Pre-trial detention may only be imposed and continued at the request of the public prosecutor’s office if the accused is a concrete suspect, has been questioned by the court and there is a reason for detention.
However, detention may not be ordered if it is disproportionate or if its purpose can be achieved by less severe means – such as a vow not to flee until final termination or to complicate the pre-trial proceedings, the payment of bail, instructions to live in a certain place or to avoid certain places, or the taking of identity or motor vehicle documents such as a driver’s license or passport.
In contrast to a normal arrest (see above), where a normal suspicion is sufficient, an urgent suspicion is required for the imposition of pre-trial detention. Essentially, this means that it is clear from the investigations previously conducted that the accused is very likely to be the perpetrator.
The grounds on which detention is permissible are conclusively derived from the law. If the above-mentioned requirements are met, the existence of a single ground for detention is sufficient to justify or continue pre-trial detention. The following grounds may be considered:
- Flight risk
- Danger of concealment
- Danger of committing or fulfilling the crime
With regard to the flight risk, it should be noted that this cannot be assumed if the offense in question is not punishable by a sentence of more than five years’ imprisonment, the defendant is living in an orderly manner – meaning in particular that he or she is pursuing a (legal) activity – and has a permanent place of residence in Austria. Conversely, of course, a flight risk must not be assumed simply because one of these elements is not present – for example, because the person concerned is not engaged in gainful employment.
