Private prosecution in Austria: filing, procedure and costs

Section 71(3) StPO provides that the main proceedings take place on the basis of a private prosecution. It must be filed with the competent court and meet the requirements for an indictment under Section 211 StPO. A complaint to the police or an informal description of the dispute does not replace the private prosecution.

The prosecution should present the relevant facts and the alleged offence in a comprehensible way. The available evidence and the entitlement to bring a private prosecution must be prepared. If the entitlement or civil-law claims are not obvious, they must be explained in the reasons.

Before filing, it should also be clear which court is competent and whether the offence is in fact one for private prosecution. Section 117 StGB contains special rules for certain honour offences. Choosing the wrong route can prevent the case from proceeding as intended.

There is generally no investigation procedure for private-prosecution offences. For certain forms of defamation, accusation of an already expiated punishable act and insult committed through telecommunications or a computer system, Section 71 StPO provides a narrowly defined route to identify the accused.

The victim may apply to the competent court for the orders mentioned in Section 71(1) StPO. The application must meet the requirements for an application to take evidence under Section 55 StPO. Unless the entitlement is obvious, the victim must explain it. The court decides under the applicable statutory requirements.

If the accused is identified, the court serves the order and, after it becomes final, informs the victim of the transferred result. In this special case the private prosecution must be filed within six weeks from the provision of the information. The date and content of the communication should therefore be preserved as evidence.

The court serves the private prosecution on the accused and persons liable for compensation. Under Section 71(5) StPO, a late private prosecution must be rejected by order. Otherwise, the recipients are informed that they may respond within 14 days. The court will then generally schedule the trial unless it ends the proceedings on a statutory basis.

For the defence, service is the starting point for a detailed review: What conduct is alleged? Which evidence is identified? Is the prosecution coherent and timely? Which objections and applications to take evidence are required? These questions should be answered on the basis of the complete court file.

The private prosecutor must also conduct the case at trial. If the prosecutor fails to appear or does not make the required applications, Section 71(7) StPO provides that the prosecutor is presumed to have waived prosecution and the proceedings are discontinued by order.

Section 390(1) StPO contains a specific cost rule for proceedings conducted at the request of a private prosecutor. If criminal proceedings end other than with a conviction, the State generally bears the costs. Where the proceedings took place on the private prosecutor’s request, however, the decision ending the instance may order that prosecutor to reimburse all costs caused by their involvement.

For several private prosecutors, Section 390(2) StPO distinguishes whether they unsuccessfully sought punishment of the same persons for the same act or pursued different persons or acts. Depending on the constellation, liability may be joint and several or divided between special and common costs.

The cost consequence therefore cannot responsibly be stated as a flat amount. It depends on the course of the proceedings, the instances and the applications made. Before filing, the prospects of success and the cost risk of the intended applications and possible appeals should both be assessed.

Section 117(1) StGB generally provides that offences against honour are prosecuted only at the request of the person whose honour was injured. The provision also contains special constellations. For a private prosecution, the first question is therefore whether the alleged act falls within the private-prosecution route regulated by Section 71 StPO.

The review depends on the specific conduct, the person affected and the statutory route. A general description as an insult or honour violation is not enough to choose the procedure. Under Section 71(3) StPO, the entitlement to prosecute must be explained unless it is obvious.

This article distinguishes the formal initiation and conduct of a private prosecution. Other procedural routes require a separate review. That keeps clear which information belongs in the private prosecution and which question remains open before filing.

The relevant statutory texts are available in the Austrian Legal Information System: Section 71 StPO on private prosecution, Section 390 StPO on costs and Section 117 StGB on entitlement to prosecute. The requirements for an indictment are also relevant under Section 211 StPO.