Complaint against an autonomous police arrest in Austria

One question is decisive in legal terms: did the police merely execute a prosecution order or a judicial authorisation, or did they act on their own initiative without a prior order?

If the police arrest a person without a prior prosecution order, the upstream prosecution or court decision is precisely what is missing. The focus is then not on the prosecution but on the direct conduct of the police. In this constellation the central instrument of legal protection is the measures complaint against the police action.

The background is the separation of justice and administration: if the police act without a prosecution or court mandate, the police action is in principle to be assessed as administrative action. Subsequent review then takes place not in the criminal proceedings but before the Regional Administrative Court.

The measures complaint is a remedy against the exercise of direct administrative command and coercive power, in Austrian law abbreviated as AuvBZ. Such an act exists where administrative bodies, within the sovereign administration, unilaterally issue a command to or exercise coercion against individually determined addressees and thereby interfere directly, that is without a prior formal decision, with subjective rights.

What matters is the normative quality. The law turns on commands, that is normative orders. There must be conduct that can be interpreted as coercive power or at least as the exercise of command power. According to settled case law it is a feature of a command if the addressee is threatened with an immediately ensuing physical sanction in the event of non-compliance. A mere invitation to act in a certain way, by contrast, does not meet the definition, even if it is followed.

Typical examples in an arrest. Relevant measures include in particular: stopping a person, pronouncing the arrest, holding, leading away, applying handcuffs, taking the person to a police station, the continued detention, taking someone to the ground or fixing them, and the use of physical force. A search carried out in connection with the arrest or a provisional seizure of objects can also be a separate interference.

It is important that the entire operation need not always be unlawful. Individual parts of the police action can be separately problematic, for example unnecessary handcuffing, excessive use of force or a disproportionate search.

An arrest without a prior prosecution order is not automatically unlawful. In certain situations the police may also act on their own initiative, for example where there is particular urgency. This is precisely why the individual case is decisive. The police must be able to justify why they had to act immediately and why prior involvement of the prosecution or the court was not possible or not reasonable.

If these conditions are lacking, the arrest can be unlawful. A measures complaint against the police is not a general complaint form against unfriendly conduct but concerns concrete coercive acts, that is situations in which the police interfere directly with rights.

After a police arrest without a prosecution order, the following points in particular should be reviewed from a legal perspective:

Was there a concrete suspicion? There must have been concrete indications of suspicion, not merely a vague assumption.

Was there a statutory ground for arrest? Often the person is caught in the act, or risk of flight, risk of collusion or some other urgency is invoked. These grounds must actually have existed.

Was there imminent danger, and would a more lenient measure have sufficed? Acting on one’s own initiative requires that prior involvement of the prosecution or the court was not possible and that no milder measure would have been enough.

Was the arrest proportionate and correctly carried out? It must be examined in particular whether the person was informed of the ground for the arrest, how long the detention lasted and whether handcuffing or the use of force was necessary.

The more precisely the course of events can be reconstructed, the better it can be assessed whether the police acted lawfully. Helpful are a memory record made immediately after the incident, the times of stopping, arrest and release, names or service numbers of the officers involved, witnesses, photographs of injuries, medical findings as well as all documents, detention records and notices of rights.

Jurisdiction. The measures complaint is decided by the Regional Administrative Court. Local jurisdiction lies in principle with the Regional Administrative Court of the province in which the exercise of direct administrative command and coercive power began (Section 3 para 2 no 2 VwGVG). The complaint is to be filed directly with the Regional Administrative Court.

Deadline. The deadline is six weeks (Section 7 para 4 VwGVG). It begins at the moment the person concerned gains knowledge of the measure. If they were hindered by the measure from exercising their right of complaint, the deadline only begins when that hindrance falls away.

Content. The complaint must contain (Section 9 para 1 VwGVG): the designation of the challenged measure, the designation of the respondent authority or, where reasonable, the indication of which body took the measure, the grounds on which the assertion of unlawfulness is based, the request and the details required to assess timeliness.

No automatic suspensive effect. The complaint in principle has no suspensive effect (Section 22 para 1 VwGVG). The Regional Administrative Court may, however, grant suspensive effect on application if no compelling public interests stand in the way and the continuation of the measure would involve a disproportionate disadvantage. This is sensible above all where the interference still continues, for example during an ongoing detention.

A point often overlooked: in proceedings on a measures complaint there is a statutory claim for cost reimbursement under Section 35 VwGVG. It follows the principle of success. The successful party has a claim to reimbursement of its expenses by the unsuccessful party.

If the challenged measure is declared unlawful, the person concerned is the successful party. They can then claim reimbursement of expenses against the respondent authority or its legal entity. If, by contrast, the complaint is rejected or dismissed or withdrawn before the decision, the authority may conversely be regarded as the successful party.

The reimbursement is governed by Section 35 VwGVG and the cost reimbursement regulation issued under it. It covers in particular flat-rate amounts for the cost of written submissions and hearings as well as cash outlays, commission fees and travel costs. The claim is not directed personally against individual officers but against the legal entity to which the police action is attributed.

Make the cost application expressly. The reimbursement is granted on application, which can be made up to the close of the oral hearing. From a legal perspective the cost application should be borne in mind from the outset so that the claim is not lost.