In Austria, a diversion ends criminal proceedings without a conviction. As a result, no entry is made in the criminal record, so you are still regarded as having a clean record. With diversion under Sections 198 et seq. StPO, the legislator has therefore created a special instrument. It reconciles the state’s right to punish with rehabilitation and the efficient use of resources.

Diversion is a third way of ending criminal proceedings, in addition to the classic judgment and acquittal. Compared with a conventional judgment, it offers the state a less resource-intensive way of ending criminal proceedings. For the person concerned, it is also considerably less intrusive than a judgment of a criminal court. Diversion therefore offers clear advantages for both sides of criminal proceedings.

This article gives you a structured overview of the requirements, the different forms and how diversion works in Austria.

What exactly is diversion (Sections 198 et seq. StPO)?

In principle, criminal proceedings typically consist of indictment, judgment and, where applicable, appeal proceedings. In reality, this is often a very lengthy and costly process. Moreover, it usually has a considerable impact on the everyday life of the person concerned. Holding a public (!) oral hearing can also often damage the reputation of the person concerned.

In the area of minor to moderately serious crime, diversion offers a proven means of countering precisely these risks. In other words, it allows the proceedings to be resolved in an alternative way.

Requirements for diversion – Is diversion possible in my case?

Whether your case can be resolved by diversion depends, for adults, on the following statutory requirements:

• Offence prosecuted ex officio: The alleged offence must be an offence prosecuted ex officio (Offizialdelikt), i.e. a criminal offence that the law enforcement authorities must prosecute of their own motion.
• Sufficiently clarified facts: The facts must be sufficiently clarified at the time of the decision on diversion. This means that the facts must be even clearer than would be necessary, for example, to bring an indictment.
• No grounds for discontinuation: Discontinuation of the investigation proceedings, for example due to lack of evidence, is not an option.
• Penalty: The alleged offence must not carry a prison sentence of more than five years. In the case of sexual offences, diversion is only possible if the maximum penalty does not exceed three years.
• General and special prevention: Punishment must not be necessary for reasons of either special or general prevention.
• No serious guilt: The guilt of the person concerned must not be regarded as serious.
• Acceptance of responsibility: The defendant must accept responsibility for the alleged offence and consent to the diversion.
• No death caused: As a rule, the offence must not have resulted in the death of a person.

In corporate criminal law (i.e. in proceedings against legal entities under the VbVG), compensation for the damage is also mandatory. In addition, other consequences of the offence must be eliminated. Juvenile criminal law (i.e. for juveniles and young adults), however, has special features. Here, the scope for diversion is broader than in proceedings against adults.

What forms of diversion are there?

If the above requirements are met, there are several ways of resolving proceedings by diversion:

• Fine (Section 200 StPO): The public prosecutor’s office may withdraw from prosecuting an offence if the defendant pays a sum of money to the federal government. However, this amount may not exceed the value of a fine of 180 daily rates. In addition, the costs that would be reimbursable in the event of a conviction may be added.
• Community service (Sections 201 f StPO): Here, the person concerned agrees to perform unpaid community service within a set period of six months. This may not exceed 40 hours per week and 240 hours in total. In this way, the defendant expresses his or her willingness to take responsibility for the offence.
• Probation period (Section 203 StPO): The public prosecutor’s office may also provisionally withdraw from prosecuting the offence by setting a probation period of one to two years. During this period, the person concerned is usually subject to certain obligations. These are imposed in the form of instructions and, where applicable, accompanied by a probation officer. In particular, the person may have to make good the damage as far as possible. Alternatively, he or she may have to contribute to compensating for the consequences of the offence in another way.
• Victim-offender mediation (Section 204 StPO): If the offence directly affected the legal interests of a person, victim-offender mediation (Tatausgleich) may also be considered. The defendant must take responsibility for the offence, address its causes and compensate for any consequences of the offence.

During the investigation proceedings, the public prosecutor’s office decides whether diversion is offered and in what form. In the main proceedings, the court decides.

Advantages of diversion – diversion and the criminal record

Diversion is a form of state response to criminal conduct. However, it neither releases the defendant from individual responsibility nor undermines the public’s trust in the general preventive effect of criminal law. Moreover, it saves judicial resources, as it avoids lengthy criminal proceedings. For the person concerned, the greatest advantage of diversion is that there is no formal conviction – you therefore continue to be regarded as having no previous convictions. The presumption of innocence also continues to apply and the person concerned receives no entry in the criminal record. The stigma of a criminal conviction is therefore removed entirely.

Conclusion

If you are confronted with criminal allegations and investigation proceedings, you should consult a criminal defence lawyer immediately. This improves the chances of the investigation being discontinued or of diversion. A criminal defence lawyer can inspect the case file on your behalf and assess whether the requirements for diversion are met. Where this makes sense in the specific case, he or she will adjust the defence strategy accordingly. In addition, the defence lawyer can communicate appropriately with the public prosecutor’s office and, where applicable, the court. For example, he or she can discuss key matters such as the acceptance of responsibility and ensure that all requirements are met.

Early advice from a criminal defence lawyer can therefore significantly increase the chances of diversion. It also helps to develop a defence strategy aimed at this outcome. Please feel free to contact MPW Rechtsanwälte in Vienna on all criminal law matters.

FAQ: Frequently asked questions about diversion in Austria