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Last update: 08-08-2006
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Compensation to crime victims - Austria

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TABLE OF CONTENTS

1. Compensation for Victims of Crime from the Wrongdoer 1.
1.1. What are the conditions which enable me to press for compensation from the wrongdoer in criminal proceedings? 1.1.
1.2. When should I press for compensation during the proceedings? 1.2.
1.3. How and where is the claim to be asserted? 1.3.
1.4. How should I present my claim for compensation (by quoting a total amount or by breaking it down into individual items) ? 1.4.
1.5. Is legal assistance available before or during the proceedings? 1.5.
1.6. What evidence must I provide in support of the claim I am seeking to press? 1.6.
1.7. Is there any particular assistance available for the enforcement of a ruling in which the court has ordered the wrongdoer to pay compensation to the injured party? 1.7.
2. Compensation for Victims of Crime from the State or State Institutions 2.
2.1. Is there a means for victims of crime to receive compensation from the state or from state institutions? 2.1.
2.2. Is this state compensation only available to people who have been victims of particular criminal acts? 2.2.
2.3. Is this state compensation only available to people who have suffered particular forms of injury? 2.3.
2.4. If the victim dies, are his or her relatives or dependent persons entitled to claim compensation? 2.4.
2.5. Is the claim to compensation dependent on a particular nationality or to the particular circumstances of permanent residence? 2.5.
2.6. Can I seek compensation if the criminal act was committed in another state? Under what conditions? 2.6.
2.7. Is it necessary to have reported the criminal act to the police? 2.7.
2.8. Must the victim delay with making the application until the police investigations or the criminal proceedings are concluded? 2.8.
2.9. Does the claim for compensation have to be made initially against the person convicted of having caused the injury? 2.9.
2.10. Can state aid be sought even if the identity of the wrongdoer is unknown or if he has not been convicted? 2.10.
2.11. Must the application for compensation be submitted by any particular time limit? 2.11.
2.12. For what types of injury can I claim compensation? 2.12.
2.13. How is the compensation calculated? 2.13.
2.14. Are there minimum or maximum amounts of state compensation? 2.14.
2.15. Are compensation payments which I have received or will receive from elsewhere (e.g. insurance) taken into account when state compensation is calculated? 2.15.
2.16. Are there any other criteria which determine whether or not I will obtain state aid or how the state aid is calculated, such as my conduct in connection with the criminal act which caused the injury? 2.16.
2.17. Is it possible to obtain an advance payment of the compensation? Under what conditions? 2.17.
2.18. Where do I obtain the application forms I will need and any further information concerning lodging my claim for state compensation? Is there a dedicated helpline or website? 2.18.
2.19. Can I claim legal assistance to help me make my claim for compensation? 2.19.
2.20. Where should I send my application? 2.20.
2.21. Is it possible to obtain further advice from organisations geared to aiding victims of crime? 2.21.

 

1. Compensation for Victims of Crime from the Wrongdoer

1.1. What are the conditions which enable me to press for compensation from the wrongdoer in criminal proceedings?

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.

1.2. When should I press for compensation during the proceedings?

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.

1.3. How and where is the claim to be asserted?

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.

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1.4. How should I present my claim for compensation (by quoting a total amount or by breaking it down into individual items) ?

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.

1.5. Is legal assistance available before or during the 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.

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1.6. What evidence must I provide in support of the claim I am seeking to press?

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.

1.7. Is there any particular assistance available for the enforcement of a ruling in which the court has ordered the wrongdoer to pay compensation to the injured party?

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).

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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.

2. Compensation for Victims of Crime from the State or State Institutions

2.1. Is there a means for victims of crime to receive compensation from the state or from state institutions?

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).

2.2. Is this state compensation only available to people who have been victims of particular criminal acts?

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.

2.3. Is this state compensation only available to people who have suffered particular forms of injury?

The rule is that the criminal act described in 2. 2. must have caused actual bodily harm or have impaired the victim’s health.

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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.

2.4. If the victim dies, are his or her relatives or dependent persons entitled to claim compensation?

VOG lays down that surviving dependents are also entitled to compensation.

2.5. Is the claim to compensation dependent on a particular nationality or to the particular circumstances of permanent residence?

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.

2.6. Can I seek compensation if the criminal act was committed in another state? Under what conditions?

As set out in 2. 5., there are certain circumstances under which compensation is also available for criminal acts committed abroad.

2.7. Is it necessary to have reported the criminal act to the police?

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.

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2.8. Must the victim delay with making the application until the police investigations or the criminal proceedings are concluded?

Applications made under VOG can be made independently of the stage of the police enquiries or the criminal proceedings.

2.9. Does the claim for compensation have to be made initially against the person convicted of having caused the injury?

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.

2.10. Can state aid be sought even if the identity of the wrongdoer is unknown or if he has not been convicted?

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.

2.11. Must the application for compensation be submitted by any particular time limit?

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.

2.12. For what types of injury can I claim compensation?

VOG lays down the following awards of aid:

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  • compensation for loss of earnings or maintenance
  • medical care
  • orthopaedic treatment
  • rehabilitation
  • care or blindness allowances
  • compensation for funeral costs.
2.13. How is the compensation calculated?

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.

2.14. Are there minimum or maximum amounts of state compensation?

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.

2.15. Are compensation payments which I have received or will receive from elsewhere (e.g. insurance) taken into account when state compensation is calculated?

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.

2.16. Are there any other criteria which determine whether or not I will obtain state aid or how the state aid is calculated, such as my conduct in connection with the criminal act which caused the injury?

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).

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2.17. Is it possible to obtain an advance payment of the compensation? Under what conditions?

In cases of urgent financial need, advance payments of compensation can be made.

2.18. Where do I obtain the application forms I will need and any further information concerning lodging my claim for state compensation? Is there a dedicated helpline or website?

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.

2.19. Can I claim legal assistance to help me make my claim for compensation?

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.

2.20. Where should I send my application?

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.

2.21. Is it possible to obtain further advice from organisations geared to aiding victims of crime?

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.



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Last update: 08-08-2006

 
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