Criminal proceedings and imprisonment abroad
If an Austrian citizen has been detained or arrested abroad, he/she should request that the nearest Austrian representation authority be notified without delay. The latter will endeavour to establish contact with the detainee. It is also necessary to explicitly notify the Austrian representation authority as to whether or not relatives are to be informed of the detention.
In line with the Vienna Convention on Consular Relations of 1963, which most states are party to, the authorities of the host country shall without delay inform the local representation of the arrest, custody or detention of one of its nationals, provided that this is requested by the Austrian national. Some states will automatically inform the representation authorities of the home country. The representation authority has the right to visit, converse and correspond with nationals who are under arrest, in custody or in detention. These rights may not be restricted by local legislation to an extent that renders the exercise of such rights impossible.
The Austrian embassies and consular posts are not authorised to legally represent anybody in legal or administrative proceedings. Upon request the representation authority may – also in cooperation with the Austrian citizen’s relatives, friends or associates – provide information on or arrange for a qualified defence counsel. The fees charged by this legal counsel must, however, be borne by the Austrian national himself/herself. Often it may be necessary to open a deposit account for legal counselling fees at the Federal Ministry for Europe, Integration and Foreign Affairs. Generally speaking, guaranteed payment of legal counselling fees is a prerequisite for the acceptance of the case by a defence counsel. When the Austrian national lacks the necessary means, he/she may apply for legal aid (court-appointed public defence counsel) – if available in the host country.
The representation authority is not authorised to interfere with court proceedings. It shall, however, strive to ensure that there are no violations of human rights, fundamental freedoms or international minimum standards (delays of procedures, denial of the right to be heard, denial of legal remedy, etc.) in the course of the criminal proceedings and that the defence may have the opportunity to fully make use of all its legal options.
If possible, the defence counsel shall apply for the accused’s release from prison, custody or detention, if necessary against a bail (in most of the cases, the accused is not allowed to leave the country until proceedings have started) or call for criminal proceedings to be transferred to Austria.
Under certain conditions (legal regulations or mutual reciprocity) it is possible that after a binding judgement has been passed and the part of the jail sentence that must be served abroad under the applicable local legislation has been served, enforcement of the sentence is taken over by Austria. The inmate may also – at the appropriate time – submit an appeal for clemency, which having been directed via the prison administration and endorsed by the competent Austrian authority may be submitted to the competent bodies abroad.
At regular intervals, representation authorities ascertain that Austrian prison inmates are being treated in accordance with relevant local regulations and that Austrian inmates enjoy any privileges they may be entitled to under local provisions. In this context it must be noted that food and provisions in prisons may sometimes be limited and may have to be supplemented using personal resources. In such cases it may be advisable that the inmate’s relatives establish an “inmate deposit” account at the Federal Ministry for Europe, Integration and Foreign Affairs. Especially in countries where conditions of imprisonment are known to be difficult, officers of the Austrian representations pay regular visits to Austrian inmates and provide necessary support. The right to visit the inmate is enshrined in the Vienna Convention on Consular Relations and in bilateral consular agreements in place between Austria and some countries. Only if the prison inmate explicitly refuses to be visited shall the Austrian representation refrain from paying such visits.