Less intrusive measures.

Proportionality as the guiding principle

Austrian criminal procedure follows a clear hierarchy: deprivation of liberty is the last, not the first, measure. Section 5 StPO (Strafprozessordnung / Code of Criminal Procedure) obliges every investigating authority and every court to choose the intervention that just barely achieves the purpose. For pre-trial detention this entails a twofold test: the court must establish that a ground for detention under Section 173(2) StPO, the risk of flight, of collusion (Verdunkelungsgefahr), of further offending or of carrying out a planned offence, is in fact present, and it must also explain why that purpose cannot be achieved by a less intrusive measure (gelinderes Mittel). The hurdle is therefore formally high, but in practice it only carries the weight that defence counsel manages to put on it.

This principle is not a mere programmatic statement: it forces the court into a concrete forecast. The question is not whether flight is conceivable, but whether the incentive to flee is so strong that even the surrender of travel documents combined with a reporting duty cannot contain it. Nor is it whether the accused could influence witnesses, but whether a non-contact order would not suffice. The more concretely the defence offers the court an alternative, the harder it becomes for the prosecution to portray pre-trial detention as having no alternative. The question of continued detention is therefore often decided on the material that lies on the table at the time of the detention hearing.

A non-exhaustive catalogue

Section 173(5) StPO sets out the typical less intrusive measures. The list is illustrative, not exhaustive: the detention judge is not confined to the nine orders that are spelt out but may impose any other suitable measure, provided it does not amount to an intolerable interference with the personal rights and fundamental rights of the accused. This discretion lies with the court alone. The criminal police is not entitled to order or extend less intrusive measures of its own motion in the course of an arrest; Section 172(2) StPO confers no such power. The combination and adjustment of conditions is therefore reserved to the court hearing, which makes the defence application the decisive turning point.

What matters in each case is whether the chosen measure, alone or in combination, neutralises the concrete ground for detention. Different orders work against the risk of flight than against the risk of collusion, and again others against the risk of further offending or of carrying out a planned offence. The court may combine measures, escalate them and adjust them over time. The typical orders comprise:

• Undertaking to submit to the proceedings (no. 1): a formal declaration not to go into hiding, not to flee and not to leave the country without the prosecutor's consent until the proceedings are concluded.
• Undertaking not to obstruct the establishment of the truth (no. 2): assurance not to influence witnesses or evidence and to deal correctly with all parties to the proceedings.
• No-contact undertaking with victims and dwelling ban in cases of domestic violence (no. 3): duty not to approach the victim or seek contact, supplemented by an emergency barring order under Section 38a SPG (Sicherheitspolizeigesetz / Security Police Act) and an interim injunction under Section 382b EO (Exekutionsordnung / Enforcement Code) in cases of violence within the family.
• Directions as to residence, contacts and consumption (no. 4): order to live at a specific address, to avoid certain venues, persons or meeting points, and to abstain from alcohol or other intoxicating substances.
• Reporting duty (no. 5): periodic appearance at the competent police station, daily, several times a week or weekly, depending on the incentive to flee.
• Surrender of travel documents (no. 6): handing over of passport, identity card and, where relevant, driving licence to the court or the police.
• Provisional probation (no. 7): appointment of a probation officer under Section 179 StPO who supervises the accused, reports to the court and accompanies compliance with the conditions.
• Bail (no. 8): a security under Sections 180 and 181 StPO provided by the accused or by third parties, the amount of which is determined by the gravity of the offence and by the personal and economic circumstances of those concerned.
• Therapy and treatment (no. 9): commencement of withdrawal, addiction or psychotherapeutic treatment, especially for offences involving addictive substances or violence.

Bail in detail under Sections 180 and 181 StPO

Bail is the only less intrusive measure that can replace pre-trial detention even where detention would otherwise be conditionally mandatory under Section 173(6) StPO. It applies, however, only where flight is the sole ground for detention. If a risk of collusion, further offending or carrying out a planned offence is added to flight, bail cannot replace the purpose of detention and is unavailable as the sole measure. This limitation follows from the function of bail: it creates an economic pressure designed to outweigh the incentive to flee, but it has no bearing on the possibilities of influencing evidence or committing further offences.

The court must consider the imposition of bail of its own motion; an application by the accused is not required, although it may sharpen the forecast. Where the offence in question is punishable by a term of imprisonment not exceeding five years, the court is in fact obliged to order bail under Section 180(1) StPO, unless additional grounds for detention stand in the way. The amount is determined by the gravity of the offence together with the personal, economic and asset-related circumstances of the accused or of the person who provides the security. Bail set too low misses the purpose; bail whose economic significance does not actually press on the accused does the same. Practice therefore requires clarity as to the origin and availability of the funds: bail from opaque sources is regularly refused.

Bail is forfeited if the accused evades the further proceedings or the commencement of a custodial sentence (Section 181(1) StPO). A mere breach of a residence ban or of flanking directions does not automatically trigger forfeiture, but may lead to arrest and a fresh review. Where new grounds for detention arise in addition to flight, for instance incipient collusion or a concrete risk of further offending, the accused may be arrested despite the bail, and the security is released and returned to the person who provided it. Anyone who applies for bail should understand this mechanism: it protects the money from forfeiture in constellations in which the less intrusive measure could never have carried the burden in the first place.

Intermediate detention under Section 173(4) StPO

Section 173(4) StPO governs a special configuration: if a separate prison sentence or an administrative custodial penalty is to be enforced against the accused at the same time, the order for pre-trial detention remains in force, but the detention time limits are suspended. During this intermediate detention (Zwischenhaft) no detention hearings take place of the court's own motion; once the enforceable sentence has been served, pre-trial detention revives and the time limits resume their course. Periods of intermediate detention are disregarded in the calculation of the maximum periods under Section 178 StPO. The provision is significant for accused persons who, alongside ongoing pre-trial detention, have a fine converted into a substitute prison term or who face the enforcement of another outstanding custodial sentence. For the defence this means: an application for release subject to less intrusive measures need not be suspended in this constellation, but must be adapted to the changed situation, because the ground for detention persists during intermediate detention and the argument still carries weight once it ends.

Strict separation from electronically monitored house arrest

In public perception, electronically monitored house arrest, often simply called the "electronic tag", is frequently counted among the less intrusive measures. That classification is legally incorrect. House arrest under Section 173a StPO is not a less intrusive measure within the meaning of Section 173(5) StPO but a special form of enforcement of pre-trial detention. The Supreme Court has confirmed this on several occasions (12 Os 102/17t; 15 Os 165/10v); the leading commentary by Kirchbacher/Rami on Section 173a StPO equally treats the provision as a mode of enforcement. Systematically the rule would have belonged in the fourth section of the StPO, which deals with enforcement, rather than the third, which governs the imposition of detention and in which it currently sits.

From this classification follows a clear order of examination: the court must first ask whether a less intrusive measure under Section 173(5) StPO is sufficient to secure the purpose of detention. Only if the answer is negative does house arrest come into consideration at all, and even then not automatically but under its own conditions: application by the accused or the prosecution, a domestic residence, ordered living circumstances, consent to electronic monitoring and a dwelling suitable for it. In practice, detention judges are reluctant to order it. If a ground for detention is present and less intrusive measures do not suffice, the danger can usually not be effectively averted by house arrest either. The literature openly speaks of "particular reservations" on the part of detention judges towards the electronically monitored variant. For the defence application this means: first work through the less intrusive measures properly, and only then add house arrest as a fallback step, not the other way round.

Application and ex officio review

The accused and their counsel may apply at any time for pre-trial detention to be replaced by less intrusive measures or not imposed at all. The court must additionally review of its own motion (von Amts wegen), at every detention hearing, initial imposition, detention review (Haftprüfung) and continuation, whether the purpose can in the meantime be achieved by other means. A measure once ordered remains in force as long as it serves its purpose. If the accused breaches the order, for example by ignoring the reporting duty or a non-contact order, pre-trial detention can be imposed retrospectively, or previously suspended detention enforced. A less intrusive measure is therefore not an act of grace but a vote of confidence with clearly defined obligations.

In practice the prognostic picture often shifts during the investigation: witnesses are interviewed, evidence is secured, parts of the file are closed. The risk of collusion on which the original detention decision rested often shrinks accordingly. A carefully conducted release procedure exploits precisely this shift. Counsel who continuously documents which ground bears how much weight at which point can present concrete arguments at the next review. In the end the court decides; without a prepared counter-proposal, pre-trial detention simply remains the more convenient option.

Combination and practice

In court practice a single measure is rarely relied upon; combination is the rule. Surrender of travel documents plus reporting duty plus a residence order, for instance, neutralises the risk of flight at three points at once. Where the risk of further offending is in play, a non-contact order or a therapy direction may be added; in financial offences with substantial loss, bail often forms the backbone of the package. The more closely the measures interlock, the denser the net that deprives the purpose of detention of its basis.

Whether an application succeeds is rarely decided by the statute but by the quality of the evidence put forward: a confirmed address with registration certificate, demonstrable employment with a wage slip, support from family backed by a written undertaking and, where relevant, a concrete bail offer with proof of the funds' origin. On bail in particular the court demands clarity: source, availability and economic significance of the amount for the accused must be coherent. Bail set too low misses the purpose; bail from dubious sources does the same. A well-prepared application that takes the prognostic burden off the court and makes monitoring practicable measurably improves the prospects of success, even where the court ruled differently in the first round.

What our firm does

We examine the ground for detention and the appropriate less intrusive measure in parallel: which purpose is to be secured, and with which combination of conditions can it be achieved without custody? We gather evidence early, prepare bail offers including proof of origin and lodge the application at the right procedural stage. Where appropriate, we organise contact with treatment facilities, clarify the continuation of employment with the employer and, as a second step where less intrusive measures alone will not carry the load, examine the conditions for electronically monitored house arrest. For relatives, often the first to learn of the arrest, we bundle the necessary steps, from obtaining a registration certificate to preparing a written assurance of support.

The placement within the wider defence strategy is set out on our pre-trial detention practice page. The main proceedings, the defence in the criminal trial itself, are conducted in parallel through strafsachen.at. Less intrusive measures are not merely a plan B: they are the default that the legislature provides, if prepared early and on solid evidentiary ground.