The news lands like a shock: a family member – or you yourself – has been taken into pre-trial detention (Untersuchungshaft). No conviction, and yet a person’s freedom is cut off from one moment to the next. Home, work, family – everything is thrown into the balance. While the outside world carries on, contact is only possible with the approval of the public prosecutor’s office (Staatsanwaltschaft).

Pre-trial detention is not a pre-judgment. It is a coercive measure that Austrian law permits only under strict conditions – and against which there are concrete ways to fight. But every one of them requires fast, strategic action. Anyone who understands the grounds for detention, the deadlines and the ways out gains room to manoeuvre that is quickly lost otherwise.

On this page I explain, as a criminal defense lawyer in Vienna, what pre-trial detention means, when it may be imposed, how the procedure runs step by step – and what you can do to end it. Detention regularly follows an arrest (Festnahme), often after a house search; the custody regime for extradition and the European Arrest Warrant is a separate one and is dealt with under extradition and the European Arrest Warrant.

What pre-trial detention means in Austria

Pre-trial detention (Untersuchungshaft) means that a person is taken into custody before the main trial (Hauptverhandlung) because of a serious criminal accusation. During detention, contact with the outside world is heavily restricted: a permission from the public prosecutor’s office is needed to be in touch with certain people at all – whether by telephone or as a visitor.

It is, without exaggeration, the most invasive measure the law-enforcement authorities and the courts can impose on a person. Someone who has not been convicted, who is presumed innocent, nevertheless sits in prison – often for weeks or months. That tension is precisely why Austrian law hedges pre-trial detention with strict conditions and short deadlines.

When it may be imposed

Pre-trial detention may be ordered only under conditions that the prosecution and the courts must observe very strictly. Its imposition and its continuation may take place only on the application of the public prosecutor’s office, and only where the accused

• is urgently suspected (dringender Tatverdacht) of a specific offence,
• has been questioned by the court on the matter and on the conditions for pre-trial detention, and
• one of the grounds for detention (Haftgründe) is present.

Even where these conditions are met, detention is not automatic. It may not be ordered or continued where it is disproportionate to the significance of the case or to the penalty to be expected, or where its purpose can be achieved by a milder means. This principle of proportionality is the anchor of every defense against detention.

The grounds for detention (Haftgründe)

A ground for detention exists where, on the basis of specific facts, there is a risk that the accused – if left at liberty – will behave in one of the ways set out below. Without at least one of these grounds, there can be no pre-trial detention. They are the central battleground of the defense.

Risk of re-offending in detail

The risk of re-offending is graded. It covers the danger that the accused will commit

• a criminal act with serious consequences directed against the same legal interest as the offence charged; or
• a criminal act with not merely trivial consequences against the same legal interest, where the accused has already once been convicted of such an act or is now accused of repeated or continued acts; or
• a criminal act carrying a penalty of more than six months‘ imprisonment against the same legal interest as the crimes for which he has already twice been convicted.

Experience shows that it does not take much for a court to assume a risk of re-offending. Particular weight is given where the accused poses a danger to the life and limb of others or where crimes are committed within a criminal or terrorist organisation. In practice, this ground is often assumed where there is urgent suspicion of a very serious act – robbery, and especially aggravated robbery, but also serious drug offences such as trafficking under § 28a SMG, or sexual offences such as rape or serious sexual abuse of minors. For less serious offences, whether the risk is assumed depends heavily on any prior record and on whether the accused is alleged to have committed several acts. The court must also consider how far the danger has diminished because the circumstances of the alleged offence have changed.

Mandatory pre-trial detention: repealed since 2023

Until 2022, Austrian law provided for mandatory pre-trial detention (obligatorische Untersuchungshaft) for crimes carrying at least ten years‘ imprisonment (§ 173 para 6 StPO). The Constitutional Court repealed this provision as unconstitutional (VfGH 1 December 2022, G 53/2022; BGBl I No 1/2023).

Today, even in murder cases, detention requires a concrete ground for detention – though in practice courts almost always find one where the suspicion concerns murder or attempted murder. Precisely here, early and precise defense work is decisive.

How pre-trial detention is imposed

From the arrest to the ruling, the procedure passes through several tightly timed stages. Each one is a point at which the defense can intervene – and the earlier a defense lawyer is involved, the more can be achieved.

Arrest and the prosecution’s order

Once a person has been arrested, the prosecution weighs whether to issue an order for pre-trial detention. If it concludes that the case cannot be reported while the person is at liberty and that detention is required, it issues the order, and the arrested person is taken to the prison (Justizanstalt – in Vienna, the Josefstadt prison). This step must happen within 48 hours of the arrest. If the prosecution has issued no order by then, the arrested person must be released.

Before the detention judge

In the prison, the accused must be brought within 48 hours before a detention and legal-protection judge (Haft- und Rechtsschutzrichter). After questioning the accused and explaining the accusations and the reasons for a possible detention, the judge decides whether pre-trial detention is imposed. This is the first real opportunity: the accused can seek to convince the judge that there is no ground for detention. If the judge takes a different view, detention is imposed by decision (Beschluss) – initially for two weeks.

The detention hearings (Haftverhandlungen)

Within those two weeks a detention hearing must be scheduled, at which it is decided whether detention is extended. A defense lawyer attends this hearing – provided through legal aid (Verfahrenshilfe) if necessary – as does a representative of the prosecution. Again the accused, together with the defense lawyer, may try to persuade the judge that no ground for detention exists. If the judge is not persuaded, detention is extended for one month. At the next hearing, which must take place within that month, it is decided whether to extend for a further two months.

From the moment the prosecution files the application for punishment (Strafantrag) or the indictment (Anklageschrift) with the court, no further detention hearings take place. The accused then remains in custody until the main trial.

The deadlines at a glance

In detention proceedings, deadlines decide. They cap how long custody may last without a fresh review and give the defense fixed moments to act. The most important ones:

How to get out of pre-trial detention

Detention is not a dead end. Austrian law provides several routes out – but each has its own logic, and some carry strategic risks that only a defense lawyer can properly weigh.

Application for release (Enthaftungsantrag)

The accused is free to file an application for release at any time. A detention hearing must then be scheduled within a reasonable period. If the application is filed after the application for punishment or the indictment has been lodged, it is no longer the detention judge but the judge responsible for the main trial who decides. An application for release makes sense only where the accused can put forward convincing evidence to refute one of the grounds for detention that the court has assumed. If the judge cannot be persuaded, the rejecting decision extends detention by the applicable period.

Detention appeal (Haftbeschwerde)

The accused may also lodge an appeal against the decision imposing – and against the decision continuing – pre-trial detention. In the presence of the defense lawyer, the accused is asked whether he wishes to waive a remedy against the decision. At that point he can either lodge the appeal immediately or ask for three days‘ time to consider (Bedenkzeit). Once a detention appeal is filed, the entire file is submitted to the Higher Regional Court (Oberlandesgericht), which decides whether to uphold it. If the appeal succeeds, the accused must be released without delay. If it is dismissed, the detention period is automatically extended.

Fundamental-rights appeal (Grundrechtsbeschwerde)

Against the decision of the Higher Regional Court, the accused may bring a fundamental-rights appeal (Grundrechtsbeschwerde) to the Supreme Court (Oberster Gerichtshof, OGH). The Supreme Court examines whether the fundamental right to liberty has been infringed by the imposition or continuation of detention. Before the Supreme Court, no evidence may be introduced – it is purely a legal review of the decisions of the lower courts.

Milder means instead of custody

Detention can be substituted by milder means (gelindere Mittel). At the detention hearing, the defense lawyer applies for release under such conditions. Where the purpose of detention can be achieved by a less severe measure, custody must give way to it. The following count as milder means:

• the formal promise (Gelöbnis) not to flee, not to hide, and not to leave one’s place of residence without the prosecution’s permission, until the criminal proceedings are finally concluded;
• the promise to make no attempt to hinder the investigation;
• in cases of violence, the promise to refrain from any contact with the victim, together with the instruction not to enter a particular dwelling and its immediate surroundings, or not to breach an existing barring order (Betretungsverbot) or interim injunction – including the surrender of all keys to the dwelling concerned;
• the instruction to report any change of residence, or to report at set intervals to the criminal police or another body;
• the temporary surrender of identity, vehicle or other authorisation documents;
• provisional probation assistance (vorläufige Bewährungshilfe);
• the provision of a security (Sicherheitsleistung) under §§ 180 and 181 StPO – in practice, bail;
• with the accused’s consent, the instruction to undergo medical treatment, withdrawal therapy or psychotherapy.

In practice these instructions are usually combined. The formal promise, the instruction to undergo a health-related measure, and the instruction to keep away from particular people play the largest role. The accused can be released on these conditions; if he does not comply with them, he can be taken back into custody.

After the arrest: the first steps

When a person is arrested and pre-trial detention is on the table, a great deal is decided in the first hours. The most important steps, in the right order:

1. Stay silent on the substance. Make no statements to the police about the accusation, its background or your contacts. Anything said can support the urgent-suspicion finding – and a ground for detention.
2. Bring in a defense lawyer at once. A lawyer will attend the detention hearing; one is provided through legal aid (Verfahrenshilfe) if you have none, but a self-chosen, experienced defense lawyer is preferable.
3. Attack the grounds for detention. Custody stands or falls with the Haftgründe. Fixed residence, orderly circumstances, changed conditions – these are the levers against a risk of flight or of re-offending.
4. Consider milder means. A promise, reporting duties, the surrender of documents or a security can replace custody. Have your defense lawyer apply for them at the hearing.
5. Weigh a detention appeal carefully. A Haftbeschwerde can end custody – but it can also produce a prejudgment on the suspicion. Decide this together with your defense lawyer, never alone.

Because relatives usually cannot reach a person in custody by telephone, it is friends and family who should arrange an appointment, so that the defense lawyer can visit the person concerned in the detention facility. If you or someone close to you is affected, do not wait for the next hearing to act.

Frequently asked questions on pre-trial detention

Related articles