Changing defence lawyer in Austrian pre-trial detention: engaging chosen counsel

Section 58 paragraph 1 StPO gives an accused person the right to contact, authorise and consult a defence lawyer. Under section 58 paragraph 3 StPO, the defence may be transferred from one chosen lawyer to another at any time. The only statutory qualification is that the proceedings must not be delayed unreasonably by the change.

Representation is mandatory throughout pre-trial detention under section 61 paragraph 1 item 1 StPO. This ensures that the detained person has legal representation. It does not bind that person to a particular assigned lawyer. Engaging chosen counsel remains expressly compatible with mandatory representation.

Under section 58 paragraph 2 StPO, authority is proved in writing or by an oral statement when the accused person is present. If the accused person is absent, the lawyer may also rely on authority that has been granted. This enables counsel to notify the court or public prosecutor of the change without waiting for a separate handover procedure.

Where legal-aid counsel or other assigned counsel has been appointed, section 62 paragraph 4 StPO provides a clear transition. The assignment and appointment end when authorised counsel enters the proceedings. The new lawyer therefore does not need to obtain the former lawyer’s consent before taking over the defence.

The first priorities are a confidential consultation with the detained person and the current case file. Section 51 StPO gives the accused person access to the results of the investigation and trial held by the police, public prosecutor and court. Once pre-trial detention has been imposed, documents that may be relevant to suspicion or the grounds for detention cannot be withheld on the basis that immediate disclosure might endanger the investigation.

New counsel can assess previous statements, evidence and detention orders. Existing appeal periods, the date of the next detention hearing and developments since the last order must also be identified. The precise method and speed of receiving copies depend on the court and the size of the file, so no particular electronic delivery route should be assumed in advance.

A change of lawyer allows a fresh legal assessment of detention. The detention order must identify strong suspicion, a statutory ground for detention and the reasons why less intrusive measures are insufficient. New counsel can test that reasoning against the current evidence and the accused person’s personal circumstances.

Section 174 paragraph 3 item 8 StPO records that the accused person may apply for release at any time. If the public prosecutor opposes release, the court must arrange a detention hearing without delay under section 176 paragraph 1 StPO. Whether an immediate application is useful depends on the particular ground for detention and on reliable evidence of residence, employment, family support, bail or other workable conditions.

Relatives or friends may make the first contact with the law firm. Useful details include the detained person’s full name, the prison, the competent court, the case reference and the next known hearing. With that information counsel can prepare direct contact with the accused person.

Authority itself is confirmed with the accused person. Relatives may also obtain documents concerning residence, employment, family ties or possible less intrusive measures. They should avoid circulating accounts of the alleged facts through several channels, because uncoordinated statements may later become relevant to the investigation.

Chosen counsel is privately engaged. Fees, the expected scope of work and urgent steps should be discussed openly before the defence is taken over. In detention matters the likely work depends on the size of the file, upcoming detention hearings and the need for consultations in prison.

For an initial assessment it is often sufficient to provide the place of detention, court, case reference and latest detention order. Counsel can then explain how authority will be established, when a consultation with the detained person can take place and which documents are required for the next stage.