Pre-trial detention in Austria: grounds, less severe measures and release

Under § 173 StPO, pre-trial detention requires two things: strong suspicion and one of the grounds for detention named in the law. Both must be present at the same time. In addition, the detention must be proportionate; it must not be out of proportion to the significance of the case and the expected sentence.

Strong suspicion. There must be a high probability that the accused committed a specific offence. A mere initial suspicion is not sufficient.

Subsidiarity. Pre-trial detention is a measure of last resort. It may not be imposed if its purpose can also be achieved by less severe measures. This examination is at the heart of every detention hearing.

The detention and legal protection judge decides on the imposition at the request of the public prosecutor, in a detention hearing at which the accused is heard and their defence lawyer can be present.

The law names three grounds for detention in § 173 para 2 StPO. At least one must be present.

Risk of flight (no. 1). There is a risk that the accused will evade the proceedings by fleeing or going into hiding. Here, firm ties such as residence, family and work count against the assumption of a risk of flight. For foreign accused, a risk of flight is often assumed more readily, but this can be rebutted by concrete ties and conditions.

Risk of collusion (no. 2). There is a risk that the accused will destroy evidence, influence witnesses or cover tracks. This ground loses weight once the evidence has been secured and the witnesses have been examined.

Risk of committing or carrying out offences (no. 3). There is a risk that the accused will commit a further criminal offence with serious consequences or carry out the threatened offence. Previous convictions and the specific situation of the offence play a role here.

Under § 173 para 5 StPO, pre-trial detention is to be replaced by less severe measures if these are sufficient to fulfil the purpose of detention. The law names several options.

Undertakings and directions. For example the undertaking to submit to the proceedings and not to flee, the direction to live in a particular place, or the prohibition on contacting certain persons.

Reporting requirement and surrender of documents. The obligation to report regularly to the police, as well as the surrender of passport and identity documents. Both measures are aimed primarily at the risk of flight.

Bail (security deposit, § 180 StPO). Where there is a risk of flight, detention can be replaced by a sum of money, the amount of which depends on the seriousness and the circumstances. Bail is repaid if the accused submits to the proceedings. Where there is a risk of collusion or of committing offences, bail alone is generally not sufficient.

From a legal perspective, the most effective approach is to propose to the court a concrete, credible overall package of conditions that achieves the purpose of detention just as well as detention itself.

Pre-trial detention is strictly time-limited and is reviewed on an ongoing basis (§§ 175, 178 StPO).

Detention hearings. The first detention hearing takes place within 14 days of the imposition. The second follows after one month, and thereafter every two months. At each detention hearing it is re-examined whether suspicion, ground for detention and proportionality continue to apply.

Maximum duration under § 178 StPO. If detention is based solely on the risk of collusion, it may last no more than two months. For the other grounds for detention, the maximum duration is in principle six months for a misdemeanour, one year for a felony, and two years where the offence is punishable by more than five years’ imprisonment.

Release and complaint. Regardless of the scheduled dates, an application for release can be made at any time if the situation changes. A complaint to the Higher Regional Court is admissible against the imposition or continuation of detention. Both routes require knowledge of the file and well-founded reasoning.