Duration and maximum periods.

Pre-trial detention is always time-limited

Pre-trial detention is a deep interference with personal liberty , guaranteed under Article 5 ECHR and Article 1 of the Federal Constitutional Act on the Protection of Personal Liberty (Bundesverfassungsgesetz über den Schutz der persönlichen Freiheit, PersFrSchG). Every hour of deprivation of liberty without a final conviction demands justification, and that justification does not carry indefinitely: detention is time-limited, periodically reviewed and must be lifted as soon as the grounds fall away. The Austrian Code of Criminal Procedure (Strafprozessordnung, StPO) operates two interlocking systems of time-limits. Section 175(2) StPO governs the internal rhythm, the detention periods (Haftfristen) after the expiry of which the court must decide afresh on continuation. Section 178 StPO sets the outer boundary, the maximum duration (Höchstdauer) up to which detention may be maintained before the main trial has begun. Both interlock with proportionality (Verhältnismäßigkeit) under Section 173(1) last sentence StPO and with the duty of expedition (Beschleunigungsgebot) under Sections 9(2) and 177(1) StPO , a web that holds detention distinctly tighter than the bare statutory ceiling would suggest.

Detention periods under Section 175(2) StPO , the internal rhythm

Orders imposing or continuing pre-trial detention are not effective indefinitely. They carry only for a statutorily fixed period, on expiry of which the court must decide afresh: either detention is formally continued , typically in a detention hearing (Haftverhandlung) , or the accused must be released. Section 175(2) StPO tiers the detention periods as follows:

• 14 days from the initial imposition of pre-trial detention (subparagraph 1).
• One month from the first continuation (subparagraph 2).
• Two months from each subsequent continuation thereafter (subparagraph 3).

These periods are not a mere directory rule, they are the limits of effectiveness of the order: if neither a detention hearing is held nor the accused released before expiry, detention loses its legal basis. The defence therefore tracks these periods in parallel with the file , one of the elementary tasks in any detention mandate.

A specific configuration arises under Section 174(4) StPO: if the accused lodges a complaint (Beschwerde) against the initial imposition, that complaint triggers not the 14-day period but the detention period under Section 175(2) subparagraph 2 StPO , one month from the lodging of the complaint. In practice that means: instead of a detention hearing after 14 days, the decision of the Higher Regional Court (Oberlandesgericht) is awaited, and only the subsequent OLG continuation order then triggers the two-month period. If the complaint is withdrawn before the OLG decision, the one-month period triggered by the lodging remains unaffected.

From the filing of the indictment onwards, the effectiveness of the last detention order is no longer limited by the detention period (Section 175(5) StPO). Detention hearings from that point are held only upon application by the defendant, and only where the application cannot be decided without delay in the main trial itself. The periodic ex officio review thus falls away , its place is taken by proportionality and the duty of expedition as the remaining temporal correctives.

Maximum periods under Section 178(1) StPO , the outer boundary

Independently of the internal rhythm of detention periods, Section 178(1) StPO sets an absolute ceiling for pre-trial detention before the main trial begins. It is tiered by ground for detention and gravity of the offence:

• Two months, in so far as detention rests exclusively on the risk of collusion (Verdunkelungsgefahr; Section 178(1) subparagraph 1 StPO).
• Six months for misdemeanours (Vergehen, Section 17 StGB).
• One year for felonies (Verbrechen).
• Two years for felonies carrying a threatened sentence of more than five years' imprisonment.

All of these periods apply only so long as the main trial has not yet begun. From the start of the main trial there is no rigid maximum period; the only remaining temporal constraint is proportionality under Sections 173(1) and 177(2) StPO, read together with the duty of expedition. The short two-month period for pure risk of collusion is no accident: that risk is by nature transient; once evidence has been secured, witnesses interviewed and written materials seized, the ground falls away. The legislature thereby compels the authorities to swift evidence-gathering.

The "up to three years" tier that appeared in the previous version of this page does not exist in the statute. Section 178(1) StPO knows four tiers , 2 months, 6 months, 1 year, 2 years , and no further. Extensions operate within this frame, not beyond it.

Extension beyond six months , Section 178(2) StPO

If pre-trial detention is to be maintained for more than six months, Section 178(2) StPO requires qualified reasoning: there must be actually existing particular difficulties or particular scope of the investigation, and this must be unavoidable having regard to the weight of the ground for detention. That is a double hurdle which the Higher Regional Court reviews , and it is not soft. Formulaic reasoning, that the proceedings are "extensive" or "complex", will not do. Required is a concrete, fact-based account of which investigative steps remain open, why they could not already be completed and what time-frame they realistically require.

A widespread misconception in practice deserves explicit clarification: the fact that the accused is not making a confession is not a "particular difficulty" within the meaning of Section 178(2) StPO. The right to silence and the presumption of innocence may not be re-interpreted as grounds for extension. A defendant who remains silent does not create a difficulty earning the prosecution more time , he or she exercises a right.

For the defence, the OLG proceedings are a lever in their own right: the submission responding to the application for extension must not merely contest the grounds for detention, it must show concretely that the conduct of the proceedings falls short of the stringent standard. Where interviews came late, expert opinions were delayed without necessity or files left unattended for weeks, those failures belong in the extension submissions. The court decides on the file, not in a public hearing , so a precise, well-structured written submission is decisive.

What happens if the maximum period is exceeded , Section 178(3) StPO

If the maximum period is exceeded without the main trial having begun, the accused must be released without delay. The judiciary has no margin: this is a mandatory legal consequence, not a matter of discretion. Subsequent re-detention is permitted only for a narrowly defined purpose: to conduct the main trial the accused may be taken back into custody, but for no more than six weeks (Section 178(3) StPO). That is a strictly limited fall-back rule, not a means of retroactively curing the lapse of the maximum period.

Counsel must therefore monitor the time-limits with the utmost care , not only the principal deadline, but also the points at which extension applications must be lodged. If the prosecution misses this step, detention cannot be maintained even where the grounds objectively persist. This occurs rarely, but it does occur: in complex proceedings with mountains of files, shifting responsibilities and parallel strands, time-limits can slip out of sight.

The duty of expedition , an independent ground for release

Alongside the rigid maximum periods stands the duty of expedition (Beschleunigungsgebot), anchored in Sections 9(2) and 177(1) StPO and in Article 5(3) ECHR. It obliges the criminal police (Kriminalpolizei), the public prosecutor's office (Staatsanwaltschaft) and the court to conduct proceedings with detained accused with particular dispatch. This is a justiciable duty, not a programmatic statement, and , a point often overlooked in practice , it operates as an independent ground for release: a breach of the duty of expedition can lead to the lifting of pre-trial detention even where the grounds for detention objectively persist and Section 173(1) second sentence StPO is not strictly violated.

Delays capable of breaching the duty are inactivities visible on the face of the file: a file left lying for weeks, an expert opinion whose preparation is not supervised and stretches over months, a delayed written judgment, bank records never requested, postponed interviews. The argument is then not that the grounds for detention have fallen away, but that detention has become disproportionate by reason of a breach of expedition. In defence practice this lever can prove more effective than the debate over the grounds themselves, because delays are documented on the face of the file.

A further insight follows from the case law of the Supreme Court (Oberster Gerichtshof) and the leading commentary (cf. Kirchbacher/Rami, WK § 170 marginal note 17): the proportionality of detention tightens progressively with its duration. The longer an accused sits in detention without a final conviction, the stricter the standard against which any further continuation is to be measured. What is proportionate at the start of detention may become disproportionate after months , not because the alleged offence has changed, but because the weight of detention relative to the anticipated sentence and the conduct of the proceedings so far grows over time.

Specific configurations , judgment of lack of jurisdiction and intermediate custody

Two procedural configurations feed back into the time-limit system:

Judgment of lack of jurisdiction (Unzuständigkeitsurteil): If, in the main proceedings, the court issues a judgment of lack of jurisdiction , not a decision on the merits but a finding that another court is competent , the maximum periods and the detention periods revive under settled case law (Supreme Court; Kier marginal note 9.71). After such a judgment, detention hearings must again be held, and the maximum duration , including under Section 178(2) StPO , applies anew. This is particularly relevant where a file moves back and forth between regional and lay-judge courts, or between district and regional courts.

Intermediate custody (Zwischenhaft, Section 173(4) StPO): If the accused would simultaneously be serving a custodial sentence or another form of custody (for instance a substitute custodial penalty in administrative offence proceedings), the detention order is not lifted, but the running of the detention period is suspended. On termination of the intermediate custody, pre-trial detention runs on. As regards the maximum duration under Section 178 StPO, periods of intermediate custody do not count , they do not consume the limit.

Juveniles and young adults , Section 35(3) and (3a) JGG

A stricter regime applies to juveniles, with shortened maximum periods (Section 35(3) JGG, Jugendgerichtsgesetz / Juvenile Court Act). Section 35(3a) JGG further provides a distinct indictment-follow-on rule: on the filing of the indictment the detention period is first extended by one week; the legal effectiveness of the indictment or the order for the main trial then triggers a detention period of one month; on each further continuation the period is two months. Sections 174(4) and 175(5) StPO do not apply to juveniles. The result is that pre-trial detention of juveniles is more formalised, expressly subsidiary, and more tightly clocked under the JGG than that of adults. For young adults (Section 46a JGG), the special rules apply mutatis mutandis for certain protective aspects.

Periodic detention review despite the maximum period

The maximum periods under Section 178 StPO are the outer boundary, not the benchmark for ongoing detention. Within that boundary, Section 175(2) StPO , with its 14 days, one month and then two months , provides for close-meshed review. At every detention hearing the court re-examines whether the strong suspicion (dringender Tatverdacht), a ground for detention and proportionality still obtain, and whether a less intrusive measure (gelinderes Mittel) , bail (Kaution), directions (Weisungen), probation supervision (Bewährungshilfe) or electronically monitored house arrest (elektronisch überwachter Hausarrest) , would suffice. The maximum duration functions only as a stop-line. Actual detention duration is almost always decided before the ceiling is reached , through release, a less intrusive measure, or the filing of the indictment and transition into the main proceedings.

Credit against a later sentence (Section 38 StGB)

If the proceedings end with a custodial sentence, time spent in pre-trial detention is credited day for day against that sentence under Section 38 StGB (Strafgesetzbuch / Austrian Criminal Code). Six months of pre-trial detention against a two-year sentence means, on this calculation, a quarter of the term already served. Time spent in electronically monitored house arrest under Section 173a StPO is likewise creditable as pre-trial detention. That is no consolation for detention imposed unjustly, but it is a strategic factor: where a multi-year custodial sentence is realistically in prospect, credit has a mitigating effect; where a suspended sentence (bedingte Strafnachsicht) or acquittal looks likely, every week in custody carries the full weight of injustice.

Conditional release after a first-instance conviction , Section 265 StPO by analogy

A configuration frequently overlooked in everyday defence work was settled by the Supreme Court (OGH 14 Os 141/05z, EvBl 2006/39) by analogy with Section 265 StPO: where the accused has been convicted at first instance and the conditions for conditional release under Section 46 StGB are already met , typically after serving half or two-thirds of the imposed sentence, crediting the time spent in pre-trial detention , then pre-trial detention must be lifted. The logic is inescapable: someone who, in served custodial punishment, would already be conditionally released at this point cannot be held further in pre-trial detention, which is the stricter regime of the two.

Outside that configuration, the possibility of a suspended sentence (Section 43 StGB) and the prospect of conditional release are in principle not to be taken into account in the proportionality assessment of pre-trial detention. An important exception applies to juveniles and young adults: where, under Sections 6, 7, 12 or 13 JGG, the imposition of any sentence is to be foregone or the proceedings discontinued , so that no sentence is, in fact, to be expected , pre-trial detention is disproportionate for that reason alone.

Practice: short periods of detention are the rule

The average period of pre-trial detention in Austria lies distinctly below the statutory maxima. Most proceedings pass into the main trial or end in release within a few months. Detentions beyond a year are the exception , typically in complex economic criminal cases, multi-accused constellations with cross-border dimensions, or capital offences with demanding evidence gathering. For the accused this means: the "up to two years" scenario is just that , a scenario that in the ordinary case does not materialise. Conversely: anyone detained in a large economic criminal proceeding must prepare for the long haul, and for a defence ready for every Higher Regional Court extension review. In between: proceedings which after two or four months transition to a less intrusive measure, once the risk of collusion falls away and bail or directions absorb the risk of flight.

What our firm does

We monitor the time-limits, prepare every detention hearing in substance and press for swift conduct of the proceedings. Once the risk of collusion falls away with the progress of evidence gathering , often earlier than the prosecution concedes , we apply for release or a transition to a less intrusive measure. Before the Higher Regional Court we argue concretely against every extension: which investigative steps remain open? Which should already have been completed? Where is there delay breaching the duty of expedition? These questions belong on the table before the extension order is issued, not after. The framework for this text is our pre-trial detention practice; for the subsequent main proceedings, see strafsachen.at.