Legal standby service

The on- call legal service in Austria enables reliable access to a well-founded criminal defense outside of normal office hours, especially in the evening and on weekends.

Accused of criminal proceedings In accordance with § 49 Zif. 2 StPO the right to choose a defense lawyer. The on-call legal service enables arrested accused who were brought before for immediate questioning (Section 153 (3) of the Code of Criminal Procedure) to contact a defense attorney. This possibility already exists before the first interrogation by the police and also after admission to the prison until a decision has been made about the first imposition of pre- trial detention. Accused persons who have been arrested in Germany and whose extradition or handover abroad is requested or who have been arrested on the basis of a European arrest warrant issued by an Austrian judicial authority can also make use of the on- call lawyer service .

Development and performance

In Austria, only since the 2007 criminal procedure reform (effective January 1, 2008) have accused persons the right to call in a defense attorney when they are questioned (Section 49 (2) in conjunction with Section 58 in conjunction with Section 164 of the Code of Criminal Procedure, Article 6 (3) (c)) ECHR, Art 4 para. 7 PersFrG).

On the basis of European requirements and recommendations, the implementation of the legal journal service (now: on-call service) to ensure reliable access to a well-founded professional defense also outside of normal office hours was implemented and a joint project of the Federal Ministry of Justice (BMJ) and the Austrian Bar Association ( ÖRAK) and set out in an agreement in spring 2008 so that arrested suspects have been guaranteed around the clock assistance from a lawyer. A dedicated hotline number has also been set up for this purpose.

As part of the legal on-call service, the first call and the first telephone consultation are free of charge. Additional services (e.g. personal consultation, if necessary legal assistance during an interrogation and other actions required for an appropriate defense) are generally chargeable and are charged at an hourly rate of EUR 120 plus VAT . In the case of non-payment by the accused is charged to the ÖRAK and the exposures to the BMJ ceded .

In implementation of the European Directive on the Right of Access to Legal Advisers in Criminal Proceedings (RL 2013/48 / EU), the on-call lawyer service was for the first time legally anchored in Austria by the Criminal Procedure Law Amendment Act II 2016. On January 1, 2017, the organization of the legal standby service was reorganized.

Participation in the on-call service

Lawyers licensed and registered in Austria are not obliged to take part in the on-call lawyer service. In 2013, 530 lawyers agreed to take part in the on-call legal service (this is 9% of the total of 5887 lawyers admitted in Austria). Since the beginning of 2017, 18 assigned lawyers throughout Austria have been receiving calls to the hotline every day. The defender's emergency number has been contacted a total of 1206 times since January 1, 2017 (as of October 2017). Compared to previous years, the demand has quadrupled.

Lawyers who volunteer to take part in the on-call service should contact the responsible bar association. In cooperation with the nine bar associations, the ÖRAK creates constantly updated readiness lists. This shows which lawyers in a federal state can be contacted via the hotline.

Duration of the authorization within the framework of the on-call service

The authorization of the on-call lawyer, which was issued within the framework of the on-call lawyer service, is generally deemed to be revoked upon admission to a prison (imposing detention for examination, extradition or surrender) or upon release from custody.

Restriction of the right

According to Section 59 of the Code of Criminal Procedure, the arrested accused is to be given the opportunity to contact a defense attorney and to authorize him. According to Section 59 (2) of the Code of Criminal Procedure, contact with the defense counsel may be limited to the extent necessary for the granting of power of attorney and general legal advice until the accused is brought to the prison, insofar as an immediate interrogation or other immediate investigations are absolutely necessary due to special circumstances appear in order to avert significant damage to the investigation or evidence. In this case, the accused must be sent a written justification from the criminal police for this restriction immediately or within 24 hours. (see also § 102 StPO).

If the accused avails himself of the right to call a defense attorney for his interrogation, the interrogation must be postponed until the attorney arrives in accordance with Section 164 (2) of the Code of Criminal Procedure , unless this would result in an unreasonable extension of the detention. The defense attorney may not take part in the interrogation himself in any way, but may direct questions to the accused and make statements after the interrogation or after thematically related sections. However, the accused may not consult the defense lawyer about answering individual questions. A defense counsel may only be called in if this appears to be absolutely necessary due to special circumstances in order to avert a significant risk to the investigation or impairment of evidence through immediate interrogation or other immediate investigations. In this case, an order from the public prosecutor's office or a written justification from the criminal police for this restriction must be served on the accused immediately or within 24 hours and, if possible, a sound or image recording (Section 97 StPO) made.

With the judgment of the European Court of Human Rights (ECHR) in the Soytemiz vs. Turkey (57837/09) of November 27, 2018, Section 164 (2) of the Austrian Code of Criminal Procedure is to be regarded as incompatible with the European Convention on Human Rights. In this decision, the ECHR stated that the right to legal assistance includes, in particular, the presence of a lawyer and active advice during the entire hearing. According to the case law in the Ibrahim et al. a. vs. Although the United Kingdom could be justified in restricting the right to legal assistance during interrogations if there are compelling reasons, this must not impair the fairness of the proceedings as a whole, as Article 6 and 3 ECHR could otherwise be violated.

Web links

Starting shot for the Austrian lawyers ' 24-hour journal service , APA-OTS, July 1, 2008.

Defender emergency number , website of the Bar Association.

Information sheet from the Federal Ministry of Justice on the on-call service of lawyers .

Individual evidence

↑ In the past also: Legal journal service, legal journal service, defense counsel, defense emergency number or 24-hour journal service of Austrian lawyers. Renaming to legal on-call service since January 1, 2017, see Section 59 (4) StPO as amended by Federal Law Gazette I 121/2016. In Germany as criminal defense emergency service , in Liechtenstein as legal journal service or on-call service.

↑ According to the Extradition and Legal Assistance Act (ARHG), Federal Law Gazette No. 529/1979; or judicial cooperation in criminal matters with the member states of the European Union (EU-JZG), Federal Law Gazette I No. 36/2004.

↑ §§ 29 Para. 3 ARHG, 18 Para. 2 EU-JZG, 30a Para. 2 EU-JZG.

↑ Section 4, Paragraph 7 of the Federal Constitutional Act of November 29, 1988 on the Protection of Personal Freedom (ÖBGBl. No. 684/1988): “ Every person arrested has the right to have a relative and a relative at his request without unnecessary delay and at his own discretion Legal counsel to be notified of the arrest ”. According to § 178 StPO (old) the accused did not have this possibility until January 1st, 2008. Now he has the right to discuss the content with his defense lawyer before any interrogation (EBRV 25 BlgNR 22. GP 83).

↑ Except that in practice the appearance of the defense counsel of the police need to wait (but see the wording in § 164 para. 1 StPO), but immediately after the call and commissioning of the defender with the interrogation can be started ( Decree of the Federal Ministry of Justice of June 19, 2008 on the establishment of a legal journal service, BMJ-L390.004 / 0008-II 3/2008). Especially nowadays, the certainty of being able to consult a defense lawyer as a free citizen is one of the foundations of the rule of law , the ÖRAK President Benn-Ibler emphasized the legal significance of the project APA-OTS, July 1, 2008 . In the government bill (EBRV 25 BlgNR 22. GP 210) it was also provided that the hearing should be interrupted for a reasonable period of time if the accused insists on contact with his defense lawyer. This was then not implemented in the reform of the criminal procedure.

↑ With the support of the Federal Ministry of the Interior .

↑ This free hotline has been operated by the Austrian Bar Association since July 1, 2008 and can be reached 24 hours a day. The use of the telephone must be permitted by the police (EBRV 25 BlgNR 22. GP 210).

↑ The services provided are billed in commenced quarter hours. The flat-rate hourly rate is understood as compensation for any specific intervention by a defense lawyer within the framework of the lawyer's on-call service, e.g. B. for telephone advice and times of travel to and from police stations and other locations.

↑ The services provided by the defense attorney are billed in commenced quarter hours and include e.g. B. the concrete intervention of a defense attorney in the context of this lawyer standby service and the telephone advice, application, travel to and from the police station and other locations.

↑ Directive on the right of access to a lawyer in criminal proceedings (PDF) .

↑ Criminal Procedure Law Amendment Act II 2016

↑ Section 59 (4) of the Code of Criminal Procedure: If the accused does not call in a freely chosen defense attorney (Section 58 (2)) in the cases mentioned in Section 1, he is entitled to contact one of them on request until the decision on the imposition of pre-trial detention " To enable a defender in readiness who has agreed to take on such a defense. (...) "

↑ Source: ÖRAK activity report 2014 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , P. 26.@1@ 2

↑ See also: Manfred Seeh, until the lawyer comes , Die Presse of November 16, 2017; Ricardo Peyerl, Not without my lawyer: 1200 times , courier from November 15, 2017; In readiness , Wiener Zeitung of November 16, 2017.

↑ For the organization of the legal standby service, see also ÖRAK Activity Report 2017 , p. 39f.

↑ Federal Ministry of Justice: SECURITY REPORT 2009, REPORT ON THE ACTIVITIES OF THE CRIMINAL JUSTICE, p. 149.

↑ See also the decision of the ECHR in Rs. Dudchenko v. Russia, complaint no. 37717/05. Accordingly, clandestine wiretapping of the conversation between lawyer and client violates the protection of legal professional secrecy if procedural minimum standards are missing.

↑ ECHR decision: SOYTEMİZ v. TURKEY .

[1] In the past also: Legal journal service, legal journal service, defense counsel, defense emergency number or 24-hour journal service of Austrian lawyers. Renaming to legal on-call service since January 1, 2017, see Section 59 (4) StPO as amended by Federal Law Gazette I 121/2016. In Germany as criminal defense emergency service , in Liechtenstein as legal journal service or on-call service.

[2] According to the Extradition and Legal Assistance Act (ARHG), Federal Law Gazette No. 529/1979; or judicial cooperation in criminal matters with the member states of the European Union (EU-JZG), Federal Law Gazette I No. 36/2004.

[3] §§ 29 Para. 3 ARHG, 18 Para. 2 EU-JZG, 30a Para. 2 EU-JZG.

[4] Section 4, Paragraph 7 of the Federal Constitutional Act of November 29, 1988 on the Protection of Personal Freedom (ÖBGBl. No. 684/1988): “ Every person arrested has the right to have a relative and a relative at his request without unnecessary delay and at his own discretion Legal counsel to be notified of the arrest ”. According to § 178 StPO (old) the accused did not have this possibility until January 1st, 2008. Now he has the right to discuss the content with his defense lawyer before any interrogation (EBRV 25 BlgNR 22. GP 83).

[5] Except that in practice the appearance of the defense counsel of the police need to wait (but see the wording in § 164 para. 1 StPO), but immediately after the call and commissioning of the defender with the interrogation can be started ( Decree of the Federal Ministry of Justice of June 19, 2008 on the establishment of a legal journal service, BMJ-L390.004 / 0008-II 3/2008). Especially nowadays, the certainty of being able to consult a defense lawyer as a free citizen is one of the foundations of the rule of law , the ÖRAK President Benn-Ibler emphasized the legal significance of the project APA-OTS, July 1, 2008 . In the government bill (EBRV 25 BlgNR 22. GP 210) it was also provided that the hearing should be interrupted for a reasonable period of time if the accused insists on contact with his defense lawyer. This was then not implemented in the reform of the criminal procedure.

[6] With the support of the Federal Ministry of the Interior .

[7] This free hotline has been operated by the Austrian Bar Association since July 1, 2008 and can be reached 24 hours a day. The use of the telephone must be permitted by the police (EBRV 25 BlgNR 22. GP 210).

[8] The services provided are billed in commenced quarter hours. The flat-rate hourly rate is understood as compensation for any specific intervention by a defense lawyer within the framework of the lawyer's on-call service, e.g. B. for telephone advice and times of travel to and from police stations and other locations.

[9] The services provided by the defense attorney are billed in commenced quarter hours and include e.g. B. the concrete intervention of a defense attorney in the context of this lawyer standby service and the telephone advice, application, travel to and from the police station and other locations.

[10] Directive on the right of access to a lawyer in criminal proceedings (PDF) .

[11] Criminal Procedure Law Amendment Act II 2016

[12] Section 59 (4) of the Code of Criminal Procedure: If the accused does not call in a freely chosen defense attorney (Section 58 (2)) in the cases mentioned in Section 1, he is entitled to contact one of them on request until the decision on the imposition of pre-trial detention " To enable a defender in readiness who has agreed to take on such a defense. (...) "

[13] Source: ÖRAK activity report 2014 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , P. 26.@1@ 2

[14] See also: Manfred Seeh, until the lawyer comes , Die Presse of November 16, 2017; Ricardo Peyerl, Not without my lawyer: 1200 times , courier from November 15, 2017; In readiness , Wiener Zeitung of November 16, 2017.

[15] For the organization of the legal standby service, see also ÖRAK Activity Report 2017 , p. 39f.

[16] Federal Ministry of Justice: SECURITY REPORT 2009, REPORT ON THE ACTIVITIES OF THE CRIMINAL JUSTICE, p. 149.

[17] See also the decision of the ECHR in Rs. Dudchenko v. Russia, complaint no. 37717/05. Accordingly, clandestine wiretapping of the conversation between lawyer and client violates the protection of legal professional secrecy if procedural minimum standards are missing.

[18] ECHR decision: SOYTEMİZ v. TURKEY .