General information
An “appeal” is a formal challenge to an administrative or judicial decision and is always subject to a time limit. Appeals exist in all areas of law. They are an important protective instrument for challenging procedural errors and incorrect judgments.
In criminal proceedings, there is usually a significant amount at stake, as the consequences of a criminal conviction can threaten an individual’s livelihood. A lawyer specializing in criminal law will be able to explain the specific options available in your individual case and assist you in filing the appeal correctly.
Appellate instruments against judgements
Judgments in criminal proceedings are announced orally by the judge after a public court hearing. In 2022, over 30,000 judgments were declared in Austria, of which around 70 % led to convictions and around 30 % resulted in acquittals. Most proceedings therefore end with a guilty verdict, which, as described above, often has serious consequences for the defendant. An appeal can therefore be lodged against any first-instance guilty verdict.
After the conviction has been announced in the main hearing, there are three options:
- The defendant accepts the verdict after it has been announced and waives all rights of appeal. If the public prosecutor’s office does not appeal, the verdict becomes final and the sentence imposed can be enforced.
- The defendant declares that he will submit an appeal (either himself or through his defense counsel). After the written judgement has been served, a four-week period for lodging an appeal begins. The appeal has suspensive effect and the judgment is therefore not final yet – the higher court must decide now.
- The defendant is granted three days to determine whether to declare an intention to file an appeal against the decision. If he chooses to do so, the announcement of the appeal must be submitted within three days. The four-week appeal period begins when the written judgment is delivered. Once the appeal has been lodged, the higher court of appeal also decides this case.
Appeal
Judgments by a district court judge or a single judge at a regional court can be appealed on the grounds of
- Nullity (Were there any formal or substantive errors in the proceedings?)
- Guilt (Is the defendant guilty?)
- Penalty (Is the penalty appropriate?)
- Decision on civil law claims (Was the award to the private party and its amount justified?).
If all of the above grounds for an appeal are raised, this is referred to as a “full appeal.”
Appeals for nullity
Grounds for nullity in a district court judgment or in a judgment of the regional court as a single judge can be contested by appeal on grounds of nullity (“Berufung wegen Nichtigkeit“).
In the case of first-instance jurisdiction of the regional court as a court of lay assessors or jury court, grounds for nullity can be contested within the framework of an appeal for nullity (“Nichtigkeitsbeschwerde”).
An appeal on grounds of nullity or an appeal for nullity is therefore used to assert grounds for nullity, i.e., formal or material errors that occurred during the proceedings.
Grounds for nullity include, for example:
- A record of invalid evidence taken during the preliminary investigation, which was not permitted to be used, was read out in the main hearing despite objections (Sec 281 para 1 nr 2 Austrian Code of Criminal Procedure (StPO)).
- In the main hearing, a request was not decided or was rejected by means of a decision. However, this ground for nullity (Sec 281 para 1 nr 4 StPO) is only fulfilled if this rejection violated the laws and principles of a fair trial (Art 6 of the European Convention on Human Rights).
- The facts established by the court do not constitute a criminal offense. This ground for nullity applies in particular if the judgment does not contain sufficient findings to assume a criminal offense (Sec 281 para 1 nr 9 lit a StPO).
In addition, there are several other potential grounds for nullity pursuant to Sec 281 para 1 StPO, which should be thoroughly reviewed by defense counsel once the written judgment has been received.
Appeal on the grounds of guilt
An appeal on the grounds of guilt challenges the court’s evaluation of evidence. In this context, concerns are raised about the accuracy of the court of first instance’s findings that led to the conviction. When filing an appeal on the grounds of guilt, there is no prohibition on introducing new evidence, meaning that new facts and evidence can be presented. New requests for evidence (Sec 55 StPO) can also be made in the appeal proceedings.
In contrast to judgments by single judges at the regional court, only appeals for nullity, appeals against sentencing, and appeals on the basis of private law claims are admissible against judgments announced by jury courts or courts of lay assessors (Sec 280, Sec 344 StPO).
Appeal against the sentence
An appeal against the sentence can be used to challenge the severity of the sentence imposed. An appeal against sentencing is therefore directed against the judge’s discretionary decision in imposing a specific sentence. In this appeal, the incorrect weighing of aggravating and mitigating factors can also be challenged.
In an appeal against the sentence, the length of the prison sentence imposed and the amount and number of fines declared can be challenged. Additionally, there are arguments to be made for why a conditional suspension of sentence would be appropriate in this particular case.
System control outside subjective legal protection: appeal for nullity “to uphold the law” (Sec 23 StPO)
The appeal for nullity to uphold the law pursuant to Sec 23 StPO (“Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) occupies a special position within the procedural instruments of the Austrian Code of Criminal Procedure. It is the sole prerogative of the Procurator-General’s Office. It may lodge an appeal for nullity to uphold the law ex officio or on behalf of the Federal Minister of Justice. Every public prosecutor’s office is obliged to submit cases in which it considers an appeal to be necessary ex officio to the competent Chief Prosecution Authorities. The latter must then decide whether to refer the case to the Procurator-General’s Office. Furthermore, anyone can initiate such an appeal (Sec 23 para 2 StPO). Consequently, defendants also possess the right to initiate this appeal.
The Procurator-General’s Office is the highest public prosecution authority in the Republic, operating outside the actual criminal prosecution system. It does not act as an investigator or prosecutor, but as a guardian of the law, ensuring that criminal justice is administered in accordance with the law.
The Procurator-General’s Office may take action against judgments of the criminal courts that are based on a violation or incorrect application of the law, as well as against any unlawful decision or proceeding of a criminal court of which it becomes aware, and may request a declaration of unlawfulness by filing this appeal with the Supreme Court (Sec 23 para 1, Sec 34 para 1 nr 2 StPO).
The special aspect about this appeal is that it is designed to ensure the integrity of the law, and it remains open even if the decision hasalreadybecome finaland if the entitled persons have not made use of a legal remedy or appeal within the statutory period (Sec 23 para 1 StPO).
If the Supreme Court considers the appeal for nullity to be valid in order to uphold the law, it must recognize that the law has been violated in the specific criminal case. This ruling generally has no effect on the defendant. However, if the defendant has been sentenced to a penalty on the basis of such a void judgment, the Supreme Court may either acquit the defendant, apply a milder penalty, or order the renewal of the proceedings (Sec 292 StPO).
The aim of the appeal for nullity to uphold the law is to ensure that the administration of criminal justice functions reliably and in accordance with the law.
Appellate courts
If a district court passes a judgment in the first instance, the competent regional court decides on the appeal against this judgment in the second instance as a three-judge panel (Sec 31 para 6 nr 1 StPO). In the case of first-instance jurisdiction of a single judge at a regional court, an appeal establishes second-instance jurisdiction of the higher regional court (“Oberlandesgericht”), also as a three-judge panel (Sec 33 para 1 nr 1 StPO).
If the regional court has jurisdiction as a court of lay assessors or jury court in the first instance, the Supreme Court has jurisdiction to decide on an appeal for nullity (Sec 34 para 1 nr 1 StPO). It decides in a panel of five judges. If, on the contrary, an appeal is lodged against a judgment of a regional court as a court of lay assessors or jury court only on the grounds of the severity of the sentence, the competent higher regional court decides (Sec 33 para 1 nr 2 StPO).
Consult a specialized lawyer
When preparing and filing an appeal, it is advisable to consult a lawyer specializing in criminal law. He is able to realistically assess the prospects of success of the respective appeal and is familiar with the key considerations in drafting such a legal document, as well as with the aspects to which the appellate courts attach particular importance. Furthermore, a lawyer can provide clarification regarding the viability and advisability of an appeal in the specific case.
In some cases, an appeal must even be filed by a criminal defense lawyer. In particular, an appeal for nullity to the Supreme Court must be lodged by a criminal defense lawyer. Even apart from that, it is generally advisable to entrust the drafting of an appeal to a specialist.
