After a death in Austrian custody, learn when Section 128 StPO permits an autopsy, who orders it and what relatives can report.
Mag. Christopher Angerer, Rechtsanwalt
Your lawyer for detention and deprivation of liberty
When someone is in custody, every hour counts. One lawyer who accompanies you personally, from the detention review hearing to release.
A death in an Austrian custodial institution does not, by itself, mean that an autopsy will be ordered. The first question is whether a natural death has been established. If it has not, Section 128 StPO provides for an external examination and a report to the public prosecutor. An autopsy may be ordered where it cannot be ruled out that a criminal offence caused the death. The public prosecutor makes that decision.
For relatives, three points should be kept separate: which examination has taken place, what concrete circumstances are known, and whether the body remains available for a possible autopsy.
Choose the statement that best reflects what is currently known.
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This guide sorts the next questions by the information available. The authorities decide whether an autopsy is ordered.
If you know concrete facts that do not fit that account, give them to the criminal police or the public prosecutor. State what you observed, when it happened and where any other information came from. The authority will assess whether those facts call for another investigative step.
Section 128(1) StPO provides for an external examination by the criminal police with a doctor involved. The public prosecutor receives a report on the examination. The criminal police must also keep the body available for a possible autopsy. Ask which of these steps has already taken place.
Under Section 128(2) StPO, an autopsy is permissible if it cannot be ruled out that a criminal offence caused the death. The public prosecutor orders it. Send concrete observations and records to the investigating authorities, and distinguish what you know from what you suspect.
Section 128(3) StPO permits exhumation for an autopsy when it is required to investigate a criminal offence. The public prosecutor must order it. Tell the authority promptly about an approaching cremation or a burial that has already taken place, and provide the concrete circumstances. The provision does not require automatic exhumation at a relative’s request.
Please do not send autopsy reports, medical records, photographs or other sensitive documents through the contact form. A general description of your question is enough for an initial enquiry.
If a natural death has not been established, Section 128(1) StPO requires the criminal police to involve a doctor. As a rule, the external appearance of the body is examined where it was found. The criminal police reports the result to the public prosecutor and must keep the body available for a possible autopsy.
These are separate steps. The initial examination is external; it is not the autopsy itself. Whether an autopsy follows depends on the additional test in Section 128(2) StPO.
An autopsy is permissible if it cannot be ruled out that a criminal offence caused the death. The statutory test concerns a possible criminal cause. A death in custody alone does not automatically lead to an autopsy order.
An unclear cause does not replace that assessment. Relatives can pass on observations, known events and communications they received. The public prosecutor decides whether the legal condition is met and whether to order an autopsy.
The public prosecutor orders the autopsy. The prosecutor must commission either a university institute for forensic medicine or a suitably qualified forensic expert to carry it out. The authority makes the decision; qualified medical professionals conduct the examination.
Relatives may raise the question and provide concrete circumstances. They do not place the order themselves. Section 128 StPO sets out the official procedure and does not create a general automatic entitlement to an autopsy after every death.
A concise chronology helps make information easier to assess. Note when you learned of the death, which authorities contacted you and what you personally observed. Keep your own observations separate from accounts given by others. Preserve communications and records in their original form.
Send the criminal police or public prosecutor the concrete circumstances you consider relevant to the cause of death. Ask which examination has taken place and how further records can be provided securely. A report by itself does not automatically result in an autopsy order.
Section 128(3) StPO permits exhumation for an autopsy if it is required to investigate a criminal offence. The public prosecutor must order the exhumation. Whether the requirement is met depends on the circumstances and the state of the investigation.
If cremation is approaching, tell the public prosecutor promptly about the scheduled date and the concrete information you have. Exhumation after burial is also legally possible when the statutory condition is met. Section 128 does not require exhumation in every case requested by relatives.
An autopsy provides forensic medical findings about the cause of death. Those findings may matter to further inquiries. They do not, by themselves, decide whether an offence occurred, who is responsible or whether the custodial institution breached a duty.
A liability question is a separate step. The article on protective duties and family claims after a suicide in custody examines that issue separately. The article on notification under Section 72 StVG when life is at risk concerns communication with relatives while the prisoner is alive.
When liberty is at stake, every hour counts. Call us directly or send an email, callback within one business day. In urgent cases, we are also available outside office hours.
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