The legal requirements for discontinuation
The public prosecutor’s office must discontinue the preliminary investigation in accordance with Section 190 of the Austrian Code of Criminal Procedure (StPO) if it transpires that
- the offence underlying the preliminary investigation is not punishable by law (1st case);
- further prosecution of the accused would otherwise be inadmissible for legal reasons (case 2);
- or there is no actual reason for further prosecution (3rd case).
Examples
- Case 1 (no criminal conduct): This case applies if no criminal offence under criminal law has been committed, for example if the offence is not punishable at all or only punishable under administrative law .
- Case 2 (legal obstacles to prosecution): This circumstance applies if, for example, a justification (e.g. self-defence), a reason for exclusion of guilt (e.g. mental incapacity), a reason for exemption from punishment (e.g. active repentance) or a procedural obstacle to prosecution (e.g. prohibition of double punishment) is fulfilled.
- 3rd case (no actual reason for further prosecution): For this reason, proceedings are discontinued if, due to unclear or incomplete evidence, an acquittal appears more likely than a conviction and therefore a conviction is not to be expected.
Scope of the discontinuation
A discontinuation may relate either to the entire facts underlying the criminal charges or only to part of these facts (“partial discontinuation“).
However, a partial discontinuation can only be considered if the underlying facts are divisible. This is the case if the events can be divided into several independent offences.
An example of a divisible set of facts is the following scenario: Person A feels provoked by person B and makes dangerous threats against them. The situation then escalates and person A punches person B in the face. This set of facts can be divided into a dangerous threat (Section 107 of the Austrian Criminal Code (StGB)) and an assault (Section 83 StGB). In such a case, a partial dismissal would be considered.
Discontinuation due to insignificance (Section 191 StPO) and discontinuation in the case of multiple offences (Section 192 StPO)
A discontinuation due to insignificance (Section 191 StPO) must be ordered by the public prosecutor’s office if the alleged offence is punishable by a fine or a maximum of three years’ imprisonment and the disruptive value of the offence is to be classified as minor, taking into account the guilt, the consequences of the offence and the behaviour of the accused after the offence, in particular with regard to any compensation for damages, as well as other circumstances that would influence the sentencing. A further prerequisite is that there are no special or general preventive reasons that would preclude discontinuation.
It should be emphasised that, in such cases, the conduct is in principle criminally punishable; however, it will typically be regarded as not worth pursuing, because it meets the requirements for minor significance within the meaning of section 191 of the Austrian Code of Criminal Procedure (StPO). Whether an offence is of “minor significance” depends on an overall assessment of the degree of culpability, the consequences of the act, and other sentencing-related circumstances – in particular any aggravating and mitigating factors (Sections 33, 34 StGB).
If a person is accused of several offences, the public prosecutor’s office may, pursuant to Section 192 StPO, discontinue the proceedings with regard to individual offences definitively or subject to reservation, provided that this discontinuation is not likely to have any influence on the severity of the penalty or on diversion with regard to the remaining offences.
Request for discontinuation of the investigation (Section 108 StPO)
An accused person has the subjective right (Sec 49 para 1 nr 9 StPO) to submit a request to the public prosecutor’s office for the investigation to be discontinued or partially discontinued. Pursuant to Sec 108 para 2 StPO, the investigation must be discontinued at the request of the accused if
- it is clear from the report or the available investigation results that the offence underlying the investigation is not punishable by law or that further prosecution of the accused is otherwise inadmissible for legal reasons, or (Z 1)
- the existing suspicion of an offence does not justify its continuation in view of its urgency and gravity, as well as the duration and scope of the preliminary investigation to date, and further clarification of the facts is not expected to intensify the suspicion (Z 2).
Sec 108 para 2 nr 1 StPO essentially corresponds to the first and second cases of Section 190 StPO. The accused may therefore state in his application, for example, that his actions do not constitute a criminal offence or that he acted in justified self-defence.
Sec 108 para 2 nr 2 StPO, on the other hand, is comparable to the third case in Section 190 StPO. In this context, it must be examined whether all relevant evidence has already been collected and sufficiently assessed and whether a sufficient legal assessment of the facts has already been made. On the basis of these circumstances, a prognosis of the probability of conviction must be made. This prognosis forms the basis for assessing whether, taking into account the duration and scope of the preliminary investigation to date, the suspicion justifies a continuation of the investigation or whether further investigative steps are unlikely to lead to a confirmation of the suspicion.
The request for discontinuation must be submitted to the public prosecutor’s office. The public prosecutor’s office must either dismiss the case or forward the application to the court with a statement within four weeks. If the application is submitted within the first month of the criminal proceedings, the deadline is six weeks (Sec 108 para 3)StPO). The court then decides on the application and, if it is granted, must discontinue the criminal proceedings by order.
If the public prosecutor’s office does not discontinue the investigation on the basis of the application but forwards it to the court with a statement, it may be advisable in the context of the criminal defence to withdraw the application for discontinuation of the investigation: On the one hand, by inspecting the files in the public prosecutor’s statement to the court, the accused obtains an up-to-date indication of the public prosecutor’s current suspicion of an offence, the investigative measures it is currently planning and the reasons why the investigation should be continued. On the other hand, a decision by the court to reject the application to discontinue the investigation could also have a negative effect from a strategic point of view, because the public prosecutor’s office would feel strengthened in its criminal prosecution of the accused by the reasoning in the court’s decision.
How can a discontinuation be challenged?
- Explanation of discontinuation (Section 194 para 2 StPO)
Accused persons and victims may request an explanation within 14 days of receiving notification of the discontinuation. These reasons for discontinuation must concisely state the facts and considerations on which the discontinuation was based. - Motion for continuation of the investigation proceedings (Section 195 StPO)
The victim (Sec 65 StPO) can – often in the role of a private party – submit a motion to continue the investigation proceedings to the public prosecutor’s office within 14 days of receiving the reasons for discontinuation. If they were not notified of the discontinuation, the deadline is three months from the date of discontinuation.
Pursuant to Sec 195 para 1 StPO, the court must, at the request of the victim, order the continuation of an investigation discontinued by the public prosecutor’s office if
- the law has been violated or incorrectly applied (nr 1),
- there are significant doubts as to the accuracy of the facts on which the decision to discontinue was based (nr 2), or
- new facts or evidence are presented which, on their own or in conjunction with other results of the proceedings, appear suitable for clarifying the facts of the case to such an extent that proceedings can be brought by means of an indictment or diversion (nr 3).
The court decision is based on the status of the proceedings at the time of discontinuation. The first ground for continuation (Sec 195 para 1 nr 1 StPO) allows legal errors and abuse of discretion to be asserted, for example because the public prosecutor’s office assumed that the facts of the case did not constitute a criminal offence. The second ground for continuation (Sec 195 para 1 nr 2 StPO) concerns a significantly questionable exercise of discretion by the public prosecutor’s office, although only cases of intolerable assessment of evidence by the public prosecutor’s office can be taken up. The third ground for continuation (Sec 195 para 1 nr 3 StPO) also allows new facts and evidence to be taken into account, whereby a significant change in the evidence in favour of a conviction cannot be ruled out.
If the public prosecutor’s office considers the application to be justified, it must continue the proceedings; otherwise, the application must be forwarded to the court together with the file and a statement (Sec 195 para 3 StPO). The court shall decide by means of a ruling against which no appeal is admissible. Before the decision is made, the accused and the applicant for continuation shall be given the opportunity to comment on the public prosecutor’s statement within a reasonable period of time.
What are the consequences of discontinuing a preliminary investigation?
After a discontinuation, no further investigations against the accused may be carried out. The accused, the criminal investigation department and the victims must be notified of the discontinuation (Sec 194 StPO). The notification must state the reason for the discontinuation.
The discontinuation becomes legally effective at the latest after a request for continuation has been rejected or dismissed. Legal effectiveness triggers a blocking effect. If a preliminary investigation has been legally discontinued (“res iudicata”), no new criminal proceedings may be brought against the same accused for the same offence (principle of ne bis in idem).
The public prosecutor’s office may only order the continuation of a discontinued preliminary investigation if the offence is not yet time-barred and the accused has not been questioned about this offence and no coercion has been exercised against him, or if new facts or evidence arise or become known which, on their own or in conjunction with other results of the proceedings, appear suitable for justify the punishment of the accused or a diversionary approach (Sec 193 para 2 StPO).
Why is the role of criminal defence so important in the discontinuation of preliminary proceedings?
After reviewing and analysing the files, a criminal defence lawyer can assess whether discontinuing the proceedings is strategically promising. Through targeted and experienced defence, the arguments for discontinuation are consolidated from the outset.
The defence lawyer structures the case file, submits precise statements that refute the suspicion and, if necessary, submits requests for evidence (Section 55 StPO). In this way, the accused is actively involved in the proceedings. With a clear strategy, the criminal defence lawyer pursues the goal of making the conditions for a discontinuation of the investigation proceedings tangible for the public prosecutor’s office and demonstrating that a discontinuation is justified. In addition, he ensures that the formal requirements of the written statements are met and is familiar with the relevant criteria of the prosecution authorities in the discontinuation proceedings.
