Detention review.
The detention review hearing is no formality but the regular, ex officio check on pre-trial detention. Every two months the detention and legal-protection judge (Haft- und Rechtsschutzrichter) decides afresh whether deprivation of liberty may continue, and every such hearing is an opportunity to secure release.
What the detention review hearing is
The detention review hearing (Haftprüfungsverhandlung) is the oral hearing before the detention and legal-protection judge in which it is examined whether pre-trial detention may continue. The legal basis is Section 175 StPO (Strafprozessordnung / Code of Criminal Procedure). Unlike the detention appeal (Haftbeschwerde), which targets a specific ruling, the detention review takes place ex officio: the court is obliged to re-examine, at fixed intervals, whether the strong suspicion of an offence (dringender Tatverdacht) and the grounds for detention still subsist and whether the detention remains proportionate. It is therefore the central instrument of judicial control over detention in Austrian criminal proceedings. What matters is the oral character of the hearing: it is not enough for the court to read the file and decide in writing on continuation. The accused is entitled to be heard in person, counsel has the opportunity for oral argument, and the public prosecutor (Staatsanwaltschaft) must set out its grounds for detention before the judge. It is this oral confrontation that turns the hearing into a genuine opportunity, because arguments can often be presented in person in a way that is not possible on paper.
When the review takes place: deadlines and periodicity
The first detention review hearing takes place at the latest 14 days after the first detention hearing in which pre-trial detention was imposed. Thereafter review proceeds periodically: under Section 175(2) StPO every two months for as long as the accused remains in the investigation phase. Once the indictment is filed, or the order referring the case to the main proceedings is issued, the interval extends to three months. These deadlines are mandatory: if a detention review is not carried out in time, the accused must be released immediately. The legislator has deliberately set a tight rhythm, because every day in pre-trial detention is an interference with the fundamental right to personal liberty.
Who attends and what is reviewed
The hearing is attended by the accused, their defence counsel and the public prosecutor; all three are to be heard. Four conditions are reviewed: the strong suspicion of an offence, the existence of one or more grounds for detention under Section 173 StPO (risk of flight, risk of collusion, risk of further offences or risk of committing the threatened offence), the proportionality of continued detention, and the question whether a less intrusive measure (gelinderes Mittel) would suffice. Each of these points is open to challenge. If the evidence does not thicken further, even the strong suspicion may begin to weaken; if the life circumstances of the accused have changed, the basis of the flight risk can fall away in substance; and the longer detention lasts, the stricter the proportionality yardstick becomes.
Course of the hearing
The hearing follows a set pattern. First the public prosecutor presents the current state of the investigation and explains why, in its view, detention should continue. Then defence counsel takes the floor: introducing new material, attacking the prosecution's reasoning and moving for release or a less intrusive measure. After this the accused may speak in person if they wish, there is no duty to make a statement. Strategic restraint is often called for: anyone who has exercised their right to silence during the investigation should, as a rule, do the same in the detention review, because every word goes into the file and can be used against the accused at the later main trial. After a short deliberation the ruling is handed down: continuation of detention, change in the grounds, lifting of detention, or substitution with a less intrusive measure. The hearing itself usually takes between 30 and 60 minutes; the real work lies in preparation, which may stretch over days or weeks and extends far beyond a simple reading of the file.
Preparing the defence
Serious defence work prepares each detention review hearing afresh. Central is the updated state of the file: which investigative steps have been taken since the last hearing, which items of evidence have been gathered, which have fallen away? Equally important are new factual anchor points against the grounds for detention: a registration confirmation from the municipality or landlord, a concrete offer of employment, proof of family ties (spouse, minor children, family member in need of care), medical findings, a declaration of residence with close relatives. The more concrete these documents, the harder it becomes for the court to maintain a finding of flight risk. Alongside this, less intrusive measures must be proposed in substantiated form: what amount of bail would be realistic and financeable, which conditions (duty to report at the police, surrender of the passport, no-contact order with co-accused) would genuinely secure the purpose of detention, would electronically monitored house arrest (elektronisch überwachter Hausarrest) be an option? Counsel who argues only in the abstract will rarely succeed; counsel who places a concretely thought-through alternative before the court adds decisive weight.
Difference from the detention appeal
Detention review and detention appeal are frequently confused but pursue different thrusts. The detention appeal (Haftbeschwerde) is a legal remedy against a concrete ruling, typically the order imposing or continuing pre-trial detention. It must be lodged within 14 days of service and is decided by the higher court. The detention review (Haftprüfung), by contrast, takes place ex officio, at intervals fixed by statute, and requires no motion. Both instruments stand side by side: anyone who appeals the first detention order may still go through the regular detention review after 14 days in the meantime. The two routes are often combined strategically, because they address different judicial instances and call for different depths of reasoning. The appeal forces a higher court to scrutinise the decision of the detention and legal-protection judge in detail; the detention review gives the first-instance judge the opportunity to revise their own decision in light of a changed file. These are two very different registers, and counsel who uses only one of them leaves defence potential on the table.
No waiver, and why
The accused cannot waive the detention review hearing (Section 175(5) StPO). It must be carried out regardless of whether the accused or counsel expressly demand it. The constitutional significance of the matter lies behind this: pre-trial detention is an interference with the personal liberty of a person not yet convicted, and thus with one of the most sensitive fundamental rights. The legislator has therefore removed regular judicial control from the discretion of the parties. That also works in favour of the accused: even those who have "settled in" to detention or become resigned still receive, ex officio, a renewed opportunity to seek release. This has a practical consequence: even in cases where counsel may consider a detention review futile, it is carried out, and not infrequently, in dialogue with the judge, nuances emerge that prepare the ground for a later release.
The ruling and what follows
At the end of the hearing a reasoned ruling is issued. Four outcomes are possible: continuation of pre-trial detention, alteration of the grounds (for example where the risk of collusion falls away but flight risk persists), lifting of detention, or substitution with a less intrusive measure. As against the original detention order, a detention appeal is again open against this ruling. A negative decision is not the last word. And at the latest two months later, the next detention review is due in any event. This cadence can be wearing for accused and relatives alike, but from a defence perspective it is an opportunity: every hearing is a test against which the prosecution's reasoning is measured, and with each week of investigation the case for less intrusive measures grows stronger. The court itself must over time apply a stricter yardstick: the longer someone sits in pre-trial detention without an indictment, the more closely proportionality is scrutinised, and the more readily the balance tips towards release under conditions.
What our firm does
We prepare each detention review hearing separately: reviewing the state of the file, gathering new anchor points, obtaining proof of residence and employment, working out less intrusive measures in concrete figures, preparing the written submission. At the hearing we represent the accused before the detention and legal-protection judge. Where the ruling is adverse, we examine the detention appeal. The detention review is one of several building blocks within our pre-trial detention practice, anyone in pre-trial detention generally needs the full toolkit: application for release, detention appeal, detention review and, where appropriate, the motion for less intrusive measures. For the subsequent main proceedings and the substantive criminal defence we work together with our sister site strafsachen.at.
A detention review is coming up, every hour of preparation counts.
If a detention review hearing is scheduled for you or a relative, call us. We go through the file, prepare the written submission and represent you before the detention and legal-protection judge.
A direct line to the firm.
Address
BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg
Phone
+43 660 2407152