Fellow-Prisoner Assault Despite Warnings: State Liability in Austria

The content, timing, recipient and onward transmission of each warning matter. Record which inmate threatened whom, what was said, when it happened and which staff members were told. If several reports were made, place each one and the prison's response in a separate entry in the timeline.

A message in a family member's possession does not establish that it reached the responsible prison staff. Proof of delivery, a written reply, a dated note of a conversation or a witness may help reconstruct what happened. The later assault does not, on its own, show what information the prison had beforehand.

Section 103(1) StVG addresses a sentenced prisoner who presents a risk of violence against people or property. In that situation, the law requires the necessary special security measures. It does not prescribe the same measure for every warning. The response depends on the specific danger, the information available and how events developed at the time.

The following subsections limit special measures to the extent and duration strictly required by the nature and continuation of the danger. Section 103(6) governs who orders a measure, how it is reported to the prison governor and the governor's prompt decision on whether it should continue. These rules help identify decisions and responsibilities. They do not, by themselves, establish that an omission giving rise to liability occurred.

Section 1(1) AHG makes the responsible public entity liable for personal injury or property damage caused unlawfully and culpably by an organ exercising public authority. After an assault by another prisoner, the review must also consider whether an organ of the prison administration acted wrongly in the exercise of its public duties. Relevant issues include the apparent danger, the response by the responsible staff, fault and whether a failure caused the injury.

The Federal Government is one of the public entities listed in section 1(1) AHG. Subsection 3 also makes liable the public entity on whose behalf the person was elected or appointed as an organ. It is jointly and severally liable with the entity under subsection 1. The potential defendants depend on the public function and appointment. The place of the assault alone does not settle that question. Compensation is paid in money; subsection 1 does not make the individual organ personally liable to the injured person.

A useful timeline begins before the assault. Keep letters, messages and personal notes that you lawfully hold. Record the threat's wording and date, who received the warning, any handover and the prison's response. For the assault, note the sequence, location, time, witnesses and any known earlier incidents involving the alleged assailant. Distinguish what you personally observed from information received from someone else.

For a lasting injury, medical findings, treatment and a doctor's assessment of continuing effects are important. Record which symptoms remain and how they affect daily life or work. Bills, receipts and records of absences may help explain the extent of the loss. Whether a particular item is legally recoverable, and which public entity is liable, must be assessed in the individual case.

Internal notes, reports or records may matter to the prison's knowledge at the time. Whether the injured person or family members can access them depends on the applicable procedures. Ask a lawyer to check possible access and time limits early. Do not remove or alter prison records.