The Austrian Supreme Court clarified in one of its latest decisions from 12 December 2018 that the criminal courts are not bound to the public prosecutor’s legal subsumption of the facts and circumstances in its bill of indictment when deciding on their own competence for a case.

Generally according to Sec 4 (2) Austrian Criminal Procedure Law (“ACPL”), the initiation and conduct of a main court proceeding shall be subject to a legally effective bill of indictment. In order to decide on the legal effectiveness, the addressed criminal court shall first give the accused the opportunity to file an objection against the bill of indictment within 14 days. The Higher Regional Court for Criminal Matters has then to decide on the effectiveness (Sec 213 (2), (6) ACPL).

In case the accused does not object to the bill of indictment, the addressed criminal court may determine on its own the effectiveness of the bill of indictment (Sec 213 (4) ACPL). However, if the addressed criminal court has reservations as to its competence and jurisdiction, it shall not confirm the effectiveness but rather notify the Higher Regional Court for Criminal Matters thereof, stating the reasons therefor. Again, the decision is then incumbent upon the Higher Regional Court for Criminal Matters.

In this regard it has to be noted that the competence of the criminal court depends on the criminal offence that needs to be examined and thus on the subsumption of the facts and circumstances of the case.

Latest Supreme Court decision (OGH 15 Os 151/18x, 12 December 2018)

In the respective decision, the Austrian Supreme Court clarified that the court may decide on its own which criminal offence is deemed to have been committed and thus would lead to the initiation of main criminal proceedings. In this examination, the addressed court is required to make its own legal assessment of the facts and circumstances covered by the criminal charge on the basis of the suspicion (in the sense of proof of an accusation) arising from the “criminal act”. There is, therefore, no link to the subsumption in the indictment.

Therefore, the addressed criminal court does not have to take into account or follow the public prosecutor’s assessment, but rather decides independently.

With this clarification, the Austrian Supreme Court strengthened again the constitutionally embedded principle of independence of the Austrian courts.