the lower courts
Court of First Instance (Erstinstanzlich zuständiges Gericht): A lower court where a trial is initially heard.
Embassy (Botschaft): The office of a government official who resides in a foreign country and represents his/her government’s interests.
European Court of Human Rights (Europäischer Gerichtshof für Menschenrechte): The Court is based in Strasbourg, France, and hears human rights cases against the 47 countries which make up the Council of Europe (which is different from the European Union).
Investigative Judge (Ermittlungsrichter / Haft- und Rechtsschutzrichter): A judge who performs an examining role and is actively involved in the conduct of investigations.
Judge (Richter): A person with authority to hear and decide on cases in a court of law.
Judgment (Urteil): A decision on a case provided by a judge in a court of law.
Lawyer (Rechtsanwalt): A person whose profession is to give legal advice and assistance to clients and represent them in court or in other legal matters.
Legal Aid (Verfahrenshilfe): Assistance of lawyer free of charge provided by court order to a person who needs a lawyer and who cannot afford to pay for one.
Police Custody (Polizeigewahrsam): Detention of a suspect by the police after arrest
Pre-trial Detention (Untersuchungshaft): Detention in prison during the investigations (and often during the trial itself as well), which happens before the decision on guilt or innocence is made by the court.
Public Prosecutor (Staatsanwalt): A person who conducts a case against a person who is accused of a crime.
Remand (Verhängung der Untersuchungshaft): The act of sending a person, accused of a crime, into prison until the trial by the court at the request of the prosecutor.
Sentence (Strafe): The punishment assigned to a person convicted of a crime as fixed by a court of law.
Victim is known as ‘Opfer’ in German.
Witness is known as ‘Zeuge’ in German.
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