The imposition of pre-trial detention and the associated deprivation of liberty come as a surprise to many of those affected. In addition to the so-called “misery of detention,” pretrial detention poses numerous organizational challenges, as those affected are suddenly torn from their everyday lives and have only very limited opportunities for communication and contact. At the same time, several key questions arise for those affected: Is this measure legally permissible, how long will pretrial detention last, and what options are available to defend against it?

Pre-trial detention means temporary deprivation of liberty even before a court decision on guilt or innocence. For this very reason, it is strictly regulated in Austrian criminal procedure law in §§ 173ff StPO (Code of Criminal Procedure). In particular, it specifies the conditions under which pre-trial detention may be imposed and continued.

This blog post provides you with a structured overview of the legal requirements for pretrial detention, the grounds for detention, the maximum duration, and the legal options in connection with pretrial detention in Austria.

When can pretrial detention be imposed?

The imposition and continuation of pretrial detention is only permissible if the following conditions are cumulatively met:

1. Motion by the public prosecutor’s office
2. strong suspicion
3. judicial hearing on the merits of the case and the conditions for detention
4. Existence of a legal basis for liability

Furthermore, pretrial detention may not be ordered or continued if it is disproportionate to the significance of the case or the expected punishment, or if its purpose can be achieved by less severe means.

What does “strong suspicion” mean?

There is strong suspicion if there is a high probability that the accused committed the crime of which they are accused. Mere assumptions are not sufficient. After questioning, the incriminating circumstances must outweigh the exonerating ones.

What grounds for detention does Section 173 of the Code of Criminal Procedure provide for?

In order for pre-trial detention to be imposed, there must be at least one legal ground for detention in addition to strong suspicion of having committed a crime. These grounds for detention are (exhaustively) regulated in Section 173(2) of the Code of Criminal Procedure. Furthermore, pre-trial detention may only be ordered if it is proportionate and its purpose cannot be achieved by less severe means.

1. Risk of absconding (Section 173(2)(1) of the Code of Criminal Procedure)

There is a risk of absconding if, based on certain facts, there is reason to fear that the accused could evade criminal proceedings. This can be assumed, for example, if the impending punishment provides an incentive to flee or go into hiding.

Beispiel: Der Beschuldigte hat Vorbereitungen zur Flucht getroffen (Flugtickets; gefälschte Reisedokumente; Internetrecherchen).

Example: The accused has made preparations to flee (flight tickets; forged travel documents; internet research).
2. Verdunkelungsgefahr (§ 173 Abs 2 Z 2 StPO)

There is a risk of evidence being tampered with if there is reason to fear that the accused may influence witnesses, experts, or co-defendants, destroy evidence, or attempt to obstruct the investigation in other ways.

Beispiele: Der Beschuldigte nimmt Kontakt mit Zeugen auf und versucht diese zu einer gewissen (entlastenden) Aussage zu bewegen. Der Beschuldigte vernichtet elektronische Datenträger, auf denen sich (belastende) Beweise befinden.

3. Risk of committing a crime (Section 173(2)(3) of the Code of Criminal Procedure)

There is a risk of reoffending if, due to certain circumstances, there is reason to fear that the accused will commit further criminal acts or continue (complete) an act already begun despite the ongoing criminal proceedings. The prerequisite is that the offense with which the accused is charged is of a certain severity (e.g., carries a sentence of at least six months’ imprisonment).

The grounds for detention based on the risk of committing a crime may exist in particular if it is to be expected that the accused

• commits another criminal offense with serious consequences that is directed against the same legal interest,
• commits a similar offense again, especially in the case of repeated or continued acts,
• commits further offenses against the same legal interest despite relevant prior convictions, or
• actually carries out an act that has already been attempted or threatened.

In particular, in the case of crimes with serious consequences that are committed over a longer period of time and with considerable criminal energy, the risk of reoffending is regularly assumed to be grounds for detention. This applies in particular to the areas of drug trafficking under Section 28a of the Austrian Narcotic Drugs Act (SMG) or allegations of robbery, burglary in residential properties, and the like. In cases of white-collar crime, courts may also assume the risk of reoffending as grounds for detention and impose pre-trial detention.

What less severe measures can prevent pre-trial detention?

The court may only impose pre-trial detention as a last resort if its purpose cannot be achieved by less drastic measures, known as less severe means. Instead of detention, the court may therefore order less severe means and thus avoid pre-trial detention.

The following are particularly suitable as mild remedies:

• A pledge not to flee or obstruct the investigation
• Restraining orders or residence orders
• Reporting requirements
• Temporary confiscation of identity or travel documents
• Provisional probation
• Provision of security (bail)
• Instruction to undergo medical treatment or therapy

In practice, courts often combine several of these measures. If the accused violates the conditions, the court may impose pre-trial detention again.

What happens after the arrest?

After arrest, the accused must be released without undue delay, or at the latest within 48 hours, or transferred to the detention center of the competent court.

After being brought in, the accused must be questioned by the court without delay. The detention and legal protection judge will question them about the case and the conditions of detention. The public prosecutor and the defense attorney must be given the opportunity to participate in this questioning.

Before making its decision, the court may also conduct further investigations or have them conducted by the criminal investigation department if these may be relevant to the assessment of the suspicion of a crime or a reason for detention.

No later than 48 hours after admission to the prison, the court must decide whether the accused will be released—if necessary, under less severe conditions—or whether they will be remanded in custody.

If pre-trial detention is ordered, the corresponding decision is only valid for a period of detention specified by law. In the case of pre-trial detention, this period is 14 days. Before detention can be continued, the court must hold a new detention hearing to examine whether the conditions for remand in custody still apply. If remand in custody is continued for the first time, the period of detention is one month. In the event of a further continuation, it is always two months. Once charges have been brought, remand in custody is generally no longer limited by a period of detention.

Important: An application for release from custody can be submitted at any time, regardless of the periods of detention.

How long can pre-trial detention last?

The maximum duration of pretrial detention until the start of the main hearing is limited by law:

• a maximum of two months if the sole reason for detention is the risk of collusion
• a maximum of six months in cases of strong suspicion of an offense
• at most one year in cases of strong suspicion of a crime
• a maximum of two years in cases of urgent suspicion of a particularly serious crime punishable by more than five years’ imprisonment

Exceeding these time limits is only permissible under very specific conditions: Pre-trial detention may only be extended beyond six months if this is unavoidable due to particular difficulties or the particular scope of the investigations in view of the seriousness of the grounds for detention. In detention matters, a special requirement for expedited proceedings applies in accordance with Section 9 (2) StPO.

It should be noted that significantly stricter rules apply to juvenile defendants (i.e., persons under the age of 18) with regard to pretrial detention and its (maximum) duration.

How can you defend yourself against pretrial detention?

Application for release from custody

The accused may file a motion for release from custody at any time. In a further detention hearing, the court will generally examine whether the conditions for pretrial detention continue to exist. Such a motion is particularly likely to be successful if new circumstances argue against the existence of grounds for detention or if less severe measures can be applied.

Appeal against detention

An appeal against the imposition or continuation of pre-trial detention may be lodged within three days. The Higher Regional Court will decide on this appeal. An appeal against detention should be carefully considered from a strategic perspective, as the appeal proceedings will also decide on the existence of strong suspicion of guilt.

Constitutional complaint

After exhausting all instances, a constitutional complaint can be lodged with the Supreme Court (within 14 days). With this legal remedy, the accused can claim that a criminal court decision or order has violated their fundamental right to personal freedom. In this procedure, the Supreme Court examines whether the deprivation of liberty was lawful.

Summary

Whether pretrial detention is permissible depends on a number of legal requirements. The decisive factors here are, in particular, strong suspicion of guilt and the existence of a legal ground for detention under Section 173 of the Code of Criminal Procedure, such as the risk of absconding, the risk of collusion, or the risk of reoffending. In addition, the court always examines whether pretrial detention is proportionate or whether less severe measures would suffice. The legal requirements must always be examined on a case-by-case basis and require a thorough examination of the suspicion, the results of the investigation, and the person concerned.

The admissibility of pre-trial detention is regularly reviewed by the detention and legal protection judge, and the accused has various options for challenging the pre-trial detention. These include, in particular, an application for release from custody, a complaint against detention, and—after exhausting all legal remedies—a constitutional complaint.

In addition, the court always examines whether pre-trial detention is proportionate or whether less severe measures would suffice. In close consultation with our clients, we examine whether the legal requirements for pre-trial detention are actually met, whether less severe measures can be considered, and what legal steps need to be taken. In addition, we provide our clients with close and intensive support during ongoing pre-trial detention. Apart from regular visits to our clients in detention and coordination with them, we provide support in all organizational matters related to pre-trial detention.

These include, in particular, the possibility of prison visits (by relatives), telephone permission, work permission, therapy place commitments, provisional probation assistance, laundry packages, and prisoner money (known as “Ausspeis”).

If you are at risk of being remanded in custody during preliminary proceedings, or if a relative of yours is in custody or has been arrested, we strongly recommend that you seek professional legal assistance from an experienced criminal defense attorney.

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