General information and conditions of remand
Remand in Austria may only be imposed by the court if certain conditions are met and only at the request of the prosecution authority. The central starting point for the imposition of remand is, among other things, that the accused is urgently suspected of a specific criminal offense. In concrete terms, this means that the accused must therefore very probably be the perpetrator. The legally compliant imposition of remand also requires prior questioning by the court on the matter and the conditions for pretrial detention (Sec 173 para 1 of the Austrian Code of Criminal Procedure, ”StPO”). Finally, the court must decide within 48 hours after the accused has been taken into custody whether the accused is to be released or remanded in custody (Sec 174 para 1 StPO).
In addition, remand must be proportionate to the importance of the case and the expected punishment and its purpose must not be achievable through the use of less severe means.
Grounds for the imposition of remand in custody
In addition to an urgent suspicion, remand requires a reason for detention. The law distinguishes between the following grounds for detention (Sec 173 para 2 StPO):
- Risk of absconding: There is a risk of absconding if, based on certain facts, there is a risk that the accused would abscond or go into hiding because of the type and scale of the anticipated impending sentence or for other reasons (no. 1). There is no reason to assume a risk of absconding if the accused is suspected of having committed a criminal offense punishable by no more than five years imprisonment, lives in orderly circumstances and has a permanent residence in Austria, unless he has already made preparations to abscond (Sec 73 para 3 StPO).
- Risk of concealment: There is a danger of collusion if it can be assumed that the accused could influence witnesses, experts or co-accused, remove evidence of the crime or otherwise attempt to impede the investigation (no. 2).
- Risk of committing a crime: The risk of committing a crime exists if there is a suspicion that irrespective of the criminal proceedings against him for a criminal offense punishable by more than six months imprisonment, the accused could commit the following acts:
- a criminal offense with grave consequences that is directed against the same legally protected interest as the criminal offense involving grave consequences the accused is alleged to have committed;
- a criminal offense with more than merely trivial consequences, which is directed against the same legally protected interest as the criminal offense the accused is alleged to have committed, if he has either previously been convicted for such an offense or if he has now been charged with repeated or continuing conduct, or
- a criminal offense punishable by imprisonment for more than six months, which, like the offense the accused has been charged with, concerns the same legally protected interest as the offenses for which he has been previously convicted twice (no. 3 lit a – c).
- Risk of carrying out the offense: There is a risk of carrying out the offense if it is feared that the accused will carry out the attepmted or threatened crime (no. 3 lit. d).
When examining the latter two reasons for detention, it is particularly important whether the accused poses a danger to life and limb or a danger of committing crimes in a criminal organization or terrorist group. In addition, consideration must be given to what extent the risk has been mitigated by a change of the circumstances in which the crime the accused has been charged with was committed (Sec 173 para 3 StPO).
Remand period
The court imposes remand by order. This is only effective for a certain period of time. Before the period expires, a remand hearing must be held or the accused must be released (Sec 175 para 1 StPO).
The remand periods are
- 14 days from the imposition of remand,
- one month from the first extension of remand,
- two months from any further extension of remand (Sec 175 para 2 StPO).
Suspension and maximum duration of remand
As soon as one of the above-mentioned conditions no longer applies, e.g. if the accused is no longer under urgent suspect, the remand is disproportionate to the importance of the case or the remand in custody lasts for an unreasonably long time, the remand must be revoked in accordance with Sec 177 para 2 StPO.
Remand must also be lifted if the public prosecutor applies for it to be revoked (Sec 177 para 3 StPO or if its maximum duration has been reached.
The duration must always take into account the specific relevant reason for the pretrial detention. Remand solely on the grounds of risk of concealment may never last longer than two months (Sec 178 para 1 no. 2 StPO). If there is another reason for the order, pretrial detention may only last longer than six months in extreme situations (particular difficulties, particularly extensive investigations, etc.) and only for serious offenses up to two years (Sec 178 para 1 no. 2 StPO). Once the indictment has been filed, there are no longer any pretrial detention periods or remand hearings (Sec 175 para 5 StPO).
Mitigating measures to avoid (further) remand
Remand may not be imposed, maintained or continued if the purposes of detention can also be achieved by simultaneous criminal detention or detention of another kind. Among other things, the payment of bail, provisional probation assistance or instructions may be considered as lenient measures. The decisive factor is that these means are sufficient to achieve the purposes associated with remand and the imposition of remand is therefore not necessary.
Release on bail is only possible if the sole reason for pretrial detention is the risk of absconding. Such release must even be granted if, in addition, the offense is punishable by no more than five years imprisonment (Sec 180 para 1 StPO).
Support from an experienced criminal defense lawyer
Accused who are threatened with remand or who have already been remanded in custody should seek qualified legal representation as soon as possible.
The imposition of remand represents a considerable encroachment on fundamental rights and liberties. In this exceptional situation, the involvement of a lawyer specializing in criminal law is essential in order to review the admissibility of remand and to limit the duration of remand. An experienced criminal defense lawyer assists the accused throughout the criminal proceedings, checks the steps intended and taken by the prosecuting authorities and monitors the lawful conduct of the investigation. In addition, he ensures that the rights of the accused are protected and supports the person concerned and his relatives with any questions regarding the course of the proceedings.
