What to do after a criminal complaint in Austria: the general procedural overview

In Austria a complaint triggers an investigation. It is led by the public prosecutor, who works together with the criminal police (Sections 91 ff StPO). The aim is to clarify whether sufficient suspicion exists. Only afterwards does the prosecution decide whether to file a charge or to discontinue the case. The complaint itself says nothing about guilt or innocence, it is the trigger for the examination.

This matters: Austrian criminal procedure knows no defence that begins only at the main hearing. The decisive points are set during the investigation, at the first interview, at file access and on the question of diversion. Anyone who reacts too late wastes the most effective options.

Administrative penalty or court proceedings. Not every complaint leads to court proceedings. Many allegations, for example in road traffic, are handled as administrative penalty proceedings by the district authority. The distinction decides which procedural law applies and which consequences are possible.

The complaint. A complaint is the notification of a suspicion to the police or the prosecution. It may come from a private person, an authority or a company. It triggers the proceedings, nothing more. No guilt follows from it.

Summons as the accused and as a witness. If you are summoned as the accused, the suspicion is directed at you and you have the full right to silence. If you are summoned as a witness, you are generally obliged to testify, although rights to refuse testimony apply, for example where you would incriminate yourself. Clarifying your own status is therefore the first step, because anyone who testifies carelessly as a supposed witness can turn themselves into the accused.

Prosecution and criminal police. The prosecution leads the investigation, the criminal police investigate on its instructions. Interviews, house searches and seizures are carried out by the police but rest on the prosecution’s instructions and, where required, on a judicial authorisation. Who is facing you therefore says nothing about how far the proceedings have advanced.

The first days after a complaint or a measure often decide the further course. From a legal perspective, four points are essential.

Do not testify spontaneously. The right to silence applies in full. No one has to incriminate themselves, and no disadvantage may be drawn from silence. Clarify the allegation first, then decide on a statement.

Secure documents, destroy nothing. Keep every letter, every record and every notice. Do not delete or alter messages, files or chat histories. Removing evidence can constitute a separate allegation and harms the defence.

Note deadlines. Short deadlines run in criminal proceedings, for example for objections and complaints. Record the date of every service, because the deadline starts to run from service.

Prepare file access. The most effective early step is legal file access under Section 51 StPO. Only someone who knows the allegation and the evidence can sensibly decide whether to make a statement or to stay silent.

With the status of the accused you gain a bundle of rights. The central provision is Section 49 StPO.

The right to remain silent. No one has to incriminate themselves. You may refuse to make a statement on the matter without any disadvantage being drawn from it. You must be informed of this right before every interview (Section 164 StPO). Details on your person, that is name and date of birth, are excluded from this.

The right to a defence lawyer. You may bring in a defence lawyer at any time and contact them before questioning (Section 49 no 2, Section 58 StPO). In certain cases the defence is even mandatory, that is required by law. A defence lawyer may be present during your interview.

The right to file access. Under Section 51 StPO you and your defence lawyer may inspect the results of the investigation. This file access is the most important tool of an early defence, because only someone who knows the allegation and the evidence can sensibly decide whether to make a statement or to stay silent.

The right to an interpreter. If you do not have a sufficient command of the German language of the proceedings, you are entitled to translation support under Section 56 StPO. This concerns Austrian official German and legal terminology, which can challenge even native speakers.

Remedies against coercive measures. Against a house search, a seizure and other intrusions, complaints and objections are available (for example Sections 87, 106, 111 StPO). They have short deadlines and generally require file access.

Austrian criminal proceedings follow a clear path: complaint, investigation, interview, where applicable a seizure or house search, then the decision of the prosecution.

The investigation. Prosecution and criminal police clarify the facts. If the suspicion is sufficient, the prosecution files the charge, otherwise it discontinues the case under Section 190 StPO.

The decision of the prosecution. At the end of the investigation several routes are open: discontinuation under Section 190 StPO, a diversionary outcome under Sections 198 ff StPO, a charge or a penal application. Which route fits depends on the suspicion, the severity and the guilt.

Diversion and discontinuation. For many accused, the most important thing is not the distant acquittal but the end of the proceedings without a finding of guilt and without a criminal record entry. Diversion under Sections 198 ff StPO is possible where guilt is not serious, there is no fatal outcome and the penalty threatened is up to five years, for example through a fine (Section 200 StPO), community service (Section 201 StPO), a probationary period (Section 203 StPO) or victim-offender mediation (Section 204 StPO). Discontinuation under Section 190 StPO applies where the suspicion is insufficient or no criminal conduct exists.

Main hearing and remedies. If a charge is filed, a public main hearing follows, with the taking of evidence and the verdict. Which court decides depends on the penalty threatened, from the district court with a single judge to a jury court. Against a verdict, depending on the court, an appeal on the merits or a plea of nullity is available, again with short deadlines.

In some situations it is not one working day that counts but the next hour. In these cases obtain legal support without delay.

A house search of your home or office. An arrest or the threat of pre-trial detention. The seizure of your phone or laptop. A contact or barring order. A summons as the accused for questioning. A penal application or penal order with a running deadline.

In all these cases: no statement on the matter without advice, keep all documents and records, note deadlines immediately and prepare file access as early as possible. How a search works and which remedies apply is set out in our article on the house search in criminal proceedings.