Victim rights in Austrian criminal proceedings

(Click here to read this post in German and here to read it in Dutch.)

This post provides general information about the rights and resources available to victims and private parties in criminal proceedings in Austria. For more information about criminal proceedings in Austria in general, click here.

In Austria, victims of a crime have certain rights during criminal proceedings. "Victims" within the meaning of the Austrian Code of Criminal Procedure (Strafprozessordnung) are

• persons who may have been exposed to violence or a threat, may have been impaired in their sexual integrity and self-determination, or whose personal dependence may have been exploited

• certain relatives of a person whose death resulted from a criminal act

• persons who may have suffered damage as a result of a criminal act

In addition, individuals who have incurred damage as a result of a crime have the option to join the proceedings as a private party (more on this below).

The course of criminal proceedings

The criminal investigation

In Austria, criminal proceedings are divided into two main procedural stages: a criminal investigation and the main proceedings. The purpose of the criminal investigation is to determine the facts of the case and to decide on the need for to prosecute one or more suspects.

The participation of a victim in a criminal investigation typically begins with his or her interrogation. After this interrogation, however, victims have the opportunity to further participate in the criminal investigation. The most important rights that a victim has during an investigation are

• the right to representation

• the right to inspect files

• the right to be assisted by an interpreter

• the right to present or suggest evidence

Other victim rights include the right to be notified of the progress of the criminal proceedings.

In certain cases - particularly in relation to sexual offenses - victims have the possibility to be interrogated in a separate pre-trial hearing, a so-called kontradiktorische Vernehmung. During this hearing, the victim remains separated from the suspect, sparing the witness a personal confrontation. In addition, participating in this hearing will typically mean that the victim´s will no longer have to attend the main trial.

End of the criminal investigations

A criminal investigation ends with the Public Prosecutor’s Office deciding whether

• the proceedings against the suspect are terminated

• the proceedings are settled by diversion (more on this below), or

• the suspect is indicted

Discontinuance of the criminal investigation

An investigation is terminated if, for example, the evidence is considered insufficient to indict the suspect or if further prosecution of the suspect would be inadmissible for legal reasons. If the investigation is terminated, the victim will be notified about this. Within 14 days after receiving this notification, the victim has the opportunity to request a statement of reasons for the discontinuation. Within a further 14 days after receipt of this statement of reasons, the victim has the right to request the continuation of the criminal investigations (Fortführungsantrag). In this case, a court decides on the question of whether to continue the investigation if the public prosecutor´s office sticks with its decision.

Diversion

In the case of minor criminal offences, the proceedings can be settled with a so-called Diversion if certain conditions are met. In particular, the act in question must be a misdemeanor, it cannot have resulted in the death of a person, the culpability of the suspect must not be considered to be serious, and the suspect must take a certain amount of responsibility for the act. Frequently, a Diversion will also involve the indemnification of the victim. A victim can however not force, prevent or fight a Diversion.

Criminal prosecution

If the facts of the case indicate that a criminal conviction of the suspect is probable and if a Diversion does not seem possible, the suspect will be indicted.

The main proceedings

With the indictment of the suspect, the investigation is over and the main proceedings begin. In more concrete terms, this means that the public prosecutor's office files a criminal complaint or an indictment with the responsible court. Depending on the indictment, this can be one of the following courts:

• district court

• regional court (single judge)

• regional court with lay assessors (Schöffengericht)

• regional court as jury court (Geschworenengericht)

After this, a trial hearing is scheduled, for which the suspect (who has now become the defendant), any witnesses and expert witnesses will receive a court summons. In the course of this trial hearing, the defendant will be questioned and have the opportunity to defend himself. Witnesses will also be questioned. It is also possible during the trial hearing for certain persons to be heard separately from the defendant, so that a direct confrontation with the defendant may be avoided.

At the end of the trial, the court will render the verdict immediately (lay assessor and jury courts will however first withdraw for deliberation). A defendant will usually either convicted or acquitted. If the conditions are met, a Diversion can also be carried out during the main proceedings. 

The defendant and the public prosecutor have the right to lodge an appeal against the verdict. Private parties (see below) only have this option if no decision has been made on their claims in spite of a conviction.

The victim has the right to attend and be represented during the main hearing and to ask questions to the defendants, witnesses and any appointed court experts.

Claims for damages– participation as a damaged party (Privatbeteiligung) 

Victims of a criminal offense in Austria have the right to claim the damage they suffered as a result of the offense in the course of the criminal proceedings. For this purpose, it is necessary to join the proceedings as a damaged party with a separate statement (Privatbeteiligtenanschluss). The victim has now also become a damaged party.

Types of claims

The compensation for damage suffered as a result of a criminal act will usually involve damages for pain and suffering, repair costs, etc. For the determination of claims for pain and suffering (Schmerzengeld), the Austrian courts work with fixed rates. Currently, these amount to EUR 360 for severe pain, EUR 240 for moderate pain and EUR 120 for mild pain suffered over a day. It should be noted that private party claims must be precisely quantified and substantiated.

The decision on private party claims

The court decides on asserted private party claims as part of its judgment. If a claim is granted, it can be enforced on basis of the judgment. If claims are not or only partly granted, the private party will have to initiate civil proceedings for the further assertion of his claims. It should be noted, however, that in civil proceedings – unlike in criminal proceedings – there is a cost risk, i.e. the party losing these proceedings will have to bear the corresponding costs.

Legal support for victims of crimes in Austria

People who have become the victim of a crime in Austria have the right to be assisted by an attorney. I offer victims my support and guidance in criminal proceedings in Austria. Feel free to contact me by writing me at office@vastenburg.at or calling me at 0043 6804446590. Further general information on Austrian criminal procedure can be found here.

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