When the Allegation Is There: The First 48 Hours for Accused Teachers

An allegation against a teacher almost never triggers a single proceeding alone, but rather a chain of duties, reactions, and escalations that run simultaneously on three tracks. Anyone who does not keep the tracks apart answers at the wrong level and often pays for it several times over. From a defence perspective, the first task of the 48 hours is to cleanly separate the three tracks and to pursue a distinct strategy on each.

Track 1, criminal proceedings. As soon as the suspicion of judicially punishable conduct is in the room, § 78 para. 1 StPO applies: authorities and public service units are under a duty to report to the criminal police or the prosecution where the suspicion concerns their statutory sphere of activity. The school management and the Bildungsdirektion are clearly public service units in this sense. The exceptions regulated in § 78 para. 2 StPO, in particular the “relationship of trust”, do not, according to the prevailing administrative practice, apply to the teacher and pupil relationship at school. In suspicion cases involving children, the protective clause of para. 3 additionally applies, which orders a report even where an exception would as such be applicable.

Track 2, civil-service and disciplinary law. In parallel and independently of the criminal proceeding, the Bildungsdirektion acts as the civil-service authority. Under § 112 para. 1 BDG (for federal teachers) or § 80 para. 1 LDG (for Länder teachers), it can order a provisional suspension where keeping the teacher in service would endanger the reputation of the office or essential service interests, or in case of pre-trial detention or a legally effective indictment for certain offences. Contract teachers, who today make up the by far predominant part of the teaching profession, are not subject to the classical disciplinary proceeding, but to the labour-law responses under §§ 32, 34 VBG (dismissal, summary dismissal); a true suspension with a salary cut does not exist in the contract-teacher scheme. Instead of a suspension, dispensation from service (Dienstfreistellung) applies, with salaries in principle continuing to run.

Track 3, child protection and school day-to-day life. § 37 B-KJHG 2013 obliges institutions caring for or teaching children and juveniles to notify the Child and Youth Welfare provider where there is a well-founded suspicion of a danger to the welfare of the child. § 48 SchUG provides for this expressly with regard to school managements. This notification duty is not identical with the criminal report under § 78 StPO, it can be triggered additionally or independently. On top of this come parent and pupil information, the media situation, the class climate, and the arrangement of replacement teaching. From a defence perspective, this track requires a communication line, not an explanation on the substance, but an orderly information without admission and without prejudicing the evidence.

The following timeline shows four phases from the first call to a coordinated strategy on the second day, and at which points you, as an accused teacher, can concretely do something without incriminating yourself. The order is based on experience, it can shift depending on the situation, but the basic pattern is the same in almost all suspicion cases.

Criminal defence begins with the sober question which concrete criminal statute underlies the allegation. Only the offence determines the applicable evidentiary requirements, the sentencing threat, and the type of proceeding, and that is also civil-service-law decisive, because the provisional suspension under § 112 BDG and § 80 LDG is virtually automatically examined for certain charges. The following overview shows the constellations most frequent in practice and the corresponding provisions.

Sex-related charges. § 212 StGB (abuse of a relationship of authority) expressly captures the school teacher and pupil constellation: sexual acts with minor persons under the perpetrator's upbringing, training, or supervision, exploiting this position, imprisonment of up to three years. Protected are all minors up to the completion of their 18th year of age, not only persons under 14. § 207 StGB (severe sexual abuse of persons under 14) and § 207a StGB (pornographic depictions of minors, relevant for image material on service phones) often come on top. Since the amendments of 2016 and 2019, § 218 StGB covers sexual harassment, including not merely fleeting touches of intimate parts of the body and digital harassment, for instance through the unsolicited sending of images.

Physical assaults. § 83 StGB (light bodily injury, up to one year) and § 84 StGB (severe or qualified bodily injury) are the classic offences as soon as pain or an injurious consequence is documented. The slap has been, since the ban on violence under § 137 ABGB (1989), to be qualified as violence in any event; in the school, downplaying it as a “pedagogical measure” is legally not an option. § 92 StGB (tormenting or neglecting persons under 14, younger or defenceless) applies as soon as the teacher is qualified as a caregiver or person under a duty of supervision during lessons or supervision, which is regularly the case with repeated pedagogical violence.

Offences against honour and false accusation. §§ 111, 115 StGB (defamation, insult) are in the school context mostly relevant in the reverse constellation, against statements of third parties about the teacher, for instance in class chats or in social media. § 297 StGB (false accusation) captures the knowing false accusation of a punishable act and may, as a counter-complaint by the teacher, play a role where the allegation was recognisably knowingly false; in the first consultation, however, this is urgently to be advised against, a counter-complaint often takes from the defence at the main proceeding more room than it brings in the short term.

Intent-related procedural offences. § 295 StGB (suppression of evidence) is the most frequent trap in the early phase: a teacher who leaves class chats, deletes screenshots, or destroys school records as soon as they know about the proceeding risks own criminal liability, including in the attempt (§§ 15, 295 StGB). The power of disposal is the key question; in a class chat with pupil and parent contributions, the teacher is regularly not solely entitled to dispose. § 105 StGB (coercion) and § 288 StGB (false testimony, subornation thereto) capture the pressure on withdrawal of the complaint or the request to pupils to “correct something”, not infrequently undertaken in the upset.

Offences of dissemination and “hate online”. In allegations from digital school day-to-day life, § 107c StGB (continued harassment by means of telecommunications), § 283 StGB (incitement), and the offences around data and communication offences regularly come on top. This constellation overlaps with the topic of defence in juvenile criminal matters, in depth in our guide to hate online.

The civil-service-law track differs fundamentally according to the status of the teacher. Tenured federal and Länder teachers are subject to a formal disciplinary law with a suspension order, disciplinary commission, disciplinary hearing, and appeal to the Federal Administrative Court. Contract teachers, who today make up the predominant part of the teaching profession, know no disciplinary proceeding of their own in this sense; they are subject to the labour-law termination offences of the VBG.

Provisional suspension under § 112 BDG and § 80 LDG. The Bildungsdirektion as the civil-service authority can order the provisional suspension immediately where pre-trial detention has been imposed, where a legally effective indictment for certain offences is on the table, or where keeping the teacher in service would endanger the reputation of the office or essential service interests. The order is to be reported without delay to the disciplinary commission, which decides by order on the definitive suspension. The salary is cut to two thirds for the duration of the suspension (§ 112 para. 4 BDG, § 80 para. 4 LDG). Where there are maintenance obligations, the disciplinary commission can, on application, reduce or fully cancel the cut; corresponding supporting documents are to be filed early.

Appeal against the suspension. Against the suspension order, an appeal lies to the Federal Administrative Court, with a deadline of four weeks from service (§ 7 para. 4 VwGVG). The appeal has no suspensive effect; the Federal Administrative Court has to decide within six weeks (acceleration requirement for suspensions). From a defence perspective, an appeal is always worthwhile where the suspension is based primarily on an insufficiently documented initial suspicion, where the “endangering of reputation” is asserted in a blanket manner, or where the order does not allow it to be seen why a milder measure (dispensation from service at another school, transfer, provisional observation) would not suffice.

Contract teachers and pedagogical service law. For contract teachers under the VBG (including the pedagogical service, mandatory for new entries since 1.9.2019), there is no classical suspension with a salary cut. § 5a VBG refers to BDG provisions mutatis mutandis, but the civil-service-law response is primarily through admonition, consensual termination, dismissal (§ 32 VBG), or summary dismissal (§ 34 VBG). During a pending proceeding, typically a dispensation from service (Dienstfreistellung) is pronounced, in which the salary in principle continues to run. This is a considerable relief compared to the civil-servant scheme, but does not change the necessity of acting in good time under labour law against an unfounded termination declaration (challenge deadline under § 32 para. 2 VBG four weeks, action before the Labour and Social Court).

Staff representation and GÖD. The staff representation is, under § 9 PVG, to be informed in writing about every intended disciplinary report, every disciplinary order, and the manner of termination of the proceeding; it has a right to comment, no veto right. In the staff meeting, the accused teacher has the right to bring in a representative of the staff representation (§ 10 PVG). In sensitive constellations, the teachers' trade union of the GÖD (with own sections for APS, AHS, BMHS, BS) is on top of this the central point of contact, both for the granting of legal protection and for the strategic accompaniment.

The cost question is, in the first phase, not the second point after the substantive question but the first, because salaries may be cut, because two proceedings run in parallel, and because lawyer's and expert's costs in sexual and violence proceedings quickly reach the five-figure range. Three routes are practically open, they are not fully interchangeable.

GÖD legal protection. Members of the GÖD are entitled to legal protection, which expressly covers criminal defence and the disciplinary proceeding insofar as there is a service-related connection. The cover is extensive, even long multi-instance proceedings are borne; the preliminary review is carried out by the GÖD legal department via the Dienststellenausschuss and the regional or federal leadership. The decisive advantage compared to private insurances: intentional offences are not excluded from the outset. The application should be made in the first 24 hours, a retroactive assumption of services already instructed is regularly not provided for.

Private professional legal-protection insurance. Standard policies, for example with ÖBV, D.A.S., Allianz, typically cover criminal-law protection only for misdemeanours of gross negligence, not for intentional offences. Sexual and violence allegations are intentional offences, an ongoing defence is therefore regularly not borne; many contracts provide for a subsequent assumption of costs on acquittal (so-called “non-intentional-act clause”). This mechanic is tariff-dependent and has to be examined on the specific policy, a general statement about coverage is not possible.

Procedural aid. Subsidiarily, procedural aid under § 61 StPO comes into question where the teacher is destitute and the interests of the administration of justice require the appointment. In practice, procedural aid rarely applies to teachers because the income is as a rule above the threshold and GÖD legal protection takes precedence; it remains, however, a safety net, for instance for very long proceedings with exhausted legal-protection limits.

The defence in criminal matters against teachers sees, over the years, a remarkably consistent list of mistakes that repeat themselves in almost every second case. They are not legally complex, they happen out of upset, out of the need to “do something”, or out of the assumption that personal sincerity will already suffice. Anyone who avoids the following five patterns has already done the most important work of the first 48 hours.

Mistake 1, the “explanation email” to the parents. In an attempt to calm the situation, many teachers draft a written statement to the complaining parents, often on the evening of the first day. This email will with high probability be added to the file, it cannot be taken back, and depending on the wording is read as approach to a confession, as denial under pressure, or as an attempt at evidence influence. The right answer is the written communication line of the school management, not the personal email of the teacher.

Mistake 2, the deleted class chat. In the first upset, the class chat is left, archived, or “tidied up”. With that, the offence of § 295 StGB (suppression of evidence) is regularly fulfilled, in the attempt also punishable. Even where the chat contains your own contributions, the teacher is not solely entitled to dispose and the deletion considerably worsens the situation. Right: screenshots with date and time, remain in the chat, change nothing, notify the defence.

Mistake 3, the “clarifying conversation” with the directorate without defence. The directorate kindly invites to a conversation, “just to understand the situation”, without file access, without preparation time, without staff representation. The conversation produces an internal note that later serves as a factual basis for the disciplinary report and the suspension. The right answer is the polite rescheduling, file access, and the written statement after coordination with the defence.

Mistake 4, the spontaneous statement at the police. Anyone who, on the phone, explains to a police officer “this is all a misunderstanding, I will gladly explain it briefly”, has already taken the most important defence decision of the entire early phase, against themselves. Statements go on the file, corrections later look like protective claims. The right answer reads: “I will instruct a defence counsel and come back with a date proposal.”

Mistake 5, the missing separation of service and private devices. From the first day of the proceeding, it must be clear which devices and which accounts are service, which private. Private messages via service mail servers, school cloud, or administrative devices can later be inspected, a subsequent separation is hardly possible. The right answer is an inventory in the first hours, drawn up by the defence and, where applicable, IT counsel together with the teacher.