Less intrusive measures under Section 173(5) StPO: when they can replace pre-trial detention

Section 173(5) StPO lists nine typical less intrusive measures. The list is illustrative ("in particular") and not exhaustive; the detention judge may order other suitable measures as well, provided they do not interfere with personality and fundamental rights in an intolerable manner (Kier in WK-StPO Section 173 marg. no. 9.51). What matters is whether the measure achieves the purpose of detention without imprisonment. Measures may be combined, graduated and adjusted over time; there is no binding sequence within the catalogue.

On arrest, the criminal police are not authorised to apply less intrusive measures beyond the catalogue (Section 172(2) StPO), that power is reserved to the detention judge.

No. 1, Pledge against flight. A formal declaration on record by the accused not to flee, not to remain in hiding and not to leave the place of residence without judicial permission. In practice rarely sufficient on its own, often a flanking assurance alongside the surrender of travel documents and a reporting duty.

No. 2, Pledge against collusion. A formal assurance not to impede the establishment of the truth, that is, not to exert undue influence on witnesses, expert witnesses or co-suspects, and not to destroy traces. Typically only effective in combination with specific restrictions on whereabouts and contact prohibitions.

No. 3, Victim and contact protection. Pledge not to contact the victim, together with the prohibition on entering a specified apartment with its immediate surroundings or on contacting specific affected persons (linked to Section 38a SPG, the Austrian Security Police Act, and Section 382b EO, the Austrian Enforcement Code). Typical configuration in domestic violence cases; in practice a central lever where there is a risk of execution or collusion.

No. 4, Residence, location and behaviour instructions. Instructions to live at a particular place, with a particular family or in a particular home, to avoid particular apartments, locations or contact with particular persons, to abstain from alcohol or other addictive substances, or to take up regulated work. In practice a central lever in cases of risk of repeat offending and collusion.

No. 5, Duty to report changes of address and to register. Obligation to report every change of residence and to register at specified intervals at the criminal police or another body. The frequency depends on the incentive to flee and on the alleged offence, daily, several times a week or weekly.

No. 6, Provisional surrender of passport, identity card and driving licence. Provisional surrender of these documents. A central measure in flight-risk cases; particularly robust in combination with reporting duty and residence requirement.

No. 7, Provisional probation supervision under Section 179 StPO. Assignment of a probation officer with close supervision. Particularly effective in cases of risk of repeat offending, in juvenile proceedings and with younger suspects, typically with two personal contacts per week, complemented by therapy or counselling offers.

No. 8, Security under Sections 180 to 181 StPO. Deposit of a security (bail). Section 180 StPO restricts applicability to detention based solely on the ground of risk of flight; the amount is determined by the severity of the offence and the personal, financial and asset-related circumstances of the accused or the surety. Forfeiture if the accused evades the proceedings or the commencement of the sentence.

No. 9, Therapeutic or health-related measures. Pledge to commence and carry out a withdrawal treatment, a medical treatment or a psychotherapy. The decisive factor in practice is the written admission confirmation from the institution; a blanket therapy commitment without a concrete provider rarely bears.

Less intrusive measures may be suggested at any stage of the proceedings, from the mandatory hearing under Section 174 StPO, through the first detention review hearing within 14 days of the imposition of pre-trial detention, to the further detention review hearings after one month, after two months and at the main trial. The accused and defence counsel may file the application; in juvenile proceedings also the legal guardian. In any event the court is required to examine subsidiarity of its own motion at every detention hearing, even without an express application.

Before the mandatory hearing. As soon as the arrest becomes known, the defence should prepare the substitution package in time for the mandatory hearing. Anyone who submits a complete file of documents to the detention judge within the 48-hour deadline under Section 174 StPO significantly improves the chances that pre-trial detention will not be imposed at all. The statute expressly names this possibility: Section 174(1) StPO closes with the sentence "if appropriate, less intrusive measures shall be applied".

Form of the application. In writing or on the record. The application addresses the specific ground for detention and names the suitable less intrusive measure or the combination. Blanket applications are counter-productive, the more concretely the measure is tailored, the more robustly it bears. The application contains the proposed reporting frequency, the persons or locations to be avoided, the specific address, where appropriate the therapy provider with admission confirmation, and the bail offer with documentation as to the origin of the funds.

Which documents belong in the file? Accommodation confirmation with up-to-date registration certificate; employer confirmation of an existing employment relationship; written family support commitment; for a therapy condition the written admission confirmation from the institution; for a bail offer the written offer with documentation as to the origin of the funds, bank statement, deed of gift or bank guarantee. The more complete the file, the more robust the application, and the more difficult a formulaic rejection by the court.

Examination and decision. The court decides after hearing the public prosecutor; if necessary after a further hearing of the accused. The decision is issued by way of an order. A rejection of less intrusive measures may be challenged by a detention appeal under Sections 87 and 88 StPO to the Higher Regional Court. The period is 14 days from service of the written version of the order, which is served at the latest within 24 hours of pronouncement (Section 88(1) StPO). Where the rejection is decided together with the order on continuing pre-trial detention at a detention review hearing, the shorter period under Section 176(5) StPO applies: three days from pronouncement of the order.

The central precondition is set out in Section 173(5) sentence 1 StPO: instead of pre-trial detention the court is required to apply less intrusive measures "if their application appears justified". The provision therefore formulates not discretion but a binding obligation, the detention judge has to examine the application of less intrusive measures and to order them if they achieve the purpose of pre-trial detention.

Achievability of the purpose of detention. The yardstick is not the certainty that the risk will be wholly eliminated, but the sufficient safeguarding of the specific purpose of detention. Example: where risk of flight is based on the fact that the accused holds travel documents and has contacts abroad, the surrender of the passport combined with a reporting duty and a residence requirement will as a rule sufficiently safeguard the presence of the accused in the proceedings, even without pre-trial detention. The theoretical residual possibility that the accused may flee nonetheless does not suffice to maintain pre-trial detention.

Proportionality of the conditions. The less intrusive measure must itself be proportionate. A daily reporting duty at a police station 50 kilometres away would be disproportionate; a three-times-a-week reporting duty at the place of residence, by contrast, is practicable. With therapy conditions the design has to match the specific need, inpatient withdrawal treatment is not proportionate in every case.

Subsidiarity as a continuing duty to examine. The subsidiarity clause in Section 173(1) sentence 2 StPO applies not only to the initial imposition but anew at every detention hearing. If the circumstances change during the proceedings, completed examinations, secured traces, new therapy opportunities, a changed living situation, a substitution package may bear at a later point in time that was still insufficient at the mandatory hearing. Defence counsel who use access to the file under Section 51 StPO consistently and who document the shift in the evidentiary picture can sharpen the substitution submission at the next detention hearing.

Stricter standard for juveniles and young adults. Section 35(1) JGG sharpens the subsidiarity and proportionality test for suspects up to the age of 21. Pre-trial detention may not be imposed if its purpose can be achieved by family-law order or by application of less intrusive measures. In this age group the social-network conference under Section 35a JGG is an additional structural lever that organises a tailored substitution package.

Security under Sections 180 to 181 StPO in detail. A security under Section 180(1) StPO is permissible where pre-trial detention is based exclusively on the ground of risk of flight, including in the cases of conditionally mandatory pre-trial detention under Section 173(6) StPO. The court must examine the security of its own motion, no application by the accused is required. Where the suspected offence carries a maximum sentence of up to five years, the court is obliged to order a security; for higher sentence ranges the order lies in the court's dutiful discretion. The amount is determined by the severity of the offence and the personal, financial and asset-related circumstances of the accused or the surety.

Forfeiture and effect of the security. The security is forfeited if the accused evades the proceedings or the commencement of the sentence. A mere breach of a no-go zone or of a reporting duty does not as such trigger forfeiture. Where new grounds for detention arise alongside risk of flight during the term of the security, for example a risk of repeat offending based on a new alleged offence, an arrest is possible despite the security; the security in that case becomes free under Section 181(1) StPO and is to be released back.

Electronically monitored house arrest under Section 173a StPO is not a less intrusive measure within the meaning of Section 173(5) StPO, but a special form of executing pre-trial detention (Austrian Supreme Court (OGH) 12 Os 102/17t and 15 Os 165/10v; Kier in WK-StPO Section 173 marg. no. 9.62; Kirchbacher/Rami in WK-StPO Section 173a marg. no. 1). Framing it as a "reinforced less intrusive measure" conflates two systematically distinct levels.

Order of examination. First, the court examines subsidiarity under Section 173(1) sentence 2 StPO: can less intrusive measures achieve the purpose of detention? If so, pre-trial detention is not to be imposed and electronically monitored house arrest does not arise at all. Second, and only if the first step is decided against the accused and pre-trial detention is imposed: can the execution of detention take place electronically monitored in an apartment (Section 173a StPO)? The sequence is mandatory, blurring the two levels is impermissible (Kier marg. no. 9.65).

Practical relevance. Applications are rare (Kirchbacher/Rami marg. no. 4): where less intrusive measures no longer safeguard the purpose of detention, electronically monitored house arrest will as a rule fail to bear either. It typically comes into question in configurations with a stable housing and family situation, health vulnerabilities or an expected lower sentence.

In-depth treatment. Preconditions, application, technical suitability check, list of duties, set-off and legal remedies are addressed in detail in the separate post Electronic house arrest in pre-trial detention.

Less intrusive measures are not a pardon but a vote of confidence with clearly defined obligations. If the accused breaches an ordered measure, for example by disregarding the reporting duty, by contacting witnesses contrary to a contact prohibition, or by leaving the place of stay without judicial permission, pre-trial detention may be imposed subsequently or the detention previously replaced by the less intrusive measure may be executed.

Procedure in case of a breach. The public prosecutor regularly files an application for the imposition of pre-trial detention; the court decides after a hearing of the accused and after weighing the specific circumstances of the breach. For minor or one-off breaches a tightening of the condition often comes into question, for example a higher reporting frequency, additional restrictions on whereabouts, the addition of probation supervision. For repeated or serious breaches, pre-trial detention is regularly imposed.

Forfeiture of the security. Where a security under Sections 180 to 181 StPO is in place, the security is forfeited if the accused evades the proceedings or the commencement of the sentence (typically by fleeing or going into hiding). A mere breach of a no-go zone or of a reporting duty does not as such trigger forfeiture. The amount of bail is therefore often calibrated to ensure that the economic pressure on the accused objectively neutralises the incentive to flee.

Practical recommendation. The conditions should be formulated as precisely as possible, what does "registering at specified intervals" mean? Which specific police station? Which time of day? What form of identification? An unclear condition not only leads to inadvertent breaches, it also opens the door to subsequent tightening. Anyone who formulates the condition precisely and verifiably documents compliance from the outset.

Where during pre-trial detention a custodial sentence to be served or an administrative custodial penalty is executed (intermediate detention), the pre-trial detention order remains in force; the running of the detention periods is suspended for the duration of the intermediate detention. After the intermediate detention ends, pre-trial detention continues without the need for a fresh imposition order.

The time spent in intermediate detention is left out of account for the calculation of the maximum duration of pre-trial detention under Section 178 StPO (Kier in WK-StPO Section 173 marg. no. 9.53). The deadlines for detention review hearings are likewise suspended, the next detention review hearing attaches to the moment of resumption.

Practical relevance. For the defence, careful deadline calculation pays off: when does pre-trial detention resume, when does the next detention review deadline run, how does the intermediate detention affect the maximum duration under Section 178 StPO? Continuation orders after intermediate detention should be checked for proper reasoning and an up-to-date subsidiarity test, less intrusive measures may have become more viable after the intermediate detention.