Beijing Law Review, 2012, 3, 213-216 Published Online December 2012 ( 213
Legal Assistance for Accused and Victims in Austrian
Pre-Trial Criminal Proceedings
Alois Birklbauer, Richard Soyer, Christoph Weber
Faculty of Law, Johannes Kepler University of Linz, Linz, Austria.
Received September 18th, 2012; revised October 16th, 2012; accepted October 27th, 2012
Based on two research projects this paper evaluates the legal assistance for accused and victims in pre-trial criminal pro-
ceedings in Austria after the implementation of a revised law on pre-trial proceedings in 2008. The research projects
combined legal and empirical research. The project for scientific evaluation of the realization of the criminal p rocedure
reform law (PEUS) analysed approx. 5000 pre-trial files and has additionally conducted 85 interv iews with police offi-
cers, prosecutors, judges and lawyers. The results of the empirical research provide insight into which ex tent in practice
in Austrian criminal proceedings the accused has access to legal advise. The paper comes to the conclusion that by
strengthening victims’ access to legal representation in Austrian criminal proceedings in numerous cases the actual divi-
sion of power to influence the proceedings has shifted from the accused to the victim.
Keywords: Pre-Trial Criminal Procedure; Legal Assistance; Accused; Victim; Law in Practice
1. Introduction
According to the Austrian Code of Criminal Procedure
(CCP) the accused and the victim have the right to legal
advice. This right is important for law enforcement, es-
pecially at the beginning of the procedure, where the
course for the further procedure is set. Police and public
prosecutors are obliged to start pre-trial investigations, if
they find sufficient indications that a criminal offence
has been committed. The Austrian criminal procedure is
based on the principle of objectivity and on the prin ciple
of ex-officio investigations (§ 3 CCP). Both the accused
and the victim have the right to information upon the
allegation and their rights (§§ 6 (2), 10 (2) CCP). The
proper understanding of the function of the law enforce-
ment agencies requires constant critical scrutinising of
investigation steps, a task which is generally supported
by the actions of legal advisers, e.g. by filing motions to
admit further evidence.
In the course of two empirical research projects which
have been carried out during the last years in Austria, the
role of legal assistance at the beginning of pre-trial pro-
ceedings has been analysed. The project for scientific
evaluation of the realization of the criminal procedure
reform law (PEUS) analysed appr. 5000 pre-trial files
and has additionally co nducted 85 interviews with police
officers, prosecutors, judges and lawyers [1,2].
The project Pre-trial Emergency Defence (PED) has
investigated access to defence rights and legal assistance
at the beginning of criminal proceedings in Germany,
Croatia, Slovenia and Austria. Data was collected by means
of questionnaires handed out to the parties to the pro-
ceedings (appr. 770 were returned). Furthermore, 86 in-
terviews with policemen, prosecutors, judges, lawyers
and in Austria also with accused have been conducted [3,
The results of these empirical projects provide insight
to which extent in practice in criminal proceedings the
accused has access to a legal adviser. PEUS also ex-
plored to which extent victims make use of legal assis-
tance, which may be provided to the victim free of charge
within the legal framework (§§ 66 (2), 67 (2 ) CCP).
The PEUS results regarding the accused’s and the vic-
tims’ right to legal assistance as well as identified rela-
tions and special interactions shall be presented in the
2. The Parties to the Proceedings and Their
Right to Legal Assistance
2.1. The Right to Legal Assistance for the
Accused—An Overview
The right to information about his/her rights as well as
the allegations (§ 50 CCP) and in this context the right to
bring in a defence lawyer (§ 58 CCP) or, respectively,
being provided with legal aid in the case of social indi-
gence and/or if required “in the interests of justice” (§ 61
Copyright © 2012 SciRes. BLR
Legal Assistance for Accused and Victims in Austrian Pre-Trial Criminal Proceedings
(2) CCP), further the right to participate in certain inves-
tigative measures (§§ 150, 165 (2) CCP) are considered
as the fundamental procedural rights of the accused. Fur-
thermore, the right to make a statement (§ 7 CCP), the
right to file motions to admit evidence (§ 55 CCP) and
the right to legal remedies pre-trial (§§ 67, 106, 108 CCP)
as well as the right to appeal against the judgment (§§
281 ff CCP) should be named.
2.2. The Right to Legal Assistance for the
Victim—An Overview
It should be noted that the CCP defines the term “victim”
rather extensively (see § 65 No. 1 CCP). Thus, victims
are not only direct victims of violence or sexual criminal
offences, but also indirect victims, meaning certain rela-
tives of a killed person and anyone else who could have
suffered a loss or damage due to the criminal offence or
who could have been impaired in his/her legally pro-
tected interests. Based on this bro ad definition all natural
persons and legal entities entitled to claim indemnifica-
tion may be a victim according to the CCP.
§ 66 (1) CCP gives an overview of the most impor-
tant rights, to which all different types of victims are en-
titled. Thus, the victim has the right to be repr esented by
counsel (§ 73 CCP), the right to information about the
subject of the procedure and his/her rights (§ 70 (1) CCP),
the right to have access to the file (§ 68 CCP), the right
to participate in certain investigative measures (§§ 150,
165 (2) CCP), the right to pre-trial remedies (§§ 87, 106,
195 CCP) and to some extent also the right to appeal
against the judgement. In 2008 the possibility for the vic-
tim to appeal for nullity against a verdict of not guilty
was established within narrow limits (§ 282 (2) CCP).
Especially this last remedy is not undisputed since it al-
lows for two parties to the proceedings to challenge the
verdict to the detriment of the defendant, thereby possi-
bly distorting the balance of the procedure [1].
These central rights, which are applicable to all types
of victims in the criminal procedure, have to be differen-
tiated from the psycho-social and legal accompaniment
(§ 66 (2) CPP) which is classified as special right exclu-
sively of victims in the sense of § 65 No. 1 lit. a and b CPP.
No such provisions are made for the sole purpose to as-
sert compensation claims. However, there is a “flaw” in
the system of accompaniment during proceedings. Even
though the law provides for a subjective right, it is lac-
king legal enforcement possibilities.
Certain private associations are funded annually by the
Federal Ministry of Justice for the implementation of
psycho-social and legal accompaniment during criminal
proceedings. Their services, however, are limited to these
monetary funds. Ultimately, victims do not have any
means to enforce their right to legal accompaniment once
these financial resources have been exhausted [5].
3. Legal Assistance in Practice and Their
Role in the Proceedings
3.1. Legal Adviser for the Accused
According to the results of proj ect PEUS less than 8% of
the accused were represented by a legal adviser. Thus, in
the vast majority of cases there is no legal support (Tabl e
1). There is, however, a remarkable difference between
proceedings within the jurisdiction of district courts (“B-
AZ-proceedings”)1 and those before regional courts (“St-
proceedings”), but also in St-proceedings not even one
fifth of all cases are supported by a lawyer.
These figures are significantly lower even when stu-
dying the number of consultations of a legal adviser in
particular for the accused’s questioning. Altogether not
even 2% of all questionings of accused are made in the
presence of a legal adviser. This figure stays as low as
3% in St-proceedings as well (see Table 2).
3.2. Legal Adviser for the Victim
7.2% of the victims are represented by a legal adviser
during investigative proceedings. In BAZ-proceedings
the share of legal representation is higher on the victim’s
side than on the accused’s whereas in St-proceedings the
situation is inverted (see Table 3). The reason for this
might be that in less servere areas of crime (e.g. bodily
injury in street traffic) many insurance companies pro-
vide a legal adviser for the victim, since the proceedings
are closely associated with their obligations to pay in-
surance benefits. Aside from that, the higher share of
legal representation in BAZ-proceedings can also be ex-
plained by the fact that often corporate counsels enforce
the victim’s interests, should the victim be a legal entity
rather than a natural person. The reason why victims as
well as the accused are more likely to be represented in
St- rather than BAZ-proceedings can be seen in the fact
that the vast majority of serious violent and sex crimes
fall within the jurisdiction of regional cour ts, where legal
accompaniment is more common than within the juris-
diction of distr i ct court s.
3.3. Legal Adviser for the Accused and the
Victim in the Same Proceedings
If you compare the relation between legal representation
of the accused and the victim, you find some cases, in
which the accused is represented by a lawyer during the
investigative proceedings, whereas the victim is not (see
Table 4). These cases amount to 12% in St-proceedings
and 2.4% in BAZ-proceedings. On the other hand, in more
than 7% of St-proceedings the victim is represented,
while the accused has no legal adviser. In BAZ-proceed-
ings this share accounts for4.5%. That means that es-
1These are criminal actions witha maximum jail term of up to one year
30 CPP
Copyright © 2012 SciRes. BLR
Legal Assistance for Accused and Victims in Austrian Pre-Trial Criminal Proceedings 215
Table 1. Accused is represented by a lawyer (percentages in columns).
Are there indications in the file, that the accused was represented by a legal adviser? BAZ St Total
Yes 3.7 18.1 7.9
No 96.3 81.9 92.1
Total 100.0 (3338) 100.0 (1352) 100.0 (4690)
Differenc es between BAZ- and St-proceedings are significant at p < 0.001; N = values in brackets.
Table 2. Presence of a legal adviser during the questioning of an accused (percentages in columns).
Defence lawyer present during questioning BAZ St Total
Yes 1.2 3.0 1.8
No 98.8 97.0 98.2
Total 100.0 (2879) 100.0 (1351) 100.0 (4230)
Differenc es between BAZ- and St-proceedings are signific ant at p < 0.001; number of qu estionings in total = values in brackets.
Table 3. Victim represented by legal adviser (percentages in columns).
Are there any indications in the file, that the victim is represented by a legal adviser? BAZ St Total
Yes 5.8 10.9 7.2
No 94.4 89.1 92.3
Total 100.0 (2272)100.0 (1032) 100.0 (3766)
Differences between BAZ- and St-proceedings are significant at p < 0.001; Cases with victims = values in brackets.
Table 4. Representation of victims and accused by lawyers in cases with only one accused (total percentage).
Accused represented by lawyer Victim represented by lawyer Victim represented by lawyer
Yes No Total Yes No Total
Yes 1.0 2.4 3.4 3.6 12.1 15.6
No 4.5 92.2 96.6 7.1 77.3 84.4
Total 5.5 94.5 100.0 (2321)10.6 89.4 100.0 (780)
Cases with v ictims and only one acc u se d = values in bra ckets.
pecially in St-proceedings there are some cases, in which
the unrepresented accused is facing a represented victim.
This occurs even more so in BAZ-proceedings, which
again can be explai ned with corporate counsels.
3.4. Legal Advisers and Access to Files
It is striking that in 99% of all cases the accused did not
make use of his right to inspect the files if he/she was
unrepresented (see Table 5). If the accused had a legal
adviser, access to the file has been requested in only one
third of all cases of St-proceedings according to project
PEUS. This surprising result, however, has been put into
perspective when interv iews with legal practitioners have
shown that access to the file is not always documented as
thoroughly as should be. At some public prosecutor’s of-
fices only the refusal of access to files is being recorded
but not if the right is being granted.
Likewise, the evaluation of the inspection of files by
victims and their legal advisers shows that in more than
90% of all 69 cases access to files has been requested by
the legal adviser rather than by the victim (see Table 6).
3.5. Legal Remedies in Pre-Trial Investigative
It has been found that remedies do not occur frequently in
pre-trial investigative proceed ings. If remedial actions are
taken, it is mainly don e so by the legal adviser. The Table
analysis of nearly 5000 investigative proceedings has
shown that in only two of those 5000 cases objections
have been raised against investigative measures of the
police or the prosecution (§ 106 CPP) and both have been
raised by a lawyer. Complaints have been made in eleven
cases and again more than half of those have been lodged
by a lawyer. These findings lead to the assumption that
Copyright © 2012 SciRes. BLR
Legal Assistance for Accused and Victims in Austrian Pre-Trial Criminal Proceedings
Table 5. Access to files by represented accused (percentages
in rows).
represented by a
legal adviser BAZ St
Access to files requested Access to files requested
Yes No Total Yes No Total
Yes 64.5 35.5 100.0 (124) 37.2 62.8 100.0 (242)
No 0.5 99.5 100.0 (3210) 0.8 99.2 100.0 (1096)
Total 2.9 97.1 100.0 (3334) 7.4 92.6 100.0 (1338)
For BAZ- as well as ST-proceedings the differences between represented
and non-represented accused are significant at p < 0.001, N 0 values in
Table 6. Access to files by the victim and their legal adviser
(percentages in columns).
Who requested access to files? BAZ St Total
Victim 2.4 10.74.3
Legal adviser 97.6 89.395.7
Total 100.0
(45) 100.0
(25) 100.0
Differen ces between BAZ- and St-p roceedings are n ot signif icant, p > 0.0 5;
number of access to files = values in brackets.
there is a strong connection between legal representation
and the taking of remedies.
If this is true, the fact that in some cases the victim is
being represented whereas the accused is not, takes on
new significance.
4. Conclusions and Crime Policy Proposals
When strengthening the rights of victims, it has to be em-
phasized that the main interest of criminal and criminal
procedure law is not to satisfy the victim’s interests, but
to clarify crimes and react to them. Indirectly, criminal
law serves as a means to control the actions of all mem-
bers of society.
The principle of fairness in criminal procedure law de-
mands to grant the accused possibilities to defend him/
her against the public prosecutor’s actions (Article 6
In order to keep the prosecutorial/police power of the
state tolerable, the law enforcement agencies are required
to maintain outmost objectivity and the principle of exami-
nation of the facts by the office of its own motion (ex-
officio investigation) and the “manuduction obligation”
When expanding the rights of victims during the last
years the legislator has tried to keep a certain “balance in
relation to the rights of the accused”. The different op-
tions to access legal support, which can be explained for
example by the fact that the accused has the right to legal
representation only if he/she is eligible due to his/her so-
cial needs whereas the victim may be granted legal ac-
companiment regardless of these social requirements,2
have led to the fact that in numerous cases the actual di-
vision of power to influence the proceedings has shifted
from the accused to the victim.
Due to the correlation between the exercise of proce-
dural rights and the use of a legal adviser, we have to
assume that ultimately the “manuduction obligation” of
the law enforcement agencies cannot assure procedural
fairness in the sense of a balance of interests. In order to
restore the balance of all parties to the procedure, access
to legal advisers has to be improved for the accused. In
the interest of the proper administration of justice, access
to legal aid has to be facilitated in a way that at least in
cases where the victim is represented in pre-trial investi-
gative proceedings the accused should be granted legal
advice, too, if he/she is eligible due to his/her social
needs. In addition to that, cases of necessary defence (or
legal aid) in difficult cases should be extended to pre-trial
investigative pro ceedings.
In the course of the planned reform of the main and
appellate procedures in Austria, where a possible exten-
sion of the rights of victims will be discussed, it should
be paid particular attention to the balance between the
parties to the procedure. Thus, the emphasis should be
put on the “care for the victim during the proceedings”
rather than the victim’s right to remedies to enforce an
“alleged right to inflict pun ishment”.
[1] A. Birklbauer, C. Weber, B. Starzer, W. Stangl and R.
Soyer, “Die Rechtspraxis des Ermittlungsverfahrens nach
der Strafprozessreform. Zusammenfassung der Erge-
bnisse einer rechtstatsächlichen Untersuchung,” Öster-
reichische Juristenzeitung, Vol. 66, No. 19, 2011, pp.
[2] A. Birklbauer, W. Stangl, R. Soyer, C. Weber, B. Starzer,
H. Hirtenlehner, R. Gombots and W. Hammerschick, “Die
Rechtspraxis des Ermittlungsverfahrens nach der Straf-
prozessref orm. Eine recht sta tsächliche Untersuchung,” Neuer
Wissenschaftlicher Verlag, Vienna and Graz, 2011.
[3] S. Schumann, K. Bruckmüller, and R. Soyer, “Pre-Trial
Emergency Defence,” Neuer Wissenschaftlicher Verlag,
Intersentia, Vienna, Graz and Antwerp, 2012.
[4] S. Schumann, K. Bruckmüller and R. Soyer, “Assessing
Pre-Trial Access to Legal Advice—Results of a Com-
parative Legal and Empirical Study,” New Journal of
European Criminal Law, Vol. 3, No. 1, 2012, pp. 31-48.
[5] R. Kier, “§ 66 StPO,” In: H. Fuchs and E. Ratz, Eds.,
Wiener Kommentar zur Strafprozessordnung, Manz, Vi-
enna, 2009.
2Critical in this case for example R. Kier [5].
Copyright © 2012 SciRes. BLR