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Rebutting collusion risk in pre-trial detention

Collusion risk under section 173 para 2 no 2 StPO: how completed evidence gathering, witnesses already heard or a no-contact order rebut the ground for detention.

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29 June 2026 · Mag. Christopher Angerer, Rechtsanwalt

Collusion risk is alongside flight risk one of the most common grounds for pre-trial detention in Austrian criminal practice. Under section 173 para 2 no 2 StPO it can arise where there is reason to fear the accused will influence witnesses, co-accused or experts, or destroy evidence. This fear requires specific facts, it is not automatic.

This post shows how collusion risk is rebutted in concrete terms. Completed evidence gathering and witnesses already heard remove the ground. Instead of detention section 173 para 5 StPO provides a no-contact order as a less restrictive measure. The detention order can be challenged at the Higher Regional Court within three days.

Which step fits your situation?

Evidence secured, witnesses heard, no-contact order or appeal, what do you need?

Collusion risk under section 173 para 2 no 2 StPO requires specific facts suggesting the accused might influence witnesses, co-accused or experts, or destroy evidence. Where gathering is complete or a no-contact order suffices, the ground falls away. Choose what concerns you most.

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01 Question 1

What is at the centre of your case?

Collusion risk can be rebutted where investigations are complete or a no-contact order fulfils the purpose of detention. Choose the angle that holds in your case.

All paths at a glance

Overview of all answers.

01

Where the entire evidence gathering is complete, the basis for collusion disappears and the ground for detention falls away.

Collusion risk under section 173 para 2 no 2 StPO requires specific facts giving reason to fear that the accused will influence witnesses, co-accused or experts, or destroy evidence. Once expert reports are on file, digital evidence is secured and the scene examination is complete, the basis for that fear is gone.

What to do now: First, demonstrate from the case file that all expert reports have been filed. Second, set out which evidence items have already been seized or electronically secured. Third, file a release motion arguing that the investigative purpose of detention has been fulfilled.

In depth: pre-trial detention at a glance →
02

Where all relevant witnesses have already been heard, influencing them is barely possible and collusion risk loses its foundation.

Collusion risk based on witness influence requires that witnesses have not yet been fully heard. Where all relevant witnesses have been questioned by police or court and the transcripts are on file, subsequent contact is unlikely to change the investigative result.

What to do now: First, identify from the case file which witnesses have been heard so far. Second, show that no further unheard witnesses exist or that their questioning is imminent. Third, file a reasoned release motion showing that the purpose of detention has lapsed with the completed hearings.

In depth: grounds for pre-trial detention →
03

A spatial or communicative no-contact order can adequately contain collusion risk as a less restrictive measure and replace detention.

Under section 173 para 5 StPO pre-trial detention is to be avoided where the purpose can be achieved by a less restrictive measure. For collusion risk a no-contact order with specific persons, namely witnesses or co-accused, is particularly suitable. This order can be spatial and communicative.

What to do now: First, name the specific persons to whom the no-contact order should apply. Second, show that no other channel of communication exists that would allow influence. Third, offer a reporting duty alongside the no-contact order to guarantee compliance.

In depth: less restrictive measures →
04

A detention order based on collusion risk can be appealed to the Higher Regional Court within three days.

The decision imposing or continuing pre-trial detention on grounds of collusion risk can be appealed to the competent Higher Regional Court within three days of service. In parallel a reasoned release motion can be filed at any time where the state of investigations has changed.

What to do now: First, secure the three-day appeal deadline and check whether the order cites specific facts on collusion risk. Second, in parallel file a release motion offering a no-contact order as a less restrictive measure. Third, by the next detention hearing document the current state of investigations and the evidence already secured.

In depth: detention appeal →

The ground of collusion risk under section 173 para 2 no 2 StPO

Under section 173 para 2 no 2 StPO pre-trial detention is admissible where, on the basis of specific facts, it must be feared that the accused will influence witnesses, co-accused or experts, or destroy, alter or suppress evidence. Specific facts are required, not bare assumptions.

Collusion risk diminishes as investigations progress. Where experts have already reported, documents are secured and witnesses have been heard, there is no longer a point of entry for influence. The court must reassess this at every periodic review of detention.

Influencing witnesses requires that they are still reachable and their knowledge has not yet been fixed in court. The further hearings have progressed, the less a subsequent contact can alter the result. The defence should therefore continuously analyse the state of proceedings on this question.

Defence strategy: analyse the state of investigations and offer a less restrictive measure

The most effective strategy against collusion risk is to document the state of investigations from the file and to show that no possibility of influence remains. In parallel a concrete no-contact order should be offered as a less restrictive measure to adequately contain any residual risk.

From the file all investigative steps completed so far must be identified: expert reports on file, digital evidence secured, searches completed and witness statements already recorded. The more complete this survey, the stronger the argument for release.

The no-contact order as a less restrictive measure must be precisely framed. It must name the persons with whom contact is forbidden and can be spatial and communicative. An additional reporting duty underlines the readiness to guarantee compliance.

Collusion risk at a glance

Facts, counterarguments and less restrictive measures

The defence against collusion risk works along the state of investigations and remaining possibilities of influence. The overview places typical facts and counterarguments side by side.

Building blocks of a defence against collusion risk under section 173 para 2 no 2 StPO
Axis Court's assumed fact Defence building block
Evidence Reports and documents not yet secured All reports filed, digital evidence secured Completed investigation as argument
Witnesses Witnesses not yet heard, influence possible All relevant witnesses already questioned Show absence of influence possibility
Contact Contact with witnesses or co-accused possible No shared residence or workplace No-contact order as less restrictive measure
Communication Communication via third parties or phone possible Readiness to accept comprehensive communication ban Communication ban with reporting duty
State of case Open investigative steps, risk of destruction All essential evidence secured Release motion with current file state

Under section 173 para 2 no 2 StPO specific facts are decisive; a mere abstract possibility of influence does not carry collusion risk.

Frequently asked questions

What people often ask about rebutting collusion risk.

When does collusion risk disappear automatically? +

It disappears when no possibility of influence remains: all witnesses have been heard, all expert reports are on file and evidence gathering is complete. The court must take this state into account at every periodic review of detention.

Is a no-contact order enough as a less restrictive measure? +

Under section 173 para 5 StPO yes, if the no-contact order adequately prevents the specifically feared influence. It must name the relevant persons concretely and can be spatial and communicative.

Which evidence helps the defence? +

File parts evidencing completed hearings and expert reports, transcripts of witness statements and seizure records for digital and physical evidence. A complete picture of the state of investigations is more convincing than isolated arguments.

What to do if the court still finds collusion risk? +

The detention order can be appealed to the Higher Regional Court within three days. In addition a release motion can be filed at any time with a concrete offer of a no-contact order.

Can new investigative steps revive collusion risk? +

Yes. If new witnesses come to light or new evidence is discovered collusion risk can revive. The defence must therefore continuously monitor the file and respond promptly.

In depth

Further topics on pre-trial detention

Pre-trial detention at a glance

The focus page on grounds, deadlines and legal protection.

Less restrictive measures

Which conditions can replace detention in the individual case.

Detention appeal

How to attack the order at the Higher Regional Court.

Grounds for pre-trial detention

Which grounds the law names and what matters.

Topics
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