Mandate procedure (Austria)

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The mandate procedure is a simplified criminal procedure in Austrian criminal law in which the court determines the assessment of the penalty ( penalty ) without a court hearing with an order . It serves to accelerate the procedure .

The mandate procedure can only be used at the request of the public prosecutor's office and with the consent of the judge , victim and accused offender , in the lower courts and for less serious offenses . It corresponds to the German criminal warrant procedure , in which the consent of the person concerned is not required. It differs from the Swiss criminal warrant procedure in that the public prosecutor determines the punishment, not the judge.

The procedure is  regulated in Section 491 of the Code of Criminal Procedure (StPO) and, after it was abolished in 1999, was reintroduced in 2015, which is also viewed critically.

Application and procedure

A penalty can be determined without a prior oral main hearing by means of a written penalty order if (Section 491 (1)):

  • it is a misdemeanor acts and the accused for prosecution allegation heard was (according to § 164, 165 Code of Criminal Procedure)
  • the accused has expressly waived the main hearing after being informed of the consequences
  • the results of the preliminary investigation in connection with the establishment of the responsibility of the accused are sufficient to assess all circumstances decisive for the question of guilt and criminal offense
  • the rights and legitimate interests of the victim are not prejudiced

Exceptions are:

The district or regional court single judge can insist on a process. In addition to interrogating the accused, he may also hear the victim if he deems it necessary (Section 491 (3)).

The prosecutor, the convicted person as well as the victim, the penal order within four weeks of delivery (by RSa ) writing impressive spruchen  (§ 491. 6), then finds a regular trial instead. Otherwise it is final and can be enforced . The penal order is equivalent to a final judgment and thus appears in the criminal record of the Republic of Austria.

Typical applications are, for example, theft , embezzlement , fraud ; Property damage ; Coercion , threats , stalking ; but also bodily harm or negligent homicide (for example in traffic accidents or brawling ).

Legal givers want to pay attention to the role of the victim. In addition to speeding up proceedings, this instrument can also save victims of violent acts from having to go to court again.

History and criticism

The police mandate procedure had already been introduced in 1873 based on the model of the Prussian mandate procedure (1846) (initially only for minor violations) and was incorporated into the legal system of the republic. In 1999 the form of procedure was abolished after a statement by the Supreme Court  (OGH) on the "pure file procedure" because of its "fundamental rights problem" ( Climate Government ).

It was reintroduced in the 2014 StPO package of the Faymann red-black government . The new regulation was decided in July 2014 and came into force on January 1, 2015. This was sometimes heavily criticized by the judges, especially because the old mandate procedure - which had already been overturned as questionable - had only been permitted for fines, and was now also included (even if only conditional) prison sentences. In addition, the softening of the legal educational approaches of the out-of-court settlement in the sense of a perpetrator-victim balance was viewed critically in advance . The Criminal Trial Working Group at the Ministry of Justice saw the advantages (acceleration of the process, victim protection) as greater than the “deficiencies in this process from a constitutional point of view (lack of oral speech and public awareness)”. There was also a resolution by the National Council on the “victim-friendly handling of the mandate procedure”. The explicit waiver of the application in the event of possible diversion (social penalty replacement) is intended to strengthen the instrument that is now used in almost half of the lighter criminal proceedings and is intended to prevent the criminalization of the perpetrators, so that the mandate procedure mainly relieves the workload of the courts in regular proceedings in the case of insightful perpetrators. The Council of Ministers also decided to evaluate the new form of procedure, particularly with regard to victim protection.

See also

Individual evidence

  1. ↑ a b c d e The reform package for the code of criminal procedure: Faster proceedings - better legal protection. Press release Justice Minister Dr. Wolfgang Brandstetter, May 7, 2014, BMJ, point 3., p. 2 f (pdf, justiz.gv.at).
  2. ↑ a b c d e Mandate procedure in criminal law. help.gv.at , accessed January 10, 2016; partly quoted verbatim.
  3. ↑ a b c d Judge can impose one year imprisonment without trial. Ricardo Peyerl in: Kurier online, May 7, 2014.
  4. ↑ a b Resolution on ensuring that the mandate procedure is carried out in a manner appropriate to the victim. Resolution of the National Council, July 10, 2014, XXV. GP, 231 / UEA (parliamentary materials, parlament.gv.at).
  5. ↑ Werner Schubert: Sources for Reform of the Criminal Law and Criminal Procedure Law , Volume 2, Verlag Walter de Gruyter, 1988, ISBN 978-311013484-1 , Application No. 64 by Crohne to 364372 StVO draft penalty order: history , p. 581 ff ( restricted Preview in Google Book Search).
  6. ^ Eduard Carl Spengler: The penalty order in Swiss, German and Austrian law. Publisher University of Zurich, 1929.
  7. ^ Violent protest against planned mandate proceedings. APA announcement, May 24, 2014 (for example In: Kleine Zeitung online , Salzburger Nachrichten online ).
  8. ↑ Criminal Procedure Amendment Act 2014, Federal Law Gazette I 71/2014 (BMJ-S578.028 / 0001-IV 3/2014).
  9. ↑ NR resolves changes in criminal procedure and enforcement order. Parliamentary correspondence No. 691 of July 10, 2014 (Parliamentary materials, parlament.gv.at).
  10. ↑ a b cf. For example, a statement from a victim protection organization: Assessment procedure for the Criminal Procedure Amendment Act 2014. ( Memento of the original from January 10, 2016 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / Frauenberatung.at archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Andrea Jobst-Hausleithner, Ursula Kussyk; BAFÖ Federal Association of Autonomous Women's Emergency Calls in Austria, May 27, 2014, 2nd mandate procedure , p. 3 ff (pdf, Frauenberatung.at).
  11. ↑ Development of optimal and specific reform scenarios. Final report, BMJ, Criminal Procedure Working Group, Vienna, August 2013, Section 3.3.5 Proposals for a faster and more efficient termination of the proceedings: Mandate proceedings , p. 23 f (pdf, justiz.gv.at).
  12. ↑ cf. on this, for example, «Public prosecutors have enormous power» . interview with Franz Riklin, Tagesanzeiger.ch/Newsnet, December 31, 2010.
  13. ^ StPO reform: Mandate procedure is evaluated - The reform presented by Justice Minister Brandstetter is to be evaluated. Heinisch-Hosek is happy about the right of appeal for victims. In: Kurier online, June 11, 2014.