A summons from the police naming you as an accused. Or the criminal police (Kriminalpolizei) suddenly at your door with an order for a house search. For most people in Vienna and across Austria, this is the moment one of the most stressful experiences of their life begins: a criminal investigation.

And it is precisely now – in the first hours and days – that the most important dice are cast. A wrong word to the police, an ill-considered statement made without legal preparation, and the course is set – often against you. Because what many accused people do not know is this: in the investigation you hold far-reaching rights that you can and should use actively.

On this page I explain, as a criminal defense lawyer in Vienna, everything you need to know about the criminal investigation (Ermittlungsverfahren) in Austria – from the initial suspicion to discontinuation or indictment. With concrete practical tips, relevant Supreme Court (Oberster Gerichtshof, OGH) case law and clear recommendations for how to act.

What is a criminal investigation?

The investigation (Ermittlungsverfahren) is the first phase of every criminal case in Austria. It begins as soon as the criminal police or the public prosecutor’s office take up inquiries to clarify an initial suspicion (Anfangsverdacht) (§ 1 para 2 StPO). Austria has no formal „order to open“ proceedings – the case starts automatically with the first investigative act.

The aim of the investigation is to clarify the facts and the suspicion far enough for the prosecutor to decide between three possible outcomes: indictment, discontinuation of the proceedings, or diversion (a disposal without a conviction).

Initial suspicion – the threshold to enter

An initial suspicion exists where, on the basis of specific indications, it can be assumed that a criminal offence has been committed (§ 1 para 3 StPO). Those indications can come from various sources: criminal complaints by private individuals, official observations by the police, anonymous tips, administrative checks or findings from other proceedings.

Mere assumptions, speculation or vague hints are not enough. The indications must be specific, verifiable and point to a concrete offence. Where there is no initial suspicion, the prosecutor may not open an investigation – the complaint is „laid aside“.

Suspect, accused, indicted person – the difference

The Austrian Code of Criminal Procedure (Strafprozessordnung, StPO) distinguishes three roles a person can take in criminal proceedings.

Both suspects and accused persons hold comprehensive procedural rights under § 49 StPO. The decisive difference: only with the status of accused does the person become an active participant in the proceedings, with the full range of defense rights.

Who runs the investigation: prosecutor, police and judge

The investigation is led by the public prosecutor’s office (§ 101 para 1 StPO). The prosecutor decides on the strategy, issues instructions to the criminal police and ultimately determines how the case ends. The criminal police carry out the concrete acts – interrogations, house searches, seizures – and report back to the prosecutor. Grave measures that interfere with fundamental rights require, in addition, the authorisation of the judge for detention and legal protection (Haft- und Rechtsschutzrichter).

Important: the prosecuting authorities are bound by the duty of objectivity (Objektivitätsgebot). They must gather exonerating evidence with the same care as incriminating evidence (§ 3 StPO). In practice, however, an investigative tendency to the accused’s disadvantage often shows itself – one more reason to bring in a defense lawyer early.

How it typically unfolds

In most cases the person concerned learns of the investigation only when they receive a summons as an accused or when a coercive measure – such as a house search – is carried out. The authorities‘ duty to inform can be postponed for as long as the purpose of the investigation would be endangered.

Once the inquiries are complete, the criminal police draw up a final report to the prosecutor. The prosecutor weighs the evidence and takes the decision: discontinuation, diversion or indictment.

Investigative measures at a glance

The investigation knows a wide range of measures that can be used to clarify the facts. Every measure must be proportionate: the interference with the rights of the person concerned must stand in an appropriate relation to the gravity of the offence and the degree of suspicion (§ 5 StPO). Among several measures that would achieve the aim, the least intrusive must be chosen.

Open measures

Covert measures

Alongside the open measures, the StPO also allows covert inquiries that are carried out without the knowledge of the person concerned.

Your rights as an accused (§ 49 StPO)

Austrian criminal procedure grants accused persons comprehensive rights. You are not merely the object of the investigation, but an active participant. These rights are anchored in § 49 StPO and are yours from the moment you are treated as an accused.

The interrogation: speak or stay silent?

The questioning of the accused is the central moment of the investigation – and at the same time the most dangerous. This is where most of the far-reaching mistakes are made, mistakes that later can no longer be undone.

Do I have to appear at the police station?

Yes. As a rule you must comply with a summons to be questioned as an accused. That does not mean, however, that you have to make a statement there. The duty to appear and the right to remain silent are two different things.

The right to remain silent

You have the constitutionally guaranteed right to make no statement, without any disadvantage arising from it. This right is comprehensive – you do not have to incriminate yourself (nemo tenetur se ipsum accusare). You must be cautioned about this right at the start of the questioning.

When can a statement make sense?

In certain cases a well-prepared statement – ideally in the form of a written submission – can be strategically sensible. Such a submission has the advantage of being considered, precise and legally controlled, without the pressure of immediate questioning. But that decision should always be taken only after full access to the file and consultation with your defense lawyer.

Mandatory defense

In certain cases the law requires the involvement of a defense lawyer as a matter of obligation (§ 61 StPO) – for example for serious offences (Verbrechen) carrying more than three years‘ imprisonment, for juveniles in custody, or for questioning in connection with an arrest. If the accused cannot afford a lawyer, legal-aid defense counsel is appointed.

Legal protection during the investigation

An essential point that most accused do not know: you can actively resist unlawful acts of investigation – while the investigation is still running, not only at trial.

Objection for violation of rights (§ 106 StPO)

Any person who claims to have been violated in a subjective right in the investigation by the criminal police or the prosecutor can raise an objection for violation of rights. It is filed with the prosecutor, who must either comply with it or submit it to the court for decision.

If the court upholds the objection, it can give the prosecutor binding instructions as to how the lawful state is to be restored (§ 107 para 4 StPO).

Application for discontinuation (§ 108 StPO)

The accused can apply to the prosecutor for the discontinuation of the investigation – in plain terms, applying to have the charges dropped – and thereby force a judicial decision on the matter. The court must discontinue the proceedings where the act is not punishable by a court or prosecution is legally inadmissible, or where the existing suspicion – given its urgency and weight and the duration and scope of the proceedings – does not justify continuing the investigation and no intensification of the suspicion is to be expected (§ 108 para 2 StPO).

Complaint against judicial decisions

Against decisions of the judge for detention and legal protection – such as the authorisation of a house search or the imposition of pre-trial detention (Untersuchungshaft, in German) – both the accused and the prosecutor may lodge a complaint (Beschwerde) to the Higher Regional Court (Oberlandesgericht).

How the investigation ends

The investigation can end in three ways – and in no other stage of the proceedings does the accused have as much room to shape the outcome as here.

1. Discontinuation (§§ 190–192 StPO). For English-speaking clients, this is what getting your case dropped looks like under Austrian law. The prosecutor must discontinue the investigation where there is no factual reason for further prosecution, where the act is not punishable by a court, where prosecution is legally inadmissible (for example on account of limitation), or where the accusation does not hold and the evidence is insufficient for a conviction. Discontinuation is the best possible result for the accused: no criminal-record entry, no public trial, no conviction. An experienced defense lawyer works towards it deliberately – through exonerating motions for evidence, written submissions and strategic communication with the prosecutor.
2. Diversion (§§ 198 ff StPO). Diversion is an alternative to indictment in which the proceedings end without a finding of guilt. The prosecutor can offer a diversionary disposal where certain conditions are met: the offence carries at most five years‘ imprisonment; the accused’s guilt is not to be regarded as severe; in principle no one has died as a result of the act; and punishment does not appear necessary (for reasons of general and individual deterrence). The possible diversionary measures are: payment of a fine, community service, a probationary period with probation assistance, or a victim-offender settlement (out-of-court mediation). After a successful diversion the prosecutor withdraws from prosecution – no entry in the criminal record.
3. Indictment. Where the results of the investigation point to a conviction, the prosecutor brings a charge. Depending on the gravity of the offence this is done by way of an application for punishment (Strafantrag) at the District Court (offences carrying up to one year), or by an indictment (Anklageschrift, in German) at the Regional Court.

Duration and maximum length of the investigation

One of the most frequent questions from accused persons: how long may this take? The short answer: there is a statutory maximum, but it is not an automatic end.

The duty to expedite (§ 9 StPO)

The StPO obliges all prosecuting authorities to conduct the proceedings within a reasonable time. This duty of expedition also follows from Article 6 ECHR (the right to a fair trial within a reasonable time).

Maximum length: 2 years (§ 108 StPO)

Under § 108 StPO the investigation may in principle last no longer than two years. On the accused’s application, the court reviews the length of the proceedings (§ 108 paras 2–4 StPO) and decides whether they are to be discontinued or whether the period is to be extended by up to two years (§ 108 para 5 StPO). Only where an already extended period is exceeded again must the prosecutor submit the file to the court of its own motion (§ 108 para 6 StPO).

Defense strategy in the investigation

Compared with the trial, the investigation offers the greatest scope for a professional defense. Whoever fails to use that scope gives away valuable chances. In practice, the defense proceeds in a clear order:

1. Access to the file. The foundation of every defense strategy is full inspection of the file held by the police and the prosecutor. Only once you know what evidence exists against you can you build a sound strategy.
2. Analysis of the evidence. An experienced defense lawyer analyses the evidence for weak points: are there contradictions in the witness statements? Were investigative measures carried out unlawfully? Are exonerating inquiries missing?
3. Submission and motions for evidence. Through a written submission and targeted motions for evidence (for example the examination of exonerating witnesses or the obtaining of an expert opinion), the defense can actively influence the direction of the investigation – with the aim of a discontinuation.
4. Making use of legal protection. Unlawful measures are challenged at once – by an objection for violation of rights (§ 106 StPO), a complaint against judicial decisions, or an application for discontinuation (§ 108 StPO).
5. Examining the diversion options. Where a discontinuation is not realistic, the defense examines whether a diversionary disposal comes into question – and prepares the client for it strategically.
6. Preparing for every scenario. Should an indictment loom, preparation for the trial begins already in the investigation – because that is where the decisive course is set.

Frequently asked questions about the criminal investigation

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