Questionnaire Austria
I.33 Under which circumstances?
Before the opening of the main trial the prosecutor
may exchange the original charge for a new one (that means he may withdraw the
original one and bring in a new one instead; sect. 227 CCP). This might happen
due to new results of criminal investigations, but even due to a new legal
assessment of the case. The accused then again has the right to file an
objection against the new charge (see Q 30).
If during the main trial the prosecutor gets to know about another criminal offence committed by the accused or if the accused commits a criminal offence during the main trial the public prosecutor may extend the charge on this offence. The court then has three possibilities to proceed:
- include this offence into the current trial and decide on it, too;
- restrict the trial to the original charge and explicitly reserve the right to prosecute in the judgement on the request of the prosecutor; the prosecutor then has to prosecute (start provisional inquiries, petition the investigating judge to begin a preliminary investigation, or file a charge) within 14 days; and
- postpone the main trial to be able to decide on all accusations at once.
If during the main trial the prosecutor gets to know about another criminal offence committed by the accused or if the accused commits a criminal offence during the main trial the public prosecutor may extend the charge on this offence. The court then has three possibilities to proceed:
- include this offence into the current trial and decide on it, too;
- restrict the trial to the original charge and explicitly reserve the right to prosecute in the judgement on the request of the prosecutor; the prosecutor then has to prosecute (start provisional inquiries, petition the investigating judge to begin a preliminary investigation, or file a charge) within 14 days; and
- postpone the main trial to be able to decide on all accusations at once.
