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Criminal proceedings allow persons injured by a criminal act to press for compensation by declaring that they wish to be party to the criminal proceedings in order to assert these rights. Compensation can be sought in respect of a financial loss which the victim has suffered as a result of a criminal act prosecuted by the state. Injury to interests not resulting in pecuniary loss is not sufficient for this.
Section 47(1) of the Code of Criminal Procedure provides for injured persons to assert their private law rights arising from the criminal act up to the start of the court proceedings. However, case law allows injured persons to become party to the case during the course of the court proceedings.
The injured person’s involvement in order to assert their private law rights arising from the criminal act (involvement in a private capacity) does not constitute an action, i.e. does not have the formal equivalence of an action brought under civil law. All that is required is a declaration, following no particular form, of intention to seek compensation for the injury suffered and to become party to the criminal proceedings for this reason. The Code of Criminal Procedure lays down no particular procedure for a person to become party in a private capacity. Instead, he can give oral evidence when reporting the matter, when witnesses are heard by the law and order agencies (police, gendarmerie) or by the examining judge in the preliminary court hearings or – see 1. 2. – even during the court proceedings themselves. It is also not necessary for a person to be legally represented by a lawyer when making any written declaration of intent to become party. The said declaration gives the injured party a private party status (Section 47(1) of the Code of Criminal Procedure) and he then becomes party to the criminal proceedings.
In the declaration of intent to join the proceedings in a private capacity, the actual sum sought in compensation need not be given, though naturally it is useful to state the amount sought. If the claims rely on a variety of different material circumstances and legal grounds (for example hospital costs and damages for pain and suffering) , then the sum sought in compensation should be specified – not later than the court proceedings.
Legal assistance is available free of charge to injured parties – irrespective of whether criminal proceedings are pending or not – at all district courts and as an ‘initial legal opinion’. Further, all the authorities involved in the criminal proceedings are required to explain to injured parties their rights in criminal proceedings (Section 47a(1) Code of Criminal Procedure) , to keep them informed about the current criminal proceedings if there is any doubt as to whether they are aware of them (Section 365(1) Code of Criminal Procedure) and as part of their official procedure to take into account the injury suffered as a result of the criminal act and any other important incidental circumstances bearing on the private law consequences (Section 365(1) Code of Criminal Procedure). Although such representation is not compulsory, any person who is party to criminal proceedings in a private capacity can be represented in them by a lawyer. Minors who are the victims of maltreatment and sexual abuse are entitled, by way of a sort of ‘legal follow-through’ to free representation by a lawyer throughout the process, from reporting the matter to the authorities to the conclusion of the criminal proceedings. There is however no general cost-free provision of legal representation for parties involved in a private capacity.
The court must as part of its official procedure take into account the injury suffered as a result of the criminal act and any other important incidental circumstances bearing on the private law consequences (Section 365(1) Code of Criminal Procedure). The court is also required to carry out simple additional enquiries if the evidence before the court in the criminal proceedings is in itself insufficient to come to a reliable judgement on the claims for compensation (Section 366(2) Code of Criminal Procedure). In Austrian criminal proceedings and in proceedings in respect of compensation for injury suffered as a result of the act and asserted while the criminal proceedings are in progress (Adhäsionsverfahren) , the inquisitorial principle applies, which means that it is part of the official role of the court to investigate the facts instead of the parties themselves. It is therefore the responsibility of the court to take down the evidence necessary for a ruling on the question of compensation.
The legal follow-through service for victims of crime, which is supported by the Austrian Federal Ministry for Justice and which can cover both legal and psychological assistance and counselling, is offered where required throughout the whole criminal proceedings until their conclusion. This form of assistance to victims of crime does not extend to a subsequent civil case or a case for the enforcement of an award of compensation (execution proceedings).
It must be noted however that the court’s rulings in execution proceedings are generally made without any previous oral hearing so that there is no opportunity for the victim of the crime to be questioned. In the few instances where the law does require questions to be put to the victim this can be done either orally or in a written statement. Such an oral session can be conducted – in the presence of an authorised representative and a person of trust - without any of the other persons to be questioned being present at the same time. This rules out any confrontation between the victim and wrongdoer.
State aid is offered under the Federal Act of 9 July 1972 on the award of aid to victims of crime, Austrian Official Federal Gazette No 288/1972 (Victims of Crime Act– VOG).
The determining factor for the award of state aid is that the injured party is victim of an unlawful and intentional criminal act punishable by more than six months’ imprisonment.
The rule is that the criminal act described in 2. 2. must have caused actual bodily harm or have impaired the victim’s health.
If the victim’s ability to engage in gainful employment is reduced, aid will only be granted in respect of loss of earnings if the condition is expected to last for at least six months or if there is serious physical injury as laid down in the Criminal Code.
VOG lays down that surviving dependents are also entitled to compensation.
Aid is available to Austrian citizens irrespective of where the criminal act took place.
Further, citizens of the European Economic Area are entitled to claim compensation for injury suffered in Austria. For injury suffered outside Austria, the determining factor is that they must have their permanent residence in Austria – this is in compliance with the freedom of residence and movement as defined in the Agreement on the European Economic Area.
As set out in 2. 5., there are certain circumstances under which compensation is also available for criminal acts committed abroad.
Applicants are under a strict obligation to assist in solving the crime and apprehending the culprit. No aid is available if the victim wilfully fails to assist.
Applications made under VOG can be made independently of the stage of the police enquiries or the criminal proceedings.
In order to obtain state aid under VOG, it is not necessary to sue the culprit first under civil law.
However, when the amount of state aid available under VOG is calculated, any compensation payments already made by the wrongdoer will be taken into account.
State aid can be awarded even where the wrongdoers are unknown, provided it can be presumed in all probability that a criminal act, as defined in 2. 2., has been committed.
The standard periods within which applications for individual aid awards must be made are six months or two years from the time of commission. Where applications are made later, aid is generally awarded with effect from the beginning of the month following that of application.
VOG lays down the following awards of aid:
The awards of state aid as defined in 2. 12 are made in the main in line with civil law criteria (civil law provisions in respect of damages).
When awarding compensation because of loss of earnings and maintenance, the income lost as a result of the cause is met up to a fixed maximum. When awarding aid in the form of care and blindness allowances, the extra care-related expense is met with fixed-rate amounts.
Essentially, there are no upper or lower limits to state aid. However, monthly income limits are laid down with respect to loss of earnings and maintenance.
Compensation payments from the wrongdoer and state allowances and statutory social security payments are all taken into account when aid under VOG is calculated. However, payments from private accident insurance schemes are disregarded.
The VOG lays down standard circumstances which could result in state aid being refused or reduced (e.g. complicity in the act, affray, failure to limit the damage/injury - see also 2. 7).
In cases of urgent financial need, advance payments of compensation can be made.
Visit the homepage of the Federal Ministry for Social Security, Generations and Consumer Protection and click on Leistungen/Behinderung/Entschädigung (Payments/Handicaps/ Compensation) for information on VOG. No form is needed for applications for state aid under VOG.
The authority responsible for enforcing the provisions of VOG is naturally happy to advise on the state aid options and assist with making the application.
However, VOG does not cover the provision of a lawyer.
You should address your application to the Bundessozialamt (Federal Office of Social Welfare) , which has a branch in every Bundesland. Applicants resident abroad should send their application to the Vienna branch, Babenbergerstraße 5, 1010 Wien.
The principal organisation currently engaged in providing assistance to victims of crime is the Weiße Ring (White Ring). Visit their homepage (Weisser Ring: Die Kriminalitätsopferhilfe) (White Ring – Help for Victims of Crime) for further information.
Last update: 08-08-2006