Lawyer Daniel Strauss

What to do in case of arrest?

There is probably nothing more stressful than the deprivation of personal freedom. This makes it all the more important to react quickly in these situations. 

When may an arrest be made?

The prerequisite for arrest is a concrete suspicion and the existence of (at least) one reason for arrest. An additional prerequisite is that the arrest is proportionate as a massive encroachment on fundamental rights. There are four grounds for arrest:

1. entering in the act

This reason for detention exists, for example, if the police observe the crime or if the accused is found near the scene of the crime with the tools of the crime.

2. flight risk

There is a risk of flight if the accused is a fugitive or in hiding or if there is a risk that he will flee due to certain facts (e.g. airline tickets have already been purchased and all cash has been withdrawn from the account). In practice, a risk of flight is regularly (too easily) assumed in the case of foreign citizens without a permanent residence, family or work in Austria.

3. danger of collusion

This reason for detention exists if the accused tries to influence witnesses or coaccused or tries to remove traces of the crime or there is a danger that he will try to do so. Examples are: Files have already been destroyed; telephone calls and meetings with co-defendants or witnesses in order to influence them.

4. danger of repetition or execution of the crime

This reason for detention exists if there is a fear that the alleged perpetrator could commit a new offense with a prison sentence of more than six months, which is directed against the same legal interest (e.g. in the case of bodily injury, a new offense against life and limb).

In the case of particularly serious crimes with sentences exceeding ten years (e.g. murder, aggravated robbery, rape), arrest must usually be ordered unless all of the above grounds for arrest can be ruled out (which hardly ever happens in practice).

What is the procedure for an arrest?

If the conditions for an arrest described above are met, the arrest is ordered by the public prosecutor's office and approved by a judge. The arrest itself is carried out by the police. In case of imminent danger or if the suspect is caught in the act, the police may carry out the arrest even without prior court authorization.

In practice, it can unfortunately happen that the police assume in advance that they will not receive permission for the arrest from the public prosecutor's office and the court. The accused is arrested on the grounds of "imminent danger" and questioned in the hope that the accused will make a confession in this pressure situation, which is supposed to justify the arrest in the first place.

What do I do if I am arrested?

1. contact lawyer

In the event of an arrest, they always have the right to contact a lawyer.

2. keep calm

Even if you are in an exceptional situation, it is important to remain calm. The police are in the driver's seat. Try to treat the police with respect. Insults or physical resistance can have a negative effect on your proceedings. 

3. you have a right to silence!

As the accused, they do not have to incriminate themselves. No statement is better than a bad one! A mitigating confession can also be made during the trial.

4. notification of the relatives

Each arrestee has the ability to contact someone by phone about the arrest.

5. read the legal notice

After the arrest, the police must provide them with an information sheet on their rights and obligations. This must be given to them in a language they understand. Read the information sheet carefully.

6. do not sign the protocol just to get away quickly

Read the protocol and sign it only if you really agree with the content. You can also ask for changes or deletions. If you do not agree, write down the reasons for refusal.

Why is it important to contact an attorney immediately if you or a loved one is arrested?

The first police interview is often decisive for the further course of proceedings and the outcome of the trial. Especially in the field of addictive substances, most convictions are based on the first statement to the police. The suspect finds himself in a pressure situation that is often unknown to him, and under these circumstances he is suddenly prepared to confess to actions to which the police had not even had a basis for investigation beforehand, or which the defendant would not have reported in this way.  

It is therefore particularly important to be represented by a lawyer during the first police interrogation!

I am here for you!

If your freedom is at stake, you should choose a lawyer specialized in criminal law. In case of emergency (arrest, house search) you can reach me at +43 699 1922 1541 even outside normal office hours.
Lawyer Office Vienna

Course of criminal proceedings

Criminal proceedings can be divided into three stages: Preliminary proceedings, main proceedings and appeal proceedings.

Not every criminal case has all three sections. If the preliminary proceedings are discontinued, for example, because there is no act threatened with punishment, there is no indictment. If the verdict is not contested, there is no appeal procedure.

Graphic main process


The aim of the preliminary proceedings is to clarify whether the public prosecutor's office has to file charges or whether the proceedings have to be discontinued (e.g. due to insignificance) or whether it is necessary to withdraw from the prosecution ("diversion").

The preliminary investigation usually begins as soon as the police become aware of a criminal act and start investigating to clarify an initial suspicion (e.g. questioning witnesses; seizing drugs, etc.).

The preliminary proceedings often set the course for the later outcome of the proceedings. If preliminary proceedings have been initiated against you, it is advisable to consult a lawyer specializing in criminal law as early as possible.

The first prerequisite for developing a defense strategy is to find out what evidence is available against you. This requires a comprehensive inspection of files at the police and public prosecutor's office.

Ideally, you should hire a lawyer who specializes in criminal law before you are questioned by the police. Depending on the specific case, it may make sense for the accused not to make a statement to the police ("right to refuse to testify") or a written statement may be made by the accused.

Furthermore, requests for evidence exonerating the accused can already be made during the preliminary proceedings (e.g. questioning of exculpatory witnesses).

Main procedure

If, on the basis of the results of the police investigation, the public prosecutor's office comes to the conclusion that the initial suspicion has been substantiated, it files charges or a criminal complaint with the competent court.

The main hearing begins with the judge calling the case. The defendant takes a seat in the center ("dock") and the judge takes the record (name, income, does the defendant plead guilty or not guilty). This is followed by the opening statements of the prosecution and then the defense counsel. The judge questions the defendant about the course of events. The prosecutor and defense counsel then have the right to ask questions. The defendant then takes a seat next to his defense attorney. 

The witnesses are called in turn (one at a time) and questioned by the judge. Afterwards, the public prosecutor and the defense attorney have the right to ask questions to each witness. Even if a witness heavily incriminates you or tells the untruth, stay calm! You will not score any points with the court if you interrupt the court or a witness.

Furthermore, motions may be filed during the main hearing by the public prosecutor or by the defendant and his defense counsel in order to influence the course of the trial (e.g. to summon additional witnesses, to appoint an expert or to request an adjournment). The court decides whether to grant the motions.

Once all witnesses have been questioned and no further motions are filed, the court closes the evidentiary proceedings. The prosecutor and defense counsel make their closing arguments; the defendant has the last word ("e.g., I concur with the words of my defense counsel, would like to sincerely apologize for my actions, and ask the court for a lenient sentence").

The main proceedings end with the pronouncement of judgment (acquittal or guilty verdict). In any case, the pronouncement of the verdict still takes place during the main hearing (unlike in civil proceedings).

Appeal procedure

Legal remedies (appeal and/or nullity appeal) may be taken to check the judgment (the court may also make mistakes).

At the pronouncement of the verdict, the court also gives instructions on the right of appeal. The court asks the defendant whether he/she agrees with the verdict. The defendant can either accept the verdict while the trial is still in progress, file an appeal, or ask for time to think it over. If the verdict is favorable to you, they will file a waiver of appeal (accept it). If the public prosecutor's office also agrees with the verdict, it becomes legally binding (becomes legally effective and cannot be changed).

In case of doubt, ask the court to have a brief exchange with your defense attorney to discuss the verdict. An appeal must be filed within three days from the date of pronouncement of the judgment (the day of pronouncement of the judgment is not counted).

The court shall then deliver the written copy of the judgment, whereupon the appeals shall be executed in writing within four weeks.

The result of an appeal procedure is, in overview, that

  • the judgment remains in force and becomes legally effective, or
  • the judgment is set aside in whole or in part.

I am here for you!

Do you have any questions? Do not hesitate to contact me.