When criminal proceedings are initiated against an individual, the correct response from the very beginning is crucial. Even at the investigative stage, police interviews, access to the case file, evidentiary motions or coercive measures play a significant role. It is therefore essential throughout the entire procedure to know which rights of the accused apply vis‑à‑vis the criminal police, the public prosecutor’s office and the court. The likelihood of successfully defending oneself against allegations made by investigative authorities increases significantly when the accused exercises these rights through a defence lawyer specialised in criminal law. One should by no means rely blindly on the presumption of innocence.

Section 49 of the Code of Criminal Procedure sets out the core rights of the accused in Austrian criminal proceedings. These rights are intended to ensure that accused persons are not merely the object of state investigations, but are able to effectively exercise their defence interests. They constitute a statutory minimum standard and serve to safeguard a fair trial.

The following provides an overview of the most important rights of the accused under section 49 of the Code of Criminal Procedure.

Information about the suspicion of an offence and instruction on legal rights (section 49(1)(1) of the Code of Criminal Procedure)

Accused persons have the right to be informed of the suspicion of an offence against them as well as of their essential procedural rights (section 49(1)(1) in conjunction with section 50 of the Code of Criminal Procedure). An effective defence is only possible if the accused knows the specific allegation being made and the rights to which they are entitled. The instruction on legal rights must be provided in an understandable manner and in a language the accused can comprehend-

These include, in particular, information on the right to choose a defence lawyer, to apply for legal aid, the right to remain silent, to contact a lawyer, and, where necessary, to receive translation assistance. The instruction on rights must be recorded in writing. The accused must be informed of their essential rights no later than before the first interview.

Rights of the accused: right to choose a defence lawyer and to apply for legal aid (section 49(1)(2) of the Code of Criminal Procedure)

A central right is the ability to freely choose a defence lawyer (section 49(1)(2) of the Code of Criminal Procedure). This right to legal counsel ensures that the accused does not face the law‑enforcement authorities alone.

The accused may generally decide for himself which lawyer to instruct with his defence. A defence lawyer provides support already at the investigative stage, for example during interviews, in obtaining access to the case file, in submitting evidentiary motions, and in assessing the legal implications of the allegation.

Access to the case file as the basis of any defence (section 49(1)(3) of the Code of Criminal Procedure)

Access to the case file (section 49(1)(3) in conjunction with sections 51 et seq. of the Code of Criminal Procedure) is one of the most important rights in criminal proceedings. Only those who know the contents of the criminal file can assess which specific allegations exist and on which evidence they are based.

Access to the case file makes it possible to:

• to realistically assess the status of the proceedings
• to analyse the evidentiary situation
• to develop a targeted defence strategy

The accused is generally entitled to inspect the case file at the criminal police, the public prosecutor’s office and the court and thereby obtain knowledge of the available results of the investigative and trial proceedings. In the investigative stage, access to the file may be restricted under certain circumstances requiring strict scrutiny if granting full access would otherwise jeopardise the purpose of the investigation.

Statement, right to remain silent and contact with a defence lawyer (section 49(1)(4) of the Code of Criminal Procedure)

This right to refuse to give a statement and the associated right to remain silent reflect the prohibition on compelling a person to incriminate themselves. In other words: no one is obliged to incriminate themselves (“nemo tenetur se ipsum accusare”).

At the same time, the accused has the right to contact their defence lawyer at any time and to consult with them. This is of particular importance before an interview and should definitely be exercised.

Presence of the defence lawyer during the interview (section 49(1)(4) of the Code of Criminal Procedure)

Under section 49(1)(5) in conjunction with section 164(2) of the Code of Criminal Procedure, the accused may request that a defence lawyer be present during their interview. In the event of an arrest or when a juvenile suspect is brought in for immediate questioning, the presence of a defence lawyer is even mandatory.

The presence of a lawyer is intended to ensure that procedural rights are respected, that the duty to provide instructions is complied with, and that the interview is conducted properly.

Right to submit evidentiary motions (section 49(1)(6) in conjunction with section 55 of the Code of Criminal Procedure).

Accused persons have the right to request the taking of evidence (section 49(1)(6) in conjunction with section 55 of the Code of Criminal Procedure). This right to submit evidentiary motions constitutes an essential participatory right in criminal proceedings.

An evidentiary motion may relate, for example, to witnesses, documents, expert reports or other items of evidence. Its purpose is to introduce exculpatory circumstances into the proceedings as well.

For an evidentiary motion to be dealt with properly, it must be sufficiently specific. In particular, it should indicate,

• which item of evidence is being requested,
• which fact to be proven is to be clarified by that item of evidence, and
• why this item of evidence is relevant and suitable for clarifying the matter.

Merely general or vague requests for further investigations

Objection on grounds of a violation of rights (section 49(1)(7) in conjunction with section 106 of the Code of Criminal Procedure).

If accused persons feel that the public prosecutor’s office has infringed their individual rights, they have the possibility — or rather the right — to lodge an objection on grounds of a violation of rights during the investigative proceedings (section 49(1)(7) in conjunction with section 106 of the Code of Criminal Procedure).

This may concern, for example:

• the refusal to grant (full) access to the case file,
• the failure to deal with an admissible evidentiary motion,
• the refusal to provide necessary translation assistance,
• other infringements of statutorily granted individual rights of the accused.

If the public prosecutor’s office does not remedy the objection itself, the matter is decided by the court. This allows investigative measures — or investigative inactivity — to be subjected to judicial review.

Complaint against judicial coercive measures (section 49(1)(8) in conjunction with section 87 of the Code of Criminal Procedure).

Accused persons may lodge a complaint against the judicial authorisation of coercive measures (section 49(1)(8) in conjunction with section 87 of the Code of Criminal Procedure). Examples of such coercive measures requiring judicial authorisation include court‑authorised searches of premises, seizure, and the monitoring of the content of communications (‘telephone surveillance’).

As such measures are regularly associated with significant interferences with fundamental rights, the requirement of judicial oversight constitutes an important element of legal protection. By means of the complaint, the judicial authorisation of such measures may also be subjected to an additional, higher‑level judicial review.

Application for the discontinuation of the investigative proceedings (section 49(1)(9) in conjunction with section 108 of the Code of Criminal Procedure).

The accused has the right to apply for the discontinuation of the investigative proceedings (section 49(1)(9) in conjunction with section 108 of the Code of Criminal Procedure). Such an application may be considered in particular where there is no sufficient suspicion of an offence or legal reasons militate against further prosecution.

Drafting a promising application for the discontinuation of proceedings is demanding. Defence counsel will formulate such an application on the basis of comprehensive access to the case file and a strategic assessment of the individual case, taking into account both the procedural and substantive legal elements that may be relevant. What is crucial is to identify the most compelling argument in favour of discontinuation and to present it concisely and with precision.

Participation in the main hearing and in the taking of evidence (section 49(1)(10) of the Code of Criminal Procedure).

Accused persons have the right to participate in the main hearing. In addition, they have the right to be present at adversarial examinations of witnesses and co‑accused, as well as at a reconstruction of the offence (section 49(1)(10) of the Code of Criminal Procedure). These rights safeguard the right to be heard and enable direct participation in the proceedings.

Excursus: Adversarial examinations occur frequently in practice. Allegations in connection with which such an examination is conducted are usually highly sensitive. An adversarial examination is an interview conducted prior to the main hearing, in which the parties to the proceedings may participate and during which they may put questions to the person examined adversarially.

The person examined during the adversarial examination will, as a rule, not be questioned again at the main hearing. Although the adversarial examination takes place prior to the main hearing, it therefore constitutes one of the most decisive turning points in criminal proceedings, and its outcome is often crucial in determining whether the proceedings are discontinued or whether, in the course of a later main hearing, a conviction is ultimately reached.

Rights of the accused: remedies and legal recourse (section 49(1)(11) of the Code of Criminal Procedure).

Accused persons may lodge remedies and legal recourse against decisions in criminal proceedings (section 49(1)(11) of the Code of Criminal Procedure). This provides the opportunity to have decisions reviewed and to avail oneself of procedural legal protection.

Translation assistance (section 49(1)(12) in conjunction with section 56 of the Code of Criminal Procedure).

Accused persons who do not sufficiently speak or understand the language of the proceedings are entitled to translation assistance (section 49(1)(12) in conjunction with section 56 of the Code of Criminal Procedure). This includes, in particular, the provision of an interpreter. There is also a right to the written or oral translation of essential documents, such as an indictment or a judicial decision.

What is decisive is that the accused understands the allegation brought against him and is able to exercise his defence rights effectively.

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Conclusion: Rights of the accused – Why early defence in criminal proceedings is essential.

The rights of the accused under section 49 of the Code of Criminal Procedure form the basis of an effective defence in criminal proceedings. They range from information about the suspicion of an offence, access to the case file, the right to remain silent, assistance of defence counsel and evidentiary motions to remedies and translation assistance.

What is crucial, however, is not merely to know these rights but to exercise them in a timely and correct manner. Particularly in the early stages of criminal proceedings, statements, applications or omitted steps can significantly influence the further course of the case.

In addition, early advice from a defence lawyer at MPW ensures that procedural rights are effectively safeguarded and establishes a clear defence strategy in order to ultimately achieve the best possible outcome.