A change of defence counsel in the middle of ongoing criminal proceedings is not uncommon – and it raises one of the most delicate questions in Austrian criminal procedure: what happens to time limits for appeals that are still running if the previous defence counsel withdraws from the case or is dismissed?
The answer surprises many of those affected: in most cases, the time limits continue to run unchanged. Anyone who fails to act in time risks losing their appeal for good – and with it the opportunity to have a first-instance judgment reviewed.
This article explains the key rules on changing defence counsel while a time limit is running in Austrian criminal proceedings. We show when time limits actually start again, what obligations the previous defence counsel has and what you, as a defendant, need to bear in mind.
How long is the time limit for a plea of nullity and an appeal?
In Austrian criminal proceedings, the time limit for filing the grounds of a plea of nullity and of an appeal is four weeks in each case. This time limit starts to run when a copy of the judgment is served on the appellant or their defence counsel (§ 285 para 1 StPO for the plea of nullity, § 294 para 2 StPO for the appeal).
Important: What counts is the date of the first effective service on an authorised defence counsel. Later changes in the client–counsel relationship do not, as a rule, affect this time limit (RIS-Justiz RS0096301).
The four-week time limit is a statutory peremptory time limit. It cannot be extended or changed by agreement between the parties. If it is missed, the remedy is irrevocably lost.
What happens to the time limit when legal aid defence counsel is appointed?
§ 63 para 1 StPO contains an important special rule: if an accused who was previously not represented by a lawyer is assigned legal aid defence counsel for the first time, the time limit starts again from the appointment of that defence counsel and the service of the relevant document on them.
This rule serves the principle of effective defence: anyone who has so far been without legal representation should not be disadvantaged because time limits were already running before defence counsel had even been appointed.
Which time limits does the fresh start apply to?
The fresh start of time limits under § 63 para 1 StPO applies to the following appeals and other remedies:
- appeal
- plea of nullity
- complaint
- objection
- objection to the indictment under § 213 para 2 StPO
- application for restoration of the status quo ante under § 364 StPO
Key requirement: The accused must previously have been unrepresented. If retained defence counsel was already acting, this provision does not apply.
Is the time limit interrupted by a change of defence counsel?
No. § 63 para 2 StPO makes it unmistakably clear that the time limit is “not interrupted or suspended” because retained defence counsel withdraws from the mandate or the mandate is terminated.
In practical terms: neither the termination of an existing client–counsel relationship nor the subsequent assignment of legal aid defence counsel changes the running of the time limit. The time limit for the appeal simply continues to run (RIS-Justiz RS0125686).
The Supreme Court expressly confirmed this legal position in its decision of 14 January 2020, 11 Os 154/19k, among others: merely notifying the court that the mandate has ended does not stop the time limit from running.
Practical note: Defendants who wish to change defence counsel while a time limit for an appeal is running must make sure that the new defence counsel knows about the pending time limit and can act in time. A change of defence counsel does not extend the preparation period (cf. § 221 StPO by analogy).
What obligations does the previous defence counsel have after the mandate ends?
Even after the mandate has ended, the previous retained defence counsel still has far-reaching obligations. The second sentence of § 63 para 2 StPO provides that the former defence counsel remains obliged to safeguard the interests of the accused and to take the necessary procedural steps while the time limit is running.
How far does the continuing duty extend?
This duty covers, in particular:
- preparing and filing appeals in time,
- observing all procedural time limits, and
- informing the client in good time of any time limits at risk of being missed.
In addition, § 11 para 2 of the Lawyers’ Act (RAO) provides for a 14-day period of continuing duty: even after the mandate has been terminated, the lawyer remains obliged to protect the client from legal disadvantage for a further 14 days.
Exception: The accused may expressly forbid the previous defence counsel to continue the representation. In that case, the lawyer’s duty ends. However, if new defence counsel is engaged, the previous counsel may rely on the new defence counsel to take the necessary procedural steps.
When does the time limit for an appeal actually start again?
The cases in which a time limit for an appeal actually starts again are narrowly limited. The law essentially recognises only the following exceptions:
First assignment of defence counsel to an unrepresented accused
As explained above, the first appointment of legal aid defence counsel for a previously unrepresented accused causes the time limit to start again (§ 63 para 1 StPO). This also applies where the accused applied for the assignment before the time limit began. In that case, the time limit only starts to run once defence counsel has actually been appointed.
Death or removal of defence counsel
If defence counsel dies or is removed from office under § 45 para 4 RAO (for example because they have been struck off the roll of lawyers), service of the judgment on defence counsel is deemed ineffective. The judgment must then be served again, and the time limit starts from the beginning (RIS-Justiz RS0133493).
Please note: A mere change of defence counsel, whether because the client terminates the mandate or because defence counsel withdraws from it, does not fall into this category. In such cases, the time limit continues to run unchanged.
What applies to the time limit for giving notice of appeal?
In addition to the four-week time limit for filing the grounds of appeal, there is another, much shorter time limit: the time limit for giving notice of appeal. Notice of an appeal against a judgment must be given within three days of the judgment being pronounced (§ 284 para 1 StPO).
Important: Giving notice of an appeal is not a case of mandatory defence under § 61 para 1 no 6 StPO, so the defendant does not need to be represented by a lawyer for this step. The appointment of legal aid defence counsel therefore does not cause the time limit for giving notice of appeal to start again. The defendant must give notice of the appeal within the three-day time limit, either personally or through their (previous) defence counsel.
This rule is highly significant in practice: if the defendant fails to give notice of appeal, even filing the grounds in time later can no longer save the appeal.
What are the risks of missing a time limit?
The consequences of missing a time limit are drastic and final:
Under § 285d para 1 no 1 StPO, the Supreme Court must reject a plea of nullity filed out of time without any examination of the merits. In that case, the court examines neither the grounds of nullity put forward nor whether the first-instance judgment is correct. The decision becomes final and cannot be challenged.
The same applies mutatis mutandis to an appeal whose grounds are filed out of time. In both cases, the defendant loses the right to have the judgment reviewed by a higher court – a serious disadvantage that cannot be reversed.
Key point: A change of defence counsel is no reason to extend a time limit. Anyone who changes defence counsel while a time limit for an appeal is running bears the full risk of missing it.
Conclusion: act in time – safeguard your rights
Changing defence counsel while a time limit for an appeal is running is one of the riskiest situations in Austrian criminal proceedings. The legal position is clear: time limits generally continue to run, and a change of defence counsel does not buy any extra time. Only in narrowly defined exceptional cases does the time limit start again: the first appointment of legal aid defence counsel for a previously unrepresented accused, or the death or removal of defence counsel.
This applies equally to defendants and defence counsel: anyone considering a change of defence counsel should make it as early as possible and organise a seamless handover. The previous defence counsel remains obliged to act until the time limit expires, unless the client expressly forbids this.
Contact
Do you have questions about changing defence counsel in criminal proceedings, or do you need legal support at short notice while time limits are running? The lawyers in the Legal Defense practice at KINDL.trusted are here to help with their expertise.
Your contacts from our KINDL.Legal Defense practice area:
