Rights of the accused in criminal proceedings: Lawyer outlines important rights for ecffective defence

General

The effects of criminal proceedings range from existential economic consequences to considerable damage to reputation. Therefore, knowing your rights is the first step towards an effective defence.
The rights of the accused make the accused a subject of the proceedings and enable them to actively influence the outcome of the criminal proceedings. Especially in commercial criminal law – with often complex facts, large amounts of data and considerable reputational risks – it is crucial to exercise these rights at an early stage.

The rights of the accused are also guaranteed by fundamental rights, for example by Art 6 para 3 of the ECHR. Sec 49 para 1 of the Austrian Code of Criminal Procedure (StPO) lists thirteen key rights of the accused, without providing an exhaustive list. These rights can essentially be divided into three groups: rights to information, rights of the accused in the narrow sense, and legal remedies.

1. RIGHTS TO INFORMATION

• Information about the offence and essential procedural rights (Sec 49 para 1 nr 1 in conjunction with Sec 50 StPO): The accused has the right to be informed about the subject matter of the suspicion against him and about his key procedural rights. This is intended to provide clarity about the rights and thus enable the accused to effectively exercise his right to defence.
• Access to files (Sec 49 para 1 nr 3 in conjunction with Sec 51–53 StPO): Access to files is one of the most important rights of the accused. Without sufficient knowledge of the file, it is not possible for the accused and his defence lawyer to realistically assess the status of the proceedings, seriously predict the further course of events and effectively formulate a defence strategy. It is therefore essential for a well-founded criminal defence to inspect the criminal file at regular intervals.
• Interpretation assistance (Sec 49 para 1 nr 12 in conjunction with Sec 56 StPO): If necessary, the accused must be provided with translation assistance.

2. RIGHTS OF THE ACCUSED IN THE NARROW SENSE

• Right to choose a defence lawyer and legal aid criminal defence lawyer (Sec 49 para 1 nr 2 in conjunction with Sec 58, 59 and 61 StPO): Accused persons have the right to freely choose a criminal defence lawyer or, if they have limited financial means, to engage a legal aid criminal defence lawyer. The right to criminal defence is an indispensable prerequisite for a fair trial in accordance with the rule of law.
• Right to make a statement, remain silent and contact a criminal defence lawyer (Sec 49 para 1 nr 4 in conjunction with Sec 58, 59 and 164 para 1 StPO): The accused is free to comment on the charges or to exercise his right to remain silent. Accused also have the right to contact their criminal defence lawyer at any time and to consult with them in confidence. These rights can already be derived from the general procedural principle of the right to criminal defence (Sec 7 StPO).
• Consultation with the criminal defence lawyer during interrogation (Sec 49 para 1 nr 5 in conjunction with Sec 164 para 2 StPO): If the accused wishes his criminal defence lawyer to be present, the questioning must be postponed until the counsel arrives. Before the interrogation begins, the accused must be given the opportunity to consult with his criminal defence lawyer. The lawyer also has the right to ask the accused questions and to make additional statements.
• Right to hear evidence (Sec 49 para 1nr 6 in conjunction with Sec 55 StPO): In practice, the right to request evidence is probably the most important right of participation for the accused. A successful request for evidence can directly influence the course of the proceedings and have a decisive impact on the defence strategy. The accused has this right both in the preliminary investigation and in the main trial proceedings.
• Rights of participation (Sec 49 para 1 nr 10 StPO): The accused is granted the right to participate in the main hearing, in adversarial examinations and in a reconstruction of the crime. The presence of the accused at the main hearing is also protected by the strict requirements of the procedure in absentia (Sec 427 StPO). Such proceedings are only permissible if the accused is neither a juvenile nor a young adult, the offence is merely a misdemeanour, the accused has already been questioned, the summons has been duly served and the accused’s presence is not necessary for the evaluation of the facts.
• Restriction of access to files by other parties to the proceedings (Sec 49 para 2 StPO): The accused has the right to request that victims, private parties or private prosecutors be granted access to files only to the extent necessary to protect their interests.

3. LEGAL REMEDIES AND APPEALS

• Objection on the grounds of violation of rights (Sec 49 para 1 nr 7 in conjunction with Sec 106 StPO): An objection on the grounds of violation of rights is an important legal remedy in preliminary proceedings and may be raised in the event of a violation of a subjective right by the public prosecutor’s office in preliminary proceedings. A subjective right is considered to have been violated if the accused is denied a procedural right (e.g. access to files, right to request evidence) or if an investigative measure is taken without a legal basis. The objection must be lodged with the public prosecutor’s office within six weeks of becoming aware of the violation of rights. If a complaint (Sec 87 StPO) is lodged against a court order approving an investigative measure, the objection must be linked to this complaint. Consequently, the appeal court also decides on the objection.
• Complaint (Sec 49 para 1 nr 8 in conjunction with Sec 87 et seq StPO): The accused has the right to complain against court orders in accordance with Sec 87 StPO. This is particularly relevant in the case of the authorisation of coercive measures (e.g. house searches). However, a complaint is only admissible if the interests of the accused are directly affected. The deadline for filing a complaint is 14 days from the announcement of the decision or from the time of becoming aware of the non-completion or violation of the subjective right (Sec 88 para 1 StPO). If the subject of a complaint is a decision approving an order by the public prosecutor’s office in preliminary proceedings (e.g. physical examination), it must be filed with the public prosecutor’s office.
• Application for discontinuation (Sec 49 para 1 nr 9 in conjunction with Sec 108 StPO): The accused is free to request the discontinuation of proceedings against him. In doing so, he must state a reason for discontinuation. The StPO distinguishes between two cases:
  • Legal grounds (Sec 108 para 2 nr 1 StPO): The alleged offence is not punishable by law, or prosecution is inadmissible for legal reasons (e.g. grounds for exemption from punishment, exclusion of punishment or justification).
  • Factual reason (Sec 108 para 2 nr 2 StPO): The existing suspicion of an offence does not justify continuation of the investigation in view of its urgency and weight, as well as the duration and scope of the investigation. Even if the facts of the case continue to be clarified, no intensification of suspicion is to be expected.

• Appeals and legal remedies (Sec 49 para 1 nr 11 StPO): Those affected are generally entitled to lodge appeals and legal remedies. Appeals may be lodged against judgments of a district court or a single judge at a regional court on grounds of nullity, guilt and punishment, as well as on the award of private law claims (Secs 463, 464, 489 para 1 StPO). The simultaneous assertion of all grounds for appeal is referred to as a “full appeal”.
  
  On the other hand, judgments of a jury or lay judges’ court may be appealed on grounds of nullity (Secs 280 et seq, 344 et seq StPO) or on the grounds of the severity of the sentence or the ruling on civil law claims (Secs 280, 283 StPO; Secs 344, 346 StPO).
  
  In addition, this right of the accused also includes other legal remedies, such as reinstatement to the previous status (Sec 364 StPO), reconsideration of criminal proceedings (Secs 352 ff StPO), renewal of criminal proceedings (Sec 363a StPO) and subsequent modification of the sentence (Sec 410 StPO).

• Right to separation of proceedings (Sec 49 para 1 nr 13 in conjunction with Sec 27 StPO): In 2025, a subjective right to separation of proceedings was introduced. This allows individual offences or accused to be prosecuted separately at the request of the accused or ex officio. The aim of this application is to avoid delays, safeguard legitimate confidentiality interests and shorten the length of detention. At the same time, this right supports the confidentiality of personal data and promotes the acceleration of proceedings.

New developments: Rights of accused persons in the seizure of data and data carriers

The 2024 amendment to criminal procedure law fundamentally reformed the seizure of data and data carriers. Accused and victims now have the right, for example, to

• request the evaluation of data according to additional search parameters (Sec 115i para 2 StPO),
• have results that are relevant and admissible for the respective proceedings included in the file (Sec 115i para 3 StPO),
• inspect evaluated data insofar as they themselves are affected (Sec 115i para 4 StPO) and
• request the destruction of data that is irrelevant or inadmissible for the respective proceedings (Sec 115i para 5 StPO).

These innovations significantly strengthen the position of the accused in criminal proceedings and contribute to the protection of their private data.

Criminal defence as the key to safeguarding the rights of the accused

The role of the criminal defence lawyer is of central importance for the protection of the rights of the accused: he comprehensively informs the accused of his rights in criminal proceedings and ensures that these rights are not only known but also effectively exercised. In this way, the accused can actively participate in the course of the criminal proceedings, develop a clear defence strategy and consistently protect his interests.

The criminal defence lawyer thus acts as a guarantor for compliance with the procedural rights enshrined in the Code of Criminal Procedure and at the same time ensures the necessary balance in communication between the prosecuting authorities and the accused. An experienced criminal defence lawyer knows which strategic details are important when exercising the rights of the accused. In addition, they provide support in the use of legal protection instruments in the event of violations of rights, thus contributing significantly to ensuring that the rights of the accused not only exist formally, but are also enforced in practice.