Questionnaire Austria
I.17 On what main grounds can non-prosecution take place?
Due to the principle of legality public prosecutors basically are not allowed to dismiss cases for expediency reasons. The public prosecutor just has to find out if the act in question is a punishable act; if this is true he has to prosecute. In a modern sense, of course, this does not necessarily mean to file charges as the prosecutor might decide for a diversionary measure.
Nevertheless the law provides for exceptions from the legality principle. In fact there is (only) one major exception to be found in general criminal law, that is sect. 34 CCP.
There exists no general rule, however, that would allow non-prosecution of minor offences if there is no public interest. At least there is a possibility to abstain from prosecution if the requirements of sect. 42 PC are fulfilled (see Q 18).
Sect. 6 Juvenile Justice Act (non-intervention) provides for a much more flexible regulation of the prosecutor’s obligation to prosecute.
In general it is accepted that the public prosecutor may refrain from prosecuting if the successful investigation of a minor offence would cause unreasonable costs.
Nevertheless the law provides for exceptions from the legality principle. In fact there is (only) one major exception to be found in general criminal law, that is sect. 34 CCP.
There exists no general rule, however, that would allow non-prosecution of minor offences if there is no public interest. At least there is a possibility to abstain from prosecution if the requirements of sect. 42 PC are fulfilled (see Q 18).
Sect. 6 Juvenile Justice Act (non-intervention) provides for a much more flexible regulation of the prosecutor’s obligation to prosecute.
In general it is accepted that the public prosecutor may refrain from prosecuting if the successful investigation of a minor offence would cause unreasonable costs.
