Diversion in Austria: how criminal proceedings can end without a conviction

Diversion means ending criminal proceedings without a formal conviction. Instead of a verdict, the prosecution or the court provisionally refrains from prosecution if the accused fulfils a condition, for example paying a fine, performing community service, passing a probationary period or carrying out victim-offender mediation. Once the condition is fulfilled, the proceedings are finally discontinued.

The decisive advantage: diversion is not a finding of guilt. It does not appear in the criminal record and does not count as a previous conviction. For many accused that matters more than the distant prospect of an acquittal after a long and burdensome trial.

Diversion is not the same as a discontinuation under Section 190 StPO. Discontinuation occurs where the suspicion is insufficient or no criminal conduct exists, so it is the "better" outcome without any condition. Diversion, by contrast, presupposes that sufficient suspicion exists but that the guilt is not serious.

The general requirements follow from Section 198 StPO. Diversion is possible where four conditions are met.

The facts are sufficiently clarified. It must be established what happened; where the evidence is disputed, diversion is generally not the first route, clarifying the allegation is.

The guilt is not serious. What counts is the weight of wrong and guilt in the individual case, not the amount of damage alone. Depending on the act and the circumstances, even a higher amount of damage can still be eligible for diversion.

No punishment necessary. No punishment may be necessary to deter the accused or others from further offences. Here a clean record, insight and compensation matter.

No fatal outcome and a penalty up to five years. The act must as a rule not have caused a person’s death and must not be punishable by more than five years’ imprisonment. This excludes the most serious crimes, which fall within the jurisdiction of the lay-judge or jury court.

The law provides for four diversionary measures, used individually or in combination.

Fine (Section 200 StPO). A payment of up to 180 daily rates, the amount of which depends on the financial circumstances, plus a flat contribution to costs. The fine is the most common form for minor property and traffic offences.

Community service (Section 201 StPO). Unpaid work for the common good, for adults up to 240 hours, at most eight hours per day and forty hours per week, to be performed within six months. An alternative for accused who cannot pay a fine.

Probationary period (Section 203 StPO). A probationary term of one to two years, often combined with obligations or with probation assistance. If the accused stays out of trouble, the proceedings are discontinued.

Out-of-court victim-offender mediation (Section 204 StPO). An accompanied settlement between accused and victim covering acceptance of responsibility, a discussion and compensation. Particularly suitable for bodily harm, property damage and conflicts in the personal sphere.

No finding of guilt. Diversion contains no verdict of guilt. The accused need not formally confess, but a degree of accepting responsibility is regularly the basis, especially in mediation.

No criminal-record entry. A diversionary outcome does not appear in the criminal record and is not a previous conviction. It is only recorded internally, which can matter, for instance, for the question of a fresh diversion in the event of a later offence.

Costs. Besides any fine, a flat contribution to costs is payable. The overall burden is as a rule clearly lower than the consequences of a conviction, especially when one considers the indirect effects of a previous conviction on profession, trade and residence.

Voluntariness. Accepting diversion is voluntary. If the accused declines, the proceedings continue. This decision should be made informed and after file access, not under time pressure.