General information & changes to the reimbursement of criminal defense costs
Previously, the possibility of requesting reimbursement of costs was limited to the main trial before the court. Thus, an accused could not apply for a contribution to the costs of his defense lawyer even if the investigation proceedings were discontinued.
Sec 196a of the Code of Criminal Procedure (StPO) now allows the accused to submit an application for a contribution to the costs of the defense as soon as the investigation proceedings are discontinued. In addition, the lump sums for the main hearing have been significantly increased in accordance with Sec 393a StPO. Previously, only a maximum amount of EUR 10,000 was possible, which has now been tripled to EUR 30,000.
An application for a contribution from the federal government must be submitted within three years of notification of the decision.
Amount of contributions
The contribution that can be granted in the main trial proceedings in accordance with Sec 393a StPO and in the event that the preliminary proceedings are discontinued in accordance with Sec 196a StPO is based on the necessary cash expenses borne by the accused. In addition, a lump sum for the costs of the defense counsel can also be requested, except in the case of Sec 61 para 2 StPO. This is to be determined taking into account the scope of the proceedings, the complexity of the factual and legal issues to be resolved and the extent of the necessary or expedient use.
According to Sec 393a StPO, the contribution in the event of an acquittal in the main trial proceedings may not exceed the following contributions:
- EUR 30,000 in proceedings before the Regional Court acting as Court of Jurors and of Lay Assessors
- In the proceedings before the single judge proceedings before the Regional Court EUR 13,000
- In proceedings before the District Court EUR 5,000
In contrast, the reimbursement of costs is significantly lower if the investigation proceedings are discontinued. Sec 196a StPO provides for a maximum amount of EUR 6,000.
The respective maximum amounts may be exceeded by half if the proceedings are characterized by exceptional scope or particular complexity or if the maximum duration of the investigation proceedings is exceeded. In the case of extremely extensive proceedings, the contribution may even be doubled.
Retroactive application
The changes in the area of reimbursement of defense costs that came into force on 1st August 2024 must be applied if the decision terminating the proceedings on which the application for reimbursement of defense costs is based has become legally binding as of 1st January 2024. Applications for (increased) reimbursement of costs can therefore still be submitted retroactively.
Even if an application for a reimbursement of costs has already been submitted since 1st January 2024 under the previous legal situation, an application can still be submitted in accordance with the new legal situation.
Exclusion of the right to compensation
According to Sec 196a para 3 StPO and Sec 393a para 3 StPO, there is no entitlement to compensation if the suspicion on which the proceedings were based was deliberately brought about by the accused.
Furthermore, there is no entitlement to compensation if the proceedings were terminated only because the accused committed the offense in a state of mental incapacity or because the power of prosecution was withdrawn.
Nor is there any right to compensation if the criminal liability ceases to exist for reasons that arise after the criminal proceedings have begun.
