VfGH: Mandatory Pre-trial Detention Lifted Also for Serious Crimes

Feb 10, 2023 Benn-Ibler Rechtsanwälte

The Austrian Constitutional Court (Verfassungsgerichtshof; VfGH) has overturned Section 173 (6) of the Austrian Code of Criminal Procedure (Strafprozessordnung; StPO) as unconstitutional. Even in the case of serious crimes, reasons for detention must be carefully examined.

Section 173 (6) StPO provides that pre-trial detention is mandatory for offences carrying a minimum sentence of ten years, unless it can be assumed based on very specific facts that all grounds for detention can be ruled out.

The constitutional basis and legal limitation of measures involving the restriction of a person’s freedom is the Austrian Federal Constitutional Law for the Protection of Personal Freedom (Bundesverfassungsgesetz zum Schutz der persönlichen Freiheit; PersFrSchG). According to Art 2 (1) (2), pre-trial detention is such a reason if a person is suspected of a specific criminal or tax offence. Reasons for pre-trial detention are:

• Stopping an assault, or for the immediate establishment of the facts, provided that suspicion arises in close chronological relationship to the offence or by virtue of the fact that the suspect is in possession of a specific object;
• to prevent the suspect from absconding from trial or from compromising evidence; or
• to prevent a suspect from committing a similar act or from carrying out a similar act punishable by a substantial penalty.

StPO provides that pre-trial detention may solely be imposed if one of these reasons is (positively) present. Section 173 (6), however, makes an exception to this for serious crimes insofar as it provides for ‘conditionally obligatory pre-trial detention’, i.e. conversely, it provides that pre-trial detention is to be imposed in principle when all grounds for detention can be excluded.

According to the Constitutional Court, this provision is not compatible with the narrow constitutional limits of PersFrSchG, as even with serious crimes, case-by-case examinations must be carried out without exception. However, the seriousness of the suspect’s offence may in principle be taken into account as part of case examination.

Section 173 (6) of the Austrian Code of Criminal Procedure was therefore repealed with immediate effect.

VfGH G53/2022-17 (01.12.2022)