Criminal proceedings can drag on for years—placing a significant burden on those involved. However, Austrian law sets limits on the duration of proceedings: the principle of expeditious proceedings (Section 9 of the Code of Criminal Procedure) and the right to a fair trial within a reasonable time (Article 6(1) of the ECHR) protect defendants from undue delays. Those who know their rights can actively challenge such delays and, in the event of an excessively long trial, secure a measurable reduction in their sentence. This article provides a concise summary of the key legal principles, legal remedies, and current case law.
What does “excessively long proceedings” mean in Austrian criminal law?
Under Section 9 of the Code of Criminal Procedure (StPO), every defendant has the right to have the proceedings concluded within a reasonable time. This so-called “principle of expeditious proceedings” obligates law enforcement authorities to conduct proceedings promptly. In addition, Article 6(1) of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial within a reasonable time. Proceedings are considered unduly prolonged if these time limits are exceeded without objective justification.
What criteria does the European Court of Human Rights apply when assessing the length of proceedings?
The European Court of Human Rights (ECHR) assesses the reasonableness of the length of proceedings based on four criteria (RIS-Justiz RS0120794): the complexity of the case, the conduct of the defendant, the conduct of the authorities, and the importance of the matter to the person concerned. No absolute maximum time limits can be derived from the ECtHR’s case law. However, as a general guideline, approximately one year per instance is generally considered reasonable. If proceedings last ten years or more, the ECtHR generally finds a violation of Article 6(1) of the ECHR (see ECtHR, Oct. 25, 2011, 24941/08, Polz v. Austria).
How long can a preliminary investigation last?
Preliminary investigations are subject to a statutory maximum duration of, in principle, two years (Section 108 of the Code of Criminal Procedure). A judicial extension (which may be granted multiple times) of up to an additional two years is possible. The 2024 Act Amending the Code of Criminal Procedure has revised § 108 of the Code of Criminal Procedure and now provides for more detailed provisions regarding motions to dismiss and extensions. The previous review provision in Section 108a of the Code of Criminal Procedure has been repealed. However, the basic maximum duration of two years remains in effect.
What rights do suspects have when preliminary proceedings take an unreasonably long time?
During the preliminary investigation, suspects have several legal remedies available to them:
- Objection on the Grounds of a Violation of Rights (Section 106 of the Code of Criminal Procedure): This legal remedy allows a person to assert specific violations of rights during the preliminary investigation.
- Motion to Dismiss the Preliminary Investigation (Section 108 of the Code of Criminal Procedure): The accused may file a motion to dismiss the preliminary investigation if it is established that the offense underlying the preliminary investigation is not punishable by a judicial penalty, if further prosecution is inadmissible, or if the urgency and gravity of the suspicion, as well as the duration and scope of the preliminary investigation to date, do not justify its continuation or if an intensification of the suspicion is not to be expected. Important: This motion cannot be filed if there is an urgent and substantial suspicion of a crime.
- Disciplinary Complaint (Section 37 of the StAG): Another tool available is the disciplinary complaint, which can be used to draw attention to delays in the preliminary investigation.
How can those affected address delays during the main proceedings?
Further legal remedies are available during the main proceedings:
- Motion to Set a Deadline (Section 91 GOG): The motion to set a deadline is the primary legal remedy in cases of procedural delays in the main proceedings (OGH 11 Os 121/20h). It is addressed to the higher court and is intended to compel the defaulting court to carry out the delayed procedural act.
- Appeal against a sentence (Section 283(1), Section 346 of the Code of Criminal Procedure) or appeal regarding the sentence (Section 446(2), Section 489(1) of the Code of Criminal Procedure): An appeal regarding the sentence is the primary means of challenging a failure to take into account, or insufficient consideration of, the excessive length of the proceedings when determining the sentence.
- Individual complaint to the European Court of Human Rights (Art. 34 of the ECHR): After exhausting all domestic remedies, a complaint may be filed with the European Court of Human Rights.
When does an excessively long trial lead to a reduced sentence?
Pursuant to Section 34(2) of the Criminal Code (StGB), an excessively long duration of proceedings constitutes a special mitigating factor. Case law distinguishes between two categories of cases (RIS-Justiz RS0132858): first, the additional burden caused by a disproportionately long duration of proceedings, and second, the violation of Article 6(1) of the ECHR. A mere blanket consideration is not sufficient—the mitigation of the sentence must be explicit and measurable (RIS-Justiz RS0121600). The court must therefore specifically state in its judgment the extent to which the excessive length of the proceedings was taken into account as a mitigating factor.
What happens if the judgment is issued late?
Exceeding the four-week deadline for issuing a judgment, as provided for in § 270(1) of the Code of Criminal Procedure, may also constitute a mitigating factor (RIS-Justiz RS0120138). This applies to the period from the conclusion of the oral hearing until the written judgment is served.
What did the Supreme Court clarify in its recent decision 13 Os 8/25p?
In its decision of March 19, 2025 (13 Os 8/25p), the Supreme Court provided a clarification of practical significance: Failure to take into account the excessive length of proceedings as a mitigating factor does not constitute grounds for nullity under Section 281(1)(11), third case, of the Code of Criminal Procedure. Rather, it constitutes a ground for appeal (appeal regarding the sentence). In practice, this means that anyone wishing to challenge the failure to take the excessive duration of proceedings into account when determining the sentence must file an appeal regarding the sentence.
Do excessively long proceedings lead to impunity or hinder prosecution?
No. An excessively long duration of proceedings does not constitute grounds for immunity from punishment or an obstacle to prosecution (RIS-Justiz RS0074866). The proceedings will therefore not be dismissed, and a conviction remains possible in principle. However, as described, the excessive length of the proceedings may lead to an explicit and measurable reduction in the sentence.
What is the reopening of proceedings following a judgment by the European Court of Human Rights?
If the European Court of Human Rights (ECHR) finds a violation of Article 6(1) of the ECHR, Section 363a of the Code of Criminal Procedure (StPO) allows for the criminal proceedings to be reopened. This is subject to the condition that all domestic remedies have been exhausted and a motion to set a deadline has been filed (Supreme Court, February 29, 2012, 15 Os 174/11v). A violation within the meaning of this provision can only be found if no explicit and measurable reduction in the sentence was granted in the domestic proceedings due to the excessive length of the proceedings.
Conclusion: Taking action early on protects your rights
Excessively long proceedings are a significant issue in Austrian criminal law practice. Defendants have effective legal remedies available to them in both the preliminary investigation and the main proceedings—ranging from motions to set a deadline to complaints to the European Court of Human Rights. It is crucial that the excessive length of proceedings be challenged in a timely manner and that the appropriate legal remedies be pursued. In particular, the recent Supreme Court decision 13 Os 8/25p demonstrates that an appeal regarding the sentence is the mandatory route for asserting a claim for a reduced sentence.
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