Initial suspicion, structure and risks
A criminal complaint does not necessarily lead to the initiation of criminal proceedings. Criminal proceedings only begin when the police or the public prosecutor’s office investigate a reasonable suspicion. A reasonable suspicion (only) exists if – based on certain indications – it can be assumed that a criminal offense has been committed.
It is therefore essential to present the most important information in the complaint in a concise and convincing manner in order to optimize the chances of a reasonable suspicion being confirmed and criminal proceedings being initiated. In practice, this works best with a written criminal complaint or statement of facts, which also contains the necessary legal explanations that the prosecuting authorities can use as a guideline.
The reporting person, who in many cases is the victim of a crime or a witness, does not generally have to fear any negative legal consequences if the proceedings are discontinued or the accused is acquitted. The situation is only different if the reporting person deliberately makes false statements: offenses such as false testimony (Sec 288 of the Austrian Criminal Code (StGB)), false accusation (Sec 297 StGB) or the feigning commission of crime (Sec 298 StGB) can have serious criminal consequences. There is also a risk of civil claims for suffered damages.
Where can a compliant be filed?
Criminal complaints or (synonymously) statements of facts can be submitted to any police station or directly to the public prosecutor’s office. It does not matter whether the person making the report is affected by the crime or not. Uninvolved third parties can also file a report, for example if they have made observations or have learned of the crime from a reliable source.
Right to report or duty to report?
In Austria, private individuals generally have the right to file a report. According to Sec 80 para 1 of the Austrian Code of Criminal Procedure (StPO), any person is entitled to file a report with the criminal investigation authority or prosecution authority if they become aware of a criminal offense. However, there is no general obligation for private individuals to report a crime.
There are exceptions to this rule for certain professional groups and institutions. Healthcare professionals such as doctors are obliged to make a report under certain circumstances. This applies, for example, if they learn in the course of their professional activities that someone has died as a result of a crime, has suffered serious injuries or has been the victim of rape (see Section 54 para 4 of the Act on the Medical Profession (ÄrzteG).
Authorities and public offices are also subject to a duty of disclosure if they become aware of a suspicion of a criminal offence that concerns their regular mandate (Sect 78 para 1 StPO). This obligation serves to ensure effective criminal prosecution.
Private party connection for the enforcement of your claims
Private participation offers victims of a crime the opportunity to assert civil law claims – in particular claims for suffered damages – directly within the framework of criminal proceedings. The prerequisite for this is a status as a “victim” (Sec 65 et seq StPO). Anyone who, as a result of a criminal offence, has suffered direct damage or an impairment of a legal interest protected by criminal law (health, physical integrity, etc) may join the proceedings as a private party.
A major advantage of private participation is that, unlike civil proceedings, there is no risk of legal costs for the victim and there is no flat fee to be paid. A specialized lawyer can efficiently exercise the victim’s rights, inspect the files, assess the chances of success and competently guide the injured party through the proceedings. In addition, private participation enables active contribution in the proceedings and, if the offender is convicted, the possibility of an uncomplicated enforcement of claims for damages. An experienced lawyer can also prepare the victim for their upcoming witness hearing and inform them of their rights and obligations.
What needs to be considered before filing a complaint?
If you have been the victim of a crime or have witnessed one, it may make sense to file a legal complaint against the perpetrator. However, this step should be carefully considered. A complaint can have far-reaching consequences – not only for the accused, but also for the person making the complaint.
A lawyer can help you to realistically assess the chances of success of your criminal complaint and weigh up the possible risks. Especially in the case of official offenses such as negligent assault, fraud or embezzlement, which are prosecuted ex officio by the prosecution authorities, a complaint should be well thought out. Reports cannot be withdrawn, and the prosecuting authorities are obliged to continue the investigation consistently, even if the person making the report no longer wishes to do so at a later stage of the proceedings.
Submission of a complaint or statement of facts by a specialized lawyer
Submission of a complaint or statement of facts by a specialized lawyer
The support of a lawyer specializing in criminal law offers numerous advantages. An experienced expert can not only realistically assess the legal opportunities and risks of a criminal complaint, but also explain the possible consequences for all parties involved. A precise and well-founded presentation of the facts is of central importance to inform the investigating authorities in a targeted manner, to emphasize the relevance of the case and the existence of an initial suspicion.
An experienced lawyer carefully analyzes the specific facts of the case, identifies legal problems and potential questions of evidence and creates an individual strategy based on these previous steps. This not only serves to ensure effective communication with the authorities but also helps to avoid misunderstandings and speed up the investigation process. A well-prepared and strategically thought-out approach can be decisive in determining whether and to what extent the prosecution is successful.
