In brief: Criminal defence refers to the legal representation of an accused person in criminal proceedings – from the first questioning in the investigation stage through to the judgment and any appeals. In Austria, the proceedings are governed by the Code of Criminal Procedure (Strafprozessordnung, StPO), while the substantive offences are set out in the Criminal Code (Strafgesetzbuch, StGB). Anyone confronted with an allegation has, from the outset, the right to a defence lawyer, the right to remain silent and the presumption of innocence on their side.
The decisive course is often set even before the first questioning. Those who know their rights and obtain legal representation early can significantly influence the outcome of a case. This article explains the structure of Austrian criminal proceedings, the most important rights of the accused and the situations in which a defence lawyer is mandatory.
Key points at a glance
- Right to a defence lawyer: Every accused person may be represented by a defence lawyer at any stage of the proceedings.
- Right to remain silent: No one is obliged to incriminate themselves or to testify on the substance of the case (nemo tenetur principle, § 49 StPO).
- Mandatory defence: In the cases listed in § 61 StPO – for example while in pre-trial detention or before a lay-assessor or jury court – a defence lawyer must be involved.
- Pre-trial detention: It is permissible only on application by the public prosecutor’s office, where there is a strong suspicion and a statutory ground for detention (§ 173 StPO), and must be strictly reviewed for proportionality.
- Diversion: Under certain conditions, proceedings can be concluded without a conviction (§§ 198 et seq StPO).
- Act early: Legal representation, ideally before the first questioning, secures defence rights and avoids mistakes.
What does criminal defence mean?
Criminal defence is the legal advice and representation of an accused or charged person by a defence lawyer – as a rule a lawyer (Rechtsanwältin or Rechtsanwalt). The task of the defence is to safeguard the rights of the accused, to critically examine the facts, to bring forward exculpatory circumstances and to work towards a fair trial.
The defence does not begin only in court. As early as the investigation stage – for example during a house search, a seizure or the first questioning – legal assistance can be decisive. Particularly in white-collar criminal law and in cybercrime allegations, key evidence is often secured at this early stage.
How do criminal proceedings work in Austria?
Austrian criminal proceedings are essentially divided into three stages:
- Investigation stage (Ermittlungsverfahren): Led by the public prosecutor’s office, supported by the criminal police. Its aim is to clarify the facts. It is decided here whether charges are brought, the proceedings are discontinued or a diversion is offered.
- Trial stage (Hauptverfahren): After charges are filed, the main trial takes place before the competent court. The principles of immediacy and orality apply; the court delivers a judgment.
- Appellate proceedings (Rechtsmittelverfahren): Depending on the court, an appeal (Berufung) and a plea of nullity (Nichtigkeitsbeschwerde) are available against judgments. The Supreme Court (Oberster Gerichtshof, OGH) decides on the plea of nullity.
What rights do you have as an accused person?
The StPO grants accused persons a range of fundamental rights. The most important are:
- Right to a defence: You may make use of a defence lawyer at any stage of the proceedings and may also consult them before questioning.
- Right to remain silent: You are not obliged to incriminate yourself and may refuse to testify on the substance of the case (§ 49 StPO). No adverse inference may be drawn from silence.
- Right to information: You must be informed of the offence of which you are suspected and of the rights you have.
- Access to the file: Through your defence lawyer, you may inspect the investigation file.
- Interpreter: Anyone who is not sufficiently proficient in the language of the proceedings is entitled to an interpreter.
Above all stands the presumption of innocence: until a final conviction, every person is deemed innocent (Article 6 ECHR, § 8 StPO).
When is a defence lawyer mandatory?
In certain situations the law provides for mandatory defence: the accused person must then be represented by a defence lawyer. Under § 61 StPO, this applies in particular to:
- the entire proceedings for as long as the person is held in pre-trial detention,
- proceedings concerning placement in a forensic-therapeutic centre (§ 21 StGB),
- the main trial before the Regional Court sitting as a jury court or lay-assessor court,
- the main trial before a single judge of the Regional Court where a custodial sentence exceeding three years is threatened.
Anyone who cannot afford a defence lawyer is entitled, under the conditions of § 61 para 2 StPO, to legal-aid defence counsel (Verfahrenshilfeverteidiger) – where this is required in the interest of the administration of justice and the person cannot bear the costs without impairing the maintenance necessary for a modest standard of living.
Which courts have jurisdiction?
Which court decides depends primarily on the seriousness of the allegation:
| Court | Jurisdiction (simplified) |
| District Court (Bezirksgericht) | Offences punishable only by a fine or by imprisonment of up to one year |
| Regional Court, single judge | Offences carrying a sentence of up to five years’ imprisonment |
| Regional Court, lay-assessor court | More serious offences carrying a sentence of more than five years; many white-collar cases |
| Regional Court, jury court | The most serious offences (punishable by more than ten years up to life imprisonment) and certain political offences |
Simplified presentation; special rules of the StPO apply in individual cases.
What do you need to know about pre-trial detention?
Pre-trial detention is one of the most serious interventions in criminal proceedings. It may be imposed only on application by the public prosecutor’s office and only where the accused person is strongly suspected of a specific offence, has previously been questioned by the court and one of the statutory grounds for detention is present (§ 173 StPO).
The grounds for detention are:
- Risk of absconding – the risk that the person will evade the proceedings,
- Risk of collusion – the risk of influencing witnesses or removing evidence,
- Risk of reoffending – the risk of committing further similar offences.
Detention must always be proportionate: it is impermissible where its purpose can be achieved by less restrictive measures (such as reporting obligations or bail). Pre-trial detention is strictly time-limited and is reviewed in recurring detention hearings; the maximum permissible duration depends on the seriousness of the allegation. Anyone in pre-trial detention must be represented by a defence lawyer.
Can proceedings end without a conviction? – Diversion
Yes. In addition to discontinuation and acquittal, the StPO provides for so-called diversion. Where the facts are sufficiently established and punishment would not be necessary, the public prosecutor’s office can refrain from prosecution (§§ 198 et seq StPO). Diversion leads to no conviction and no entry in the criminal record.
Diversionary measures include, in particular: the payment of a sum of money (§ 200 StPO), the performance of community service (§ 201 StPO), the setting of a probationary period, where applicable with probation assistance and obligations (§ 203 StPO), and victim-offender mediation (§ 204 StPO).
What role do white-collar criminal law, compliance and cybercrime play?
A growing proportion of criminal proceedings concerns not classic crime but business conduct: allegations such as breach of trust (§ 153 StGB), fraud (§ 146 StGB), accounting offences, corruption or data misuse. Here the lines between criminal defence, compliance and internal investigation become blurred.
For companies and their officers, it is decisive to react early: through clear compliance structures, through professionally conducted internal investigations and through a coordinated defence strategy. In cybercrime allegations – for example in connection with unauthorised data access or digital fraud – the securing and analysis of digital evidence is of particular importance.
Why is early legal representation decisive?
The first questioning is often the most important moment of the entire proceedings. Statements made without legal advice can hardly be corrected later. Those who engage a defence lawyer early can coordinate their approach to giving evidence, arrange access to the file, file requests to take evidence and – where possible – work towards a discontinuation or diversion before the proceedings become entrenched.
Criminal defence in Vienna: local jurisdictions
For criminal proceedings in the Vienna area, the following bodies are particularly relevant: the Regional Court for Criminal Matters Vienna (Landesgericht für Strafsachen Wien) as the central criminal court, the Higher Regional Court Vienna (Oberlandesgericht Wien) as the appellate court, the Vienna Public Prosecutor’s Office (Staatsanwaltschaft Wien), and – in large economic and corruption cases – the nationally competent Central Public Prosecutor’s Office for Combating Economic Crimes and Corruption (Wirtschafts- und Korruptionsstaatsanwaltschaft, WKStA), based in Vienna. In the greater Vienna area, remand prisoners are regularly held at the Vienna-Josefstadt prison (Justizanstalt Wien-Josefstadt). The Supreme Court (OGH) in Vienna decides on pleas of nullity.
As a law firm for white-collar criminal law, compliance and cybercrime in Vienna 1010, Paulitsch Law is thoroughly familiar with these local structures and represents clients in all criminal matters. For detailed information specifically on criminal proceedings in Vienna, see our article Criminal Defence in Vienna.
Frequently asked questions on criminal defence in Austria
Objective criteria matter more than advertising promises: a clear specialisation in criminal law and white-collar criminal law, experience with investigation proceedings, main trials and appeals, fast availability in urgent situations, and transparent information on costs. An early initial consultation – covering the allegation, the state of the proceedings and possible strategy – is advisable. PAULITSCH LAW specialises in criminal law, white-collar criminal law and compliance and represents clients in criminal proceedings throughout Austria.
As early as possible – ideally before the first questioning or immediately after becoming aware of proceedings. The earlier the defence is involved, the better the course can be set.
No. You have the right to refuse to testify on the substance of the case and are not obliged to incriminate yourself (§ 49 StPO). You must, however, provide your personal details. Whether and how you give evidence should be coordinated with your defence lawyer.
Yes. Under the conditions of § 61 para 2 StPO, legal-aid defence counsel may be assigned where this is required in the interest of the administration of justice and you cannot bear the costs without impairing the maintenance necessary for a modest standard of living.
Pre-trial detention is strictly time-limited and is reviewed in recurring detention hearings. The maximum permissible duration during the investigation stage depends on the seriousness of the allegation; it is permissible only for as long as a ground for detention exists and no less restrictive measures suffice.
Yes. Proceedings may be discontinued, may end in an acquittal, or may be concluded without a conviction by way of diversion (§§ 198 et seq StPO). A diversion leads to no entry in the criminal record.
Until a final conviction, every accused person is deemed innocent (Article 6 ECHR, § 8 StPO). The burden of proof lies with the prosecution.
About the firm
Paulitsch Law is a criminal law firm specialising in white-collar criminal law, compliance and cybercrime, based in Vienna 1010. The firm advises and represents private individuals, companies and their officers in all criminal matters – from the first questioning through to proceedings before the Supreme Court.
Location: Hoher Markt 8–9, Staircase 2, 2nd floor, Unit 10, 1010 Vienna · Entrance: Judengasse 1
Contact: +43 1 361 4007 · office@paulitsch.law
Representation: investigation proceedings, questionings, coercive measures, the main trial, appeals, as well as economic and financial criminal proceedings
Author: Dr. Heidemarie Paulitsch, Attorney-at-Law (Rechtsanwältin). She specialises in criminal law, white-collar criminal law and compliance and represents accused persons in all phases of criminal proceedings – from the first questioning to appellate proceedings.
Legal notice: This article is intended for general information and does not replace individual legal advice. The statements reflect the legal situation as at 7.8.2026. For the assessment of your specific case, please contact a lawyer.
