OGH: No Public Liability after Failure to File for Discontinuance

May 5, 2023 Benn-Ibler Rechtsanwälte

If no notice of discontinuance pursuant to Section 108 of the Austrian Code of Criminal Procedure (Strafprozessordnung, hereinafter StPO) is filed, a wrongfully accused person cannot claim damages under public liability.

In the original case, the plaintiff was seeking damages from the Republic of Austria for legal costs incurred because the authorities had unlawfully conducted criminal proceedings against him on charges of tax evasion (which ended in acquittal).

The lower instances dismissed the action; however, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) ruled in favour of the plaintiff.

According to Section 2 (2) of the Austrian Public Liability Act (Amtshaftungsgesetz, hereinafter AHG), there is no claim under public liability if the injured party could have averted damage by legal remedy or via an appeal (‘duty to rescue’). The notion of ‘legal remedy’ must be interpreted extensively to include all ordinary and extraordinary legal remedies, as well as any other means of legal redress.

The ‘duty to rescue’ oneself also pertains to suspects in criminal preliminary proceedings. Pursuant to Section 108 (1), line 2 StPO, the court must discontinue investigation proceedings at the request of the suspect if the suspected offence does not justify further investigation in terms of urgency and significance as well as with regard to the current duration and scope of the investigation proceedings, and if no further clarification of the facts is to be expected that would increase the weight of the allegations.

The notice for discontinuance under Section 108 StPO is a legal remedy within the meaning of Section 2(2) AHG. It provides defendants with the possibility of having an investigation by the public prosecutor's office reviewed by a court. If it seems more likely that the defendant will be acquitted than found guilty, proceedings are to be discontinued. This is not a discretionary decision.

Filing a notice for discontinuance is not unreasonable because it might run counter to a defence strategy. Even a potential conflict with the competent authority, if any, would have to be accepted at any rate.

OGH 1 Ob 22/23a (21.03.2023)