Arrested in Austria: Your Rights and What Happens Next
Key facts at a glance
- What an arrest is: An arrest (Festnahme) under § 170 of the Code of Criminal Procedure (Strafprozessordnung, StPO) is a provisional measure. The public prosecutor or the police take a suspect into custody – to prevent flight or to make them available for immediate questioning.
- The 48-hour rule: You may be held at a police station (Polizeiinspektion) for a maximum of 48 hours. After that you must either be released or transferred to a prison (Justizanstalt), where a detention judge decides on pre-trial detention (Untersuchungshaft).
- Your core rights: You must be cautioned in a language you understand. You may remain silent, notify a defense lawyer and a person of trust, apply for release at any time, and have access to medical care.
- The real risk is what comes next: In practice, the arrest itself is rarely the problem – pre-trial detention is, and it can last many months. The hearing before the detention judge is where it is decided.
- Immediate advice: Say nothing on the substance and bring in a defense lawyer at once. Reach me directly: +43 676 601 7746.
A knock at the door at six in the morning. Being stopped at passport control at Vienna Airport (Wien-Schwechat). Officers who ask you to come with them from your workplace. From one moment to the next, you are no longer a free person – you are in custody, and the hours that follow decide a great deal.
An arrest (Festnahme) is one of the most invasive measures the state can take against a person. It is a serious interference with your fundamental rights, and Austrian law therefore allows it only in genuinely urgent cases. But it also gives you clear rights – and those rights are worth nothing if you do not know them in the moment they matter.
On this page I explain, as a criminal defense lawyer in Vienna, what an arrest under the StPO is, when the police may take you into custody, what rights you have from the very first minute, how long you can be held, and what happens once you are brought before a judge. The aim is simple: so that you, or a family member, know what is coming – and act correctly.
Does this describe your situation?
- You have been arrested and are being held at a police station in Vienna
- A family member was taken into custody and you want to know what happens next
- The police want to question you and you are not sure what you have to say – and what you do not
- You fear that pre-trial detention (Untersuchungshaft) could be imposed
→ Then read on – or call me directly: +43 676 601 7746
Contents
- What is an arrest under the StPO?
- Which law governs arrest in Austria?
- When may the police arrest you? (§ 170 StPO)
- Your rights on arrest – the caution
- How long can you be held? The 48-hour limit
- Handcuffs: when are they permitted?
- From arrest to pre-trial detention
- Citizen’s arrest: § 80 StPO
- After the arrest: the first steps
- Frequently asked questions (FAQ)
What is an arrest under the StPO?
Under Austrian law, an arrest (Festnahme) is governed by § 170 StPO. It is a means of criminal prosecution by which the public prosecutor or the police can take a person into custody provisionally. The arrest can be ordered on the application of the public prosecutor or, in certain cases, carried out by the police on their own initiative.
The key word is provisional. An arrest is not a conviction and not a sentence. Its purpose is narrow: to stop a person suspected of an offence from taking flight, or to make them available for immediate questioning. As a rule, an arrested person is first held at a police station (Polizeiinspektion) until it is decided what happens next.
Which law governs arrest in Austria?
Two statutes matter. The Code of Criminal Procedure (Strafprozessordnung, StPO) is the decisive law: it sets out the conditions for an arrest and the rules for the imposition of pre-trial detention. Alongside it stands the Security Police Act (Sicherheitspolizeigesetz, SPG), which contains the rules for arrests carried out by the police. Under certain conditions the police may act on their own; in others the prosecutor’s order is required.
For you as a person affected, the practical point is this: whether the police are acting under the StPO or the SPG, the same protections apply – you must be informed of your rights, and those rights begin the moment you are taken into custody.
When may the police arrest you? (§ 170 StPO)
An arrest is not permitted at will. § 170 StPO allows it only where a person is suspected of a criminal offence and one of the following grounds is present:
- the person is caught in the act (auf frischer Tat) or, immediately afterwards, is credibly accused of the offence or found with objects pointing to their involvement;
- the person – accused of a criminal offence – is fleeing or in hiding, or, on the basis of specific facts, there is a fear that they will flee or continue to hide;
- there is a risk of collusion: the person is suspected of an offence and influences (or tries to influence) witnesses, experts or co-accused, or removes traces of the offence or otherwise obstructs the investigation;
- there is a risk of reoffending: the person is suspected of an offence punishable by more than six months‘ imprisonment, and on the basis of specific facts it must be assumed that they will commit further offences against the same legal interest, or carry out the offence they are charged with or have already attempted.
These grounds mirror those for pre-trial detention – which is no coincidence, because the arrest is often the first step towards it. The table below sets out the most important rules and limits at a glance.
| Situation | Rule | Legal basis |
|---|---|---|
| Grounds for arrest | Suspicion of an offence plus flight risk, risk of collusion or risk of reoffending | § 170 StPO |
| Reoffending ground: penalty threshold | Offence punishable by more than 6 months‘ imprisonment | § 170 StPO |
| Treatment during the arrest | Human dignity respected; the person treated as gently as possible | § 47 para 1 SPG |
| Maximum time at the police station | 48 hours, then release or transfer to a prison (Justizanstalt) | StPO |
| Decision on pre-trial detention | By the detention judge, on the prosecutor’s application and with judicial approval | StPO |
| Citizen’s arrest by a private person | Proportionate holding, plus immediate report to the police | § 80 StPO |
From arrest to the detention decision
From the moment of the arrest to the decision on custody, the procedure passes through four stages. Each stage offers points of defense – and the earlier a defense lawyer is involved, the more can be done.
Practical tip from the defense lawyer
The most important right after an arrest is the one people use least: the right to remain silent (Aussageverweigerungsrecht). You are the accused, and you do not have to comment on the allegations at all. What is said in the first hours – often out of nervousness or a wish to explain everything – frequently becomes the very foundation of the case. Ask why you were arrested, ask to see the evidence, but make no statement on the substance until a defense lawyer is at your side. Silence is not an admission of guilt.
Your rights on arrest – the caution
Every arrested person must be informed of their rights in writing, immediately or immediately after the arrest (the caution, Belehrung). Crucially, this information must be given in a language the person understands. You must be told that you:
- if you are not released, will be delivered to a prison (Justizanstalt) without unnecessary delay and brought before the court, which decides on custody;
- are entitled to notify – or have someone notify – a relative (Angehöriger) or another person of trust (Vertrauensperson) and a defense lawyer (Verteidiger) without delay;
- may apply for your release at any time;
- have the right of access to medical care.
The right to a defense lawyer does not depend on your means. If you cannot afford a lawyer, you must be told that an on-call duty defense lawyer (Verteidiger in Bereitschaft) can be provided, whose costs you do not have to bear.
Access to the case file
You may demand to be told the reason for your arrest, and you may inspect the evidence against you (Akteneinsicht). This access can be restricted under certain conditions – namely where there is a fear that the inspection would impede the investigation – but it may not simply be denied from the outset, and certainly not without any reason.
How long can you be held? The 48-hour limit
This is the deadline that matters most. You may be held at the police station for a maximum of 48 hours. At the latest once that period has passed, you must either be released or delivered to a prison (Justizanstalt), so that a detention and legal-protection judge (Haft- und Rechtsschutzrichter) can decide on the imposition of pre-trial detention.
You are first held at the police station (Polizeiinspektion). From there, one of two things happens: you are released, or you are transferred to the Justizanstalt – where you remain until you are released from custody. The 48 hours are not a formality. They are the window in which a defense lawyer can prepare for the hearing and argue against detention.
Handcuffs: when are they permitted?
The police may put handcuffs (Handfesseln) on an arrested person only where, on the basis of specific facts, there is a danger that the person will:
- endanger themselves or others;
- damage property of others that is not merely of minor value;
- take flight;
- attempt to thwart an official act in which they are required to take part.
Handcuffs are therefore not automatic. They require a concrete reason tied to one of these dangers – not the mere fact that an arrest is taking place.
From arrest to pre-trial detention
The decisive question after any arrest is whether pre-trial detention (Untersuchungshaft) will be imposed. Pre-trial detention is imposed by the court – the detention and legal-protection judge (Haft- und Rechtsschutzrichter) – on the application of the public prosecutor, after the arrested person has been brought before the judge (§ 173 StPO). This happens after the person has been delivered to the Justizanstalt within 48 hours of the arrest.
In practice, it is not the arrest that is the real problem – dramatic as it is for the person concerned – but the pre-trial detention that may follow. It can, at times, last many months. That is why the hearing before the judge is the moment that counts, and why it should not be faced alone. The rules, grounds and course of custody are set out in detail on my page on pre-trial detention (Untersuchungshaft, in German).
Citizen’s arrest: § 80 StPO
It is not only the police who may make an arrest. The right of a private person to detain someone is derived from § 80 StPO. Anyone who, on the basis of specific facts, can assume that a person is committing a criminal offence, has just committed one, or is being searched for on account of a criminal offence, is entitled to hold that person – but only in a proportionate manner.
That right comes with a duty: the private person is obliged to report the matter without delay to the nearest available organ of the public security service, that is, to hand the person over to the police at once. A citizen’s arrest is not a licence to detain someone at length – it is a bridge to police involvement.
After the arrest: the first steps
When you are arrested in Austria, much is decided in the first hours. Everything has to happen quickly, and the right decisions have to be made at once. The most important steps, in the right order:
- Make use of your right to silence. As the accused, you do not have to comment on the allegations (Aussageverweigerungsrecht). A statement made in the heat of the moment cannot be taken back.
- Ask for the reason – and ask to see the file. You may demand to be told why you were arrested and to inspect the evidence against you (Akteneinsicht).
- Bring in a defense lawyer and notify a person of trust. You may notify a relative and a defense lawyer without delay. If you cannot afford a lawyer, ask for the on-call duty defense lawyer (Verteidiger in Bereitschaft) – then a specialised defense lawyer can be chosen for the detention hearing.
- Apply for your release. You may do so at any time. A specialised lawyer can be present at the hearing before the detention judge and put forward every argument to avert pre-trial detention.
- Watch the 48-hour clock. After 48 hours at the latest you must be released or brought before the judge. Those hours are the window in which the defense is prepared.
An arrest usually happens only where serious allegations are in play – numerous offences, a grave crime, or existing prior convictions that suggest a heightened risk of reoffending. In other words: when there is an arrest, matters are serious. That is exactly why an experienced defense lawyer belongs at your side from the very first hour.
Arrested in Vienna – or is a family member in custody?
An arrest moves fast, and the first 48 hours are decisive. Whether you have been taken into custody yourself or are acting for a family member, the earlier the defense begins, the more can be achieved – above all in averting pre-trial detention. We advise in English, German, Spanish and Arabic – a decisive advantage in international cases. A request to visit someone already in custody can also be arranged through relatives.
Phone: +43 676 601 7746
Email: office@ra-rauf.at
Frequently asked questions about arrest in Austria
An arrest under the Code of Criminal Procedure (StPO) is a provisional measure by the prosecuting authorities – the public prosecutor or the police – by which a person suspected of an offence is taken into custody. Its purpose is to prevent flight or to make the person available for immediate questioning. It is governed by § 170 StPO and is not a conviction or a sentence.
Two statutes apply: the Code of Criminal Procedure (StPO) and the Security Police Act (SPG). The StPO governs the conditions and the procedure for an arrest, while the SPG sets out the powers of the police in this context. Under certain conditions the police may act on their own; in others the prosecutor’s order is required.
Under § 170 StPO, an arrest is permitted where you are suspected of an offence and one of these grounds is present: you are caught in the act or credibly accused immediately afterwards; you are fleeing or in hiding, or flight is feared; you influence witnesses, experts or co-accused or remove traces of the offence (risk of collusion); or you are suspected of an offence punishable by more than six months‘ imprisonment and there is a concrete risk of reoffending.
You must be informed of your rights in writing, in a language you understand. You have the right to be told the reason for the arrest, to notify a relative or person of trust and a defense lawyer, to apply for your release at any time, and to have access to medical care. You also have the right to remain silent and to inspect the evidence against you.
You may be held in police custody for a maximum of 48 hours. Within that period you must either be released or brought before a court to decide on possible pre-trial detention. If you are not released, you are delivered to a prison (Justizanstalt), where a detention and legal-protection judge decides whether pre-trial detention is imposed.
After the transfer, a detention and legal-protection judge (Haft- und Rechtsschutzrichter) decides on pre-trial detention (Untersuchungshaft). It can be ordered where there is a risk of flight or a risk of influencing the proceedings, and it can last several months. This hearing is the decisive moment – a defense lawyer can be present and argue against detention.
No. As the accused, you have the right to refuse to testify (Aussageverweigerungsrecht) – you do not have to comment on the allegations. Making use of this right is not an admission of guilt. You may still demand to be told the reason for your arrest and to inspect the evidence against you. Make no statement on the substance until a defense lawyer is at your side.
Handcuffs are permitted only where, on the basis of specific facts, there is a danger that the person will endanger themselves or others, damage property of others that is not merely of minor value, take flight, or try to thwart an official act in which they must take part. They are not automatic and require a concrete reason.
Yes, within limits. Under § 80 StPO, a private person who, on the basis of specific facts, can assume that someone is committing an offence, has just committed one, or is being searched for on account of one, may hold that person in a proportionate manner. But they are obliged to report the matter to the police without delay and to hand the person over at once.
Yes. If you do not have sufficient means to pay for a defense lawyer, you must be told that an on-call duty defense lawyer (Verteidiger in Bereitschaft) can be made available, whose costs you do not have to bear. After this first intervention, a specialised defense lawyer can then be chosen – for example to visit you in custody and to file an application for release.
Related articles
Pre-trial detention in Austria
Untersuchungshaft: grounds, procedure and how long it can last
Criminal investigation in Austria
How a criminal procedure runs – the stage an arrest belongs to
House search in Austria
Your rights during a search and the coercive measures that go with it
Robbery, § 142 StGB (in German)
An example of a serious offence carrying more than six months‘ imprisonment
Criminal defense in Vienna
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