Appeals.

Framework of remedies in Austrian criminal procedure

The Austrian system of criminal-law remedies draws a strict line that tracks the composition of the first-instance court. Against judgments of the district court and the single judge at the regional court, covering all offences with a sentencing range of up to five years, the appeal under §§ 464 et seq. StPO is available. It splits into three parts: appeal on grounds of nullity, appeal against conviction and appeal against sentence. The appeal against conviction is the decisive element at this level because it enables a full new review of the facts by the Higher Regional Court (OLG).

Against judgments of the mixed bench (Schoeffengericht, three professional judges and two lay judges) and the jury court (Geschworenengericht, three professional judges and eight jurors, competent for the most serious offences with a sentencing range above ten years), a different regime applies. Here the plea of nullity to the Austrian Supreme Court (OGH) under §§ 280, 281 StPO is the sole remedy on the merits; an appeal against conviction with a full factual review does not exist. Alongside it, the appeal against sentence lies to the Higher Regional Court. This procedural architecture has constitutional roots: the legislator binds the lay element on questions of guilt as tightly as possible and lets the Supreme Court intervene only as a court of legal review.

The deadline architecture is uniformly strict across all types of remedies. Both the plea of nullity and the appeal must be lodged within three days of the oral pronouncement of judgment (§§ 284 (1), 294 StPO; § 466 StPO in district-court proceedings); the reasoned brief must be filed within four weeks of service of the written judgment (§ 285 StPO). If defence counsel misses the lodging deadline, the judgment becomes final, with no chance of restitution on mere inadvertence. This short window is the reason why every hour after service of the judgment counts.

Appeal against sentence and appeal against conviction

The appeal under §§ 464 et seq. StPO is the classic remedy against judgments of the district court (sentencing range up to one year) and the single judge at the regional court (sentencing range up to five years). It allows three independent lines of attack. The appeal on grounds of nullity challenges procedural defects such as an improper composition of the court, infringement of defence rights or defective judgment reasoning; its substantive scope overlaps with the grounds of nullity in § 281 StPO, but the appeal lies to the Higher Regional Court and not to the OGH. The appeal against sentence challenges only the sentencing and, where it succeeds, leads to a milder sentence; the finding of guilt remains untouched.

The strategically most powerful element is the appeal against conviction. It opens a full new review of the facts by the Higher Regional Court, the appellate court may re-examine witnesses, supplement expert opinions, hold inspections and arrive at its own assessment of the evidence. In this respect the district-court and single-judge proceedings differ fundamentally from mixed-bench and jury-court proceedings, in which the first-instance assessment of the evidence can be challenged on appeal only within the narrow confines of the ground of nullity 5a. A person convicted before the single judge has a realistic second chance at acquittal or a markedly milder verdict; a person convicted by the mixed bench, as a rule, does not.

The deadlines in district-court and single-judge proceedings correspond to those for the plea of nullity: lodging within three days of the oral pronouncement, filing the reasons within four weeks of service of the written judgment (§ 466 StPO). Competent for the decision is the Higher Regional Court (OLG, Oberlandesgericht) as the appellate court (§ 33 StPO); for the Salzburg judicial district this is the Higher Regional Court of Linz. The decision is regularly taken after an oral appellate hearing in which the appellant is heard and evidence may be taken. Cost risk: on an unsuccessful appeal the appellant bears the costs of the appellate instance; on a partially successful appeal the Higher Regional Court apportions the costs pro rata under § 390a StPO. This form of remedy is, in particular in white-collar and traffic-law proceedings below the mixed-bench threshold, the most important opportunity to correct an erroneous first-instance judgment, see also white-collar crime and traffic offences.

Plea of nullity to the OGH

The plea of nullity under §§ 280, 281 StPO is the central remedy against judgments of the mixed bench and the jury court. It is a pure legal challenge, the OGH does not review whether the first-instance court weighed the evidence correctly, but whether the proceedings suffered from a statutorily defined defect. § 281 (1) StPO lists eleven grounds of nullity (1 to 11) exhaustively. The formal grounds of nullity (1 to 4) concern the composition of the court, the admissibility of the indictment, procedural law and the hearing in absentia. The substantive grounds of nullity (5 to 11) concern the judgment reasoning, the findings of fact and the application of the law. The success rate across all pleas of nullity before the OGH is well below ten per cent, all the more important is the precise craftsmanship.

In practice three grounds of nullity dominate. Ground 5 (incomplete or contradictory judgment reasoning) covers cases in which the first-instance court leaves decisive evidentiary findings unaddressed, shows internal contradictions in its findings or draws plainly unsound inferences from circumstantial evidence. The OGH has held in settled case law that the reasons must contain, for every decisive finding, a comprehensible explanation grounded in concrete evidence. Ground 5a (serious doubts about the correctness of the findings of fact) is the only access route to a factual review, the OGH examines whether the case file raises serious doubts about the findings. Grounds 9a and 9b (incorrect legal appraisal) cover the wrong subsumption under a criminal offence or the failure to recognise a ground excluding criminal liability.

Procedurally, the plea of nullity must be lodged within three days of pronouncement of judgment (§ 284 (1) StPO) and filed with reasons within four weeks of service of the written judgment (§ 285 (1) StPO). Lodging without filing within time leads to automatic rejection; so does late filing. The plea of nullity can be joined with the appeal against sentence, that is the default in mixed-bench judgments, because both remedies are subject to the same deadlines and can succeed independently. A special constellation is the plea of nullity for the preservation of the law under § 23 StPO, raised by the Office of the Public Prosecutor General in the public interest, it only clarifies the law and has no effect on the convicted person. In proceedings conducted by the Austrian Central Prosecutor for White-Collar Crime and Corruption (WKStA) the precise plea of nullity is particularly relevant; see also white-collar crime.

Retrial of criminal proceedings under § 353 StPO

Retrial of criminal proceedings under § 353 StPO is the extraordinary remedy against final judgments. It breaks through the finality and is permissible only on narrow conditions, either in favour of the convicted person or, still more restrictively, to their detriment. In favour of the convicted person, retrial is permissible where, after the final conclusion of the proceedings, new facts or evidence emerge that alone or in conjunction with the earlier evidence justify the assumption that the convicted person would have been acquitted, classified under a milder offence or sentenced to a milder sentence (§ 353 no. 2 StPO). Further grounds for retrial include the establishment of a criminal act by the judge, the prosecutor or a witness which influenced the judgment (§ 353 no. 1 StPO).

In practice the most common triggers for retrial are new witnesses who become willing to testify only after the judgment has become final; new scientific reports (especially DNA analyses in older cases); and new documents that the defendant could not produce in the original proceedings. The OGH imposes strict requirements in settled case law: the new evidence must be capable of bringing about a different judicial outcome and must not have been available or reasonably obtainable in the earlier proceedings. Mere reinterpretation of already-known evidence does not suffice. The retrial procedure runs in two stages: first the court that had jurisdiction in the first instance decides on the admission of the retrial; only after admission does a new main hearing follow.

A separate, European-law-based variant is the reopening of criminal proceedings under § 363a StPO. It presupposes a final judgment of the European Court of Human Rights (ECtHR) finding a breach of the European Convention on Human Rights by the Austrian criminal proceedings. The Federal Ministry of Justice, on application of the Office of the Public Prosecutor General, initiates the reopening; the OGH sets aside the domestic judgment and orders a new main hearing. This variant is rare but strategically important: whoever wins before the ECtHR in Strasbourg for a breach of Art. 6 ECHR (fair trial) receives the domestic retrial along this route. Retrial should also be distinguished from the plea of nullity for the preservation of the law (§ 23 StPO), which has no retrial effect. There are no strict deadlines for retrial, but the application must be brought "without undue delay" as soon as the new evidence becomes known.

Constitutional, ECtHR and strategic choice of remedy

Alongside the criminal-procedural hierarchy of instances stand three constitutional and human-rights remedies. The most significant instrument in criminal proceedings is the fundamental rights complaint under the Fundamental Rights Complaint Act (GRBG, Federal Law Gazette 1992/864). It enables a complaint to the OGH against decisions concerning the deprivation of liberty, in particular decisions on pre-trial detention, continuation of detention, and contempt detention. The deadline is six weeks from service of the challenged decision; the appellate instance is exclusively the OGH. Complementary to the custodial-law instruments, see haftrecht.at.

The individual complaint to the Constitutional Court (VfGH) under Art. 144 B-VG is directed, as a matter of principle, against decisions of the administrative courts; in criminal proceedings it plays a complementary role where criminal decisions feed into subsequent administrative decisions (criminal-record entry, aliens and residence proceedings, weapons prohibition, driving-licence withdrawal). Directly against criminal-court judgments, the VfGH complaint is inadmissible, for that, the plea of nullity is available. As the last instance stands the individual application to the European Court of Human Rights (ECtHR) in Strasbourg under Art. 34 of the European Convention on Human Rights. It presupposes exhaustion of domestic remedies. The deadline was reduced by Protocol No. 15 to the Convention, with effect from 1 February 2022, from six to four months from the final domestic decision. The Convention rights most commonly invoked are Art. 6 ECHR (fair trial), Art. 5 ECHR (liberty and security), Art. 7 ECHR (no punishment without law) and Art. 3 ECHR (prohibition of torture). Successful cases lead, via § 363a StPO, to domestic reopening. In cases with a pecuniary dimension and parallel asset confiscation, see property crimes, Art. 1 Protocol No. 1 ECHR (protection of property) also comes into play.

The strategic decision after service of the judgment begins with a sober stocktaking. In mixed-bench judgments the combination of plea of nullity and appeal against sentence is the rule, both are pursued in parallel because they open different lines of attack. A successful plea of nullity leads to the judgment being set aside and, as a rule, the case being referred back to the first instance; a successful appeal against sentence leads to a milder sentence but leaves the conviction intact. In single-judge judgments, the appeal against conviction is the most effective instrument, because it opens the full factual review by the Higher Regional Court, persons convicted in traffic-law or property-crime proceedings before the single judge should not leave that chance untaken; see traffic offences and property crimes.

The cost risk must be calculated for every remedy. On an unsuccessful plea of nullity and appeal, court fees and the full cost of the defence fall on the convicted person; where legal aid has been granted, the Federal Republic bears counsel’s fees, but the court fees remain with the convicted person unless full exemption was granted. The defence-counsel fees for a drafted plea of nullity in Salzburg range, depending on scope, between EUR 4,000 and EUR 15,000; a written appeal in single-judge proceedings is lower, between EUR 2,000 and EUR 6,000. The time horizon: the OGH’s decision on a plea of nullity regularly takes eight to eighteen months; the Higher Regional Court decides appeals more quickly, typically in six to twelve months. A separate category comprises the extradition-law remedies: the European Arrest Warrant (Framework Decision 2002/584/JHA, transposed in Austrian law by the EU-JZG) and the classical extradition procedure under the ARHG follow their own appellate routes. Against the regional court’s grant of a European Arrest Warrant, the complaint lies to the Higher Regional Court; the complaint deadline is 14 days. For German clients prosecuted in Austria, or vice versa, precise knowledge of these procedural routes is decisive.