By 1 January 2014, any measure taken by the police within the pre-trial investigative phase of criminal proceedings which violates subjective rights of the affected person underlies the scrutiny of a judge at the regional criminal court.
The correspondent legal remedy is called "Einspruch" and is provided for in sec 106 of the Austrian Criminal Proceedings Code ("ACPC"). The important legislative breakthrough is that now not only those police activities which were ordered by a prosecutor fall under the court's judicial control, but also all other acts the police undertakes independently on its own.
Until the end of 2013, these independent acts did not fall under the scrutiny of the regional criminal court, but could only be appealed against on the administrative way at the so-called "Unabhängige Verwaltungssenate" ("independent administrative senates"). The problem was that these independent administrative senates were only vested with the power to control acts which had a coercive impact on the subordinate. Consequently, the violation of procedural rights could not be addressed. One example to illustrate the ensuing lack of legal control is the following:
If an alleged perpetrator of robbery was arrested by the police (without the prosecutor's order) and the police maltreated the perpetrator within the arrest, than the accused could file a remedy with the independent administrative senate and rebuke for his corporal mistreatment. But if the police refused him the essential right to consult a defense counsel for his interrogation, this refusal, as the consultation of a counsel constitutes a mere procedural right, could not be appealed against. However, if the prosecutor had ordered the police to arrest and interrogate the accused, then, even before 2014, the accused could approach the court and raise a motion to address the violation of procedural laws.
The criminal procedural reform law, enacted in 2008, had initially not stipulated the differentiation between acts ordered by the prosecutor and independent police acts. The 2008 reform law had thus displayed the exact legal situation as it has now been enforced with the beginning of 2014. This reform law was lauded and acclaimed for its uniform approach concerning the legal control of both independent and prosecutor-related acts. Nonetheless, the Austrian Constitutional Court, in its binding ruling from 16 December 2010, declared sec 106 ACPC to violate the strict separation of the judiciary and the executive. The Constitutional Court regarded independent police acts as purely administrative acts. Therefore, an administrative organ (i.e. the independent administrative senates), and not an organ of the judiciary (the judge at the regional court), should be competent to control independent police acts.
The law which now entered into force on 1 January 2014 aims to reestablish the uniformity in legal remedies already attained from 2008-2010. How is it possible for the law to nevertheless abide by the Constitutional Court's ruling? The answer is quite simple: After this ruling, in 2012, the Parliament changed the Austrian Constitution and enabled the legislative possibility to enact a legal remedy with a judiciary organ also for administrative acts. Consequently, the now amended sec 106 ACPC is fully compatible with the Austrian Constitution.
The new sec 106 ACPC in practice
The provision provides a legal remedy against all acts of the prosecutor and the police, irrespective whether the acts were coercive or of a procedural nature or whether they were initially ordered by the prosecutor or taken independently by the police. Not only the accused, but every person affected by a prosecutor's or police act might raise the remedy (e.g., the landlord of a house which is demolished in the course of an arrest). The remedy must be raised within six weeks after the occurrence of the act. The new law neatly finesses the provision in stating that the remedy does not become obsolete with the death of the affected person. Additionally, the remedy is still available after criminal proceedings have left the investigative phase and entered into the trail phase. The remedy is first directed to the competent prosecutor who is enabled to rectify the alleged breach of a legal provision. If the prosecutor is not willing to rectify the breach or does not show any reaction at all after four weeks, the remedy is forwarded to the competent judge at the regional court.
Concluding, the new sec 106 ACPC ("Einspruch") remedy provides a uniform and overarching legal control for acts of the prosecutor and the police. The lacunae which arose from the Constitutional Court's ruling in 2010 have been closed. Now it is up to the subordinates of police acts to avail themselves of the given opportunity in order to foster legal obedience by the state's organs in the delicate phase of pre-trial criminal investigations.
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