When may the lay assessor court hear a further act? Section 263 StPO governs consent, separate prosecution and preparation.
Mag. Christopher Angerer, Rechtsanwalt
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If the accused is charged with a further act during the main hearing, section 263 of the Austrian Code of Criminal Procedure (StPO) governs whether the lay assessor court (Schöffengericht) may extend the hearing and its judgment to that act. The precise allegation, a request by a person authorised under section 263(1) and, where the statute requires it, the accused's consent matter.
The statute also distinguishes separate prosecution of the added act from a new main hearing covering all allegations. The route depends, among other things, on the preparation needed and the court's jurisdiction.
Choose the issue that needs to be clarified during the current hearing.
Section 263 StPO distinguishes between the act alleged, whether the court can decide immediately and whether it has jurisdiction.
Section 263 applies where the accused is charged with another act during the main hearing. Ask for the alleged facts to be specified and compare them with the act in the indictment. A different legal label alone does not settle whether the act is different.
Under section 263(1), consent is required only if conviction for the further act would place the accused under a stricter criminal statute than the one applicable to the act specified in the indictment. Discuss the two statutes with the defence before responding to a request for immediate adjudication.
If required consent to immediate adjudication is withheld, the judgment is confined to the subject matter of the indictment. At the prosecuting party's request, the court must reserve separate prosecution of the further act; without that reservation, later prosecution is not permitted.
If careful preparation is needed or the lay assessor court lacks jurisdiction over the further offence, the judgment must be confined to the subject matter of the indictment. The same applies if the accused withholds consent to immediate adjudication in a case where consent is required. At the prosecuting party's request, the court must reserve separate prosecution of the added act. Without that reservation, later prosecution of that act is not permitted.
Depending on the circumstances, the lay assessor court may discontinue the current main hearing and reserve its decision on all offences alleged against the accused for a new main hearing. This differs from separate prosecution of only the added act. In both cases, section 263(4) requires the prosecuting party, within three months, to withdraw from prosecution under section 209(1), file an indictment or continue the investigation. Otherwise, the right to prosecute is lost.
Section 263(1) concerns a situation in which, during the main hearing, the accused is charged with an act other than the one in the indictment. The provision names the lay assessor court (Schöffengericht). If the added act is prosecuted ex officio, the public prosecutor or the victim may request an extension. In other cases, only the person entitled to bring a private prosecution may request it.
An objection to the indictment under section 212 StPO concerns a different stage of the proceedings. The separate article Objection to an indictment under section 212 StPO explains that remedy. This article is limited to a further act alleged during the main hearing.
Under section 263(1), consent is required only if conviction for the further act would place the accused under a stricter criminal statute than the statute applicable to the offence identified in the indictment. The question turns on comparing the statutes that would apply to the two acts.
The mere fact that another act is alleged does not automatically make consent necessary. First establish which statute applies to the original charge and which is proposed for the added act. The defence can assess that legal comparison against the facts alleged.
If consent is required in such a case and the accused refuses consent to immediate adjudication, the judgment is confined to the subject matter of the indictment. The same applies if careful preparation appears necessary or the lay assessor court lacks jurisdiction over the added offence.
At the prosecuting party's request, the court must reserve separate prosecution of the added act. Without that reservation, later prosecution of the act is not permitted. The defence should clarify whether a reservation is requested and precisely which act it would cover.
Depending on the circumstances, the lay assessor court may discontinue the current main hearing and reserve its decision on all offences alleged against the accused for a new main hearing. That route covers all allegations. Separate prosecution under section 263(2), by contrast, concerns the added act.
Section 263(4) sets a three-month period in both cases. Within that period, the prosecuting party must withdraw from prosecution under section 209(1), file an indictment or continue the investigation. If it fails to take one of those steps, the right to prosecute is lost.
Record the exact further act alleged and how it differs from the act in the indictment. Compare the facts and the criminal statutes cited for each. Clarify whether the court intends to decide immediately, what evidence requires careful preparation and whether the lay assessor court has jurisdiction over the added offence.
If the hearing may be discontinued or a reservation is being considered, establish whether further proceedings would concern only the added act or all allegations. For the ordinary stages of the hearing, see Main trial procedure for an accused person.
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