Request for continuation

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An application for continuation (sometimes referred to as a continuation application ) is a legal remedy under Austrian criminal procedure law with which the victim of a crime can request the prosecution to continue a suspended investigation .

Path of application for continuation

If the public prosecutor's office discontinues investigative proceedings against an accused (according to Sections 190–192 StPO ), the victim has the right to have this decision to discontinue judicially examined in terms of balanced legal protection. This is done by means of an application that is submitted to the public prosecutor and, if necessary, decided by the competent court. In principle, the public prosecutor's office has to notify the criminal police , the accused and the victim of its decision to terminate an investigation . From the time of notification, the victim has a 14-day period in which to submit a continuation request. If the victim was wrongly not notified of the termination, this period increases to three months from the termination of the proceedings.

As an exception, the legal protection officer in the Federal Ministry of Justice can apply for continuation of certain investigative proceedings. This primarily applies to proceedings by the Public Prosecutor's Office for Corruption and Corruption in which there is a particular public interest due to the importance of the crime or the person of the accused or in which legal issues of fundamental importance that have not yet been adequately clarified are assessed. In addition, the legal protection officer can apply for continuation even if the regional court would have jurisdiction in the main proceedings and no victim could be identified. In this case, the legal protection officer assumes the rights to which the victim is entitled.

The request for continuation must be justified by the victim and can relate to three reasons specified in Section 195 of the Code of Criminal Procedure: If the termination was unlawful (paragraph 1 no. 1), if there are significant concerns about the correctness of the facts on which the decision is based (Section 2) or if new facts or evidence are presented (Section 3). The public prosecutor's office can then initiate the continuation of the investigation. If it does not do so, it must submit the application with the relevant criminal act and an opinion on the setting to the competent court for a decision. The regional court then decides on the application in the form of a senate of three professional judges. If the court upholds the victim's request, the public prosecutor's office must in any case continue the investigation. There is no legal remedy against the decision of the court on continuation requests.

In the main proceedings , i.e. after a criminal complaint or an indictment has already been filed , there is no longer any possibility of filing for a continuation. If the prosecution withdraws from the prosecution at this stage of the proceedings, the victim as a private party may uphold the charges as a subsidiary prosecutor . The procedure is again different if the public prosecutor's office withdraws from the prosecution as part of a diversion . In this case, the victim has the right to comment before the final decision to refrain from prosecution, but no legal remedy of any kind against this decision. An application to continue the investigation or a subsidy charge are then no longer possible. There is also no possibility of submitting an application for continuation in proceedings against juveniles or young adults who fall under the Youth Courts Act 1988 . In these cases, the victim is not entitled, according to Section 44 (2 ) JGG, to request that the investigation process be continued.

statistics

From a statistical point of view, the number of requests for continuation is by no means small. In 2013, for example, 2,652 applications for continuation were submitted across Austria. Of these, the public prosecutor's office resumed the investigation of 258. In 2013, 2,308 applications were forwarded to the court for decision, of which the court approved the application in 213 cases. In 1,457 applications, the application was not followed by the court, 750 were rejected by the court at all (for example due to formal deficiencies, such as missing victim position or reason or exceeding the deadline). During the same period, the legal protection officer submitted six continuation requests.

In 2008, an evaluation by the Federal Ministry of Justice showed that around 9% of the requests for continuation were decided positively by the court. If one also includes the cases in which the public prosecutor's office voluntarily continued the investigation after the continuation application has been submitted, then one arrives at a success rate of continuation applications of around 14% throughout Austria.

literature

See also

Individual evidence

  1. ↑ Seiler: Criminal Procedure Law. 2010, margin no. 677.
  2. ↑ Seiler: Criminal Procedure Law. 2010, margin no. 680.
  3. ↑ Seiler: Criminal Procedure Law. 2010, margin no.698.
  4. ↑ Annex to the response to the inquiry 1877 / AB (XXV. GP) on the subject of continuation requests in criminal proceedings by Federal Minister Wolfgang Brandstetter . September 1, 2014, accessed June 14, 2015.
  5. ↑ Inquiry answer 1743 / AB (XXIV. GP) on the subject of a continuation application according to § 195 StPO by Federal Minister Claudia Bandion-Ortner . June 18, 2009, accessed June 14, 2015.