Criminal Proceedings in Austria: Witness Summonses, Suspect Rights and Diversion

You may become involved in criminal proceedings in Austria as a witness, suspect or victim. This guide summarises the main duties and rights, including what to do if you receive a witness summons or a Diversion offer.

How do criminal proceedings work?

Proceedings begin when the criminal police (Kriminalpolizei) or the public prosecutor’s office (Staatsanwaltschaft) learns about a suspected criminal offence. This may happen through a report or through the authorities’ own observations.

There are two main stages:

1. Investigation proceedings (Ermittlungsverfahren): these are led by the Staatsanwaltschaft. At the end, it decides whether to bring charges, discontinue the proceedings or conclude them through Diversion.
2. Main proceedings (Hauptverfahren): these begin when charges are brought and are conducted by the court. The trial (Hauptverhandlung) ends with a judgment.

In certain cases, the court can impose a penalty without a trial by issuing a written penalty order (Strafverfügung). You can submit a written objection (Einspruch) within four weeks of service.

Suspect, accused person and defendant: what is the difference?

• Suspect (Verdächtiger): there is only an initial, unclear suspicion.
• Accused person (Beschuldigter): specific suspicion exists and investigative measures have already been taken, such as a seizure or detention.
• Defendant (Angeklagter): the Staatsanwaltschaft has submitted an indictment to the court.

What rights does a suspect have?

• Information: you must be informed as soon as possible that proceedings have been opened against you. This may be postponed only if informing you would endanger the purpose of the investigation.
• Understandable language: you must be informed of your rights in a language you understand.
• Right to remain silent: you do not have to incriminate yourself and may refuse to answer individual questions. However, as an accused person you must still attend a summons (Ladung).
• Lawyer: you have the right to involve a defence lawyer at your first police or prosecutorial interrogation.
• Access to the case file (Akteneinsicht): at the court, you may inspect the file and make free copies using your own device.

If you are detained (Festnahme), you must be told the reason for the suspicion. You have the right to make a telephone call and notify someone. You should sign the record only if you agree with everything it contains; you can request corrections.

When is a defence lawyer mandatory, and who pays?

A defence lawyer is mandatory (notwendige Verteidigung) in certain situations, including during pre-trial detention or proceedings before a jury court or lay judge court. If you cannot afford a lawyer, you can apply for an appointed defence lawyer under legal aid (Verfahrenshilfeverteidigung).

If you are acquitted, the state may, upon request, contribute towards the cost of a privately selected defence lawyer. The maximum amounts are:

• Regional court, lay judge and jury court: 30,000 euros
• Regional court, single judge: 13,000 euros
• District court (Bezirksgericht): 5,000 euros

These amounts are generally lower than the actual legal fees.

Witness summonses: what are your duties?

If the court, Staatsanwaltschaft or police summons you as a witness, you must attend and tell the truth. False testimony is a criminal offence, including deliberately withholding important facts.

If you cannot attend, for example because of illness or an accident, you must inform the court in good time. You are excused only if the court accepts the reason. Work is generally not accepted as a valid reason.

When can a witness refuse to testify?

You do not have to testify in proceedings against a close relative, including a spouse, registered partner, child, sibling or grandchild. You may also refuse to testify if your evidence would incriminate you or a relative. You must still attend the summons.

A witness can request reimbursement of travel costs and a witness fee (Zeugengebühr). The judge must certify your attendance on the summons. You can also request that your residential address is not included in the case file.

What happens if you do not attend?

An unjustified failure to attend can result in an administrative fine (Ordnungsstrafe) of up to 1,000 euros. The police may bring you to the hearing, and you may also be charged for costs resulting from your absence.

What is Diversion?

Diversion (Diversion) allows the Staatsanwaltschaft or the court to abandon formal criminal proceedings when the facts have been clarified. In return, the accused person must accept a measure such as:

• paying a sum of money,
• community service,
• probation,
• an offender–victim settlement (Tatausgleich).

Conditions for Diversion

Among other conditions, the offence must carry a maximum sentence of no more than five years’ imprisonment. For sexual offences, the limit is three years; this limit does not apply to people under 21. The offence must not have caused anyone’s death, and there must be no serious guilt.

A confession is not required, but you must accept at least partial responsibility. Accepting Diversion means accepting responsibility for the act. In some cases, refusing it may be more favourable, so you should discuss the decision with a lawyer. If you do not fulfil the conditions, the proceedings may continue.

Diversion can be offered by the Staatsanwaltschaft up to the filing of charges and by the court until the end of the trial. You can also request Diversion yourself.

What are the consequences of Diversion?

A case concluded through Diversion ends without a judgment. You formally remain without a criminal conviction and the result is not entered in the criminal record. However, it remains visible in the justice system’s internal register for 10 years.

Where can a detained person get help?

The lawyers’ on-call service (Rechtsanwaltlicher Bereitschaftsdienst) is available free of charge around the clock at 0800 376 386. The first call and first telephone consultation are free; further services are generally subject to payment.

Practical steps

1. Read every summons, order or other document carefully and note all deadlines.
2. If you are summoned as a witness, attend even if you believe you can refuse to give evidence.
3. If you cannot attend, notify the court in good time and provide the relevant reason.
4. If you are a suspect or accused person, remember that you do not have to incriminate yourself and can request a lawyer.
5. If you are detained, ask to contact the Rechtsanwaltlicher Bereitschaftsdienst at 0800 376 386.
6. Before accepting or refusing Diversion, discuss the consequences with a lawyer.

Important: This article is general information and is not legal advice. For advice about your individual case, contact a lawyer or other qualified legal professional.