Introduction
Introduction
The introduction of accusatory proceedings in criminal cases, and therefore the institutionalisation of the Austrian prosecution service (Staatsanwaltschaft) took place in 1850, when on the basis of the constitution of the Austrian empire of 1849, the provisional Code of Criminal Procedure entered into force. This had been drafted according to the model of the Code of Criminal Procedure for Thüringen that in turn was modelled on Napoleon’s Code d’instruction criminelle of 1808. Before that, in 1848, the public prosecution service had been introduced for the very first time, but limited only in the special field of press cases.
According to the Code of Criminal Procedure of 1850, the public prosecutor was independent from the court, however, an indictment needed to be approved by the latter. The court could also extend preliminary investigations to crimes that had not been covered by the prosecutor’s initial claim. On the other hand, the court needed the prosecutor’s approval to convict the accused for a more severe crime than the prosecutor initially charged for, and was restricted to the sentence the prosecutor had requested.
The reform of 1850 was abolished very soon by the Silvesterpatent of 1851, and a new Code of Criminal Procedure followed in 1853. The Attorney General’s office was abolished, and at the lowest level of courts inquisitorial proceedings were introduced again. At the jury courts, the prosecution service survived, but the prosecutor’s function was reduced to executing judicial decisions to charge persons.
Only in 1867, the principle of separation of powers was introduced in constitutional law again, and the accusation principle as well. A milestone in the development of criminal procedure law was the adoption of the liberal Code of Criminal Procedure of in 1873, a predecessor of the Austrian Code of Criminal Procedure (CCP 1975) which has been amended several times since then.
With regard to pre-trial proceedings, the basic legal concept of the Code of Criminal Procedure of 1873 is the so called ‘investigating judge model’ (Untersuchungsrichtermodell). This entails that the stage of provisional inquiries (Vorerhebungen), led by the public prosecutor, is followed by the most important stage of preliminary investigation (Voruntersuchung), and led by the investigating judge who carries out the actual investigation and the gathering of evidence. In practice, however, investigations are carried out mainly by the police alone and the public prosecutor often files the charge without involving the investigating judge at all. It is obvious that the present legal provisions are no longer in touch with reality.
In February 2004, the discussion on the reform of pre-trial proceedings that had lasted more than forty years came to an (productive) end: the Austrian Parliament finally adopted the so called Strafprozessreformgesetz (Code of Criminal Procedure Reform Act, CCPRA) which replaced Sects. 1 to 219 CCP in force. This act introduces a totally new model of pre-trial proceedings, reorganising the relations between the authorities involved in pre-trial proceedings. Major changes are to be found in the abolition of the stage of pre-trial investigations led by the investigating judge (Voruntersuchung), in broadening the scope of competences and responsibilities of the prosecution service, in formulating an adequate legal basis concerning police competences, and in improving defence rights as well as the position of the victim. The new provisions will only enter into force in January 2008, as the preparatory work required concerning organisational matters, especially with regard to personnel, is considerable. Ninety more prosecutors will be needed, twenty investigating judges less and fifty non-judicial staff more. Of course, the debate is going on: new provisions for the main trial as well as the appeal procedure are under discussion.
It is obvious that within the last 130 years the role of the prosecution service has been changing from a mere request and transport function, to a more adjudicative function (especially with a view to diversion measures). The most recent major amendment was the enactment of the Strafprozessnovelle 1999, introducing the possibility of diversion into general criminal procedure for the first time. Until then, measures of diversion were only known in juvenile criminal law and some specific areas of general criminal law including drug and military offences. Whereas some authors criticise this development asking for the legitimacy of the public prosecutor acting like a judge besides the judge, others do not consider the prosecutor to be an additional judge but consider him to be the institution deciding if a judicial decision is necessary or not. As mentioned above, the Strafprozessreformgesetz broadens the scope of prosecutorial competences even more.
The introduction of accusatory proceedings in criminal cases, and therefore the institutionalisation of the Austrian prosecution service (Staatsanwaltschaft) took place in 1850, when on the basis of the constitution of the Austrian empire of 1849, the provisional Code of Criminal Procedure entered into force. This had been drafted according to the model of the Code of Criminal Procedure for Thüringen that in turn was modelled on Napoleon’s Code d’instruction criminelle of 1808. Before that, in 1848, the public prosecution service had been introduced for the very first time, but limited only in the special field of press cases.
According to the Code of Criminal Procedure of 1850, the public prosecutor was independent from the court, however, an indictment needed to be approved by the latter. The court could also extend preliminary investigations to crimes that had not been covered by the prosecutor’s initial claim. On the other hand, the court needed the prosecutor’s approval to convict the accused for a more severe crime than the prosecutor initially charged for, and was restricted to the sentence the prosecutor had requested.
The reform of 1850 was abolished very soon by the Silvesterpatent of 1851, and a new Code of Criminal Procedure followed in 1853. The Attorney General’s office was abolished, and at the lowest level of courts inquisitorial proceedings were introduced again. At the jury courts, the prosecution service survived, but the prosecutor’s function was reduced to executing judicial decisions to charge persons.
Only in 1867, the principle of separation of powers was introduced in constitutional law again, and the accusation principle as well. A milestone in the development of criminal procedure law was the adoption of the liberal Code of Criminal Procedure of in 1873, a predecessor of the Austrian Code of Criminal Procedure (CCP 1975) which has been amended several times since then.
With regard to pre-trial proceedings, the basic legal concept of the Code of Criminal Procedure of 1873 is the so called ‘investigating judge model’ (Untersuchungsrichtermodell). This entails that the stage of provisional inquiries (Vorerhebungen), led by the public prosecutor, is followed by the most important stage of preliminary investigation (Voruntersuchung), and led by the investigating judge who carries out the actual investigation and the gathering of evidence. In practice, however, investigations are carried out mainly by the police alone and the public prosecutor often files the charge without involving the investigating judge at all. It is obvious that the present legal provisions are no longer in touch with reality.
In February 2004, the discussion on the reform of pre-trial proceedings that had lasted more than forty years came to an (productive) end: the Austrian Parliament finally adopted the so called Strafprozessreformgesetz (Code of Criminal Procedure Reform Act, CCPRA) which replaced Sects. 1 to 219 CCP in force. This act introduces a totally new model of pre-trial proceedings, reorganising the relations between the authorities involved in pre-trial proceedings. Major changes are to be found in the abolition of the stage of pre-trial investigations led by the investigating judge (Voruntersuchung), in broadening the scope of competences and responsibilities of the prosecution service, in formulating an adequate legal basis concerning police competences, and in improving defence rights as well as the position of the victim. The new provisions will only enter into force in January 2008, as the preparatory work required concerning organisational matters, especially with regard to personnel, is considerable. Ninety more prosecutors will be needed, twenty investigating judges less and fifty non-judicial staff more. Of course, the debate is going on: new provisions for the main trial as well as the appeal procedure are under discussion.
It is obvious that within the last 130 years the role of the prosecution service has been changing from a mere request and transport function, to a more adjudicative function (especially with a view to diversion measures). The most recent major amendment was the enactment of the Strafprozessnovelle 1999, introducing the possibility of diversion into general criminal procedure for the first time. Until then, measures of diversion were only known in juvenile criminal law and some specific areas of general criminal law including drug and military offences. Whereas some authors criticise this development asking for the legitimacy of the public prosecutor acting like a judge besides the judge, others do not consider the prosecutor to be an additional judge but consider him to be the institution deciding if a judicial decision is necessary or not. As mentioned above, the Strafprozessreformgesetz broadens the scope of prosecutorial competences even more.
