A jury has just risen. A judge reads out a verdict in a Vienna courtroom you barely understand, and a single German word decides the rest of your life: Freispruch. For anyone who has lived for months under an accusation, that word – acquittal – is the one they have been waiting for. But if you come from a common-law background, you may assume it means the same as a „not guilty“ verdict back home: the end, once and for all. In Austria, that assumption can be dangerous.

Many people searching for how to be found not guilty in Austria, whether they can get their charges dropped, or whether they can be tried again after an acquittal, are working from ideas of „double jeopardy“ that simply do not transfer one-to-one to Austrian law. A first-instance acquittal here is a strong result – but not necessarily the last word. The prosecution can appeal it, and the protection against a repeated trial takes full effect only when the judgment becomes final.

On this page I explain, as a criminal defense lawyer in Vienna, when an Austrian court must acquit, how an acquittal differs from a case that is simply dropped during the investigation (Ermittlungsverfahren, in English), whether the prosecution can come back for a second attempt, and what an acquittal means for your defense costs, your criminal record and any time you spent in custody.

Acquittal or charges dropped? Two different outcomes

An acquittal (Freispruch) and having your charges dropped both mean you are not convicted – but in Austrian law they are two entirely different events. An acquittal is a judgment by a court, delivered at the end of a trial (Hauptverhandlung). „Charges dropped“ corresponds to a discontinuation (Einstellung), a decision by the public prosecutor (Staatsanwaltschaft) to end the investigation without an indictment. The distinction decides who makes the decision, at what stage, and – crucially – whether the matter can come back.

English-speaking clients almost always describe both as „charges dropped“. The difference matters because a discontinued case is not closed forever. Under § 193 StPO, the prosecutor may reopen a discontinued investigation as long as the offence is not time-barred and either the accused was never questioned and no coercion was used, or new facts or evidence emerge that could justify a conviction. A final acquittal enjoys much stronger protection, as the section on double jeopardy below explains.

There is a third route worth naming, because it is neither of these: diversion (Diversion, in English). Diversion ends the case without a conviction and without a trial verdict – typically against a payment, community service or a probationary period. It is not an acquittal and does not establish innocence; it is a discretionary alternative to prosecution, loosely comparable to a deferred-prosecution arrangement.

How a criminal case reaches an acquittal

From the first suspicion to a not-guilty verdict, an Austrian criminal case passes through four stages. Only two of them can end in a formal acquittal – the trial and, exceptionally, an appeal. The earlier a defense lawyer shapes the case, the better the odds of never reaching a courtroom at all.

When must an Austrian court acquit? (§ 259 StPO)

An Austrian court must acquit whenever the prosecution has not proven its case. § 259 StPO sets out the grounds: the court acquits where the act charged is not punishable by law, where the elements of the offence are not made out or not proven, or where circumstances exist that cancel criminal liability or otherwise bar prosecution. Put plainly: if the court cannot establish your guilt to the standard the law requires, it does not convict – it acquits.

That standard is high. A conviction requires the court to be satisfied of guilt with a probability bordering on certainty (an Sicherheit grenzende Wahrscheinlichkeit). Anything less is an acquittal. This is why a „not guilty verdict“ in Austria is not a finding that you are innocent in the moral sense – it is a finding that the state failed to prove you guilty. The presumption of innocence (Unschuldsvermutung) under Article 6(2) of the European Convention on Human Rights applies until a conviction becomes final.

Grounds that cancel criminal liability

An acquittal does not always mean the court doubts the facts. Sometimes the facts are clear, but the law does not punish them. Austrian criminal law recognises several such grounds, among them:

• Self-defense (Notwehr) or the defense of another person;
• an excusing emergency (entschuldigender Notstand);
• withdrawal from an attempt (Rücktritt vom Versuch) before it is completed;
• active repentance (tätige Reue), for example full restitution of the damage in certain property offences;
• lack of criminal responsibility (Zurechnungsunfähigkeit) at the time of the act.

Who decides on the acquittal

Depending on the gravity of the charge, the verdict comes from a single judge at the District Court (Bezirksgericht), a single judge at the Regional Court (Landesgericht), or a collegiate court: a lay-judges court (Schöffengericht), in which two lay judges sit alongside a professional judge (two professional judges in certain grave cases), or a jury court (Geschworenengericht) with eight jurors for the most serious offences. Who your judges are shapes the defense – an opening statement to lay judges, who do not yet know the file, can set the tone of the whole trial.

In dubio pro reo: acquittal in case of doubt (§ 14 StPO)

If the court cannot resolve its doubts, it must acquit. This is the principle of in dubio pro reo – „when in doubt, for the accused“ – and in Austria it sits in the same provision as the rule on how evidence is weighed. § 14 StPO combines free evaluation of evidence (freie Beweiswürdigung) with the doubt rule in a single sentence.

Two things follow from this. Free evaluation of evidence means the court is not bound by fixed rules of proof: there is no requirement of a „smoking gun“, and even incriminating witness testimony, without physical evidence, can in principle support a conviction – provided the court’s reasoning is logically and realistically sound. But where genuine, unresolvable doubt remains about a fact decisive for the legal assessment, the doubt must be resolved in your favour.

In practice, in dubio pro reo bites hardest at thresholds and quantities. Where the exact amount of damage in a fraud case cannot be pinned down, or the precise quantity or purity of a controlled substance in a drug case (in English) cannot be established, the court must take the version most favourable to the accused. That can move a case below a qualifying threshold – and sometimes turn a conviction into an acquittal.

Can the prosecution appeal my acquittal? Double jeopardy in Austria (§ 17 StPO)

Yes – and this is where Austrian law surprises most people from a common-law background. A first-instance acquittal is not automatically the end. The public prosecutor can challenge it, just as you could challenge a conviction. Against a verdict of the single judge the route is an appeal (Berufung); against a verdict of a lay-judges or jury court it is a nullity appeal (Nichtigkeitsbeschwerde) to the Supreme Court (Oberster Gerichtshof), combined with an appeal. Your acquittal becomes untouchable only once these routes are exhausted or the deadlines to use them have passed.

That moment is legal finality (Rechtskraft). The protection against being „tried again“ – ne bis in idem – attaches to it. § 17 StPO puts it in one sentence.

The word that carries the weight is „legally effective conclusion“. Before your acquittal is final, there is no ne bis in idem to invoke – the prosecution’s appeal is not a second prosecution but a continuation of the first. Only afterwards does the bar apply, reinforced at the European level by Article 4 of Protocol No. 7 to the European Convention on Human Rights. Even then it is not absolute: § 17 para 2 StPO expressly leaves untouched the rules on resumption (Wiederaufnahme) and renewal of proceedings, the narrow doors through which a closed case can, exceptionally, be reopened.

For the defense, this changes the goal. Winning at first instance is not the finish line; defending the acquittal on appeal is part of the same job. An acquittal built on careful, appeal-proof reasoning is worth far more than one that invites the prosecution to try again.

Getting your defense costs back after an acquittal

If you are acquitted or your case is dropped, the state pays a contribution to your defense costs – but only a capped contribution, and only if you apply in time. This is the point English-speaking clients most often ask about („can I get my legal fees back if acquitted in Austria?“), and the honest answer is: partly. Since a reform in force from 1 August 2024 (BGBl I No 96/2024), the rules cover both an acquittal and a discontinuation, but the amount is limited to statutory maximums.

The contribution (Beitrag zu den Kosten der Verteidigung) covers your necessary cash outlays plus a share of your defense lawyer’s fees. It is not full reimbursement: the maximums are fixed by the level of court, and only a longer or exceptionally large trial can raise them.

Three practical points decide whether you actually see this money. First, the contribution is granted only on application – the court does not award it by itself. Second, the application must be filed within three years of being notified of the decision, otherwise the claim is lost (§ 393a para 4 StPO). Third, the claim is excluded where you intentionally brought about the suspicion against yourself, where proceedings ended only because you acted without criminal responsibility, or where an authorisation to prosecute was withdrawn at the hearing (§ 393a para 3 StPO). In exceptionally long or large trials, the caps can be raised – by half for a longer main hearing, and up to double for extreme scope.

Acquittal, criminal record and police clearance

An acquittal never appears on your criminal record. The Austrian criminal register (Strafregister) records only final convictions by a criminal court – under § 2 of the Criminal Register Act (Strafregistergesetz 1968), the entries are convictions, not acquittals and not discontinued cases. If you are found not guilty, there is nothing to enter.

This matters most for expats and non-nationals, for whom a clean record is often a condition of a visa, a residence permit or a job. The document you will be asked to produce is the police clearance certificate (Strafregisterbescheinigung) – the official extract from the register. Because an acquittal is not recorded, it will not show. The same is true of a case that was dropped: an investigation that ends without a conviction leaves your certificate clean.

One caveat worth keeping in mind: a pending investigation is a different matter from the register. While proceedings are still open, information can exist in police and prosecution files even though nothing appears in the Strafregister. The register reflects the final outcome – and an acquittal is, for record purposes, as good as never having been charged.

Compensation for pre-trial detention after acquittal

If you spent time in custody and were then acquitted, you may be entitled to compensation. The basis is the Criminal Law Compensation Act (Strafrechtliches Entschädigungsgesetz 2005, StEG 2005). Where a person was held in pre-trial detention (Untersuchungshaft, in English) on suspicion of an offence and is later acquitted or the proceedings are discontinued, the detention counts as unjustified, and the federal state (Bund) owes monetary compensation. The amount takes account of the duration of the detention and your personal circumstances; here too the claim expires after three years.

There is an important safeguard behind this, and it comes from Strasbourg. In Sekanina v. Austria (European Court of Human Rights, 1993), a man acquitted by a jury was refused compensation because the domestic courts still voiced suspicion of his guilt. The Court held this incompatible with the presumption of innocence.

The principle is simple and powerful: after a final acquittal, no authority may treat you as though you were guilty after all – not when deciding on compensation, and not otherwise. For anyone who has been held in custody and then cleared, this is the legal foundation for putting the case fully behind them.

Frequently asked questions on acquittal in Austria

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