The arrest, within Austrian criminal procedure, is designed as a short-term deprivation of liberty. It is carried out by state authorities and may last only until the individual is transferred to a court or brought before the competent authority. Since every person essentially has a constitutionally protected right to personal freedom, an arrest constitutes a significant interference with fundamental rights and is therefore permissible only under precisely defined statutory conditions. An arrest (colloquially also referred to as a “detention”) is understood as the temporary restraint of a person by the police.

Its purpose is to secure the criminal proceedings. It does not constitute a punishment but rather a procedural measure. This blog article explains the legal classification of arrest, its statutory requirements, the procedure, the rights of arrested persons, as well as the available legal remedies and mechanisms of legal protection.

What requirements must be met for an arrest?

1. Specific suspicion of an offence (§ 170 para. 1 of the Code of Criminal Procedure)

A specific suspicion of having committed a crime or offence is an indispensable requirement for any arrest. The individual concerned must be suspected of having committed a criminal act. A simple probability is sufficient; it is enough that it appears more likely that the offence was committed than that it was not.

A strong suspicion of an offence, as required for the imposition of pre-trial detention, is not necessary for an arrest.

2. Existence of a Ground for Detention (§ 170(1) nos. 1–4 Code of Criminal Procedure)

In addition to a specific suspicion of an offence, at least one of the legally prescribed grounds for detention must exist. An arrest is only permissible if one of the following situations applies:

Caught in the Act (§ 170(1) no. 1 Code of Criminal Procedure)

The person is caught in the act (e.g., observed committing the offence) or is credibly accused of the act immediately afterwards, or is found with objects indicating their involvement in the offence.

Risk of Flight (§ 170(1) no. 2 Code of Criminal Procedure)

The person is at large, is hiding, or there is, based on specific facts, a risk that they will flee or go into hiding.

Alternatively, for a slightly more literal translation: Danger of Obscuring the Facts (§ 170(1) no. 3 StPO).

There are indications that the person is influencing witnesses, experts, or co-accused, destroying evidence, or otherwise attempting to obstruct the investigation of the truth.

Risk of Committing or Continuing the Offence (§ 170(1) no. 4 Code of Criminal Procedure)

The person is suspected of an offence punishable by more than six months’ imprisonment, and based on specific facts, it is reasonable to assume that they will commit another similar offence targeting the same legal interest, or will carry out an already initiated or threatened offence.

If the alleged offence carries a minimum prison sentence of ten years, an arrest must be ordered, unless it can be assumed that the grounds for detention under § 170(1) nos. 2–4 of the Code of Criminal Procedure do not exist (§ 170(2) StPO).

3. Proportionality (§ 170(3) Code of Criminal Procedure)

Even if there is a specific suspicion of an offence and one of the detention grounds outlined above, an arrest may only be carried out if it is also proportionate.

The arrest must be carried out in a reasonable proportion to:

• the seriousness of the matter,
• the gravity of the alleged offence,
• the degree of suspicion, and
• the intended purpose of the arrest,

be proportionate.

Who Authorises an Arrest?

An arrest is generally ordered by the public prosecutor based on a court authorisation and carried out by the criminal police (Section 171(1) of the Code of Criminal Procedure (StPO) ).

In urgent cases, particularly where there is imminent danger, the criminal police are authorised to carry out an arrest even without a prior order (§ 171(2) StPO). In such cases, the court authorisation must be obtained without delay.

What Is the Procedure for an Arrest?

Immediately or shortly after the arrest, the person concerned must be informed in writing and in a language they can understand of the reason for the arrest and of their fundamental rights (§ 171(1) and (3) StPO).

These include in particular:

• the right to legal defence,
• the right to notify relatives or a lawyer,
• the right to be treated with dignity during detention,
• the right to remain silent,
• the right to medical care,
• the right to file a complaint and to apply for release.

The written justification for the arrest or the court authorisation must be provided within 24 hours.

Erfolgt die Festnahme durch die Kriminalpolizei ohne gerichtlich bewilligte Anordnung, ist die betroffene Person unverzüglich zur Sache und zum Haftgrund zu vernehmen (§ 172 Abs. 2 StPO). If there is no reason for continued detention, the individual must be released immediately.

Spätestens 48 Stunden nach der Festnahme muss die Überstellung in die Justizanstalt des zuständigen Gerichts erfolgen (§ 172 Abs. 3 StPO). Die Staatsanwaltschaft hat zu entscheiden, ob ein Antrag auf Verhängung der Untersuchungshaft iSd §§ 173ff StPO gestellt wird. Über die Verhängung von Untersuchungshaft entscheidet in der Folge das Gericht (sog. Haft- und Rechtsschutzrichter). Für die Untersuchungshaft gelten andere Voraussetzungen und zeitliche Beschränkungen bzw. Fristen.

In cases of administrative offences, detention may last no longer than 24 hours (§ 40 SPG).

What Legal Remedies Are Available Against an Arrest?

Since an arrest constitutes a significant interference with personal freedom, the legislature provides several avenues of legal protection. The available options depend in particular on whether the arrest was ordered within criminal proceedings and by whom it was carried out.

Complaint Against the Arrest (§ 87 Code of Criminal Procedure)

The accused may file a complaint under § 87 of the Code of Criminal Procedure against the court’s authorisation of the arrest. This complaint allows for a review of whether the legal requirements for the arrest were actually met. The complaint must be submitted within 14 days to the regional court that authorised the arrest. The complaint is then decided by the respective Higher Regional Court with local jurisdiction.

Appeal on the Grounds of a Rights Violation (§ 106 Code of Criminal Procedure)

If the arrest is ordered by the public prosecutor, the order itself can be challenged through an appeal on the grounds of a rights violation.

An Appeal on the Grounds of a Rights Violation under Section 106(1) of the Code of Criminal Procedure (StPO) is permissible if it is alleged that the individual’s subjective rights were violated by the order of the public prosecutor, in particular because

• a right was denied or
• the arrest was ordered or carried out in violation of the provisions of the Code of Criminal Procedure.

The appeal must be filed with the public prosecutor’s office within six weeks of becoming aware of the alleged violation of rights. Insofar as a complaint is lodged against the court’s authorisation of the arrest, an appeal on the grounds of a rights violation must be combined with the complaint. The same deadline applies as for a complaint under § 87 of the Code of Criminal Procedure (i.e., 14 days). In such cases, the appellate court also decides directly on the alleged violation of rights.

Complaint Against the Conduct of an Arrest

The manner in which the arrest is carried out by the criminal police can also be reviewed. If the procedure is found to be unlawful, a complaint against the measure may be filed with the administrative court within six weeks, pursuant to Article 130 para. 1 no. 2 of the Federal Constitutional Law (B-VG).

Application for Release

Regardless of legal remedies, an application for release can be made at any time. Even if the conditions for an arrest are met, it is possible to request the use of less severe measures instead of continued detention. Such measures may include instructions, pledges, confiscation of a passport, reporting obligations, and similar conditions.

Judicial Review of Detention

The accused must be brought without undue delay, and no later than 48 hours after the arrest, to the correctional facility of the competent court (e.g., Vienna-Josefstadt Correctional Facility if the Regional Criminal Court of Vienna has jurisdiction). After being admitted to the correctional facility, the accused must be promptly questioned regarding the conditions for pre-trial detention, and the court must decide on the detention no later than 48 hours after the admission.

The court examines whether the conditions for imposing pre-trial detention are met and, where appropriate, whether it can be substituted by less severe measures. During questioning, there is also the right to have a lawyer present, and the right to remain silent may of course be exercised. In cases of unclear factual or legal circumstances, this is strongly recommended in any event.

Compensation for Unlawful Arrest

If it turns out that the arrest or detention was unlawful, a claim for compensation may exist. This may specifically cover the period of detention suffered, as well as any resulting financial losses and psychological harm.

Why Should a Lawyer Be Involved in the Event of an Arrest?

An arrest, and thus the interference with personal freedom, represents one of the most serious (coercive) measures in criminal proceedings. For those affected, as well as their wider circle, an arrest presents particular challenges. This gives rise to numerous questions, ranging from the duration of detention to the further course of proceedings, visitation rights, placement in a correctional facility, and similar matters. If you or a relative are faced with an arrest, we strongly recommend the involvement of a lawyer specialising in criminal law.

Especially in this exceptional situation, which often overwhelms those affected and represents a shock, mistakes regularly occur that can have far-reaching consequences for the further course of proceedings and their outcome. As criminal defence lawyers, we encounter such situations on a regular basis and provide intensive support to our clients throughout this challenging phase. Arrests are a routine matter for us as a law firm specialising in criminal law, and we have the necessary experience and expertise to guide you through this difficult time.

Aside from providing detailed guidance on the subsequent procedure, our first step is to examine whether the legal requirements for the arrest are actually met and whether the formal regulations have been observed. In doing so, we pay particular attention to, and assist you with, the protection and exercise of your procedural and defence rights. We assess whether an appeal, a request for release, or the application of less severe measures is likely to be successful and support you throughout the remainder of the investigative proceedings.

At the same time, we support you and your relatives with all issues related to an arrest and any subsequent pre-trial detention (such as visitation rights, clothing parcels, permission to make phone calls, and similar matters).

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