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Criminal Law and Criminal Proceedings in Austria, Your Law Experts Defence Attorney Provides Expeditious and Competent Legal Assistance in All of Austria, Austrian Criminal Law, From West (Innsbruck) to East (Vienna)

 

Criminal Law in Austria, Austrian Criminal Law - Your Law Experts Defence Attorney is Ready to Represent You in All of Austria

Principally, criminal law is part of public law and one of its unique parameters is that the parties involved in the proceedings assume superior and subordinate roles (i.e. the state is superior to the citizen). It comprises all legal standards that define the prerequisites for a criminal act and its legal consequences.

In every developed society, criminal law is considered a special protective form of legislation for particularly valuable legal assets, such as human life, and thus plays an important role. Criminal law sets the boundaries for actions that will not be tolerated by society. Hence, if an activity is to be assessed based on the standards of criminal law, the crime or act must already meet certain levels of intensity. Less significant interferences with legal assets, such as speeding on the road, are thus not prosecuted under criminal law, but for instance under laws governing administrative infractions.

The Austrian Criminal Code (Strafgesetzbuch = StGB) contains the most important rules of criminal law. The individual paragraphs cover cases such as theft, misappropriation, fraud of physical injury; but also offences such as failure to pay child support. The individual paragraphs of the Austrian Criminal Code describe the criminal acts that constitute offenses and define the potential penalties to be imposed if someone commits these crimes.

Only courts impose the sanctions defined in the Austrian Criminal Code. For logical reasons, these sanctions exclusively affect natural persons, i.e. human beings. Given that companies or legal entities cannot spend time in jail or prison, crimes that involve acts committed by legal entities or companies are always subject to the determination who the natural persons behind these companies are. Only these individuals can be sentenced in criminal proceedings.

Moreover, in criminal proceedings it must also be taken into account that principally, criminal law is geographically limited to the domestic scope.

 

The Protection of Assets in Austrian Criminal Law, Austrian Criminal Law - Your Law Experts Defence Attorney is Ready to Represent You in All of Austria

The respective society or state defines the legal assets to be given the unique protections criminal law provides. Consequently, the purpose of criminal law is to protect these particularly valuable legal assets, such as human life, physical integrity and assets, by making the violation of these legal assets subject to sanctions. The penalties for crimes that place these special legal assets in jeopardy and the related severity of the sentences imposed are governed by laws.

An act, i.e. an activity or an omission, is punishable under Austrian Criminal Law if the act is illicit, illegal and culpable. The description of the offense is the legal description of the prohibited act pursuant to the Austrian Criminal Code. In this context it is also relevant whether the perpetrator acted negligently or intentionally.

It also must be taken into account that illegal (forbidden) acts may be justified if certain grounds have materialized (e.g. self-defence). If an illegal act is justified in the eyes of the court, the defendant will not be convicted, but will be acquitted.

In Austrian Criminal Law, the question of criminal liability is another aspect to consider. For instance, mental patients or individuals who suffered from severely impaired consciousness at the time they committed the crime and were thus incapable of comprehending their wrongdoing, are not criminally liable.

 

Statutory Fundamentals for Austrian Criminal Proceedings, Criminal Procedure Legislation in Austria, Austrian Criminal Law - Your Law Experts Defence Attorney is Ready to Represent You in All of Austria

The Austrian Criminal Proceedings Code (Strafprozessordnung = StPO) governs most of the details of Austrian criminal proceedings. As a component of public law, the Austrian Criminal Proceedings Code is mandatory law, which governs everything from the process of criminal investigations to the prosecution of crimes to the related rulings. The Criminal Proceedings Code (Strafprozessordnung, abbreviated StPO) consequently governs the process of criminal prosecution by law enforcement, the district attorney’s offices and the courts. Hence, in Austria, the Criminal Proceedings Code aims at the enforcement of material criminal law, which is governed by the Austrian Criminal Code.

Any act that is subject to a court imposed penalty is considered a crime as defined in the Austrian Criminal Proceedings Code.

In the actual criminal proceeding, it is determined whether an individual has committed a certain act that is subject to a court imposed penalty under the application of the rules of the Austrian Criminal Proceedings Code. The penalty for this act is also determined at this trial.

 

The Austrian Criminal Proceedings Process, Austrian Criminal Law - Your Law Experts Defence Attorney is Ready to Represent You in All of Austria

The different phases of Austrian criminal proceedings can be divided into the following three major stages:

  • The criminal investigation: Criminal proceedings always begin with the criminal investigation, which aims to determine the facts of the case to the point that the competent district / state attorney’s office can decide whether to drop the case or indict the suspect(s).
  • The main proceeding/trial: If the district / state attorney’s office should decide to indict, the main trial date is set. During the main trial, an independent judge or a jury or a court of lay assessors decides whether the defendant must be convicted or acquitted.
  • Legal remedy phase/appellate phase: If the defendant is convicted and a sentence is imposed, the verdict may be contested by filing an appeal.
 

The Principles of Austrian Criminal Proceedings, Austrian Criminal Law - Defence Attorney is Ready to Represent You in All of Austria, from Vienna to Innsbruck

The key difference between criminal law and other legal fields is the principle of ex officio pursuit (principle of official pursuit). The dictum of officiality or ex officio pursuit in Austrian criminal proceedings means that if there is any initial suspicion that a crime was committed or if government agencies have taken note of it, an investigation must be conducted in any event. The practical result of this is that a victim who has filed a criminal complaint is principally not in a position to retract this complaint.

Moreover, criminal proceedings in Austria are governed by the inquisitorial principle. Based on this principle, the police that investigates crimes, the district / state attorney’s office and the court are required to find out the truth and investigate all facts that are relevant for the assessment of a crime.

Austrian criminal proceedings must also observe the principle of objectivity. This means that all judges, district / state attorneys / prosecutors and bodies of law enforcement must perform their duties as impartial and unbiased officers of the law. Consequently, incriminating as well as exonerating circumstances and evidence must be collected with the same level of due diligence.

Other fundamental factors in Austrian criminal proceedings are for instance the proportionality principle, the principle of lawfulness, the orality rule and the principle of publicity, as well as the right to due process and the right to legal defence counsel.

Today, in an era of vast media reporting in daily newspapers and online as well as on social media sites, another highly relevant factor is the presumption of innocence. Until proven guilty by a court of law, every individual is considered innocent. The principle “in dubio pro reo” must also be interpreted under this aspect.

 

The Assessment of Evidence in Austrian Criminal Law; The “When in Doubt” Principle “in dubio pro reo,” Austrian Criminal Law - Your Law Experts Defence Attorney is Ready to Represent You in All of Austria

Pursuant to the principle of autonomous assessment of evidence, the court is mandated to decide whether the facts must be considered proven based on its independent conviction.

Evidence is the term used for compelling grounds for the correctness or incorrectness of a fact. The Austrian Criminal Proceedings Code does not contain a final list of items considered evidence.

According to the Austrian Criminal Proceedings Code, the court is authorized to make findings only on the basis of the evidence generated during the main trial phase. The assessment of the evidence is governed by §§ 258, 270 of the Austrian Criminal Proceedings Code (StPO).

To ascertain a verdict that is as just as possible in the critical field of criminal law, the Austrian Criminal Code mandates that all evidence must be diligently and carefully examined for its credibility and cogency during the evidence assessment phase. As far as the evidence used in the respective criminal proceeding is concerned, it is not only essential to verify and assess each piece of evidence individually, but also to specifically examine the links between them as far as the overall case is concerned.

In Austrian criminal law, the court makes its decision as to whether a fact is to be considered a proven fact based on its autonomous conviction deduced from the diligent verification of all pros and cons inherent in the presented pieces of evidence (Autonomous Assessment of Evidence Principle; § 258 Sect. 2 Sentence 2 StPO).

A level of compelling evidence beyond any reasonable doubt must be reached with regard to the facts that are relevant to the criminal proceeding and the conviction of the defendant. The so-called “when in doubt principle” (in dubio pro reo) arises from this scenario. Based on the former, the court must rule in favour of the defendant, i.e. against his or her conviction, if there are any doubts that the defendant is guilty.

 

Criminal Defence Counsel in Austria, Your Law Experts Defence Attorney is Ready to Represent You in All of Austria

Art. 6 of the European Human Rights Convention (EHRC) mandates that anyone accused of a crime must be granted the right to defend himself or herself or to involve a defence attorney of his or her choice. If the accused is indigent, i.e. unable to pay for a criminal defence attorney, the court is required to assign a public defender at no cost.

The Austrian Criminal Proceedings Code defines the term criminal defence attorney as an individual approved by the Austrian bar association to exercise the duties of an attorney in Austria after having been retained by a defendant as legal counsel.

The criminal defence attorney, like any attorney within the rule of the law in general, assumes a special societal responsibility and role with regard to the defence of a person’s rights. The criminal defence attorney must ensure that the principles of the Austrian Criminal Proceedings Code are complied with and the accused or defendant receives the best possible representations before the agencies and the courts involved. In Austria, the criminal defence attorney provides advice and comprehensive support to the accused as his or her legal counsel. The criminal defence attorney has the right and the obligation to deploy every available defence resource. It is the responsibility of the criminal defence attorney to present to the court everything that helps the defence of the accused. As a result, the previously mentioned principle of objectivity does not apply to the criminal defence attorney.

 

Commercial and Financial Crimes Laws in Austria (White Collar Crimes) – We Combine Business Law Competency with Criminal Law Expertise

The most recent sensationalized commercial crimes cases have underscored the fact that the activities of a corporation and its directors do not only pertain to civil law related aspects, but with increasing frequency also enter into the sphere of criminal law. Major banking and corporate crises as well as large-scale insolvencies can be attributed to the negligent handling of business decisions in quite a few cases. Commercial crimes (white collar crimes) are receiving increasing international attention and the criminal investigations in this field have resulted into vast criminal proceedings that transcend national borders.

Law Experts Attorneys combine their expert know-how in the field of business law with related experience in the discipline of criminal defence and criminal law. Not only will we be at your side if a criminal trial is already imminent, we will also support you with proactive advice to prevent or minimize criminal law affiliated risks for your company (Compliance with Criminal Law).

 

Austrian Criminal Law, Commercial Criminal Law – As Your Criminal Defence Attorneys and Legal Counsel in Austria, We are at Your Disposal to Represent You in All of Austria

After graduating from law school and completing an internship, Law Experts Attorney Gamsjäger handled criminal cases at the district courts in Telfs and Kitzbühel and the Innsbruck Circuit Court. During that time, he also acquired expertise in administrative criminal law, commercial criminal law and general criminal law. He also was an apprenticeship lawyer for the State of Tyrol, the Bezirkshauptmannschaft (a government organization) in Innsbruck and worked as a grad. Administrative lawyer for the municipality of Telfs. Consequently, Attorney Gamsjäger has excellent contacts at government agencies and the courts. As a lawyer who enjoyed the best possible education and training, Attorney Gamsjäger boasts many years of experience as a legal counsel. As a criminal defence attorney he has attained numerous acquittals, diversions and suspensions of criminal cases for his clients.

Law Experts Attorney Dr Wiesflecker will counsel you drawing from his vast experience gained over many years of working for renowned, internationally engaged business law firms and his specialization in international corporate law paired with civil and proceedings law know-how. He will also assist you with the civil law-based enforcement of damage compensation claims or claims for pain and suffering.

Count on us for comprehensive support in all criminal law and criminal defence matters. Our unbureaucratic approach will help safeguard your rights. In the fields of criminal law, administrative criminal law and commercial criminal law, we offer in particular the following services:

  • Investigation of facts with regard to their criminal law dimensions in the domestic and international scenarios
  • Legal advice and information about the rights of victims or perpetrators in criminal matters
  • Professional and committed advocacy for your rights/criminal defence, i.e. representation of your rights in interactions with the police, financial police, customs agencies and other administrative agencies, the district / state attorney’s / prosecutor’s office and courts; including representation upon initial arrest/intake prior to the initiation of concrete criminal proceedings
  • Effective and professional representation and defence of your rights in the early stages, i.e. during the investigation process with the aim of achieving suspensions of criminal proceedings prior to the main trial
  • Defence of your rights in the main trial before the competent court
  • Advocacy for your rights during the pre-trial detention phase or while client is in jail
  • Representation of private parties to the trial and protection of victims, safeguarding of damage compensation payments in the absence of the separate initiation of civil proceedings through victim joinders to criminal proceedings against the perpetrator
  • Presentation of victim statements to the district / state attorney’s / prosecutor’s office for clients who have sustained damages as a result of criminal acts
  • Development and submission of legal remedies targeting criminal verdicts, such as nullity appeals and appellate proceedings
  • Upon sentencing to a mandatory period of incarceration: Attainment of suspended sentence or ankle bracelet (electronically monitored house arrest) options in lieu of serving a prison or jail sentence
  • Provision of advice to management boards / executive management teams as a precaution related to business processes with the aim of preventing criminal law-related problems in the future
  • Advice and representation in criminal and financial crime matters before courts and administrative agencies
  • Compliance consulting

Law Experts Attorneys is a law firm with international experience that maintains offices in Innsbruck (main office), Telfs and Vienna (branch offices). We will be pleased to assist you with comprehensive and competent advice!

Click here to send an e-mail to Law Experts Attorneys or call us at +43(512)586 586.

 

 

 

 

Mitglied von: Die österreichischen Rechtsanwälte, ÖGEBAU, Corporate INTL, GLOBAL LAW EXPERTS, LEGAL 500

 

 

Austrian Criminal Law: Research More Information About Austrian Criminal Law and Criminal Defence Options in Austria Below:

 

Preliminary Proceedings in Austrian Criminal Law, Criminal Defence in Austria, Austrian Criminal Law

Every criminal proceeding begins with a specific suspicion. If it is possible to clear up suspicions right from the start, it may be possible to completely prevent the initiation of criminal proceedings. Hence, it often makes a lot of sense to involve a criminal defence attorney as soon as possible – preferably right away. A professional criminal defence attorney may subsequently be able to defuse any suspicions, which may prevent criminal proceedings altogether. Once the competent district / state attorney or prosecutor has indicted a suspect, it is already more difficult for a defence attorney to intervene on behalf of the client.

 

Suspect, Accused Individual, Defendant, Austrian Criminal Law

The term “suspect” is used to designate an individual who is already the target of an investigation based on an initial suspicion.

The term “accused individual” is used in reference to every suspect as soon as he or she is a concrete suspect who is accused of having committed a criminal act because of certain facts.

A “defendant” is every accused individual who has already been indicted.

 

Defence Attorney’s Participation in Interrogations, Austrian Criminal Law

In Austria, criminal defence attorneys have the right to be present during every interrogation of accused individuals they represent.

Accused individuals who do not speak Austria’s procedural language, have the right to assistance by an interpreter.

In Austria, criminal defence attorneys have the right and the obligation, to unilaterally do everything in their power for their clients and to in particular present exonerating / mitigating circumstances.

 

Defence and Prosecution in Austrian Criminal Law, Austrian Criminal Law

Contrary to the criminal defence attorney, the prosecutor (frequently referred to as district / state attorney) must conduct the investigation on an objective level. Hence, it is not the responsibility of the prosecutor to pursue only the conviction of an alleged criminal. In fact, like all of the other agencies involved in the criminal proceeding, the prosecutor / district / state attorney must take into account all incriminating and exonerating circumstances with the same high level of diligence. Unfortunately, in practice, this principle is frequently not adequately respected. This principle mandates that the prosecutor / district / state attorney is permitted to indict a suspect only, if the accused is in fact seriously suspected of having committed a crime.

 

Private Joinders in Criminal Law, Criminal Defence Attorneys in Austria

Having the option of a private joinder is a key right of victims in Austrian Criminal Law. Private joinders are relevant tools in legal practice to help individuals who have become victims of crimes.

As such, criminal law aims at the government’s response vis-à-vis the criminal. However, the option of the private joinder enables victims to make damage compensation claims and receive compensation awards already during the criminal trial.

In the event of private joinders, the court must participate in the decision-making as to the entitlements of the victim during the criminal proceeding. This is contingent upon the conviction of the perpetrator. If the defendant is acquitted or if compensation is not awarded or fully awarded, the victim is remanded to the civil courts system to pursue the claim.

In addition to the aforementioned victims’ rights, a private party to a criminal proceeding also has the following and other rights:

  • Participation in the main trial and asking questions,
  • File motions for evidence,
  • Log a complaint against a dismissal of the proceeding by the court,
  • File an appeal because of the submitted private law based claims.

 

Evidence in Criminal Proceedings, Experts in Criminal Law and Criminal Proceedings in Austria, Criminal Defence Attorneys in Austria

An array of evidence is used in criminal proceedings. As items explicitly classified as evidence in the Austrian Criminal Proceedings Code, the statements made by the defendant (the accused), by witnesses and the so-called circumstantial evidence and files on record are of course of particular importance.

In addition to this type of evidence, the evidence provided by experts also play a prominent role. Experts appointed in criminal proceedings should be individuals who are registered in the court’s list of experts. According to the definition in the Austrian Criminal Proceedings Code, experts are individuals appointed by the prosecutor or the court, who, because of their special professional expertise, have the capability to determine facts that are relevant for the proceedings or have the expertise to arrive at conclusions for the criminal trial based on these facts that are relevant for the criminal proceeding.

As a rule, experts for the main trial are exclusively appointed by the court. In criminal proceedings in Austria, they have to be appointed if the expert can be helpful in clarifying facts that are relevant to the criminal trial and if special professional expertise is needed.

An expert in an Austrian criminal proceeding for the main trial is either appointed officially or based on a motion for evidence filed by a party to the proceeding. Hence, experts may be questioned and cross examined by all parties to the proceeding in the main trial, in order to question conclusions made by the expert that could be detrimental to the defendant.

As far as private expert opinions submitted by a party to the proceedings is concerned, as a matter of principle, there is no mandate to include it in the record, nor to read it out loud. However, the expert opinion of a court appointed expert must not be read out loud, which means that the expert in a criminal proceeding in Austria always must provide an oral statement.

 

Circumstantial Evidence in Austrian Criminal Proceedings, Chain of Circumstantial Evidence, Austrian Criminal Law

According to the Austrian Criminal Proceedings Code, the use of circumstantial evidence is permitted in Austrian criminal proceedings.

Circumstantial evidence is the term used to define indirect evidence or supporting evidence that is gathered not about the crime as such, but only about suspicion triggering circumstances. On their own, matters considered circumstantial evidence are never qualified as grounds to establish the guilt of the defendant. To arrive at this conviction, a logical conclusion that the defendant is the perpetrator based on the majority of indications that allow this conclusion, which is called the “conclusive chain of circumstantial evidence.”

 

The Verdict in Austrian Criminal Proceedings, Austrian Criminal Defence Attorneys

As a matter of principle, verdicts in Austrian criminal proceedings must be announced after a public oral trial and must be issued accordingly. In the verdict, the court must use and include only those pieces of evidence that actually made direct appearance in the main trial of the criminal proceeding. In the verdict, the court rules on the guilt, sentence and private law-based entitlements.

If the defendant is found guilty in a criminal proceeding in Austria, the verdict must cover in particular the following matters:

  • Offence the defendant has been found guilty of.
  • The crime the defendant is liable for.
  • Designation of the criminal law that was applied.
  • The sentence the defendant will have to serve or the fine defendant will have to pay.
  • The ruling on compensation entitlements and the costs of the proceeding.

Under Austrian Criminal Law, the defendant must be acquitted if the court recognizes that the act the defendant was indicted for is not subject to a penalty under the law or that the requirements for the crime were not met or cannot be proven.

If a defendant in an Austrian criminal proceeding who has been properly summoned to the main trial fails to appear, an absentee verdict may be handed down if the offence was merely a so-called misdemeanour and the defendant has already been formally interrogated as the accused individual and the summons to the trial has previously been personally served on the defendant. Subsequently, this verdict must be served upon defendant in writing and the defendant has the right to file an appeal against the absentee verdict within 14 days.

 

Legal Recourse in Criminal Law, Waiving Legal Recourse in Austrian Criminal Law, Criminal Defence in Austria

Once the verdict has been announced, the defendant must be advised on the available legal resource. The exercising of any legal recourse must be registered within three days after the verdict has been announced.
Principally, the two available legal recourse options are the nullity appeal and the appellate process. The nullity appeal always targets alleged errors I the respective verdict (for instance procedural errors, called “technicalities”). An appellate proceeding may be initiated because of the guilty verdict and the private law-based entitlements.

All waivers of legal recourse made by defendants in the absence of their defence lawyers or prior to consultation with his or her defence lawyer, is ineffective.

 

Fines in Austrian Criminal Law, Criminal Proceedings in Austria

If a court issues a fine to be paid by an individual, the fine must be calculated on the basis of daily rates and the minimum amount of a fine equals two daily rates (§ 19 Sect. 1 StGB).

The determination of the number of daily rates to be paid as well as the amount due for the individual daily rate must be based on different circumstances. The primary objective is to make the offender experience a notable reduction of his/her standard of living and/or to impose a sanction.

The determining factors for the setting of the daily rate are the personal situation and the financial ability of the offender to pay at the time the verdict is made by the first instance court.

 

Austrian Clubs/Associations, Austrian Club/Association Law and Criminal Law

Club activities are extremely popular in Austria and those participating frequently do not realize that these activities, although they are often voluntary in nature, can cause problems related to criminal law.

Besides the civil law-based liability of the club or its individual members, it is also possible for an individual club member and the club to become criminally liable. To that end, it must also be taken into account that unfortunately there are no fundamental differences in the criminal liability for voluntary or paid club officers or members of the club board.