A guilty verdict at the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien). A sentence read out in a language you only half understood. A three-day deadline that no one spelled out to you in plain terms. For anyone convicted in Austria – and especially for expats, tourists and foreign nationals – the first hours after a judgment decide whether the door to a higher court stays open or slams shut.

The word “appeal” is where most of the confusion starts. In common-law systems it often means a full second hearing of the whole case. Austrian criminal procedure is different, and the difference is the single most important thing to understand: whether you can challenge the finding of guilt at all depends on which court convicted you. Against a single judge you can. Against a lay-assessor court or a jury court you largely cannot – there, only specific legal errors count.

On this page I explain, as a criminal defense lawyer in Vienna, what you can actually appeal after a criminal conviction in Austria, which remedy fits which court, how the two-stage deadline works, and whether an appeal can ever make your situation worse. Rechtsmittel – the drafting of criminal appeals – has been the focus of my practice; it is often called the “supreme discipline” of criminal defense, and for good reason.

What can you actually appeal?

You can challenge a criminal conviction in Austria with a remedy (Rechtsmittel), but which remedy is open to you – and whether the finding of guilt can be reviewed at all – depends entirely on which court convicted you. A judgment can end in an acquittal (Freispruch) or in a conviction (Schuldspruch) with a sentence. Only the conviction is challenged here, and Austrian law offers a different route for each type of court.

Against the judgments of a district court (Bezirksgericht) and of a regional court sitting as a single judge (Landesgericht als Einzelrichter), the remedy is a full appeal – the Berufung wegen Nichtigkeit, Schuld und Strafe (appeal on grounds of nullity, guilt and sentence). Here you can attack the finding of guilt itself.

Against the judgments of a lay-assessor court (Schöffengericht, a regional-court panel with two lay judges) and a jury court (Geschworenengericht, with eight jurors who alone answer the question of guilt), the picture changes. Here only two remedies exist: the plea of nullity (Nichtigkeitsbeschwerde) and the appeal against the sentence (Strafberufung). The finding of guilt as such cannot be re-examined – you can only argue specific, enumerated legal errors. This is the expectation correction that catches most people out.

The rule of thumb: the more serious the case – and serious cases go to the Schöffengericht or the Geschworenengericht – the narrower the room to reopen the facts. Alongside these remedies against judgments, the Code of Criminal Procedure (Strafprozessordnung, StPO) also allows a complaint (Beschwerde) against court orders (Beschlüsse) and an objection (Einspruch) against certain acts of the prosecution during the investigation. Those are separate tracks and are not the subject of this page.

How an appeal runs: the two-stage procedure

An Austrian criminal appeal has two stages that trip up almost every newcomer: you first announce the remedy within a very short deadline, and only later submit the written grounds. Miss the first step and the second never comes.

Appeal against a single judge: nullity, guilt and sentence

Against a district court judgment or a single-judge regional court judgment, all three complaints are brought as one remedy – the Berufung wegen Nichtigkeit, Schuld und Strafe. Each attacks the judgment from a different angle, and understanding the difference is what separates a serious appeal from a hopeless one.

Appeal on grounds of nullity (Berufung wegen Nichtigkeit)

This attacks the formal soundness of the judgment. It asks, among other things, whether the facts the court found were subsumed under the correct law and whether all decisive facts were actually established (the plea of law, Rechtsrüge); whether the reasoning is comprehensible under the rule of law and took account of all significant evidence that came up at the hearing (the plea of defects, Mängelrüge); whether every procedural rule at the main hearing was observed – for example the instruction to relatives on their right to refuse to testify (the procedural plea, Verfahrensrüge); and whether the law was correctly applied when fixing the sentence (the sentencing plea, Sanktionsrüge).

Appeal against the finding of guilt (Berufung wegen Schuld)

This is the remedy that comes closest to a common-law appeal on the facts – and it exists only against single-judge and district court judgments. It attacks the trial court’s assessment of the evidence (Beweiswürdigung). Austrian judges assess evidence freely, but that freedom has a limit: the reasoning must not contradict general life experience or the laws of logic. A judge may not reason, for instance, that tall people lie more often and are therefore not credible – circumstance A (height) does not, by the laws of logic, support conclusion B (dishonesty). Where the assessment of evidence is conceivable in the abstract but simply not comprehensible, the appeal against the finding of guilt is the tool to challenge it. Crucially, this remedy is not available against lay-assessor or jury court judgments.

Appeal against the sentence (Berufung wegen Strafe)

The “Strafberufung” challenges the severity of the sentence – including the question of whether all or part of it should be conditionally suspended (bedingt nachgesehen). Unlike the plea of nullity, here new facts and new evidence may be brought forward, for example about your personal circumstances since the trial. It is the appeal that remains open even when the finding of guilt itself cannot be touched.

The plea of nullity (Nichtigkeitsbeschwerde)

The plea of nullity is the remedy against the judgments of the lay-assessor court and the jury court, and it goes straight to the Supreme Court (Oberster Gerichtshof, OGH), which decides in a panel of five judges. It is not a second trial. You cannot bring new facts and you cannot depart from the findings of the judgment – you are bound to the facts the court established. A plea of nullity succeeds only where the judgment suffers from one of the grounds of nullity listed exhaustively in § 281 para 1 StPO.

This is the heart of the expectation correction. The persuasiveness of the trial court’s assessment of the evidence – whether it “believed” one witness over fifteen others – cannot be attacked before the Supreme Court through a plea of nullity. The nullity ground reaches the selection and completeness of the reasoning, not the trial court’s judgment on how convincing the evidence was. In its settled case-law the OGH stresses that this limit is repeatedly overlooked when remedies are filed. In practice, a successful plea of nullity usually leads to the judgment being annulled (a cassatory decision, kassatorische Entscheidung) and the case being sent back for a fresh trial; a decision on the merits by the Supreme Court itself (meritorische Entscheidung) is possible but rare.

Because the plea of nullity is so tightly bound to formal error, it is also the remedy for which a defense lawyer is mandatory (§ 61 para 1 no 6 StPO). This is not a document to draft from a template. If a promising nullity ground exists, it must be identified and pleaded precisely – and once the deadline has passed, it cannot be added.

Deadlines & suspensive effect

In an Austrian criminal appeal, deadlines decide everything. There are two, and they run in sequence: a short deadline to announce the remedy, and a longer one to execute it in writing. Both apply whether you file a Berufung or a Nichtigkeitsbeschwerde.

The two-step structure surprises many people used to a single filing deadline. First you announce – a short notice that you are challenging the judgment. Only afterwards, once the written judgment has been served on you, does the four-week clock for the detailed grounds begin. The official guidance of the Austrian authorities puts it plainly: the remedies must be announced at the district court or regional court within three days of the judgment being pronounced, and must then be executed in writing within four weeks of service of the written reasons.

Do you have to serve the sentence while the appeal runs?

As a rule, no. An appeal announced in time has suspensive effect: the judgment does not yet become legally final, and a criminal judgment becomes enforceable only once it is final (rechtskräftig). So while your appeal is pending, you do not, as a rule, begin serving a prison sentence and a fine is not yet due. There is one exception you control yourself – you may ask to begin serving a custodial sentence early (a provisional commencement of the sentence, vorläufiger Strafantritt). That is a strategic decision, and one to weigh carefully with a defense lawyer before taking it.

Can an appeal make things worse?

Generally no – Austria applies the prohibition of reformatio in peius (Verschlechterungsverbot). If only you appeal, the higher court may not impose a harsher outcome than the judgment you challenged, and any new judgment in a fresh round of proceedings may not be less favorable to you than the original. This is what makes it safe, as a rule, to defend a judgment you consider wrong.

There is a decisive condition: this protection applies only where the prosecution has not itself appealed. If the public prosecutor’s office (Staatsanwaltschaft) also files a remedy – often to seek a higher sentence – the judgment can be changed in either direction, in your favor or against you. Reading the prosecution’s move is therefore part of every appeal strategy: whether you are protected by the Verschlechterungsverbot depends on what the other side does within the same short deadlines.

Do you need a lawyer? Chances and costs

For a plea of nullity against a lay-assessor or jury court judgment, a defense lawyer is not optional – it is required by law (§ 61 para 1 no 6 StPO). For an appeal against a district court or single-judge judgment a lawyer is not strictly mandatory, but the drafting of a criminal appeal is the most formal and demanding part of the whole process, and a notice or a set of grounds that misses the mark cannot usually be repaired afterwards.

It helps to be honest about the odds. The prospects of a criminal appeal are, in general, rather modest: a higher court does not lightly interfere with an existing judgment unless there is a solid, objectively comprehensible reason to do so. That is precisely why an appeal belongs in experienced hands – someone who knows what the appellate courts weigh and what they will not touch, and who can tell a promising ground from a doomed one before the deadline runs.

What does an appeal cost?

The cost of a remedy depends above all on its type and the expected workload. A plea of nullity to the Supreme Court combined with an appeal to the Higher Regional Court involves more work – and a higher fee – than an appeal against the finding of guilt in a district court case. Both a flat-fee arrangement and an hourly-rate agreement are possible; the sensible first step is a clear-eyed assessment of whether an appeal has a realistic chance at all.

Frequently asked questions about criminal appeals in Austria

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