Anyone who receives a summons to attend a trial wants to know one thing above all else: what is the procedure for the trial and what happens in the courtroom?

What is commonly referred to as a ‘court hearing’ is known as the ‘main hearing’ in Austrian criminal proceedings. It is the central stage of the main court proceedings. The court considers the charges set out in the indictment, examines the necessary evidence and ultimately decides whether to find the defendant guilty or not guilty. In the event of a conviction, the court also determines the sentence.

The specific procedure depends on the scope of the case. A trial may be concluded in a single hearing or may extend over several days. However, the key stages are laid down by law. The following article provides an overview of the procedure for a trial in Austria and explains the key stages of the proceedings.

Which court will rule on the charge?

Which court or which composition of the court has jurisdiction over criminal proceedings depends primarily on the statutory penalty; however, in some cases, specific offences are subject to specific jurisdictions or court compositions. At first instance, the trial may take place before the District Court, before the Regional Court sitting as a single judge, before the Regional Court sitting as a lay judges’ court, or before the Regional Court sitting as a jury court.

District Court and single-judge divisions of the Regional Court

The District Court generally has jurisdiction over criminal offences punishable only by a fine or a term of imprisonment not exceeding one year. There are exceptions to this, as expressly set out in Section 30(1) of the Code of Criminal Procedure. The District Court decides through a single judge (Section 30(2) of the Code of Criminal Procedure).

Lay judges’ court

The magistrates’ court has jurisdiction, in particular, over criminal offences punishable by a prison sentence of more than five years, provided that the jury court does not have jurisdiction. In addition, this includes the criminal offences expressly listed in Section 31(3) of the Code of Criminal Procedure.

In principle, the lay judges’ court consists of one professional judge and two lay judges. In certain proceedings, it sits in an expanded composition comprising two professional judges and two lay judges (Section 32(1) and (1a) of the Code of Criminal Procedure). Lay judges are non-professional judges, but they participate on an equal footing in deciding on guilt and sentence (Section 32(4) of the Code of Criminal Procedure).

Jury court

The jury court rules, in particular, on particularly serious criminal offences. These include offences punishable by life imprisonment, as well as offences carrying a minimum sentence of more than five years and a maximum sentence of more than ten years (Section 31(2) of the Code of Criminal Procedure).

The jury court consists of three professional judges and eight jurors (Section 32(1) of the Code of Criminal Procedure). The jurors decide on the question of guilt on the basis of the questions put to them. In the event of a guilty verdict, they deliberate on the sentence together with the professional judges.

In lay judge and jury trials, the defendant must be represented by a defence lawyer during the main hearing. Defence representation is also mandatory in certain proceedings before a single judge at the Regional Court.

Special rules governing the composition of the court

In the case of certain sexual offences, specific requirements apply to the composition of the court. If the defendant is charged with an offence under Sections 201 to 207 of the Criminal Code (StGB), the court must include members of both the defendant’s sex and that of the alleged victim. The specific composition is governed by Section 32(2) of the Code of Criminal Procedure (StPO).

As a general rule, the composition of the court must not change during the main hearing. This is to ensure that the judges and lay assessors who will subsequently decide on guilt and sentence have personally followed the entire presentation of evidence. The only changes permitted are to the court clerk or the representative of the public prosecutor’s office. The defence counsel may also be replaced.

If it is anticipated in advance that the main hearing will be lengthy, substitute judges and substitute lay judges may be called upon (Section 221(4) of the Code of Criminal Procedure). They take part in the hearing from the outset and may take the place of a judge or lay judge should that person be unable to attend.

Procedure for the main hearing: The start

The main hearing is, as a rule, conducted orally and in public (Section 12(1) of the Code of Criminal Procedure). Members of the public are therefore generally permitted to be present in the courtroom.

The public may be excluded from the entire hearing or from specific parts of it. This may be considered, for example, where the highly personal private life of a defendant, a victim, a witness or a third party is being discussed, or where the protection of victims and witnesses so requires (Section 229 of the Code of Criminal Procedure).

In the case of accused juveniles and young adults up to the age of 21, the public may be excluded either ex officio or upon application, if this is in their best interests. However, the judgement must always be pronounced in public.

Chairing the hearing

The conduct of proceedings is the responsibility of the presiding judge (Section 232(1) of the Code of Criminal Procedure). In single-judge proceedings, the judge presiding over the case assumes this responsibility.

The presiding judge opens, adjourns and closes the hearing. He conducts the examinations, calls on the parties to speak and ensures order and quiet in the courtroom (Section 232(3) of the Code of Criminal Procedure).

Disruptive members of the public may be removed from the courtroom. Under certain circumstances, the defendant may also be excluded, either temporarily or for the remainder of the trial. This is subject to the condition that he is disrupting the proceedings and continues to behave in this manner despite being warned (Sections 233 and 234 of the Code of Criminal Procedure).

Description of the case and general details

The main hearing begins with the calling of the case (Section 239 of the Code of Criminal Procedure). The presiding judge ascertains whether the defendant, the public prosecutor, any necessary defence counsel and any other persons summoned have appeared.

As a general rule, the defendant must attend the main hearing in person. A hearing and the passing of a judgement in his absence are only possible under the specific conditions set out in Section 427 of the Code of Criminal Procedure.

If the representative of the Public Prosecutor’s Office is absent, the hearing must be adjourned. The absence of a necessary defence counsel may also necessitate an adjournment (Section 274 of the Code of Criminal Procedure). The absence of a private party, however, does not prevent the proceedings from continuing.

The presiding judge then verifies the defendant’s identity and questions him or her regarding their personal details (Section 240 of the Code of Criminal Procedure). These include, in particular, their name, date of birth, occupation, residential address, and personal and financial circumstances. Their income and financial circumstances may be relevant at a later stage, for example, when determining the amount of a fine.

If lay judges or jurors are involved, they shall be sworn in. (Section 240a of the Code of Criminal Procedure).

Statement of charges and defence

Following the calling of the case and the introductory formalities, the Crown Prosecution Service is given the floor to present the charges. (Section 244(1) of the Code of Criminal Procedure).

In lay judge and jury proceedings, the indictment is read out. In proceedings before the District Court or the Regional Court, where a single judge presides, reference may be made to the written criminal complaint.

The statement of charges is intended to set out clearly the specific offence with which the defendant is charged. In more complex cases, the Crown Prosecution Service also routinely sets out the alleged sequence of events and the key evidence.

The defence may respond to the prosecution’s opening statement with a counter-statement (Section 244(3) of the Code of Criminal Procedure). This is often referred to as a reply or the defence’s opening statement. Whilst it is not mandatory, it gives the defence the opportunity to highlight, right from the outset, any weaknesses in the prosecution’s case, exculpatory circumstances and key defence arguments.

The examination of the defendant

The defendant will then be questioned regarding the substance of the charges (Section 245 of the Code of Criminal Procedure).

First, he is asked whether he pleads guilty. He may plead guilty, partially guilty or not guilty.

The right to remain silent

The defendant may not be compelled to make a statement and is not obliged to incriminate themselves. They may present the facts of the case from their own perspective, answer only specific questions, or remain completely silent.

If he decides to make a statement, he may first give a coherent account (Section 245(1) of the Code of Criminal Procedure). He is thus free to determine the order in which he describes the events and which circumstances he wishes to emphasise.

Following this, the court, the prosecution and the defence may ask questions. In proceedings involving lay participants, lay judges or jurors may also put questions to the defendant. The defendant is not obliged to answer questions from all those involved. In any event, his silence must not form the sole basis for a conviction.

If the defendant deviates from previous statements, he will be asked to explain his reasons. In such cases, previous interview transcripts may be produced. This also applies if he does not wish to give evidence at the trial.

The defendant is permitted to consult with his defence counsel during the trial. The proceedings may be adjourned for this purpose (Section 245(3) of the Code of Criminal Procedure). However, direct consultation regarding the answer to a specific question that has already been put to the defendant is not permitted.

Procedure at the main hearing: The taking of evidence

Following the examination of the defendant, the presentation of evidence begins (Section 246 of the Code of Criminal Procedure). This usually forms the core of the trial.

The aim is to establish the facts relevant to the decision. Evidence may include, in particular, witness statements, expert reports, documents, technical records, exhibits and/or an on-site inspection.

As a general rule, the court may only base its judgement on evidence that has been taken during the main hearing and has become the subject matter of the proceedings (Section 12(2) of the Code of Criminal Procedure). This is known as the principle of directness.

Testifying in court: the questioning process

Witnesses are examined individually and, as a rule, in the presence of the defendant.

First, the presiding judge conducts the questioning. Thereafter, the other judges and the parties to the proceedings may ask questions (Section 249(1) of the Code of Criminal Procedure). The defendant himself also has the right to ask questions, even if he is represented by a defence counsel. After each statement, he is entitled to comment on it (Section 248(3) of the Code of Criminal Procedure).

The presiding judge may reject inadmissible questions. In lay judge or jury proceedings, a decision on this matter may be sought from the lay judges’ panel or the jury court respectively (sections 238 and 249 of the Code of Criminal Procedure).

If a witness is unable to appear in person due to illness, infirmity or any other compelling reason, they may be examined via audio and video link (Section 247a(1) of the Code of Criminal Procedure).

The defendant may be temporarily removed from the courtroom whilst a witness is giving evidence if there is reason to fear that the witness would not give evidence freely or truthfully in the defendant’s presence. The defendant must subsequently be informed of the outcome of the examination and be given the opportunity to comment (Section 250 of the Code of Criminal Procedure).

How long does it take to give evidence in court?

There is no set time limit. The duration depends on the complexity of the case, the number of questions asked, and whether any contradictions or ambiguities need to be discussed in more detail.

A witness’s testimony may therefore be concluded after just a few questions, or it may take up a significant part of the trial.

Applications for evidence

The defendant and his defence counsel may apply for further evidence to be admitted. An application for evidence may, for example, seek to call an additional witness, call upon an expert witness, or carry out an on-site inspection.

The application must specify the evidence and the subject matter of the evidence. It must therefore be clear what evidence is to be admitted and which specific fact is to be proven by it (Section 222(1) in conjunction with Section 55(1) of the Code of Criminal Procedure).

Applications for evidence must be made orally during the main hearing. This applies even if they have already been submitted in writing. If the court rejects an application, it must give reasons for its decision during the main hearing. The rejection and the reasons given may be relevant to any subsequent appeal.

Reading out previous statements

As a general rule, witnesses must give evidence in person before the trial court. Previous transcripts may therefore only be used in place of direct examination in cases provided for by law (Section 252(1) of the Code of Criminal Procedure).

A statement may be read out, in particular, if the person concerned has died, their whereabouts are unknown or it is impossible for them to appear in person. Previous statements may also be read out if a witness deviates significantly from their earlier account, can no longer recall the details, refuses to give evidence, or if both the prosecution and the defendant agree to the statement being read out.

After each reading, the defendant must be given the opportunity to comment (Section 252(3) of the Code of Criminal Procedure).

Once all the necessary evidence has been taken, the chairperson shall declare the evidence-taking proceedings closed.

How long does a trial in court last?

Nor is there any general guideline regarding the duration of the main hearing. The decisive factors are, in particular, the number of defendants, witnesses and experts, the volume of the case files and the evidence that needs to be taken. Simple cases can be concluded in a single hearing. Extensive main hearings may extend over several days.

If the hearing cannot be conducted in one sitting, it is either adjourned or postponed. An adjournment is a short break, after which the hearing resumes at the same point. In the case of a postponement, the hearing is resumed at a later date.

Diversion during the trial

Even after the main hearing has begun, the proceedings may still be concluded without a conviction under certain conditions. Diversion may be considered, in particular, if the offence is not punishable by more than five years’ imprisonment, there is no gross negligence, and there are no grounds relating to specific or general prevention that preclude it. The defendant must also be prepared to accept responsibility for the offence.

Possible measures include, for example, the payment of a sum of money, community service, a probationary period or a restorative justice programme. The public prosecutor’s office must be consulted before an offer of diversion is made.

Diversion is possible right up until the end of the trial (Sections 199 and 209 of the Code of Criminal Procedure). If the defendant meets the specified conditions, the proceedings are concluded without a criminal conviction. Nor is any entry made in the criminal record.

Closing speeches and final remarks

Once the taking of evidence has been concluded, the closing statements or pleadings follow (Section 255 of the Code of Criminal Procedure).

The prosecution is given the floor first. It summarises the evidence from its perspective and makes a submission on the question of guilt. It does not make a specific submission on the severity of the sentence within the statutory sentencing range. However, it may address aggravating and mitigating factors.

The private party or their representative may then comment on the question of guilt and on the civil claims being asserted. They must not comment on the specific level of the sentence.

The defence is then given the floor. It may assess the evidence presented, point out any inconsistencies, put forward legal arguments and apply for an acquittal. If a conviction is also a possibility, it may highlight any circumstances that would warrant a more lenient sentence.

If the Crown Prosecution Service responds again, the defendant and his defence team may reply.

In any event, the defendant has the final say. He may endorse the arguments put forward by his defence counsel or make a further statement himself. He is not obliged to do so.

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Consultation on the judgement and pronouncement of the judgement

Following the closing speeches, the court retires to deliberate in private. In a single-judge trial, the professional judge decides alone. In a lay judge trial, the professional judges and lay judges deliberate together. In a jury trial, the jury first decides on the question of guilt. In the event of a guilty verdict, they deliberate on the sentence together with the professional judges.

The court must rule on all the offences covered by the indictment. A conviction is only permissible if the court is satisfied that the defendant has committed a criminal offence. If any doubt remains, the defendant must be acquitted. This principle is known as ‘in dubio pro reo’ – ‘when in doubt, in favour of the defendant’.

However, this principle does not constitute a rule of evidence to the effect that, where several possible conclusions are conceivable, the court must always choose the one most favourable to the defendant. The court is bound by the facts of the case as set out in the indictment, but not by the public prosecutor’s legal assessment of those facts. If it wishes to classify the offence differently in legal terms, it must first give the parties to the proceedings the opportunity to comment (Section 262 of the Code of Criminal Procedure).

Contents of the judgement

In the event of a conviction, the judgement shall specify, in particular, the offence of which the court has found the defendant guilty, the criminal act committed, and the sentence or measure imposed. It shall also set out the applicable laws and rule on claims by private parties and legal costs. (Section 260 of the Code of Criminal Procedure).

The court must also set out which facts it considers to have been proven, how it has assessed the evidence, and which factors were decisive in determining the sentence.

Oral notification and written copy

The judgement is pronounced orally and in public on behalf of the Republic (Section 268 of the Code of Criminal Procedure). As a general rule, this takes place immediately at the end of the trial. In district court proceedings, the pronouncement of the judgement may be deferred until the following day (Section 458 of the Code of Criminal Procedure).

The presiding judge announces the verdict and explains the main grounds for the decision. A distinction must be made between the oral pronouncement of the judgement and the written copy of the judgement. A judgement pronounced orally must, as a rule, be set out in writing (Section 270(1) of the Code of Criminal Procedure). The written copy must include, in particular, the heading of the judgement, the verdict and the grounds for the decision.

Notice of Appeal

Immediately following the oral pronouncement of the judgement, together with the oral reasons, the defendant is informed of the available legal remedies. He may lodge an appeal immediately, expressly waive his right to appeal, or choose not to make a statement for the time being. A defendant who is not represented by a lawyer cannot validly waive their right to appeal in this context. If they do not make an immediate statement, they have a three-day period (reflection period) in which to lodge an appeal. If no appeal is lodged within this period, the judgement becomes final.

The public prosecutor’s office and the private party may also lodge an appeal, waive their right to do so, or wait until the deadline for lodging an appeal has passed.

Practical tip: Make the most of the three-day cooling-off period 

Once the verdict has been handed down, defendants should neither rush to waive their right to appeal nor make decisions about how to proceed without seeking legal advice. It is generally advisable to make use of the three-day notification period. This allows time to carefully review the verdict and discuss the next steps with a criminal defence lawyer.

Seek advice in good time

An experienced criminal defence lawyer can assess whether, and to what extent, the judgement should be appealed. This involves examining not only the verdict and the legal assessment, but also the evaluation of evidence, rejected applications for evidence, possible procedural errors and the trial transcript, all of which may be decisive. The appeal must then be carefully tailored to the specific case and drafted accordingly.

Please note the deadline:

If the party does not lodge an appeal within three days, the judgement generally becomes final. If the party unequivocally waives its right to appeal, this declaration is binding in perpetuity and cannot be altered at a later date. If the deadline for lodging an appeal falls on a Saturday, Sunday or public holiday, it does not expire until the next working day, in accordance with Section 84 of the Code of Criminal Procedure. Given the short deadline, legal advice should be sought as soon as possible.

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