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The costs of a civil proceeding are court fees and, if required, fees for experts, interpreters, witnesses and guardians appointed by the court (as representatives for absent parties or parties in need of guardianship), the parties’ travelling expenses, and costs of announcements and representation by a lawyer. Each party must pay its own costs; the party which is unsuccessful in a civil litigation case must reimburse the costs of the successful party.
Anyone may seek legal advice free of charge (from a district court or the local lawyers chamber) on points of law and in order to examine the chances of success of entering into litigation.
A party with insufficient financial means may apply for legal aid when entering into litigation or at any time later as long as the civil proceeding is still pending. As far as required the court can give legal aid by (wholly or partially) freeing the indigent party from court fees and the other fees mentioned under question 1 and by providing legal representation free of charge.
Where legal representation is provided, legal aid also covers the pre-trial advice given by the lawyer.
Legal aid is granted only as the applicant - according to his income, assets and maintenance obligations - is unable to bear (any or part of) the costs mentioned under question 1 without endangering the minimum subsistence level necessary to allow a simple standard of living.
Legal aid is denied if the claim or defence of the applicant is manifestly unfounded or manifestly not brought in good faith.
Legal aid is granted in all civil and commercial court proceedings regardless of the applicant's nationality or place of residence.
Legal aid is not available for civil claims in penal proceedings before criminal courts (because no fees or legal representation are required, and the taking of evidence with regard to civil claims is not allowed) but these claims can be brought in parallel – with legal aid – before a civil court.
If legal aid is granted in the main proceeding, the same also applies to the enforcement proceedings. A party which was granted legal aid for a particular legal dispute in another EU Member State is also entitled to legal aid in Austria for a proceeding concerning the recognition and enforcement of the decision given in that dispute.
No, but if an application for legal aid is submitted concerning an urgent case (e.g. legal representation in the case of interim measures) the court has to decide speedily. If the court grants legal aid in the form of the provision of a lawyer, the local lawyers chamber usually appoints a lawyer to represent the applicant within a few days.
You can get the relevant form (called “ZPForm 1”) in person or by letter at any court of first instance (Bezirksgericht or Landesgericht or Arbeits- und Sozialgericht) in Austria and also via internet (PDF File 67 KB) or at certain Austrian consulates. The use of this form is mandatory. The form must not be more than 4 weeks old (date of applicant's signature) otherwise it ceases to be valid.
The application form contains a summary of assets (income, property such as real estate, money in bank accounts, insurance policies, etc.) and liabilities (maintenance, etc.), personal data and information on the applicant's living conditions. Supporting documents are to be submitted as far as possible. False or maliciously incomplete information can lead to considerable fines and can also result in civil liability or criminal prosecution for fraud.
The application for legal aid (ZPForm 1) can be filed (sent in written form by post or placed on record orally) at the court of first instance which has competence for granting or denying legal aid. It can also be placed on record orally at the district court of the applicant’s place of residence in Austria, even if this court has no competence to decide on the lawsuit. In this case the application is then forwarded to the competent court.
In Austria the decision of the court will be served by special post (“Rückscheinbrief”) to you personally or to one of your housemates or workers (at your residence or place of business/employment). If there is no one present or willing to accept and sign the receipt, you are informed by notice in your letterbox that you can collect the court's letter at your post office. The 14-day period for appeal against an adverse decision starts on the first day after service is completed (by personal delivery or deposit at the post office). In another Member State the decision is served according to the rules of that State.
If the court has decided that legal aid covers the assistance of a lawyer, and if the lawyer has already been appointed (see question 11), it is best to use this lawyer.
In order to decide whether to enter into a civil court case you can also get legal advice free of charge in person or by telephone at the competent district court (information on jurisdiction can be obtained under “Gerichtsdatenbank” by naming the district or city or village in Austria where the possible defendant resides or which is most closely connected with the case), the local lawyers chamber or the Federal Ministry or Justice.
If the court decides that the legal aid includes the assistance of a lawyer, the local lawyers chamber selects a lawyer from among its members, by alphabetical order. However, the applicant may propose a lawyer himself. Although this proposal is not binding on the local lawyers chamber, it will in general accept a well-founded proposal (e.g. if the lawyer is willing and already familiar with the case).
At its discretion the courts may grant full legal aid or – depending on the applicant's circumstances and taking into account expected costs – partial legal aid, covering only certain fees. Such aid may cover:
But if you lose the case, you have to reimburse the successful party’s procedural costs.
If there are other necessary costs – for which coverage by legal aid has been denied by the courts - you will have to pay them yourself, at least provisionally. If you are successful in a civil action, you are entitled to be reimbursed by the opposing party or parties (e.g. if you succeed in two thirds of your claim and the defendant succeeds in one third of your claim, the defendant usually has to bear his own costs and reimburse one third of your necessary costs).
Legal aid covers all stages of the proceedings. As long as it has not been withdrawn because of a change in the applicant's circumstances or annulled by the court if it is established that the conditions under which the aid was granted were not borne out (you can appeal against any such decision of the court of first instance), legal aid covers any appeal (or appeal procedure) you might lodge.
The court must withdraw legal aid if it is established that the initial conditions under which legal aid was granted have ceased to apply (i.e. there are changes in the party's circumstances or the claim proves to be manifestly unfounded or not brought in good faith) or there is proof that the conditions for granting legal and were not met even at the time when legal aid was granted. In the latter case the party must pay back the amounts received.
During a period of three years from the end of the proceedings, a party recovering enough money must refund legal aid benefits, provided this does not endanger his minimum subsistence level. In order to examine the applicant's circumstances, the court orders an up-to-date summary of assets and liabilities (usually by transmission of the ZPForm 1 at some point after the end of proceedings). If the form is not submitted in a timely manner and is not accompanied by the required supporting documents, legal aid may be withdrawn and the benefits received must be refunded.
Yes, you can appeal to the court of second instance, the decision of which is final. An appeal to the Supreme Court is not allowed.Top
Last update: 23-10-2007