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Participation and control rights
 
  • Every victim has the right to join the criminal proceedings as a private party in order to assert civil-law claims. This gives them added rights in the proceedings, including the right to demand compensation for damages.
  • Every victim has the right to attend contradictorial examinations. A contradictorial (shielded) examination will be held if there are concerns that the offender or a witness cannot be examined during trial on legal or factual grounds. If a contradictorial examination is scheduled, the public prosecutor, the accused, the victim, the private party and their representatives must be informed by the court of the date and given an opportunity to attend and to ask questions.
  • Every victim has the right to be present at the trial and to put questions to the defendant, the witnesses, court experts, and to be heard on their claims.
  • Every victim – whether or not he/she has joined the criminal proceedings as a private party – has the right to inspect the case file, inasmuch as his/her interests are affected. The right to inspect the case file can only be denied or restricted if such inspection would jeopardise the purpose of the investigations or the untampered statement of a witness.
  • If the victim does not speak German or any other official language, he/she is entitled to free translation assistance. Translation assistance is granted at least for the court hearings which the victim attends. In general, parts of the case file are not translated, unless there is a specific reason. Translation assistance also covers psychosocial and legal advocacy services to which a victim may be entitled.
 
     
 
 
     
 
Right to be heard

Crime victims are usually also witnesses to a criminal act. What the victim has directly and indirectly heard and seen is therefore most relevant for the criminal police, the public prosecutor and the court.

The victim is first questioned by the criminal police in order to help investigating the crime and exploring the truth. He/she may be questioned another time by the public prosecutor; if the case is brought to court, the witness is generally examined also by the judge.

If the victim joins the criminal proceedings as a private party to request civil action, he/she may also file motions to collect evidence. As long as the proceedings are in the investigative stage, motions to gather evidence are submitted to the public prosecutor; once the accused has been indicted, motions to collect evidence must be submitted to the court.

 
     
 
 
     
 
Motion for resumption if the case is dropped

Discontinuance of criminal proceedings
If, at the close of the investigative proceedings, the public prosecutor reaches the conclusion that there is no punishable crime, or that, based on the evidence collected, it is highly improbable that the offender has actually committed or would be convicted for the criminal act he/she is charged with, the case will be dropped.
The public prosecutor is also held to drop the case if the criminal offence committed is minor or if the offender has committed several crimes and the prosecution of the individual criminal act would not significantly impact the expected punishment of the offender.

The public prosecutor must inform every victim when discontinuing the proceedings and instruct them of their right to request a reasoned justification for discontinuing the proceedings within 14 days after having been informed. Moreover, the victim has the right to file a motion for resumption within 14 days after having been informed of its being discontinued or having received the reasoned justification. Victims must be informed of that right as well.

Motions for resumption must be filed in writing with the public prosecutor within 14 days after having been notified of the discontinuance of the proceedings or after having received the reasoned justification. If the victim was not informed of the discontinuance, the motion for resumption may be filed within three months after discontinuance with the public prosecutor. The motion for resumption must specify the reasons why the applicant believes that the case was unjustly dropped.

Reasons for reopening a case may be:

  • Violation or incorrect application of the law;
  • Grave concerns as to the accuracy of the facts on which the decision was based;
  • Emergence of new circumstances or evidence which help establishing the facts so as to proceed to indictment or extrajudicial settlement.

If the public prosecutor considers the motion for resumption justified, he/she must reopen the case.
Otherwise, he/she will comment on the motion for resumption and send it to the competent regional court together with the case file. A panel of regional court judges will then decide in camera on the merits of the motion for resumption. There are no legal remedies against this decision.

If the motion for resumption is dismissed, the applicant will be charged a lump sum fee of EUR 90.


Provisional/final withdrawal from prosecution (extrajudicial settlement)

Should the public prosecutor believe that the requirements for reaching an extrajudicial settlement are given, his/her decision must at any rate take the victim’s interests into account.

Unless the offender has already made up to the victim, the victim must be informed of the public prosecutor’s intention to desist from prosecuting and reach an extrajudicial settlement. The victim then has a right to comment. If restorative justice measures are considered, the victim may generally be involved. Restorative justice measures require the victim’s consent. If the victim withholds his/her consent for reasons which do not merit consideration in the criminal proceedings (e.g. revenge), such measures may be conducted without the victim’s participation.
There is no legal remedy for the victim against the public prosecutor’s decision to end the case by extrajudicial settlement.

 
     
 
 
     
 
Rights of the private party

Additional rights of a private party:

  • • Every victim is entitled to claim compensation for damage or loss incurred due to a criminal act or to compensation for interference with legally protected interests. By making a declaration in which the victim asserts his/her claims, the victim becomes a private party to the criminal proceedings. In this role, the victim may assert rights in addition to those of victims in general.
  • If the public prosecutor drops the charges, the private party may maintain the charges by way of subsidiary prosecution. In the trial, the subsidiary prosecutor enjoys the same rights as the private prosecutor having joined the criminal proceedings. The public prosecutor is, however, free to re-open the case at any time. The status of the subsidiary prosecutor then reverts to that of a private party.
  • If the court terminates the proceedings by way of court order, the private party has the right to institute legal remedies with the appellate court.
  • Unless a victim who has joined the criminal proceedings as a private party is entitled to psychosocial and legal victim advocacy services any way, he/she will be granted legal aid and given a lawyer free of charge if legal representation is necessary for the proper enforcement of his/her claims, and in order to avoid ensuing civil proceedings if the private party is unable to pay for a lawyer without impairing his/her livelihood.
 
     
 
 
     
 
Restorative justice/Extrajudicial settlement

Restorative justice is a form of dealing with crime and its consequences which attempts to more closely involve those immediately affected. It aims at redressing thematerial and immaterial damage or loss incurred and at averting future conflicts by coming to terms with what has happened.

Rightsduringextrajudicialsettlement

When deciding to end the proceedings by extrajudicial settlement, the public prosecutor and the court must consider and heed the victim’s interest in redress to the largest degree possible.
Before prosecution is dropped for good, the victim must be given an opportunity to comment, unless the offender has already made up for the damage.
In Austria, restorative justice is implemented mainly through penal mediation within the framework of extrajudicial settlement. If the general requirements for extrajudicial settlement are met, the public prosecutor may withdraw from prosecution if the criminal act may directly infringe the legal interests of a person and the accused is willing to owe up for what he/she did and to deal with the underlying causes of the act, if he/she redresses the consequences which may arise in a manner that befits the circumstances, in particular by making up for the damage caused or contributing to redressing the consequences of the act, and if he/she enters into commitments, as necessary, which show his/her willingness to refrain from any behaviours which led to the criminal act in the future.

If the public prosecutor intends to end the proceedings by penal mediation, he/she must inform the victim and ask him/her to comment.

This form of extrajudicial settlement is only possible if the victim consents, unless the reasons for denial do not merit consideration in criminal proceedings or unless the offender was under age when the criminal act was committed.
The public prosecutor may order victim-offender mediation in order to reach a settlement with the help of qualified conflict mediators from professional organisations.

The victim may attend this mediation, ifs he/she so wishes, and has the right to be accompanied by a trusted person during victim-offender mediation. Moreover, he/she must be informed as soon as possible about his/her rights and about suitable victim assistance organisations.

 
     
 
 
     
 
Reimbursement of outlays
The victim’s testimony is all-important for the criminal proceedings. If the victim is summoned as a witness, he/she is entitled to reimbursement of travel expenses.

Only the fare for public transport is eligible for reimbursement.

To be reimbursed, the judge must confirm the presence of the witness on his/her summons after giving testimony; travel expenses are then directly reimbursed by the court cashier on submission of this confirmation.
 
     
 
 
     
 
Rights of victims who do not live in Austria
  • Victims who hold the citizenship of an EU or EEA member state and live in another member state may file an application for compensation under the provisions of the Act on Crime Victims with theassisting authority in that state. The application will then be forwarded to the Austrian Federal Office of Social Welfare.
  • Victims who are third-country nationals and do not live in Austria may assert their claim to compensation against the offender only if they join the criminal proceedings as a private party (see: Compensation from the offender). Theyare not entitledtostatesupport.
  • If the victim is required to testify as a witness, the costs of travel will be reimbursed as witness outlays.
    Translation is provided by the court if the victim does not speak the official language.