What to do after a criminal complaint in Austria: a procedural overview for German suspects

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.

For German nationals 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. What arrives at your German address after you return home is covered separately in our article on the Austrian penal order sent to a German address.

With the status of the accused you gain a bundle of rights that resemble German law at the core but follow their own Austrian rules in detail. 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.

Austrian criminal proceedings divide into two large stages. In 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.

Which court has jurisdiction. Where the penalty threatened is low, the district court decides through a single judge (Section 30 StPO). Where it is higher, the regional court has jurisdiction, depending on severity with a single judge, a lay-judge panel or a jury court. Which composition applies depends on the allegation and the penalty threatened.

The main hearing. If a charge is filed, a public main hearing follows. Evidence is taken, witnesses are heard and the verdict is delivered. Against a verdict, remedies are available, depending on the court an appeal on the merits or a plea of nullity. These deadlines are short too and must be observed.

Appearance of German defendants. Whether you have to travel in person depends on the type of court and the penalty threatened. In some constellations representation by the defence lawyer is enough, in others your presence is mandatory. This question should be clarified early so that you can plan travel and dates.

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. Austrian law offers two routes for this.

Diversion under Sections 198 ff StPO. Where guilt is not serious, there is no fatal outcome and the penalty threatened is up to five years, the prosecution can settle the case by diversion. Four forms are possible: a fine (Section 200 StPO), community service (Section 201 StPO), a probationary period with probation assistance (Section 203 StPO) or victim-offender mediation (Section 204 StPO). The result is no finding of guilt and no prior conviction.

Discontinuation under Section 190 StPO. If the suspicion is insufficient or no criminal conduct exists, the prosecution discontinues the case. A discontinuation for triviality is also possible. From a legal perspective it is worth pursuing both routes in parallel and supporting them with exculpatory evidence requests.