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The criminal offence

What types of criminal offences are there?
Austrian criminal law distinguishes between different types of criminal offences.

Below you will find the different ways they can be categorised:

Felony – misdemeanour?
A first distinction made under criminal law is between felonies and misdemeanours. A “felony” is an offence punishable by a custodial sentence (= imprisonment) ranging from more than three years to life, with the wilful intent of the perpetrator being a mandatory prerequisite. All other criminal acts are referred to as “misdemeanours”.

Intent or negligence?
Some criminal offences are committed intentionally, while others may be committed negligently.
Legal experts understand “intentional” or “with intent” to mean that the perpetrator intends to carry out an act that corresponds to an offence as defined by the law. It is sufficient if the perpetrator seriously believes that such act will be feasible and accepts the consequences. In other words: the perpetratorWANTED to commit the crime and was willing to accept the consequences (such as injuring the victim, or similar). Typical examples of intentional crimes would be murder, theft, rape, etc.
With other offences, it is only possible to commit them “negligently”. The legal definition is as follows: Whoever fails to behave with the level of care which a reasonably prudent person would apply under like circumstances and thus fails to realise that they might carry out an act that corresponds to an offence as defined by the law, acts negligently. To put it simpler: somebody acts negligently when they fail to muster the requisite level of attention and concentration and therefore violate a criminal law provision. A typical example of negligence is manslaughter. Someone who does not pay enough attention while driving a car, fails to notice a pedestrian crossing and runs over a pedestrian who then dies from the injuries suffered in the collision commits the tort of manslaughter. Had the perpetrator wanted to run over the pedestrian, he/she would have acted “with intent” and the crime would be murder.

Attempted or accomplished?
You can accomplish an offence, i.e. meet all the elements of the crime (= parts defined in the relevant legal provision) or just attempt to commit an offence. In the case of an attempt, the perpetrator intends to accomplish the offence, but fails to do so, for instance because of being caught in the act by the police. Even if an offence was merely attempted, it is just as punishable. The fact that it was not accomplished may, however, have a mitigating impact on the sentence passed.

Filing a complaint

Who can I turn to when I have become the victim of a crime?
If you fall victim to a crime, you can report it at any police station or at the office of the public prosecutor. Staff of a victim support organisation mayaccompany you and offer you support and assistance in this often difficult situation.

Not only the victim, but also witnesses, relatives and other people who become aware of a criminal offence may report it to the authorities.
An obligation to report a crime applies only to public authorities, provided certain prerequisites are met. Private individuals are under no such obligation.

Complaints can be filed in writing or orally. To speed up investigations, it is useful to be able to provide comprehensive information already when making the complaint and to present all possible kinds of evidence, such as photos or letters, and to know the names of persons who were present during the incident. If the offender is unknown, it is also possible to make a complaint against an unknown offender. When making a complaint in writing, make sure to sign it.

Do I have to report a criminal offence immediately after the fact?
There are no deadlines for filing a complaint. However, some criminal offences are no longer indictable once a period of time defined by law has elapsed. This so-called period of limitation will vary with the type of criminal offence, but is at least one year.

In general, however, it is advisable to turn to the authorities as soon as possible. This makes it possible to protect evidence. In the case of physical injuries, it is always important to seek medical attention and have the injuries documented, which makes it easier to establish evidence.

Having filed a complaint with the police in person, you will get an acknowledgement and a copy of the transcript. This copy features a file number. Using this file number, you can obtain further information about the progress of proceedings from the police.
If a complaint is filed in writing with the police or the public prosecutor’s office, no such acknowledgement will be issued. In this case, it is necessary to inquire for the relevant file number with the public prosecutor’s office or at the police station.

Can the police or the public prosecutor’s office decline to carry out investigations after I file a complaint?
In principle, the authorities are under the obligation to prosecute any suspected criminal offence and to carry out the necessary investigations. The only exceptions are a few criminal offences which are subject to what is called private prosecution, an example of which would be slander or libel. In such cases, there will be no official investigative proceedings. The victim has to procure all the necessary information and then bring private charges before the court. If the accused is acquitted, the private prosecutor will have to bear the cost of the proceedings.

In addition to such offences, there is another category of offences that is prosecuted only with the victim’s consent. An example would be theft among close family members. While the authorities are still under the obligation to start investigations in such cases, they have to immediately obtain the victim's consent to prosecution. If such consent is withheld, the authorities are not allowed to continue the proceedings. See also The criminal offence

Your rights as a victim:

  • The criminal police, the public prosecutor’s office and the court have to give due consideration to your rights and interests.
  • When being questioned by the police, you have the right to be addressed with courtesy, to ask for breaks and to sit down.
  • You have the right to indicate an address other than your own to prevent the offender finding out where you live.
  • You cannot be searched against your will.
  • You have the right to be informed about your principal rights in the proceedings before being questioned, as well as about the ways to obtain compensation or support.
  • In the case of victims of violence and surviving dependants:
    You have to be given information about the prerequisites for using victim advocacy services.
  • In the case of victims of sexual offences: You have to be informed that you may opt to be questioned by a person of your own sex. Also, you have to be informed that you do not have to answer unreasonable questions and that you may opt for the trial (In court) to be conducted with no members of the public being admitted.



Filing a complaint

File number

Transcript

Investigative proceedings

What happens after I have filed a complaint?
Once the authorities have learned of a suspected criminal offence, for instance through a complaint (see also: Filing a complaint), the so-called investigative proceedings start. The purpose of this stage of the criminal justice process is to establish the facts and resolve the suspicion of a criminal offence as alleged in the complaint. The authorities are under an obligation to try and find the truth and to uncover all the facts relevant for assessing both the offence and the offender.

As a rule, the inquiries are made by the criminal police under the direction of the public prosecutor’s office. Certain investigative measures require additional authorisation by the court. Measures to establish the facts include, for instance:

  • Questioning of the victim and the accused
  • Inspection of documents (letters, photos, text messages, etc.)
  • On-site inspections or a reconstruction of the crime.
  • Taking possession and confiscation of various objects
  • DNA tests on, for instance, evidence found on the scene of the crime
  • Search of premises and of persons
  • Surveillance
  • Monitoring of message exchanges or obtaining of information on messages sent after the fact

Depending on what kind and how many of these measures need to be taken, this stage may vary in length. Being a victim, it is important to cooperate with the criminal police and the public prosecutor’s office, of course with due consideration of your rights. It is therefore recommended that you collect evidence yourself and hand it over to the investigators. If you have been the victim of sexual violence, it is recommendable to keep, for instance, the clothes you wore, in particular undergarments, in a plastic bag for forensics. If you have suffered injury, you should immediately (!) go to a hospital to have the injuries documented.
Based on the outcome of the investigations, the public prosecutor then decides whether there is sufficient evidence to warrant bringing charges against the accused, and whether, in view of the offender’s previous record, it seems appropriate to consider an alternative method of settling the proceedings (extrajudicial settlement), or whether to discontinue the proceedings (see also: Investigations completed: What does the public prosecutor do now?)


Your rights as a victim:

  • Right to information: Victims of a crime have numerous rights during the course of the entire investigative proceedings. You have to be informed of these rights already before your first examination.
  • Special rights for victims of violence: When questioning victims of violent crime or sexual abuse, officials are under the obligation to take the emotional stress caused by questioning into special consideration. Upon the victims’ request, they must be granted psychosocial and legal assistance during the proceedings. Victims of sexual offences have the right to be questioned by a person of their own sex.
  • Information about the progress of proceedings: Having filed a complaint with the police, the victim receives a copy of the transcript, which bears a file number.Stating this file number, it is possible to obtain information on the progress of the proceedings later on.
  • Information about the fact that the offender has been released from pre-trialdetention: If you are a victim of violence, duress or a sexual offence, you will be informed about the offender’s release from pre-trialdetention ex officio (automatically). If you are the victim of another type of offence, you can apply to be informed.
  • Right to representation: You may have yourself represented by a lawyer, a recognised victim support organisation, or any other suitable person.
  • Right to inspect the case files: You may inspect the investigation files.
  • Right to shielded examination: Victims of violence or sexual crimes and persons presumed to have specific protection needs because of their age have the right to request, already at the investigation stage, what is called a ‘contradictorial examination’ based on sound and image recording. The judge will then interview the victim in a room separate from the accused. The examination will be recorded and transmitted to another room where the accused and counsel for the defence, if any, and a representative of the public prosecutor’s office are present. These persons can follow the examination and ask questions via the intermediary of the judge. If formal charges are brought, the victim will then not have to testify during the trial and not have to meet the offender face to face.
  • Right to compensation from the offender: Every victim of a criminal offence has the right to claim compensation for the loss or damage suffered on account of the criminal offence. By doing so, you become a private party joining criminal proceedings to claim civil damages (see: Private party). This status confers even more far reaching rights than that of victim. Already at this stage of the proceedings, you can deliberate with your counsel what amount of compensation you want to claim.
  • Right to translation by an interpreter if you cannot understand and make yourself understood to a sufficient extent.
Investigations completed:
What does the public prosecutor do now?

What happens after the investigative proceedings have been completed?
Once all the necessary investigations have been carried out, the public prosecutor has to decide, based on the outcome, on how to proceed further. The following variants are possible:

  • the facts of the case have been sufficiently established
  • even though all necessary investigative measures have been taken, it remains unclear what really happened

If it was not possible to establish the facts or if it turns out in retrospect that what happened is not a punishable crime, the public prosecutor has to drop the case.

However, if the outcome of the investigations suggests that the accused committed a criminal offence, there are two ways to proceed. The public prosecutor’s office may either bring charges or abstain from further prosecution (extrajudicial settlement).

What happens when charges are brought?
If the public prosecutor brings charges, the case comes before the court, and a trial will be held. Depending on the seriousness of the offence, such cases are heard by

  • a single professional judge; or
  • a mixed court consisting of one professional judge and two lay judges who decide whether the offender is guilty or not and what the sentence will be; or
  • a jury court consisting of three professional judges and a jury of eight, with the jurors deciding whether the offender is guilty or not and then determining the sentence together with the three professional judges.

The trial usually ends with a verdict on the offender’s guilt. If the defendant is found guilty, he/she receives a sentence, which is also determined by the court.

What alternatives are there to trial in court?
see Extrajudicial settlement

For what other reasons may investigative proceedings be terminated?
If it turns out during the investigations that the offence the offender is suspected of having committed is not a punishable crime, or if prosecution of the offender would be inadmissible for reasons of immunity or for other legal reasons, the public prosecutor has to drop the proceedings.

Proceedings must also be discontinued if there is no actual reason to continue prosecuting the offender. This may be the case when the offender is able to prove already during the investigations that he/she could not have committed the offence because he/she had been hospitalised at the time in question.

Moreover, the public prosecutor may also discontinue prosecuting offences which are subject only to a fine or imprisonment of not more than three years if the offence may be considered a “minor” offence. This may be the case if – given the level of culpability, the consequences of the offence and the offender’s behaviour after the offence (in particular with respect to any compensation of loss or damage) – the nuisance caused by the offence can be deemed negligible and if further prosecution of the offender does not seem to be called for both under general and individual deterrence considerations.

Moreover, the Austrian Code of Criminal Procedure provides for the possibility to discontinue prosecution of individual offences if the offender is charged with several offences at the same time and the prosecution of one single offence is not expected to have any influence on a future conviction of the offender. This might be the case where an offender has committed several acts of aggravated robbery during the course of which he/she also caused damage to property.

What can I as a victim do against proceedings being discontinued?
In addition to the offender and the criminal police, the public prosecutor also has to notify you before discontinuing any proceedings. You have the right to request, within 14 days of receipt of the notice of discontinuation, reasons explaining the facts and considerations which led to the discontinuation.

Within 14 days of receipt of the reasons for discontinuation, you may then apply for the discontinued proceedings to be resumed. It is important to provide reasons in such application, detailing why you think the proceedings were wrongfully discontinued.

Proceedings may be resumed if they were discontinued unlawfully or if there are significant reservations regarding the correctness of the facts based upon which the proceedings were discontinued. This may be the case when the evidence predominantly suggests that the offender is guilty or if necessary investigative measures have not been carried out.

Another admissible reason for resuming proceedings may be the emergence of new facts or evidence not having been considered yet which appear suitable to clarify the facts to such an extent that charges may be brought or an extrajudicial settlement may be attempted.

An application for resumption has to be submitted to the public prosecutor’s office. If the public prosecutor’s office considers the application justified, it may immediately resume the proceedings.

If not, the public prosecutor’s office issues a statement on the application and forwards the file to the court, which then decides on granting or dismissing the application for resumption of proceedings.

If the application for resumptions of proceedings is rejected or dismissed, the applicant has to pay a lump-sum fee of EUR 90.

Your rights as a victim:

  • You have the right to be notified of the discontinuation of the proceedings.
  • You have the right to request the resumption of proceedings within 14 days. Make sure to discuss this with your legal victim advocate or your legal counsel before doing so.
  • You have the right to request detailed reasons for the discontinuation of the proceedings within 14 days. This step extends the deadline for the resumption request.
In court

What happens after charges have been brought?
Once charges have been brought, the file is handed over to the court. The judge serves the bill of indictment on the defendant and then sets a date for the trial. This date must be notified to the defendant, the public prosecutor and the victim or their respective representatives.

What is the purpose of a trial?
During the trial, the court takes evidence. It is the task of the judge to explore the truth and take all the necessary evidence for this purpose. At the end of the trial, it must be established for the judge whether or not the defendant committed the offence he/she is charged with.

How many judges take part in the proceedings?
Depending on the seriousness of the offence (which courts?),

  • a single professional judge
  • a mixed court consisting of one professional judge and two lay judges who together decide whether the offender is guilty or not and what the sentence will be
  • a jury court consisting of three professional judges and a jury of eight, with the jurors first deciding whether the offender is guilty or not and then determining the sentence together with the three professional judges.

How many people are present in the courtroom?
In addition to the judge or judges, you will find the offender, his/her counsel and a public prosecutor present in the courtroom. The judge or judges frequently sit behind a raised desk, which is referred to as the bench. Next to them, court officials and interpreters or experts, if any, may be seated. The public prosecutor is seated to the right, the defendant and his/her counsel to the left of the bench. While being examined, witnesses take a seat in the middle of the room, facing the judge. Visitors are seated at the back of the courtroom.

Do I have to testify in court when I am summoned as a witness?
Witnesses or victims of an offence must comply with a summons to appear in court and testify about what they have witnessed. If a witness fails to appear in spite of having been duly summoned, the court may impose a fine (of up to EUR 1,000). Moreover, the court may instruct the police to bring the witness before the court at the next trial hearing.
Witnesses are under an obligation to make truthful and complete statements. Making a false statement as a witness is a punishable offence. Only in certain defined circumstances, for instance when the witness is related to the defendant, the witness may refuse to testify (see What happens if I miss the hearing?).

Your rights as a victim:
SeeYour witness testimony.

Basic principles of the trial

What are the principles in Austrian criminal procedure?

  • Austrian criminal procedural law is governed by the principles of objectivity and exploration of the truth. This means that judges, public prosecutors and the criminal police have to officiate in an unbiased and non-prejudiced manner. They are under the obligation to investigate all circumstances, whether exculpating or exonerating the offender.
  • While exercising their powers, judges, public prosecutors and the criminal police may interfere with the accused’s rights only in so far as is expressly allowed under the law and necessary to fulfil their duties. In this context, any interference with the rights of the offender must be weighed against the seriousness of the offence and the degree of suspicion against the accused (= principle of legality and proportionality).
  • Under the Austrian Code of Criminal Procedure, not only victims, but also accused persons have numerous rights. In particular, the accused has the right to participate in the entire proceedings. Nobody may be sentenced for an offence if he/she did not have an opportunity to speak for themselves. He/she must be informed about all causes for suspicion raised against him/herand be given an opportunity to dispel and justify such causes.
  • Criminal proceedings are governed by the principle of orality. This means that all facts that contribute to clarifying the circumstances of the offence must be presented at the trial. This is why, in general, all witnesses have to testify during the trial, even if they have already done so before with the criminal police.
  • In principle, court hearings are open to the public. However, in certain cases it is possible to exclude the general public, in whole or in part, from such hearings. This may happen, for instance, when parts of the personal lives of the accused, the victim or a witness are being discussed. It is also possible to exclude the public in order to protect the identity of a witness or a third party. The verdict, however, must always be pronounced in public.
  • The principle of procedural efficiencyalso has to be applied under the Austrian Code of Criminal Procedure. Proceedings have to be conducted speedily and without undue delay.
Your summons to the trial

Please read the summons carefully (summons document).

  • It is advisable to arrive at court at least 25 minutes prior to the time set in the summons, as security checks may result in delays.
  • Do not carry any sharp objects or fluids with you; otherwise you will have to deposit these at the security check in the entrance area. The rules are similar to those in force at airports.
  • Wait until you are called up by the judge. Do not enter the courtroom before you have been called up.
  • If you are afraid of meeting the accused, contact a victim support organisation ahead of time. One of their staff members can accompany you and wait with you in a place where you are safe from meeting the accused (see also The right not to meet with the accused).
  • Hearings frequently do not start on time. Expect waiting periods and bring a trusted person along who can offer you support while you are waiting.
What happens if I miss the hearing?
Witnesses or victims of an offence must comply with a summons to appear in court.
If you fail to appear in spite of having been duly summoned, the court may impose a fine (of up to EUR 1,000).
Moreover, the court may instruct the police to bring the witness before the court at the next trial hearing.

If you already know in advance that you will be out of the country on this day, for instance, or cannot appear because you are ill, please notify the court ahead of time. A brief phone call to the court can spare you a lot of trouble.
In the courtroom
OPEN Courtroom image

 

 

 

 

 

 

What to expect?
If this is the first time you have to testify in court, it is entirely normal for you to be nervous or unsure. To help you prepare for this new situation, we will briefly explain what you can expect to happen after you enter the courtroom.

Once your name has been called via the public announcement system, enter the courtroom.
In the middle of the room, you will find a small table with a chair. Take a seat there. As a rule, the judge will greet you right after you enter the room. If you are lost about where to sit down, the judge will guide you.

In front of you, there is a large table at which the judge is seated. You can recognise the judge by what he/she is wearing: a black robe, usually with a purple velvet collar.
Depending on what type of proceedings this is, there may be further judges seated at the table, as well as a court recorder who records everything that is said. In some cases, a lawyer-in-training may also be seated at the large table. They have to sit in on hearings during their legal training.

To your left, there is another table. This is where the public prosecutor is seated. Again, you can recognise the public prosecutor by the black robe. However, in contrast to the purple velvet collar of the judges, public prosecutors wear a red collar. If you have legal counsel, your own attorney would be seated next to the public prosecutor.

To your right, there is another table. This is where the counsel for the defence, the defendant’s attorney, is seated. If more than one person is accused in the same proceedings, you may also find more than one attorney seated there.

Don’t be alarmed, the defendant will also be present in the courtroom, unless he/she has been removed prior to your arrival. He/she is seated in what is referred to as the “dock”, which is a bench located directly in front of his/her counsel. If the defendant has been produced directly from custody, an armed prison officer will be seated right next to him/her, their duty being to ensure security in the courtroom.

Behind your own table, there may be some visitors’ benches. As the hearing is normally open to the public, you may find visitors seated there. There are exceptions to public access with some kinds of offences (e.g. sexual offences). Once you have finished your testimony, you may also take a seat on these visitors’ benches if you want to attend the proceedings until the end. However, you do not have to do this if you don’t want to.

What to do to fight nervousness:
A few days before your trial date, take a look at a courtroom by attending another hearing as a visitor. This may help you to get familiar with the goings on in court and you might find your own hearing easier to handle.

Your rights as a victim:
See In court

Single professional judge

Mixed court - professional and lay judges

Jury court - professional judges and jurors

Steps in the trial

What steps are involved in a court trial

At the beginning of a criminal trial, the judge calls up the case “The Republic versusJohn Doe”. All the parties then enter the courtroom and take their seats. Important to note: Witnesses have to wait outside!

Then the public prosecutor pleads the case. Counsel for the defence may then reply immediately.

Then the offender is questioned by the judge on his or her personal details as well as on the offence which he/she is being charged with. In addition, the judge has to question the offender on the claims raised against him/herby private parties joining the proceedings to make a claim for civil-law damages. In this context, the offender is asked to state whether, and to what extent, he or she accepts the claim brought against them by the victim.

Then the process of evidence-taking begins:
The judge calls up the summoned witnesses one after the other, questioning them on what they witnessed and what they remember of the offence being prosecuted. When the victim is heard as a witness, the judge also asks what loss or damage the victim suffered and asks the victim to state the amount of damages claimed from the offender. For more details on questioning, see Your witness testimony.

Once all evidence contributing to clarifying the offence has been taken, the judge closes the evidence-taking.

The public prosecutor makes the closing statement; then the representative of the private party may make a final plea. After that, the defence counsel holds his or her closing statement.
The offender, too, is given the opportunity to address a final statement to the judge.

The judge may then either briefly retire or immediately pronounce the verdict.
On that occasion, everybody present in the room has to rise.

The verdict might be worded as follows:

“In the name of the Republic, John Doe has been found guilty of having exerted duress upon Ms. XY in Vienna on 1 January 2011, having said to her “I will kill you”, thus frightening and upsetting Ms. XY. By doing so, he has committed the offence of duress within the meaning of section 107 paragraph 1, Austrian Criminal Code, and is herewith sentenced to imprisonment of one month.”

Having pronounced the verdict, the judge then explains the main reasons for the decision and informs the offender about the ways he/she can appeal this verdict.
(for more details, see: The verdict)

Depending on the technical facilities available in the courtroom, the proceedings are recorded (audio and video) and then a written transcript is produced. If video or audio recording is not possible, the judge is supported by a court recorder who takes the minutes of the entire hearing.

Your witness testimony

How does the questioning of a witness work?
As a witness, you have to wait outside the courtroom until you are called up. Once you have been called up, you enter the room and take a seat at the small table right in the middle of the room, directly opposite from the judge (for more details, see: In the courtroom).

First of all the judge verifies your identity, asking for your name, date of birth and address.
Once your particulars have been recorded, the judge will remind you that you have to tell the truth.

Then the most import part of your testimony begins. You will be asked about the criminal offence as such. Now you can tell the court what you have experienced or witnessed. It is important to tell the truth and not to leave out any important details. If the judge wants to know more about something, he or she will ask you more detailed questions about the matter. You may of course bring your own notes or documents along as a memory aid. The judge may also confront you with the statements made by other witnesses or show you documents or pictures. Don’t get nervous, the judge only wants to find out what happened.

If you want to claim compensation from the offender, the judge will also ask you about this. Now is the last opportunity for you or your legal counsel (see The victim representative) or your legal victim advocate to claim a defined amount (!). Along with the verdict, the judge will also decide on the compensation awarded to you.

Once the judge is finished with questioning, the public prosecutor has the opportunity to ask the witness additional questions. Then counsel for the private party may pose questions to the victim. Finally, counsel for the defence also has the right to examine the witness. Even the defendant may ask you questions. If the question is not really relevant for the offence or if the defendant insults you, just do not answer. The judge will reprimand the defendant.
Under any circumstances, avoid engaging in a dispute with the defendant or the defence counsel.

Do I have to appear in court when I am in frail health or live far away?
If you are unable to appear in court because of your age, your health or other relevant reasons (e.g. living abroad), it is possible to have you questioned via audiovisualtransmission. In such case, you will not have to appear in court in person.

What can I do when I am afraid of the trial?
You may opt to be accompanied to trial by a person you trust.
Victims of violence, duress or sexual offences may request questioning without the presence of the defendant. They will then be questioned by the judge or a psychologist in a room separate from the offender. The examination is video-transmitted to the courtroom. The accused and the public prosecutor can follow the examination via monitor and ask the victim questions via the intermediary of the judge. In many cases, this type of examination takes place already at the investigations stage (contradictorial examination). This allows you to avoid having to appear before the court once more.

It is only in exceptional cases that the judge may have the defendant removed from the courtroom during the examination. However, after the end of the examination, the judge must inform the offender about the testimony and about everything else that happened during his/her absence.

Is it possible to testify anonymously?
If witnesses in criminal proceedings fear that they or a third party will be subject to a serious threat to their life, health or freedom, they can testify anonymously. In this case, the witnesses are released from the obligation to provide answers that allow inferences about their identity or that of a third person to be made. The names of the witnesses are therefore not disclosed, and the witnesses may also change their appearance. However, the court must still be able to perceive the witnesses’ facial expressions, as this is indispensable for assessing the credibility of their statement.

Do I have to defray the cost of travel and meals myself?
The cost incurred for traveling to and from the court will be reimbursed. If the time spent in court results in a loss of earnings, these will be reimbursed as well. If a witness has to spend the night and consume meals away from home, these costs will be also be reimbursed up to a certain amount. Any claims in this respect have to be made within 14 days.

Your rights as a victim:

  • The court has to give due consideration to your rights and interests.
  • Your rights and interests have to be taken into account in any decision about an extrajudicial settlement.
  • If you have been the victim of violence, duress or a sexual offence, a meeting between you and the accused must be avoided by arranging for a separate questioning based on audio and video transmission.
  • If you are not able to appear in court because of your age, your health or frailty or other significant reasons, you may be questioned at a different place with the help of technical equipment for audio and video transmission.
  • Where other persons are present, care has to be taken that your personal circumstances are not disclosed.
  • To protect your privacy, television and radio recording and broadcasting as well as filming and photography are forbidden in court hearings.
  • The public may be excluded, either ex officio or upon request, before your personal life or personal secrets are discussed in court. Make sure to discuss this with your legal victim advocate or your legal counsel. If the public is excluded from the trial, you have the right to bring along three persons you trust.
  • You have the right to be accompanied to the trial by a trusted person to support you. However, you have to give your testimony all by yourself.
  • In exceptional cases, the judge may have the defendant removed from the courtroom.
  • You have the right to representation.
  • If you have been the victim of violence, duress or a sexual offence, you are entitled to legal and psychosocial victim advocacy services, which can be arranged for you by a victim support organisation.
  • You have the right to translation as necessary.
  • Your interest in redress has to be verified and supported.
  • You have the right to join the proceedings as a private party until the end of evidence-taking.
  • The court must, as far as possible, determine the extent and the loss or damage ex officio.

Your rights as a private party:
If you are The private party joining in criminal proceedings (as is usually the case), you can exercise additional rights:

  • You may submit motions for the admission of evidence.
  • You may continue prosecution if the public prosecutor withdraws (Subsidiary prosecutor).
  • You may appeal court decisions.
  • You have the right to be summoned to the trial even if you do not have to testify, and the right to be given an opportunity to present and justify your claims.
  • You may appeal a guilty verdict if it does not include a decision on your civil-law claims, .
  • In the case of an acquittal, you may lodge a nullity appeal, provided this is legally possible.
10 useful hints for witnesses and victims
  • Don’t be afraid of the examination! You are not the person being accused. As a witness, it is your role to tell the court what you have seen with your own eyes.
  • Listen carefully what question you are being asked!
  • Take your time before you reply!
  • Answer the questions calmly and clearly!
  • Say only what you have witnessed yourself!
  • If you cannot remember something, don’t hesitate to admit it. It is quite normal not to be able to remember details, but don’t invent anything additional.
  • Don’t be afraid of the questions asked by the defence. Some questions may just be part of the defence strategy. After all, defence counsels have to defend their clients.
  • After questioning, you can either leave the courtroom or stay on until the end of the hearing in the visitors’ area.
  • If the accused is acquitted, do not take it personally. This does not automatically imply that the judge did not believe you. Frequently, the evidence is not sufficient to meet the legal requirements for a guilty verdict.
  • Should you be threatened or attacked before or after your witness examination, notify the judge or the police immediately!
If you still have questions

Please contact:

Weisser Ring Kriminalitätsopferhilfe

NußdorferStrasse67/7
A-1090 Vienna
Tel: 01 / 712 14 05
Fax: 01 / 718 83 74
E-mail: Office@Weisser-Ring.at
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The verdict

When does the court hand down the verdict and what does it consist of?
The verdict is pronounced at the end of the oral hearing. The court announces whether the defendant was found guilty of the offence he/she was charged with. The reasoning for the verdict must explain on what evidence the court bases its decision and why, for instance, the testimony of some witnesses was found credible while the opposite testimony of others was not held to be credible.

If the accused is foundguilty, the judge also has to determine the sentence (which type and which extent).

In addition to meting out punishment, the verdict may also impose a number of duties on the offenderwho may be directed to undergo therapeutic treatment, for instance, or to submit to probationary services.

If found guilty, the offender will usually also be ordered to bear the costs of the criminal proceedings.

If you have joined the proceedings as a private party and have claimed a certain amount in compensation, the verdict also has to state whether and to what extent the offender has to provide compensation or whether you will be referred to the civil-law courts.

Every verdict is put into writing, at least its key elements, and is served upon the defendant, the public prosecutorand the private party joining the proceedings. A comprehensive written version of the verdict will be provided only if an extraordinarily high sentence was imposed or if a legal remedy is resorted to.

What types of sanctions are there?
The offender may be sentenced to either pay a fine or to serve a term of imprisonment. In certain circumstances, it is possible to combine fines and imprisonment. The law sets statutory limits for sentencing for each type of offence. Within these limits, it is up to the judge to determine the amount in each individual case.

Imprisonment is imposed either for life or for a defined period of time. The time period for imprisonment must be at least one day. The maximum term of imprisonment is either twenty years or life.

A fine has to be assessed in terms of so-called ‘day fines’, the minimum penalty being two day fines. The amount of the individual day fine depends on the offender’s personal circumstances and financial means .To arrive at the total amount of the fine, it is necessary to multiply the amount set for one day fine by the number of day fines. Collected fines are not paid out to the victim.

When imposing a fine, the verdict must also define a term of imprisonment for failure to pay the fine. Twoday fines correspond to one day of imprisonment for failure to pay the fine. If the offender is unable to pay the fine, it is possible, instead of going to prison, to perform community service in lieu of paying the fine.

Are sentences always enforced immediately?
The law enables the judge to abstain from enforcing a sentence for the time being if the mere threat of a sanction seems sufficient to prevent the offender from committing further offences. In such cases, we speak of conditional discharge on probation or a suspended sentence. For prison sentences, this is possible only if the sentence does not exceed 2 years. For fines, it is possible to conditionally waive no more than half of the amount imposed.

In such cases, the judge will set a probation period of up to three years. Within the period, the offender has to “prove himself/herself”, which means he/she must not commit any further offences. If the offender re-offends during the probation period, it is possible to order the suspended sentence to be enforced. If the offender conducts him/herself well, the sentence will be dropped for good after the end of the probation period and can then no longer be enforced.

The suspension of a sentence is frequently combined with aprobation orderfor the duration of the probation period and/or the issue of instructions. The offender may, for instance, be instructed to avoid contact with certain persons, to abstain from drinking alcohol, to undergo vocational training, or to redeem the loss or damage caused.

Provided that the offender consents, he/she may also be ordered to undergo withdrawal treatment or psychotherapy or medical treatment. At regular intervals, the offender will have to prove to the court that the instructions are being complied with.

What are the criteria the court relies on in determining the sentence?

The court has to assess the offender’s culpability on the basis of the sanctions prescribed by law for each type of offence. This is not a decision judges can make at their discretion; the law lists, by way of example, mitigating and aggravating circumstances that have to be considered in determining which sentence is adequate. The future life of the offender within society also has to be taken into account in making this decision. Aggravating circumstances would be, for instance, particularly brutal actions by the offender that caused agony and pain to the victim. Mitigating circumstances would be if the offender has never committed an offence before, has confessed and shown remorse and is making serious efforts to redress the damage caused.

Your rights as a victim or as a private party in the proceedings:

  • You may appeal a guilty verdict if it does not include a decision on your civil-law claims, it.
  • In the case of an acquittal, you may lodge a nullity appeal, provided this is legally possible.
Example judgment Private Participation encouragement..pdf
Appealing a verdict

How can you challenge a verdict?
There are legal remedies to have a verdict altered. Depending on which court handed down the verdict, different such remedies are available to you.

Verdicts handed down by mixed courts or jury courts
You have two different legal remedies at your disposal to challenge a verdict handed down by a mixed court or a jury court:

  • Nullity appeal claiming error – you can claim defects or errors in the verdict and the proceedings as set out in the law.
  • Appeal regarding the extent of punishment or the award of the compensation claims of a private party in the proceedings.

Verdicts handed down by a single professional judge in first-instance courts (local or regional level)

If the verdict was passed by a single professional judge, you can appeal claiming errors in the verdict and in the proceedings as well as the sentence and the award of the compensation claims of a private party.

When do you have to register andfile an appeal?
Verdicts in criminal proceedings are pronounced orally by the judge at the end of the trial. You can register a nullity appeal or an appeal regarding the sentence either immediately or within 3 days.

If an appeal is registered, the judge has to put the verdict in writing and have it served upon the defendant, the public prosecutor and the private party, if any. The appeal then has to be filed in writing within 4 weeks after the verdict has been served, stating on what grounds the verdict is to be appealed and to which extent.

Where do I lodge an appeal and who decides on it?
You have to lodge the appeal with the court that handed down the verdict.

Appeals lodged against verdicts handed down by a local first-instance court (Bezirksgericht ) are decided on by a panel of three professional judges of the regional court (Landesgericht) acting as second-instance court. Appeals lodged against verdicts handed down by a regional court acting as first-instance court are decided on by the competent regional court of appeal (Oberlandesgericht). Nullity appeals are always decided on by the Supreme Court (ObersterGerichtshof).

The court of appeal verifies whether the appeal was lodged in due time and whether or not it is discernible why the verdict is being appealed. Once these formal requirements have been met, a public hearing will take place. At this hearing, the court of appeal decides on whether to change/alter/ the verdict of the first-instance court or to dismiss the appeal as unfounded. If the court of appeal finds that the first-instance court has committed a procedural error, it may, in certain cases, reverse the verdict and refer the case back to the first-instance court for a retrial. If the appeal was lodged only in favour of the defendant, the court of appeal must not impose a stricter sentence on the defendant than the one imposed by the first-instance court.

No further legal remedy is available against the decision of the court of appeal.

When can a sentence be enforced?

A sentence can be enforced once the verdict can no longer be appealed by either of the remedies mentioned above.

If, upon pronouncement of the verdict, all parties waive their right of appeal, the verdict becomes immediately effective, final and inappealable; otherwise the three-day period for registering an appeal has to expire first.

If the accused was acquitted, he/she must be immediately released if having been detained prior to the trial, even if appeals have been registered.

If the person convicted was sentenced to pay a fine, he/she has to immediately pay this fine. If the offender fails to do so, he/she will be ordered by the court to do so within 14 days. In the case of non-compliance, payment will be enforced.. If the offender does not have the financial means to pay the whole fine at once, he/she may request and be granted deferral?

If the offender was sentenced to a term of imprisonment, he/she will first of all be requested to report to the corresponding penitentiary institution within one month. If the offender fails to appear as requested, he/she will be brought there by the police.

Who can appeal a verdict?

Both the accused and the public prosecutor may lodge all of the appeals listed above.
Victims who have joined the proceedings in order to claim civil-law damages may appeal a verdict only in so far as their claims for compensation are affected.

How can I as a victim appeal a verdict?

Victims can only appeal a verdict if they have joined the proceedings as a private party to claim civil-law damages and only in so far as the claims raised are affected.
(see The private party)

If the accused is found guilty, the court has to decide on the claims for compensation raised by the private party. If the private party is referred to the civil law courts, he/she can lodge an appeal arguing that the outcome of the criminal proceedings would have provided a sufficient basis for a claim for compensation or that determining the amount of compensation would not have unduly delayed the proceedings.

Private parties cannot appeal against the type or extent of the sentence.

If the accused is acquitted, the private party may lodge an appeal only if it is discernible that the denial of a motion submitted by him /her during the trial had a prejudicial impact on his/her ability to assert his/her civil-law claims. A possible example would be where the private party had submitted a motion for the admission of evidence, which was denied by the court.