Criminal Defense Attorney (Austria)

A criminal defense attorney (in Austria mostly only defense counsel ) is understood in Austria as a person who supports and advises the accused in criminal proceedings . The defense lawyer is entitled and obliged to be partisan in favor of the accused.

Position of the defense lawyer

In the formal sense, in Section 48 of the Code of Criminal Procedure, a person who

is entitled to practice law ,
on a German university the teaching license of criminal law and criminal procedure law has acquired or
is otherwise legally entitled to represent you in criminal proceedings ,

once they the accused as counsel has authorized or a person who was appointed to the accused under the provisions of this law as legal counsel ( legal aid ).

The persons named under point 3, who are otherwise legally entitled to represent themselves, include, in particular, persons entered on the list of defense counsel in accordance with Section 39 (3) StPO (old) before January 1, 2008 , emergency defenders under Section 62 (2) StPO, legal representatives, if they have been granted independent legal assistance and juvenile court assistance organs as assistance in district court juvenile criminal matters . In criminal proceedings in which the main proceedings are to be conducted before the district courts, the notaries are also entitled to take on the defense (Section 5 (1) NotO).

The defense attorney is himself a party in criminal proceedings. He is not part of the court or the public prosecutor's office , but independent of them. He is not bound by instructions from the court or the public prosecutor's office and, conversely, cannot issue any instructions.

Special regulations apply in the area of disciplinary law .

Word meaning

Defender in the legal sense is anyone who stands up for the rights of the accused in proceedings and is appointed to do so, regardless of whether he is acting for a fee or free of charge.

In earlier times, depending on the function and which status was represented and before which court was represented, also as: advocate, adviser, advocate, advocate, leader of violence, violent agent, violent carrier, gerhab, gerhaber, authorized representative, mandatarius, procurator, legal finder, administrator, Specialist, spokesman, syndicus, auditor, opponent, designated or simply called representative.

Defense lawyer rights

In order to be able to adequately perform his task vis-à-vis the accused, the defense counsel has special rights to which only he is entitled (examples):

he may advise the accused at any stage of the proceedings;

he may conduct his own investigations in favor of the accused;

he has the right to inspect files ;

he has the right to be present during searches or a local inspection ;

he has the right to be present at the hearing of the accused ;

he has various application rights;

he is usually allowed to speak to the accused and exchange letters without supervision;

he may ask members of their Entschlagungsrecht to exercise;

He has the right to be present at the main hearing , to put motions and questions and the right to the final speech ;

Right to refuse to testify

According to § 157 Abs. 1 Zif. 2 StPO (§ 9 Paragraph 32 RAO ), defense lawyers are entitled to refuse to testify about what has become known to them in this capacity. This right may not be circumvented if it is otherwise null and void (i.e. also no questioning of the auxiliary staff, etc., Section 144 (2) StPO, see also Section 9 (3) RAO).

Exception (Section 144 (3) of the Code of Criminal Procedure): Defense lawyers in Austria can be obliged to testify under the strict provisions of Section 147 (2) of the Code of Criminal Procedure if they themselves are urgently suspect in the matter of an act.

Defender List

Up until 2007 there was a list of people in Austria who took over or were allowed to take over defense. An accused could only select persons for his defense who were entered on this list. The list of defense lawyers was kept by the President of the Higher Regional Court .

In order to be entered as a defense attorney on the list of attorneys, it was not a prerequisite that there was also an entry as a lawyer. In this way, university lecturers from the field of law, as well as notaries and other people, were able to be entered in the list of defense lawyers. Likewise for the district court proceedings in juvenile criminal matters ( Juvenile Court Act 1988 , JGG, Federal Law Gazette No. 599/1988 ) organs of juvenile court assistance or other suitable persons (§ 58 no. 5 JGG).

Since the reform of the criminal procedure in 2007, new entries in the list of defense lawyers are no longer possible. Entries for persons who were entered on the list of defense counsel on December 31, 2007 within the meaning of Section 39 (3) third sentence StPO (old) remain in effect. The registered persons are considered to be legally entitled to represent in criminal proceedings up to the completion of their 70th year of life within the meaning of § 48 Paragraph 1 Z 4 StPO (new).

Probably the best-known defense attorney at the moment, who is entered on the list of attorneys without a bar exam or can appear as a defense attorney in criminal proceedings due to his work as a university professor, is the former Minister of Justice Wolfgang Brandstetter .

ruler

The ruler is fundamentally different from the defender. According to Section 455, Paragraph 2 of the Code of Criminal Procedure, a defendant who has not been arrested if he does not want to appear in person before the district court can be represented by a defense attorney as the person in power. In this case too, however, the court is entitled to request the accused to appear in person under threat of the intended coercive consequences. If the accused can be represented by a ruler, he or she has the position of the accused in the main hearing (Section 455 (3) of the Code of Criminal Procedure).

Individual evidence

↑ The partiality of the defense lawyer does not go so far that the defense lawyer can become an accomplice of the accused.
↑ Notarial Regulations, ÖRGBl. No. 75/1871.
↑ There are a number of other "defenders" in linguistic usage, especially in sport (e.g. a defender ) and in religion (e.g. the Fidei defensor - defender of faith).
↑ See also Johann Christoph Adelung for the meaning of the word in “ Grammatical-Critical Dictionary of High German Dialect ”, Vienna 1811 edition.
↑ Section 39 (3) of the Code of Criminal Procedure (in the version before the 2007 reform of the criminal procedure).
↑ Section 39 (3) of the Code of Criminal Procedure in the version that was in effect before the Penal Process Reform Act came into force shall continue to apply to these entries.

[1] The partiality of the defense lawyer does not go so far that the defense lawyer can become an accomplice of the accused.

[2] Notarial Regulations, ÖRGBl. No. 75/1871.

[3] There are a number of other "defenders" in linguistic usage, especially in sport (e.g. a defender ) and in religion (e.g. the Fidei defensor - defender of faith).

[4] See also Johann Christoph Adelung for the meaning of the word in “ Grammatical-Critical Dictionary of High German Dialect ”, Vienna 1811 edition.

[5] Section 39 (3) of the Code of Criminal Procedure (in the version before the 2007 reform of the criminal procedure).

[6] Section 39 (3) of the Code of Criminal Procedure in the version that was in effect before the Penal Process Reform Act came into force shall continue to apply to these entries.