Objection because of violation of rights (Sec 106 StPO)
Objection because of violation of rights (Sec 106 StPO)
Any person who claims to have had a subjective right infringed upon by the public prosecutor’s office during the preliminary investigation is entitled to file an objection on the grounds of infringement of rights pursuant to Sec 106 para 1 of the Code of Criminal Procedure because
- the exercise of a right under the Austrian Code of Criminal Procedure has been refused, or
- an investigative or coercive measure has been directed or executed in violation of provisions under the Austrian Code of Criminal Procedure.
Legitimacy
Anyone who considers that their subjective rights have been violated in the preliminary proceedings may avail themselves of the legal remedy of lodging an objection on the grounds of violation of rights. In addition to the accused, the victim or private party may also assert in an objection that their subjective rights have been violated, e.g. the right to inspect files (Sec 51 et seq StPO).
In principle, only the person who feels that their subjective rights have been violated can submit this objection. However, in the event of the death of this person, this right passes to the following relatives: the spouse, registered partner, cohabiting partner, direct relatives, brother or sister. This right may also pass to other relatives who witnessed the offence (Sec 65 para 1lit b, Sec 106 para 1 StPO).
Subjective right
In general, a subjective right is understood to be a legal power conferred on an individual by the legal system. Subjective rights include, for example, the right to inspect files (Sec 51 StPO et seq), the right to submit requests for evidence (Sec 55 StPO) or the right to apply the leniency rule (Sec 209a para 1 StPO).
A subjective right can be infringed not only by orders issued by the public prosecutor’s office or the direct use of coercion, but also by the manner in which an investigative measure is carried out.
Interference with a subjective right pursuant to Sec 106 StPO may also be justified by measures taken by the criminal investigation department, provided that these have been ordered by the public prosecutor’s office. If the accused is denied the right to be present during a search of their home or to have a person of their trust present (Sec 121 para 2 StPO), this constitutes a violation of their rights, which can be challenged by means of an objection on the grounds of violation of rights.
Examples of acts by the criminal investigation department on the basis of which no objection on the grounds of a violation of rights can be lodged:
- Refusal by a criminal investigation officer to disclose his ID number to the accused during the execution of an investigative measure ordered by the public prosecutor’s office. This does not constitute a violation of a subjective right within the meaning of Sec 106 StPO, because the corresponding obligation does not arise from the StPO, but from Sec 31 para 2 nr 2 of the Federal Security Police Act(SPG, Sicherheitspolizeigesetz) in conjunction with Sec 9 para 1 Guideline Regulation of the Federal Security Police Act (RLV, Richtlinienverordnung).
- Unlawful expulsion (Sec 38a SPG) if it is pronounced in the context of criminal proceedings for acts of violence within the family. Here, too, the SPG and not the StPO forms the legal basis for the expulsion.
In practice, the question often arises as to whether it is possible to file an objection on the grounds of a violation of rights solely on the basis of a delay in the investigation proceedings. A violation of a subjective right can only be seen in a delay if this appears disproportionate in view of the seriousness of the alleged offence and the complexity of the investigation.
Procedure
An objection must be lodged with the public prosecutor’s office within six weeks of becoming aware of the alleged violation of the subjective right (Sec 106 para 3 StPO). The objection must specify the specific order and justify the claim as to why a subjective right was violated in the preliminary investigation. It must also contain a specific request as to how this violation of rights should be remedied (e.g. by returning seized documents). The request may also merely seek a declaration that a violation of the law has occurred and that a subjective right has thereby been violated.
The public prosecutor’s office must either comply with the objection within four weeks or forward it to the competent court (Sec 106 para 5 StPO). If the objection is directed against an investigative measure taken by the criminal investigation department, the latter must be given the opportunity to comment (Sec 106 para 3 StPO).
If the court upholds the objection, the public prosecutor’s office and the criminal investigation department must restore the corresponding legal situation (Sec 107 para 4 StPO).
Complaints (Sec 87 StPO)
The public prosecutor’s office, the accused, insofar as their interests are directly affected, and any other person whose rights are directly denied or who is subject to obligations or coercive measures as a result of the decision may complain against judicial decisions to the court of appeal. A private party may also appeal against a decision to discontinue proceedings. In addition, any person who claims to have been infringed upon by the court in the course of taking evidence in a subjective right is entitled to submit a complaint (Sec 87 para 1, para 2 StPO).
Legitimacy
The public prosecutor’s office may, in principle, submit a complaint against any court order in preliminary proceedings (Sec 87 para 1 StPO).
The accused also has the right to complaints if his interests are directly affected (Sec 87 para 1 StPO).
However, a complaint may also be lodged by any other person who is directly denied rights or incurs obligations as a result of the decision, or who is affected by a coercive measure.
Private parties also have the right to complaints to the court of appeal, unless otherwise specified by law (Sec 87 para 1 StPO).
A natural or legal person is affected by a coercive measure if it is directed against them.
Examples of natural or legal persons affected by coercive measures:
- A bank is affected by the seizure of a savings book or savings account and can therefore lodge a complaint against the court’s approval of the seizure.
- The owner of a seized motor vehicle is affected by this coercive measure. He or she also has the right to complaints.
The private party is also entitled to complain against decisions to discontinue criminal proceedings. However, this only applies insofar as the law does not specify otherwise (§ 87 para 1 StPO).
Finally, any person who claims that the court has violated a subjective right in the course of preliminary proceedings is entitled to file a complaint to the court of appeal (Sec 87 para 2 StPO). The legislature refers here to the objection on the grounds of violation of rights (Sec 106 para 1 StPO). Reference should therefore be made to the above comments on subjective rights.
Procedure
The complaint must be lodged in writing with the court within fourteen days of notification or of becoming aware of the non-fulfilment or violation of the subjective right (Sec 88 para 1 StPO). However, a complaint against a decision granting an order by the public prosecutor’s office in preliminary proceedings must be submitted at the public prosecutor’s office. Whether the public prosecutor’s office issues a statement in such a case is at its discretion. However, it is obliged to forward it to the court (Sec 88 para 2 StPO).
The complaints must specify the contested decision, application or procedure and explain in detail how the right has been violated (Sec 88 para 1 StPO). The court of complaints is the locally competent Higher Regional Court (Sec 33 para 1 nr 1 StPO).
If a complaint is lodged against the decision to grant judicial approval for an investigative measure, an objection to the order or its implementation must be included with the complaint. A separate objection on the grounds of a violation of rights pursuant to Sec 106 StPO is inadmissible. In this case, the complaints court also decides on the objection (Sec 106 para 2 StPO).
Support from a criminal defense lawyer
In practice, the strict deadlines for submission and formal requirements lead to uncertainty, especially for legal laymen. An experienced criminal defense lawyer will ideally accompany the investigation from the outset and can provide assistance, assess the legal options in the best possible way and ensure that the legal remedies are used effectively.
In addition, a lawyer specialising in criminal law can assess the prospects of any legal action and contribute their comprehensive expertise and experience with regard to all details, thereby ensuring that the likelihood of a successful complaints and objections is significantly increased.
