Reporting Duty and Right to Report at School: How Teachers Should Proceed when a Crime is Suspected

Whether the perception arises during first period in the morning or only while correcting work in the evening, three rules apply for the first 24 hours. First, set down perceptions in writing. Date, time, concrete observations, verbatim statements in quotation marks, no evaluations or suppositions. A value-neutral memory note can later be used by school management, KJH or criminal prosecution alike; an emotional account makes evaluation more difficult.

Second, inform school management. At a public school, school management is the head of the public office; the reporting duty under § 78 StPO converges there. By notifying school management the teacher fulfils their duty-of-service to notify under § 53 Abs 1 BDG (for contractual employees correspondingly via § 5 VBG) and passes the matter to the correct hierarchical level. Anyone who holds back out of "loyalty" or out of concern about a loss of discretion falls into the duties trap themselves.

Third, no own investigations. No confrontation with the alleged perpetrator, no questioning of the affected child about details of the act ("How exactly did he touch you?"), no calls to the parents before school management knows. Anyone who carries out their own investigations changes children's testimonial behaviour and endangers later usability; in cases of sexualised assault, contaminated initial interviews are a frequent reason for dismissal of proceedings.

A fourth rule concerns the acute emergency: visible fresh injuries, credible threat of further violence, acute risk of escalation in the classroom. Here the reverse sequence applies: police 133, in parallel school management, in parallel KJH on-call. The written report under § 78 StPO follows in orderly fashion afterwards. Anyone who in an emergency first drafts a memo instead of making a phone call loses exactly the time that counts.

Four norms carry the reporting and notification structure in school. They differ by addressee (authority, individual teacher, KJH), by threshold (suspicion, well-founded suspicion, concrete endangerment of the child's welfare) and by legal consequence (duty or right). Their interplay determines when notification is mandatory, when an exception applies and when only a right to report exists.

§ 78 StPO Reporting duty of public offices. Para. 1 obliges authorities and public offices to file a report where "in their statutory sphere of activity the suspicion of a criminal act to be prosecuted ex officio arises". The addressee is the public office, not the individual teacher; at the public school this is school management. Para. 2 names two exceptions: Z 1, where the relationship of trust of an official activity (typically: social work, school psychology, KJH) takes priority; Z 2, where punishability lapses shortly through active repentance or another ground extinguishing penalty (typically: compensation for damage in petty property offences).

§ 80 StPO Right of any person to report. Any person is entitled to report a criminal act to the criminal police or the public prosecutor's office. This right is open to every teacher even without going through the hierarchy; it becomes relevant where school management remains inactive, is themselves affected or where the perception occurs outside of duty. False or reckless reports can, however, be punishable (§ 297 StGB defamation), so a report must be based on sound perceptions.

§ 53 BDG Duty of civil servants to notify. Para. 1 obliges the civil servant to notify the employing authority without delay where "in the exercise of his duty a well-founded suspicion comes to his knowledge of a judicially punishable act to be prosecuted ex officio which concerns the sphere of activity of the civil servant's office". For contractual employees § 5 VBG applies correspondingly; provincial laws on contractual employees also refer to it. This notification to school management is the in-school trigger for the § 78 StPO report by the public office.

§ 37 B-KJHG 2013 Duty to notify child and youth welfare services. Where "in an authority, a public institution, an institution established by law or within the freelance activity of members of medical, nursing, pedagogical or social professions a well-founded suspicion arises that the welfare of a child is concretely endangered", this must be notified without delay in writing to the locally competent child and youth welfare provider. Pedagogical professions are expressly covered, so this includes teachers. The KJH notification cannot be replaced by a police report; it has an independent protective mandate (help instead of punishment) and runs in parallel.

In addition, two reference norms remain relevant. § 286 StGB Failure to prevent an act threatened with punishment is a very narrow norm and applies only where the person, with intent, fails to prevent an imminent felony although it would have been easily possible for them to do so; in everyday school life it concerns only the acute emergency constellation. § 47 SchUG and § 48 SchUG regulate notification of legal guardians in case of performance or behavioural issues; they are no substitute for the KJH notification in case of endangerment of the child's welfare.

Six vignettes show how the four norms interlock in the concrete case. The examples cover the spectrum between petty offence and felony, between pupil-as-victim and pupil-as-perpetrator.

A, Visible bruises in PE (primary school). A PE teacher repeatedly notices bruises on the upper body of an eight-year-old; the child evades questions. Applicable: § 37 B-KJHG (well-founded suspicion of concrete endangerment of the child's welfare), in parallel notification to school management under § 53 BDG. School management examines § 78 StPO (suspicion under § 92 StGB tormenting or neglecting a minor) but in practice will frequently first let KJH build up their protective setting (§ 78 Abs 2 Z 1 StPO). Likely course: written KJH notification on the day of perception, KJH risk assessment, coordinated report.

B, Locker broken open, 14-year-old caught. A class teacher catches a pupil breaking open a locker in middle school. Damage approx. 60 euros. Applicable: § 127 StGB in conjunction with § 129 StGB burglarious theft. Chain of duties: teacher → school management (§ 53 BDG), school management examines § 78 StPO. With burglarious theft as a felony, the exception under § 78 Abs 2 Z 2 StPO regularly does not apply, as no ground extinguishing penalty lapses shortly. KJH notification under § 37 B-KJHG depending on indications of background endangerment. More on the procedure in our post on vandalism and theft by juveniles.

C, Nude image circulates in the class chat. A 15-year-old has sent a friend a self-recording; it is circulated in the class chat. Applicable: § 207a StGB pornographic depiction of minors, in the juvenile context with the privilege under paras. 5/6. Teacher → school management → § 78 StPO. In parallel: § 37 B-KJHG. Do not view or forward devices yourself ("evidence reflex"), this can itself fulfil § 207a StGB. More in our post on cyberbullying and explicit images among juveniles.

D, Repeated bullying posts against a pupil. Over several weeks systematically degrading images of a 13-year-old circulate in a school group; she withdraws. Applicable: § 107c StGB continuing harassment by means of telecommunication or a computer system, possibly § 115 StGB insult, § 283 StGB incitement to hatred. Chain of duties: § 53 BDG notification, § 78 StPO by school management, § 37 B-KJHG where there is endangerment of the victim's welfare. In-school conflict management (crisis team, school psychology) runs in parallel and does not replace the report.

E, Suspicion against a school caretaker of theft from the staff room. Repeated disappearance of wallets, evidence points to a caretaker. Applicable: § 127 StGB theft, possibly § 153 StGB breach of trust depending on key access. Chain of duties: teacher → school management (§ 53 BDG), school management → § 78 StPO. No own confrontation of the employee, no own searches. With narrowly supported suspicion school management examines the relationship between § 78 Abs 1 and Abs 2 StPO and the defamation threshold under § 297 StGB.

F, A father expresses suicidal intent and a threat against the child in a parent-teacher meeting. Very rare but documented. Acute constellation: Police 133 immediately, in parallel KJH on-call, in parallel school management. § 78 StPO is triggered subsequently by school management; § 37 B-KJHG is mandatory here, written notification follows on the same day. The teacher does not finish the conversation but ends it in a controlled manner (referring to follow-up counselling), brings in reinforcements and ensures the protection of the child (the child is not allowed to leave the building with the father until the police have provided clarity).

The typical pitfalls recur in case files. Anyone who knows them avoids duty-of-service burden and criminal self-endangerment.

Mistake 1, Own questioning of the victim. Anyone who interrogates a presumably abused child about details of the act ("How exactly did he touch you?") contaminates the initial interview. Specialised bodies (child protection centres, child competence centres at the police) conduct a single, documented interview. Multiple interviews lead to repeated statements which in the main hearing are used by defence lawyers as suggestion effects.

Mistake 2, Doing without written documentation "because KJH will clear it up anyway". Documentation is also important for your own protection. If months later accusations of inactivity follow (parents, supervisory authority, in the worst case the public prosecutor for complicity), the dated memory note is the only sound source.

Mistake 3, Informing legal guardians before KJH/school management. In case of suspicion of intra-family violence you thereby warn the alleged perpetrator and endanger the child. § 48 SchUG yields to § 37 B-KJHG, especially in the acute phase. Only after a KJH assessment and protective measures does KJH (not the teacher) decide when and how the parents are to be involved.

Mistake 4, Relying on school management without your own notification. The § 53 BDG notification is the personal duty of the civil servant. If school management remains inactive or delays the matter, the teacher remains under the duty themselves; the path then goes to the Bildungsdirektion or directly under § 80 StPO. "But I notified the principal" relieves you only if the notification is provable (email with date, file note with countersignature).

Mistake 5, Own investigations or "confrontation" of the suspect. Whether with colleagues, parents or fellow pupils, a direct confrontation changes testimonial behaviour and in the worst case creates the offence of obstruction of justice (§ 295 StGB) where evidence vanishes or the suspect flees. The police investigate; the school protects.

Anyone who has once understood at which thresholds the duties take effect can think of the course in seven stations. At each threshold it is decided who takes the next step and with what deadline.

The most frequent concern in the staff room: "A report will drag the school in." From the defence practice perspective the picture is more nuanced. The report by school management is a proper fulfilment of an official duty; it makes the school neither an accused person nor a civil party.

The school as witness. Teachers are typically examined as witnesses in the proceedings; school management becomes an information-providing person. Records of the school (class register, incident reports, conference minutes) can be obtained by the public prosecutor (§ 76 StPO administrative assistance). The school has no role as accused in itself, so long as a specific employee is not personally being prosecuted.

Data protection and protection of personality. The transmission of personal data to criminal prosecution is covered by § 78 StPO and Art 6 para. 1 lit c GDPR (legal obligation). Within the school the principle of data minimisation applies: no circulating lists, no open discussion in the staff room, the matter is to be restricted to the need-to-know circle. School management has an independent data-protection interest to safeguard.

Consequences for the reporting teacher. A properly made report under § 78 StPO or a properly made KJH notification under § 37 B-KJHG do not give rise to liability of the teacher, even where the suspicion is later not confirmed; the law expressly protects the reporting person. It is different in the case of deliberately false reports (§ 297 StGB defamation) or accusations formulated "out of the blue" without a sustainable factual basis; this constellation arises in practice rarely, because the § 78 StPO threshold requires a "suspicion in the sphere of activity", i.e. a concrete factual basis.

Relationship with the accused. Where pupils are accused, the school relationship remains; the school can (and should) participate in parallel in diversion and restitution. Where colleagues are accused, a strict ban on confrontation applies until clarification by the employing authority; the staff representation and, if applicable, the legal counsel of the accused are the points of contact for them, not the staff circle.