QUESTIONNAIRE on alternatives to prosecution in council of Europe member states
1. Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution? Has the situation changed during the last two years or is a change envisaged?
In Austria Sections 90a ff Code of Criminal Procedure provide for the suspension of criminal proceedings (“Diversion”) under certain conditions. In general, a case can be dealt in such an alternative way, if:
- the (eventual) guilt of the perpetrator is not considered to be grave,
- the criminal act did not entail the death of a person,
- the criminal act does not fall within the competence of a court comprising lay judges (this prerequisite includes almost all offences punishable by imprisonment not exceeding 5 years), and
- a punishment does not seem necessary to prevent the suspected person from committing further offences or to prevent other persons from committing crimes in view of an out-of-court victim-offender mediation.
Sections 90a ff Code of Criminal Procedure provide for various forms of out of court settlements (“Diversion”). Under the conditions set out in Section 90a Code of Criminal Procedure (see above 1.) the public prosecutor has to refrain from prosecuting a criminal act in view of the payment of an amount of money (Section 90c) or the furnishing of services in the public interest (Section 90d) or the laying down of a period of probation combined with assistance by probation services and complying with duties (Section 90f), or an out-of-court victim-offender-mediation (Section 90g).
For further information see the details of the wording of the law of “Diversion”, Section IXa. of the Austrian Code of Criminal Procedure (CCP):
§ 90a. (1) The public prosecutor shall proceed according to this chapter of the law and withdraw from prosecuting a punishable act, if the facts have been sufficiently established that it is not possible to dismiss an information pursuant to § 90, but that a punishment does not appear indicated, given the option of
1. the payment of a money fine (§ 90c), or
2. the rendering of community services (§ 90d), or
3. the setting of a probationary period, possible in connection with probation assistance or the performance of duties (§ 90d), or
4. an out-of-court compensation for the act (diversion) (§ 90g)
in order to prevent the suspect from committing punishable acts or to counteract that other persons commit punishable acts.
(2) However, an approach outlined in the present chapter of the law is admissible only if
1. the punishable act does not come under the competences of a panel of lay judges or a trial jury;
2. the fault of the suspect would not have been regarded as grave, and
3. the act did not lead to the death of a person.
§ 90b. The court shall likewise apply the provisions of the present chapter of the law that are applicable to public prosecutors and suspend – by means of a decision – proceedings for a punishable act to be prosecuted ex officio, after having initiated a preliminary investigation or brought charges against a person, under the conditions applicable to public prosecutors until the trial has ended.
§ 90c. (1) With the requirements of § 90a prevailing, the public prosecutor may withdraw from prosecuting a punishable act if the suspect pays an amount of money to the account of the Federal State.
(2) The amount of money must not exceed the amount that corresponds to a money fine of 180 daily rates, plus the costs of the penal proceedings, to be refunded in case of a conviction (§ 389 (2) and (3), § 391 (1)). The amount of money shall be payable within 14 days following service of the notification pursuant to paragraph 4. If this should be an undue hardship for the suspect, the suspect may be granted a respite for the payment of a maximum of six months, or a payment in installments may be permitted during that period of time.
(3) To the extent possible and appropriate, a withdrawal from prosecution after payment of an amount of money shall also depend upon whether the suspect remedies the damage caused by his/her act within a period to be determined (maximum: six months) and proves this without delay.
(4) The public prosecutor shall inform the suspect that it is intended to conduct penal proceedings against the suspect for a specific punishable act, but that one will refrain from this step if the fixed amount of money and, possibly, remedial action for the damage in a certain amount are achieved. Moreover, the public prosecutor shall inform the suspect in accordance with § 90j, as well as of the possible deferment of the payments (paragraph 2), to the extent that the public prosecutor does not offer the suspect that option ex officio.
(5) After the amount of money has been paid and the damage has possibly been remedied, the public prosecutor shall withdraw from prosecuting the case, unless pursuant to § 90h proceedings have to be initiated or continued subsequently.
§ 90d. (1) With the requirements of § 90a prevailing, the public prosecutor may provisionally withdraw from prosecuting a punishable act if the suspect has stated explicitly to be prepared to provide community service within a period of time to be determined (maximum: six months) without any remuneration.
(2) Community service shall serve to express that the suspect is prepared to answer for the act. It shall be provided during the suspect’s free time with a suitable institution with which agreement shall be reached.
(3) To the extent possible and appropriate, the withdrawal from prosecution after rendering community service shall also depend on the suspect remedying the damage caused by the act within a period to be determined (maximum: six months) or contributing towards settling the consequences of the act, and providing immediate proof thereof.
(4) The public prosecutor shall inform the suspect that it is intended to conduct penal proceedings against him/her for a specific punishable act, but that this step will be provisionally stayed, if he/she states that he/she is prepared to provide community service within a certain period of time and in a manner and extent to be determined, to pay a contribution to the costs (§ 388) and, if applicable, to provide compensation for the consequences of the act. In this connection, the public prosecutor shall instruct the suspect according to § 90j; the public prosecutor may also request a person with experience in social work to provide this information and instruction, as well as find the community service (§ 29b of the Probation Service Act). The institution (paragraph 2) shall issue a confirmation to the suspect or the social worker about the services rendered, which must be presented without delay.
(5) After providing community service and, possibly, compensating the consequences of the act the public prosecutor shall finally withdraw from prosecuting the case, unless pursuant to § 90h proceedings must be initiated or continued subsequently.
§ 90f. (1) With the requirements of § 90a prevailing, the public prosecutor may provisionally withdraw from prosecuting a punishable act by setting a probationary period of between one and two years. The term of the probationary period shall begin upon service of the communication regarding the provisional withdrawal from prosecution.
(2) To the extent possible and appropriate, the provisional withdrawal from prosecution shall also depend upon the suspect stating explicitly that he/she is prepared to comply with certain obligations during the probationary period, which might be issued as directions (§ 51 of the Penal Law Code), and to be looked after by a probation officer (§ 52 of the Penal Law Code). In this connection, the obligation may be taken into consideration to remedy the damage caused to the best of one’s efforts or to contribute towards compensating the consequences of the act.
(3) The public prosecutor shall inform the suspect that penal proceedings will provisionally be stayed and not be conducted against him/her for a specific punishable act during a determined probationary period, and the public prosecutor shall inform the suspect according to § 90j. If so required, the public prosecutor shall inform the suspect that this provisional withdrawal from prosecution requires that the suspect pays a contribution to the costs (§ 388) and states explicitly that he/she is prepared to assume certain obligations and to be taken care of by a probation officer (paragraph 2). In this case, the public prosecutor may also ask a person experienced in social work to provide the information and instruction, as well as to take care of the suspect when complying with these obligations (§ 29b of the Probation Service Act).
(4) After expiry of the probationary period and compliance with possible obligations, the public prosecutor shall finally withdraw from prosecution, unless pursuant to § 90h proceedings must be initiated or continued subsequently.
§ 90g. (1) With the requirements of § 90a prevailing, the public prosecutor may withdraw from prosecution if the suspect is prepared to answer for the act and to deal with its causes, if he/she compensates possible consequences of the act in a manner appropriate with the circumstances, especially by remedying the damage caused by the act or otherwise contributing to the compensation of the consequences, and by assuming obligations, if so required, that document his/her readiness to refrain from conduct as has resulted in the act.
(2) The injured person shall be included in the efforts for an out-of court compensation for the act (diversion), to the extent that he/she is prepared to do so. Diversion will be achieved if the injured party consents to it, unless such consent is not given for reasons not deserving consideration in penal proceedings. The justified interests of the injured person shall be taken into account in any event (§ 90i).
(3) The public prosecutor may ask a mediator to inform the injured person and the suspect of the possibility of diversion, as well as in accordance with § 90i and § 90j, and instruct and support them in their efforts for such a compensation (§ 29a of the Probation Service Act).
(4) The mediator shall report to the public prosecutor about the agreement reached regarding compensation and supervise its compliance. He/She shall present a final report as soon as the suspect has complied with his/her obligations, at least to the extent that it can be assumed, taking account of his/her conduct otherwise, that he/she will continue to comply with the agreement or, if nothing else is to be expected, that diversion will be achieved.
§ 90h. (1) After a not merely provisional withdrawal from prosecuting a suspect according to the present chapter of the law (§ 90c, (5), § 90d (5), § 90f (4) and § 90g (1)), initiating or continuing penal proceedings is admissible only if the requirements for a proper reopening of the case prevail. Prior to a withdrawal, penal proceedings shall be initiated or continued in any event if the suspect so demands.
(2) Whenever the public prosecutor suggested to the suspect to pay an amount of money (§ 90c (4)), to provide community service (§ 90d (4)) or to accept a probationary period and possible obligations (§ 90f (3)), or if the public prosecutor has provisionally withdrawn from prosecuting the punishable act (§ 90d (1), § 90f (1)), the public prosecutor shall initiate or continue the penal proceedings, if
1. the suspect does not pay fully or in time the amount of money, together with possible remedies for the damage, or does not provide community service, together with possible compensation for the consequences of the act,
2. the suspect does not sufficiently comply with the assumed obligation, does not pay the contribution to costs (§ 338, paragraphs 1 and 2) or stubbornly withdraws from the influence of the probation officer, or
3. penal proceedings are initiated against the suspect for another punishable act prior to paying the amount of money, together with possible remedies for the damage, or providing community service, together with possible compensation for the consequences of the act, or prior to the expiry of the probationary period. In such an event it is admissible to initiate or to continue subsequently the proceedings, as soon as the suspect is charged with the new or newly emerging punishable act, namely already during one month after such charges are laid, even though in the meantime the amount of money may has been paid, the community service may have been provided, or the compensation for the consequences of the act may have been effected, or the probationary period may have expired. The subsequently initiated or continued penal proceedings shall, however, be suspended, depending on the other requirements, if the new penal proceedings are ended otherwise than by a conviction.
(3) One may, however, refrain from initiating or continuing proceedings if this appears to be justified in the cases under paragraph 2, item 1, for special reasons, or if it does not seem to be required in the cases of paragraph 2, items 2 and 3, in order to prevent the suspect from committing further punishable acts. Moreover, initiating or continuing proceedings in the cases listed in paragraph 2, except for the requirements listed in items 1 to 3, is admissible only if the suspect does not accept the suggestion of the public prosecutor, as mentioned there.
(4) If the suspect does not pay fully or in time the amount of money, or if the suspect is unable to fully or in time comply with the assumed obligations, because this would constitute an undue hardship, on account of circumstances decisive for a considerable change in the amount of money or the type and scope of the obligations, the public prosecutor may appropriately adjust the amount of money or the obligations.
(5) Obligations that the suspect has assumed and payments, which the suspect has stated to be prepared to make, become obsolete once proceedings are initiated or continued subsequently. Probation service ends; however, this shall not affect § 197. Services rendered by the suspect in this connection shall be taken into account when assessing the punishment, if any. If the suspect is acquitted, or if persecution is stayed otherwise, only the amounts of money paid according to § 90c shall be refunded; however, other services shall not be compensated.
§ 90l. (1)The public prosecutor may withdraw from prosecution under the present chapter of the law, as long as he/she has not brought charges against the suspect. After bringing such charges, the public prosecutor shall apply to the court that the proceedings be suspended (§ 90b).
(2) Court decisions according to the present chapter of the law shall be taken by the investigating judge during preliminary investigations, by the adjudicating court in a trial, otherwise by the presiding judge, or in a trial by jury by the criminal chamber of the court. Before the court serves the suspect a communication according to § 90c (4), § 90d (4), § 90f (3), or a decision which suspends the proceedings or rejects their initiation, it shall hear the public prosecutor. Moreover, such a decision shall be served on the suspect only if it has become final and absolute to the public prosecutor.
(3) The public prosecutor has the right to lodge a complaint with the superior court against a decision by means of which penal proceedings according to the present chapter of the law are suspended or initiation of proceedings is rejected (§ 90c (5), § 90d (1) and (5), § 90f (1) and (4), § 90g (1) in connection with § 90b), whereas the suspect and the public prosecutor have the right to lodge a complaint with the superior court against the rejection of a motion to suspend penal proceedings, which complaint shall be lodged within 14 days after service of the document in question. While such a complaint is pending, it is not admissible to hold a trial.
(4) The suspect and the public prosecutor have the right to lodge a complaint against a decision deciding on a subsequent initiation or continuation of penal proceedings (§ 90h), which complaint shall be lodged within 14 days after service of the document in question. The complaint against the subsequent initiation or continuation of penal proceedings has a deferring effect.
In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?
2005: 30,7 % (arraignement)
4 % (Diversion)
42,6 % (abatement of an action)
22,9 % (settlement of another type)
2006: no statistics available
2. In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?
In general, a case can be dealt in such an alternative way, if:
- the (eventual) guilt of the perpetrator is not considered to be grave,
- the criminal act did not entail the death of a person,
- the criminal act does not fall within the competence of a court comprising lay judges (this prerequisite includes almost all offences punishable by imprisonment not exceeding 5 years), and
a punishment does not seem necessary to prevent the suspected person from committing further offences or to prevent other persons from committing crimes in view of an out-of-court victim-offender mediation.
As far as the perpetrator accepts the offer given by the prosecutor or the court, the choice is definitive.
But
- if the perpetrator commits another crime during given probation time (section 90f CCP) or
- refuses to pay the monetary fine (section 90c) or
- does not accept the arrangement fixed by the mediator (section 90g) or
- refuses to provide community service within the given period of time (section 90d) or
- in general refuses to fullfill the given obligation during probation time or does not make up for the damage,
the prosecutor or the court can return to the criminal law measures.
3. Who decides on this choice? What is the specific role of the prosecutor?
The public prosecutor shall withdraw from prosecuting a punishable act, if the facts have been sufficiently established that there are not sufficient reasons to cause penal proceedings to be initiated against a specific person and thus no grounds for any further prosecution of the case, but that a punishment does not appear indicated, given the option of out-of-court-settlements (see answer to question 1).
The public prosecutor may withdraw from prosecution because of “Diversion” as long as he/she has not brought charges against the perpetrator. After bringing such charges, the public prosecutor shall apply to the court that the proceedings be suspended (Section 90b CCP).
The court shall likewise apply the provisions of Diversion that are applicable to public prosecutors and suspend – by means of a decision – proceedings for a punishable act to be prosecuted ex officio, after having initiated a preliminary investigation or brought charges against a person, under the conditions applicable to public prosecutors until the trial has ended (Section 90b CCP).
4. Are there criteria for abandoning the criminal prosecution approach?
See answer to question Nr. 1 and 3.
5. Could it happen that a serious offence escapes any prosecution because of alternative measures?
No. In general, the Austrian system of Diversion as an additional and alternative measure in criminal proceedings is very successful.
6. Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?
In general there is no legal obligation to inform or consult the victims before applying the possibilities of “Diversion”.
Only in case of application of mediation (section 90g CCP) the injured person shall be inculded in the effforts for an out-of court compensation for the “Diversion” to the extent that the victim is prepared to do so. The “Diversion”will be achieved if the injured party consents to it, unless such consent is not given for reasons not deserving consideration in penal proceedings. The justified interests of the victiom shall bei taken into account in any event.
Nonetheless the prosecutor and the court is bound to respect the rights and interests of victims during the proceedings (section 90i CCP).
7. Given that the response chosen gives rise to obligations in respect of the persons subjected to it - such as the reparation of damage - are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?
If the perpetrator does not accept the offered response, he or she is informed by the legal instructions attached to the written settlement of the chosen “Diversion” that in case of disacceptance the prosecution will be continued and a proceeding will be opened.
8. Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victims' interests?
Victim-offender-mediation (Section 90g Code of Criminal Procedure) with one or two specially trained social workers from the probation office is one of the forms of “Diversion”. It is an instrument used for implementation of restorative justice by concentration on the interactional and communicative powers of the parties themselves, on the concrete experience, especially that of the victim and a way of restoring the wrong that has been inflicted.
In this case - in addition to the above mentioned conditions - the perpetrator has:
- to express the readiness to account for the behaviour (not necessarily an admission of guilt),
- to compensate the effects of the crime, primarily to make up for the harm, and
- to express the readiness to refrain from such behaviour in the future.
The mediator has to inform the parties about the procedure, the contents and the effects of the mediation, explores the readiness of the offender to account for the behaviour and to make up for the harm, especially to compensate for the damage caused by an offence, and takes care of the victim´s interests.
The Austrian Ministry of Justice has concluded a contract for the performance of the victim-offender-mediation with the organization "Neustart" on the basis of a flat rate for each handled case.
9. Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?
No.
10. Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?
Mag. Erich Leitner
Staatsanwaltschaft Graz
Conrad-v.-Hötzendorf-Straße 41
A – 8010 Graz
Austria
phone: +43 316 8047 5526
fax: +43 316 8047 5555
email: [email protected]
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