The police have an obligation to investigate any suspected criminal offense. A victim of domestic violence, their family or a witness should contact the police as soon as they can after an incident has occurred. This is motivated by two key reasons:
- First, it makes it possible to protect evidence. If the victim has injuries, they should seek medical assistance to ensure that the injuries are documented.
- Second, some crimes are subject to limitation periods, which once passed cannot be prosecuted. Under the Penal Code, the limitation period for criminal liability depends on the maximum punishment available for the specific offense. For example, for an offense that cannot be punished by life imprisonment but with more than 10 years of imprisonment, the limitation period is 20 years; if the maximum punishment is between five and 10 years of imprisonment, the limitation period is 10 years; and so on. The incident should therefore be reported as soon as possible. A number of police officers in Austria are specially trained to engage in responding to threatening individuals and work with victims to assess and recommend safety measures.[45] This has been put in place to especially tackle violence against women and domestic violence. According to a 2016 report, almost 500 police officers had received training consisting of one to two days led by state-certified trainers.
The victim can request both psychological and legal assistance during the proceedings.[46] As with any court case in Austria, you have a right to representation. This can be by a lawyer, a recognized victim support organization or another suitable person.
If you need legal assistance but do not have the means to pay for this, you can apply for legal aid from the court or bar of the province where you live in Austria. The application form is available at the court or bar. Once you have applied and if legal aid is granted, you will be appointed a lawyer to represent you.[47]
Generally, the burden of proof is set out in the Code of Criminal Procedure.[48] The prosecution (public prosecutor) has to prove the guilt of the accused, but the accused does not have to prove his innocence. In a claim for damages (pain and suffering), the burden of proof lies with the victim.
In practice, this means that the accused is innocent until proven guilty and enough evidence must be presented to the court to convince the court that the accused is guilty. If you are seeking damages, the onus is on you to prove that you suffered a loss.
There is a general advice from protection centers and women counseling centers to also seek legal advice and to bring all the necessary proof and documents that are vital for the court's decision.
Judicial practices to require written evidence affect a victim's right to access justice because proceedings may be delayed or dismissed. Judges are not required to have written evidence and may render a decision on a petition for an order for protection based on the facts and circumstances presented to them. It can be difficult to collect evidence or have witnesses testify in domestic violence cases. Monitoring of decisions in Tirana district courts indicates that decisions were based on written evidence or witnesses in 71% of cases. In practice, judges in Tirana district courts request written evidence and witnesses, or they will dismiss cases.
This practice is particularly concerning because, as indicated above, health centers are not issuing medical certificates to victims that can serve as evidence for the court. The failure of health centers to issue these required reports affects the victim's right to healthcare and the right to a fair hearing. Courts rely on written evidence or witnesses in 70% of cases. Thus, if victims do not have access to medical reports to submit as evidence, courts may postpone hearings, leaving the victim at risk of violence, or dismiss the case for lack of evidence.
According to Section 258, paragraph 2 of the Code of Criminal Procedure, the judges who have to decide the respective case are free in their consideration of evidence (Freie Beweiswürdigung).[51] The judges are obliged to act accurately and diligently while considering the evidence, but they are not bound to any legal rules of evidence.[52]
In civil cases, proof must generally show a "substantial likelihood" but absolute certainty is not required.[53]Yes, willful intent is required.
Regarding the definition of victims and victims' rights, the Code of Criminal Procedure defines three categories of victims in Section 65, paragraph 1, as follows.
Particularly affected victims (Section 65(1)(a) of the Code of Criminal Procedure): This refers to any person who may have been subjected to violence or dangerous threats, or whose sexual integrity may have been impaired, or whose personal dependency may have been exploited by a criminal act committed with intent; the prerequisite here is an act committed with intent, but not the occurrence of a specific loss. In addition to offenses against life and limb, certain property offenses (such as robbery) or trafficking persons by taking advantage of a position of authority or coercion may also be included.[54]
Certain relatives of a person whose death was caused by a criminal act (Section 65(1)(b) of the Code of Criminal Procedure): This refers to the spouse, registered partner, cohabitant, relatives in a straight line, brother, sister and other dependents of a person whose death may have been caused by a criminal act, or other relatives who were witnesses to the act; in this case, intent or negligence of the act do not play a role.[55]
Other persons who have directly or indirectly suffered pecuniary or nonpecuniary damage (Section 65(1)(c) of the Code of Criminal Procedure): This refers to any other person who may have suffered damage as a result of a criminal offense or whose legal rights protected by criminal law may otherwise have been impaired. Thus, the impairment of any legal interests protected by criminal law is sufficient for obtaining the status of a victim in criminal proceedings.[56]It depends on when and how these accusations are made.
A victim making false accusations could be charged for defamation.[57]
Defamation occurs when a person falsely suspects someone else of committing a punishable act (an official offense, e.g., murder) or of violating an official or professional duty, even though the person making the accusation (offender) knows that the suspicion is false. The false suspicion must expose the accused person (victim) to the risk of prosecution by the authorities.[58]
If the person (offender) who made the false accusation has eliminated the risk of prosecution by the authorities before any authority has done anything to prosecute the suspect, that person will not be punished.[59]
The offense of defamation is punishable by imprisonment for up to one year or a fine of up to 720 times the minimum daily wage. However, if the falsely accused act (criminal offense) is punishable by imprisonment for a term exceeding one year, a term of imprisonment of six months to five years is provided.[60]Under the Penal Code, self-defense is an available defense where the unlawful act is necessary to prevent a current or imminent illegal attack on life or health, physical body or property. If the justified level of defense is exceeded, self-defense is not an adequate defense.[61]
Similarly, "insanity" is also an available defense under the Penal Code. If the accused at the time of committing the offense was suffering from a mental illness, mental disability or a profound disturbance of consciousness or another severe condition equivalent to a mental disorder, and the accused was unable to see the injustice of their act, the defense of insanity is available.[62]
However, under domestic violence legislation, no particular provision is made for self-defense or insanity. It is unlikely that such defenses would be readily available and accepted in domestic violence cases.The victim of the crime is normally interviewed as a witness in criminal proceedings. All witnesses summoned by the court, the Public Prosecutor's Office or criminal investigators must obey the summons and answer questions truthfully based on what they have seen, heard or experienced.
If a witness makes a false statement, including intentionally maintaining silence on material facts or stating a lack of knowledge on facts that are actually known, this is a criminal offense.
Any person who gives false testimony in court as a witness or, if they are not also a party, as a person providing information during their formal examination on the merits of the case, or who gives a false finding or a false expert opinion as an expert witness, will be liable to a custodial sentence of up to three years.[63]In Austria, a witness is obliged to state the complete truth.[65] However, according to Section 156 of the Code of Criminal Procedure, individuals who are to testify in proceedings against a relative or victims in particular need of protection[66] (such as minors) are exempt from the obligation to testify. (In this way, for example, you can refuse to answer certain questions.)
According to Section 157 of the Code of Criminal Procedure, individuals are entitled to refuse to testify, among other things, insofar as they would otherwise expose themselves or a relative to the risk of criminal prosecution or in connection with criminal proceedings against them to the danger of incriminating themselves beyond their previous testimony. (In this way, individuals can legally refuse to testify at all. This is often the case whereby women, for example, refuse to testify against their spouses.)
For these purposes, a person's "relatives" refers to: (i) relatives and in-laws in the direct line, a spouse or registered partner and the spouse's or registered partner's siblings, direct siblings and their spouses or registered partners, children and grandchildren, the siblings of the parents and grandparents, cousins and bases, the father or mother of a direct child, adoptive and foster parents, direct adoptive and foster children, and persons over whom the person has custody or under whose custody the person is; and (ii) individuals living together in cohabitation who are treated as relatives, including their children and grandchildren.[67]
Victims will have the right to have their special need for protection assessed and determined as soon as possible in accordance with their age, mental and health condition, and the nature and specific circumstances of the crime. In any case, victims will be deemed to be "in special need of protection": (i) if their sexual integrity and self-determination may have been violated; and/or (ii) if they are minors for whom a prohibition from entry and approach could be issued for protection against violence.[68]According to the Istanbul Convention, Article 26 requires that all assistance measures take due account of the rights and needs of children who have witnessed violence. Age-appropriate psychosocial counseling must be provided and the best interests of the child must be considered.
Article 18 requires that victims should receive assistance in one place, if possible, and not be forced to visit different agencies (also to prevent exposure). According to Section 289b of the Code of Civil Procedure, the court may often exempt the child from testifying before the civil court if the child's well-being is at risk.
In court, the child will mostly be questioned by an expert witness (a psychologist). They support the court when children or young people are to be questioned about events that could be unpleasant or stressful. Professionals are specially trained to do this. In some cases, the judge may also question the child directly. A guardian ad litem will explain the entire procedure beforehand and what it will be like.
Another special protection measure is to question the child outside of the court, which will then be played/read to the court.
As a witness, the child must be informed in a "child-friendly" or "age-appropriate manner" about their exemption from testifying or their right to refuse to testify in whole or in part.[69]Children who are victims of a crime are normally interviewed as witnesses in criminal proceedings, but they require the presence of a trusted individual if the witness is under 14 years old.[70]
Special child protection agencies are normally appointed to support children in the court process. Children can have separate and protective adversary questioning without any direct confrontation with the accused.[71]The judge has the discretion to determine whether a first-time domestic violence offense is a mitigating factor when they render the court's decision.
In a deviation from fixed penalty ranges, criminal law considers aspects that aggravate the penalty as well as aspects that mitigate the penalty in individual cases. This considers the need to be able to adequately assess the individual characteristics of each case.
In the course of sentencing, the court can move within this predetermined framework and determine a sentence tailored to the individual case.
However, criminal law does not always provide for these strict guidelines when it comes to the mitigation of punishment. In fact, in some cases, this is left solely to the discretion of the competent judges. Corresponding passages in the Criminal Code refer to Section 49, paragraph 2. This allows the court to reduce the threatened penalty to the statutory minimum at its discretion. In addition, the court is also entitled in this case to impose a fine instead of a prison sentence.Yes, there are various criminal penalties including:
- Section 83 of the Criminal Code (whoever injures another person on their body or damages their health is to be punished with imprisonment for up to one year or with a fine of up to 720 times the minimum daily wage)
- Section 84 on grievous bodily harm (imprisonment starting from six months up to five years)
- Section 87 on intentional grievous bodily harm (increase from one to five years)
- Section 107b (whoever continues to use violence against another person for a longer period of time is to be punished with imprisonment for up to three years)
- Protection Against Violence Act (a violation fine has been increased from EUR 2,500 to EUR 5,000)
Noncustodial sentences are possible in criminal proceedings where:
- the facts are clear
- the act is subject to a custodial sentence of no longer than five years (three years for offenses against sexual integrity and self-determination)
- the act has not resulted in death
- the offender's culpability is low
- custodial punishment is not required to deter the guilty from criminal acts
Noncustodial sentences include:
- paying a financial penalty of up to 180 times the daily rate (a fine calculated based on daily income and expenses)[75]
- community service
- probation with or without other obligations
- mediation between the offender and the victim[76]