Can I appeal?
A defendant may appeal to a higher court against any court decision of conviction. In the case of judgments by district courts and by single judges at regional courts, a full appeal may be lodged. Its purpose is to challenge both the verdict of guilty and the decision on the sentence. In these proceedings, you may also request that new evidence be taken, or you may present new evidence.
In the case of judgments by lay judges’ courts or jury courts you may only appeal against the sentence, but not the verdict of guilty. These judgments may only be challenged by an appeal for nullity, in which you may claim errors in procedure, in the reason for the decision and errors in law.
You cannot challenge the judge’s assessment of the evidence. No new evidence may be entered.
You must announce your intention to appeal against a judgment either immediately, when the judgment is pronounced, or within a maximum of three days. The court will then issue the judgment in writing and serve it upon you or your defence counsel. Your counsel must then file the appeal in writing within four weeks
The prosecution has the same right of appeal.
What are the steps in the appeal procedure?
The opposite party to the proceedings (defendant or prosecution) has the right to reply to the appeal. The court then forwards the file to the court of appeal. The Supreme Court always decides on pleas for nullity.
After an oral hearing on the appeal, a decision will be taken. The Supreme Court may also decide on appeals for nullity without an oral hearing.
If the Supreme Court grants the appeal for nullity, it will usually set aside the judgment which is being challenged and the matter must be referred back to the court of first instance. In appeals against verdicts of guilty, the court of appeal may first take any evidence it considers necessary and then decide on the merits.
By announcing and filing an appeal or an appeal for nullity, the judgment which is being challenged is suspended and cannot yet be enforced. However, if you are in pre-trial detention your appeal will not lift the detention.
It is not possible to file a further appeal against a decision by a court of appeal.
What happens after the appeal proceedings?
If your appeal is granted (partly or in full) there may be a second trial before the court of first instance. It is also possible for the court of appeal to take its own decision on the basis of your arguments.
If an appeal is rejected, or if the decision by the court of appeal confirms the conviction, the judgment must be executed once it has become final and enforceable.
Unless you are given a conditional sentence, you will receive instructions to either pay the fine or start serving your prison sentence.
If you are effectively cleared of the charges brought against you, and if you have been detained during the proceedings, you are entitled to compensation for your time spent in custody, in accordance with the Criminal-law compensation act.
Can I serve my sentence in my Member State of origin?
This is possible if you so wish or if you agree. You will find the applicable rules in the Convention on the Transfer of Sentenced Persons (in particular Article 3).
Is my conviction entered in a register?
The Federal Police Directorate in Vienna maintains a criminal register for the whole of Austria. It contains, in particular, the following information:
- all final convictions by Austrian criminal courts;
- all final convictions by foreign courts of Austrian citizens and such persons who are domiciled or resident in Austria; as well as
- all decisions by national and foreign criminal courts relating to these convictions.
No appeal is possible against entries in the criminal register. Depending on the seriousness of the crime, entries in the criminal register are deleted after a certain period of time.
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