Duration and maximum periods.

Pre-trial detention is always time-limited

Pre-trial detention is a deep interference with personal liberty , guaranteed under Article 5 ECHR and Article 1 of the Federal Constitutional Act on the Protection of Personal Liberty (PersFrSchG). Every hour of deprivation of liberty without a final conviction demands justification, and that justification does not carry indefinitely: detention is time-limited, periodically reviewed and must be lifted as soon as the grounds fall away. Section 178 StPO (Strafprozessordnung / Austrian Code of Criminal Procedure) draws that temporal line. It lays down how long pre-trial detention may last before the court must either order its extension or release the accused. The provision is not a self-contained regime of time-limits; it is interwoven with proportionality, the duty of expedition and periodic detention review , a web that holds detention distinctly tighter than the bare statutory ceiling would suggest.

The tiered maximum duration under Section 178 StPO

The legislature tiers the maximum periods by two criteria: the ground for detention relied upon and the gravity of the offence. The heavier both weigh, the longer detention may last , and the more strictly the Higher Regional Court (Oberlandesgericht) will scrutinise any extension. In practice the tiers read as follows:

• Two months, in so far as detention rests exclusively on the risk of collusion (Section 178(1)(1) StPO).
• Six months for the remaining grounds , risk of flight, risk of further offences or risk of execution of the planned offence.
• Up to one year, by extension order of the Higher Regional Court, where the subject of the proceedings is a misdemeanour (Vergehen).
• Up to two years in the case of felonies (Verbrechen), both for felonies as such and for those carrying a threatened sentence of more than five years' imprisonment.
• Up to three years in exceptional cases , for felonies carrying a high threatened sentence whose clearing up is unusually difficult.

The short period for pure risk of collusion is no accident: that risk is by nature transient. Once evidence has been secured, witnesses interviewed and written materials seized, the ground for detention falls away. The legislature thereby compels the authorities to swift evidence gathering.

Scrutiny of extensions by the Higher Regional Court

Every extension beyond the initial period passes out of the hands of the first-instance detention and rights-protection judge (Haft- und Rechtsschutzrichter) and up to the Higher Regional Court. This is deliberate: anyone seeking to hold an unconvicted accused in custody beyond six months must persuade a higher court. The review covers not only the continuing grounds for detention and the strong suspicion of an offence (dringender Tatverdacht), but also proportionality and whether the investigation shows particular difficulty or exceptional scope. The court's practice is exacting. Formulaic reasoning , that the proceedings are "extensive" or "complex" , will not do. Required is a concrete, fact-based account of which steps remain open, why they could not already be completed and what time-frame they realistically require.

For the defence, the Higher Regional Court proceedings are a lever of their own: the submission responding to the application for extension must not merely contest the grounds for detention, it must show concretely that the conduct of the proceedings falls short of the stringent standard. Where interviews came late, expert opinions were delayed without necessity or files left unattended for weeks, those failures belong in the extension submissions. The court decides on the file, not in a public hearing , so a precise, well-structured written submission is decisive.

The duty of expedition

Alongside the rigid maximum periods stands the duty of expedition (Beschleunigungsgebot) , anchored in Section 9 StPO and Article 5(3) ECHR. It obliges the public prosecutor's office (Staatsanwaltschaft) and the court to conduct proceedings with detained accused with particular dispatch. This is a justiciable duty, not a programmatic statement: where the investigation is delayed without good cause , weeks of inactivity, missed interviews, expert opinions never commissioned , that delay alone can support the lifting of detention. The argument is then not that the grounds for detention have fallen away, but that detention has become disproportionate by reason of a breach of expedition. In defence practice this lever can prove more effective than the debate over the grounds themselves, because delays are documented on the face of the file.

Periodic detention review despite the maximum period

The maximum periods under Section 178 StPO are the outer boundary, not the benchmark for ongoing detention. Within the period, Section 175 StPO mandates a detention hearing (Haftverhandlung) every two months: the court re-examines of its own motion whether the strong suspicion, a ground for detention and proportionality still obtain, and whether a less intrusive measure (gelinderes Mittel) , bail (Kaution), directions (Weisungen), electronic monitoring (Fussfessel) , would suffice. The maximum duration functions only as a stop-line: even where the prosecution wishes to exhaust the tiered ceiling, it must re-establish the ground for detention every two months. Actual detention duration is almost always decided before the ceiling is reached , through release, a less intrusive measure, or the filing of the indictment and transition into the main proceedings.

What happens when the period expires

Should the maximum period elapse without a timely extension by the Higher Regional Court, the accused must be released without delay. The judiciary has no margin: this is a mandatory legal consequence, not a matter of discretion. Counsel must monitor the time-limits with the utmost care , not only the principal deadline, but also the points at which extension applications must be lodged. If the prosecution misses this step, detention cannot be maintained even where the grounds objectively persist. This occurs rarely, but it does occur: in complex proceedings with mountains of files, shifting responsibilities and parallel strands, time-limits can slip out of sight. Counsel who know their own files and keep the time-limits in parallel notice such constellations early.

Credit against a later sentence (Section 38 StGB)

If the proceedings end with a custodial sentence, time spent in pre-trial detention is credited day for day against that sentence under Section 38 StGB (Strafgesetzbuch / Austrian Criminal Code). Six months of pre-trial detention against a two-year sentence means, on this calculation, a quarter of the term already served. That is no consolation for detention imposed unjustly, but it is a strategic factor: whether to push for a less intrusive measure or accept pre-trial detention is often tied to the anticipated sentence. Where a multi-year custodial sentence is realistically in prospect, credit has a mitigating effect; where a suspended sentence or acquittal looks likely, every week in custody carries the full weight of injustice.

Practice: short periods of detention are the rule

The average period of pre-trial detention in Austria lies distinctly below the statutory maxima. Most proceedings pass into the main trial or end in release within a few months. Detentions beyond a year are the exception , typically in complex economic criminal cases, multi-accused constellations with cross-border dimensions, or capital offences with demanding evidence gathering. For the accused this means: the "up to two years" scenario is just that , a scenario that in the ordinary case does not materialise. Conversely: anyone detained in a large economic criminal proceeding must prepare for the long haul, and for a defence ready for every Higher Regional Court extension review. In between: proceedings which after two or four months transition to a less intrusive measure, once the risk of collusion falls away and bail or directions absorb the risk of flight.

What our firm does

We monitor the time-limits, prepare every detention hearing in substance and press for swift conduct of the proceedings. Once the risk of collusion falls away with the progress of evidence gathering , often earlier than the prosecution concedes , we apply for release or a transition to a less intrusive measure. Before the Higher Regional Court we argue concretely against every extension: which investigative steps remain open? Which should already have been completed? Where is there delay breaching the duty of expedition? These questions belong on the table before the extension order is issued, not after. The framework for this text is our pre-trial detention practice; for the subsequent main proceedings, see strafsachen.at.