Contact restriction protecting a victim in prison: exception for common children

In pre-trial detention, section 173(5)(3) of the Austrian Code of Criminal Procedure allows a less restrictive measure requiring the accused to refrain from all contact with the victim, together with further protective directions. The provision does not state an automatic exception for common children. The proceedings, wording and actual scope of the order therefore matter.

During a sentence, section 86 of the Austrian Prison Act applies. Written communication, telephone calls and visits are generally possible under the statute, but may have to be restricted if prison security or order would be endangered or an adverse influence is feared. Section 93(2) also identifies the maintenance of family and other personal relationships as a purpose of suitable visits. This creates a basis for an assessment, not an unconditional right to a particular form of contact.

After conditional release, instructions under section 51 of the Austrian Criminal Code may be relevant. They must be suitable and reasonable. Under section 51(4), an instruction can be issued, changed or revoked during the probation period if this is required under section 50.

A contact ban protects the victim from further influence, pressure or danger. Common children may at the same time have an independent interest in stable relationships with both parents. These interests are not reconciled by using a child to pass on messages.

An application should therefore do more than state a wish for contact. It should explain who will supervise the contact, how handovers will take place, which subjects are excluded and how direct or indirect access to the victim will be prevented. The stronger the protective measure, the more precise the proposed solution must be.

The phrase “contact with the children only” is not enough by itself. Messages, gifts, telephone calls using the children’s phone, social media posts and handover arrangements must also be considered. An apparent exception may otherwise be treated as an attempt to circumvent the order.

For the children’s situation, their age, previous care arrangements, relationship, expressed wishes and the effect of detention or a break in contact are relevant. Care plans, school or therapeutic information and a factual description of previous contact may help. The child’s perspective is not the same as a parent’s wish.

The protection need of the victim must also remain concrete. The reason for the restriction, earlier breaches, threats, dependencies and whether a neutral organisation can safely supervise contact may matter. Verifiable facts are more useful than broad assertions in either direction.

In ongoing pre-trial detention, the detention decision should also be read. During a sentence, the prison decision, house rules and previous correspondence are important. The article on prison house rules and visiting hours provides a useful supplement.

Before making an application, establish who issued the original restriction. For a measure connected with pre-trial detention, the court order is central. In prison, the specific decision of the institution is the starting point. An instruction after conditional release must be assessed within the probation framework.

The application should separately describe the requested form of contact, the people involved, supervision, communication rules and protection of the victim. It should also identify new facts since the original decision. A reference to common parenthood does not replace this explanation.

The existing order remains binding until an effective change. No independent meetings, messages or handovers should therefore be arranged. Keep refusals and applications complete. The article on legal remedies in prison explains the next assessment steps.