Diversion (Austria)

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The diversion is the ability of the prosecutor or the court, on the implementation of a formal at sufficiently clarified facts criminal proceedings to waive. In the case of diversion, the accused or the accused receives the offer to submit to an onerous measure (e.g. community service). The diversion on the part of the public prosecutor's office is to be distinguished from the bringing of charges and the termination of criminal proceedings .

The accused may not be in a worse position when the proceedings are terminated by diversion than in formal criminal proceedings.

The provisions on diversion in Austria can be found in the Austrian Code of Criminal Procedure (StPO).

The individual diversion measures according to the law are:

  • Payment of a sum of money (§ 200 StPO)
  • Charitable services (§ 201 StPO)
  • Trial period (§ 203 StPO)
  • Probationary period with the addition of a probation officer (§ 203 StPO)
  • Compensation for offenses (§ 204 StPO)

A combination of several diversion variants is not permitted. If there are several criminal offenses that are in real competition with one another , these can be dealt with individually and separately in a diverse manner.

General

Diversion cannot be proposed arbitrarily, rather it depends on certain requirements (Section 198, Paragraph 1):

  • the facts are sufficiently clarified
  • discontinuation of the proceedings according to Sections 190 and 192 is out of the question
  • With regard to the diversion measure, no punishment is required for either special or general preventive reasons .

Diversion in the case of serious criminal offenses in accordance with Section 198 (2) is therefore fundamentally excluded. These include offenses

  • which fall under the jurisdiction of the regional court as a lay judge or jury
  • where the suspect's guilt is to be regarded as serious according to § 32 StGB (this is to be assumed if the offense is repeated) or
  • which result in the death of a person .

In principle, all criminal offenses that provide for a prison sentence of a maximum of five years remain.

An exception is juvenile criminal law, where diversion is also permissible in the case of criminal offenses which fall within the jurisdiction of the lay judge or jury and / or which resulted in the death of a person who was negligently killed as a family member of the accused and a punishment with regard to the serious psychological stress caused by the death of the relatives in the accused does not appear necessary (Section 7 JGG ).

In addition, key witnesses can, under certain conditions, demand that the criminal proceedings pending against them be dealt with by diversion. Sections 209a, 209b StPO were extended in January 2017 to December 31, 2021.

Furthermore, the diversion must be voluntary and must not be forced. The accused must be informed that his consent to the diversion measures mentioned is required and he can demand the continuation of the criminal proceedings, about the other circumstances that may result in the proceedings being continued (Section 207), and about the need for a lump sum contribution (§ 388).

After diversion proceedings have taken place, the accused is not deemed to have a criminal record and his presumption of innocence remains in place (unless a legally binding judicial decision has been made). Consent to diversion does not count as a confession or admission of guilt.

The victim must be notified of the diversion (Section 208 (3)). It cannot raise a subsidiarity charge (Section 72) and also does not have the right to demand that the proceedings be continued and thus a review of the diversion decision by the court (Section 195 (1)). According to § 206, however, the interests of the victim must always be safeguarded in the event of a diversion; they must also be instructed about their rights and heard before the diversion.

Payment of a sum of money (§ 200 StPO)

The proposed monetary amount cannot exceed the amount that would correspond to a fine of 180 daily rates plus the reimbursable costs of criminal proceedings in the event of conviction. It must be paid within 14 days of the notification from the public prosecutor's office. If this is not possible for the accused, he can be allowed to defer payment or to pay in installments. Upon request, the stipulated monetary amount can also be reassessed (Section 208 (2)). The public prosecutor's office can also withdraw from the prosecution if the accused repairs the damage caused by the offense.

Charitable services (§ 201 StPO)

Under the conditions of Section 198, the public prosecutor's office can temporarily withdraw from the prosecution of a criminal offense if the accused has expressly declared himself ready to provide charitable services free of charge within a period of maximum six months to be determined. Charitable services should express the willingness of the accused to stand up for the crime. They are to be provided in their free time at a suitable institution with which the agreement is to be established. Insofar as it cannot be waived for special reasons, the withdrawal from the prosecution after charitable services is also to be made dependent on the accused compensating for the damage resulting from the act within a period to be determined of a maximum of six months or otherwise to compensate for the consequences contributes to the act and proves this immediately. Charitable services may not take more than eight hours a day, no more than 40 hours a week and no more than 240 hours in total; Simultaneous training and further education or employment of the accused must be taken into account. Charitable services that would represent an unreasonable interference with the personal rights or the lifestyle of the accused are not permitted.

The heads of the public prosecutor's offices each have to keep a list of institutions that are suitable for the provision of charitable services and, if necessary, to supplement it (Section 202). After the charitable services have been rendered and any consequences of the offense have been settled, the public prosecutor must finally withdraw from the prosecution, unless the proceedings are to be continued retrospectively in accordance with Section 205.

Trial period (§ 203 StPO)

The public prosecutor's office can temporarily withdraw from the prosecution of a criminal offense by specifying a probation period of one to two years. The trial period begins with the delivery of the notification of temporary withdrawal from persecution. Insofar as this cannot be waived for special reasons, the provisional withdrawal from the prosecution must also be made dependent on the accused expressly declaring himself ready to fulfill certain obligations during the probationary period, which could be issued as instructions (Section 51 StGB) , and to be looked after by a probation officer (Section 52 StGB). In particular, the obligation to make good the damage incurred or to otherwise contribute to compensating for the consequences of the act comes into consideration. The accused has to bear the costs himself. After the probationary period has expired and any obligations have been fulfilled, the public prosecutor must finally withdraw from the prosecution, unless the proceedings are to be continued retrospectively in accordance with Section 205. If circumstances arise in the meantime that result in the elimination of the admissibility requirements for a diverse approach, regular criminal proceedings must be initiated or continued.

Compensation for offenses (§ 204 StPO)

The public prosecutor's office can withdraw from the prosecution of a criminal offense if the offense could directly impair a person's legal interests and the accused is prepared to stand up for the offense and to deal with its causes if he considers any consequences of the offense to be appropriate under the circumstances Way, in particular by making good the damage caused by the offense or otherwise contributing to the compensation of the consequences of the offense, and if, if necessary, entering into obligations that show that he is willing to refrain from behavior that has led to the offense in the future. The victim is to be involved in efforts to reconcile the offense, as far as he is willing to do so. A settlement is dependent on its consent, unless it is not granted for reasons that are not worth considering in criminal proceedings. In any case, his legitimate interests must be taken into account (Section 206).

The public prosecutor's office can request a conflict regulator to inform the victim and the accused about the possibility of a settlement of the offense as well as in accordance with Sections 206 and 207 and to guide and support them in their efforts to achieve such a settlement (Section 29a of the Probation Assistance Act).

The conflict regulator has to report to the public prosecutor's office about settlement agreements and to check their fulfillment. He has to submit a final report if the accused has fulfilled his obligations at least to the extent that, taking into account his other conduct, it can be assumed that he will continue to comply with the agreements, or if it can no longer be expected that a settlement will be reached.

Subsequent continuation or initiation of criminal proceedings (Section 205 StPO)

If the public prosecutor's office has resigned from the prosecution after successful diversion, continuation of the criminal proceedings is only permitted under the conditions of proper resumption (Section 352). Before such resignation, the criminal proceedings must be continued if the accused so requests. This can e.g. B. be the case if the accused believes he can prove his innocence in criminal proceedings. Otherwise the procedure can be continued if

  • the accused does not pay or provide the amount of money including any compensation for damages or the charitable services including any compensation for the consequences of the offense in full or in time ,
  • the accused does not adequately fulfill his obligations or persistently withdraws from the influence of the probation officer or
  • criminal proceedings are initiated against the accused before the end of the probationary period for another criminal offense. In this case, the subsequent continuation of the proceedings is permissible as soon as charges are brought against the accused for the new or newly emerged criminal offense, even for three months after the introduction, even if the probationary period has now expired. The subsequently continued criminal proceedings must, however, be terminated in accordance with the other requirements if the new criminal proceedings are terminated in any way other than a conviction.

The continuation of the proceedings is not mandatory in the cases of Paragraph 2 Nos. 1 to 3; in the cases of Paragraph 2 Nos. 2 and 3, it may be waived if the circumstances do not require it, making the accused more punishable To prevent actions. Incidentally, the continuation of the proceedings in the cases listed in paragraph 2 is only permissible, except under the conditions listed in items 1 to 3, if the accused does not accept the public prosecutor's proposal mentioned there. If the accused does not pay the amount of money in full or in time or if he cannot fulfill the obligations he has assumed in full or in good time because this would hit him unreasonably hard due to a significant change in the circumstances relevant to the amount of money or the type or scope of the obligations , so the public prosecutor's office can change the amount of money or the obligation appropriately.

Obligations that the accused assumed and payments that he has agreed to make become irrelevant if the proceedings are subsequently continued. The probation service ends; the provisional probation service remains unaffected. Amounts of money that the accused has paid (Section 200) are to be offset against a fine that has not been conditionally waived under analogous application of Section 38, Paragraph 1, Item 1 of the Criminal Code; otherwise they are to be repaid. Other services are not to be replaced, but in the case of a conviction they are also appropriately offset against the penalty. In particular, the type and duration of the service must be taken into account.

If the proceedings are subsequently continued, the accused can lodge a complaint (Section 87), which has suspensive effect.

Diversion decision of the court (§ 209 StPO)

A diverse handling of the court is only permitted in the case of official offenses , but not in the case of private indictment offenses (Section 199).

The prosecution can resign from the prosecution as long as they have not filed charges. Then she must apply to the court to discontinue the proceedings (Section 199).

In the main hearing, judicial decisions are to be made by the trial court, otherwise by the chairman, in the main hearing before the jury, however, by the court of jury. Before the court serves the accused with a diversionary measure or a decision to terminate the proceedings, it must hear the public prosecutor's office. Only the public prosecutor's office is entitled to appeal against such a decision; This decision is only to be served on the accused when it has become legally binding against the public prosecutor.

As long as no decision has been taken on a complaint against a decision rejecting an application to discontinue the criminal proceedings, a main hearing is not permitted. A complaint against the subsequent continuation of the criminal proceedings also has suspensive effect here.

See also

literature

  • Stefan Seiler: Criminal Procedure Law , Facultas WUV, Vienna 9th edition 2009, ISBN 978-3-7089-0100-8
  • Oskar Maleczky: Criminal Law General Part II: Doctrine of the Consequences of Crime , Facultas WUV, Vienna 13th edition 2009, ISBN 978-3-7089-05037

Web links

Individual evidence

  1. ↑ General information on the Diversion website of the Federal Chancellery , as of April 13, 2017
  2. ↑ Criminal procedure law and the criminal procedure website of the Federal Chancellery , as of April 13, 2017
  3. ↑ Andreas Strobl: Discontinuation of criminal proceedings March 14, 2015
  4. ↑ Thomas L ?? ubig: Leniency Notice extended: Public prosecutor and competition authorities intensify cooperation June 27, 2017