I. Participation in nullity proceedings
The field of responsibility of the Procurator General’s Office encompasses above all the preparation of comments on nullity appeals against decisions of criminal courts composed of a panel of professional judges and lay assessors and decisions in jury trials. The Procurator General’s Office also participates in the hearings before the Supreme Court.
In cases where the Procurator General arrives at the conclusion that a nullity appeal is required to be ruled upon in a public hearing held before the Supreme Court, it renders a written statement (“croquis“), expressing in detail its position on all the questions raised in the appeal and submits its opinion on the correct application of the law.
In accordance with its function as the supreme custodian of the application of the law, the Procurator General renders its opinion unbiased and independently, regardless if the legal remedy was brought by a defendant, a private party joining criminal proceedings or the Public Prosecutor’s Office.
Since the Procurator General’s Office has no prosecuting functions and is therefore not empowered to interfere with the indictment, any concerns it may express against the public prosecutor’s point of view do not result in a withdrawal of their legal remedy.
In cases in which the Procurator General’s Office considers a nullity appeal to require a closed hearing before the Supreme Court, it submits an opinion to that effect. Depending on the case in question, this opinion may also be expressed in the form of a brief summary.
II. Nullity appeal to preserve the integrity of the law (Wahrungsbeschwerde):
However, the most important and exclusive power of the Procurator General in terms of the rule of law is the power to file a nullity appeal against decisions of the criminal courts to preserve the integrity of the law, based on an infringement or incorrect application of the law, and against any unlawful ruling or measure by a criminal court of which he acquires knowledge by whatever means (e.g. information submitted by the courts, public prosecutor’s offices or private parties or information acquired on its own initiative) and to urge the Supreme Court to adjudicate the case to constitute an infringement of the law.
The main purpose of this appeal, which is not subject to any time limit, regardless of whether the decision has become res judicata, is to ensure uniformity and correctness of the application of the law with the aim of preventing the same kind of infringements of the law in the future and promoting further development of criminal law. Thus, the nullity appeal to preserve the integrity of the law is instrumental in fostering a well-functioning administration of justice. However, in many cases it also provides recourse for individuals wrongly condemned, accused persons unlawfully disadvantaged by the criminal court in any other manner or for parties involved in the proceedings in a comparable situation: legal disadvantages can be removed in such cases by the Supreme Court in proceedings initiated by the Procurator General’s Office, for the benefit of the parties concerned.
This option of applying the nullity appeal, which safeguards the protection of the rights of individuals as well as the basic constitutional rights, was amended on 1 January 2011 to reach beyond rulings and measures by the courts and additionally include measures taken by the criminal investigation police and the public prosecutor’s offices.
Sec. 23 para. 1a of the Austrian Code of Criminal Procedure provides for the Legal Protection Commissioner (Rechtschutzbeauftragter) to initiate a nullity appeal with the Procurator General’s Office to preserve the integrity of the law on grounds of unlawful execution of enforcement measures by the criminal investigation police, or an unlawful order issued by the Public Prosecutor’s Office to execute such measures, a decision of the Public Prosecutor’s Office to terminate its preliminary criminal proceedings, provided that the persons eligible for bringing such legal remedies have not resorted to it, or no eligible person could be identified.
It should be noted however, that any other processes of the public prosecutor’s offices, of civil-law and administrative courts are not subject to a review by means of a nullity appeal brought to preserve the integrity of the law.
Furthermore, a nullity appeal to preserve the integrity of the law only addresses errors related to the correct application of the law, whereas any findings made with respect to the facts of the case cannot be challenged by a nullity appeal.
III. Re-hearing of criminal proceedings
Where the European Court of Human Rights holds that a fundamental right granted by the European Convention on Human Rights has been infringed, in cases in which it is not possible to rule out the possibility that the infringement had a negative effect on the substance of the criminal court decision with respect to the party concerned, the Procurator General (and the party affected by the infringement) is entitled, pursuant to sec. 363 a of the Austrian Code of Criminal Procedure (StPO) to file an application with the Supreme Court for a re-hearing of the proceedings, including in cases in which a criticism is directed at the Supreme Court itself.
The Supreme Court of Justice grants also applications for Re-hearing of criminal proceedings even without prior referral and decision by the European Court of Human Rights.
IV. Extraordinary reopening of the case
Misjudgements in factual, rather than legal matters by the courts are not open to a challenge by means of a nullity appeal to preserve the integrity of the law. However, pursuant to sec. 362 para. 1 no. 2 StPO, the Procurator General can file an application for the criminal proceedings to be reopened as an extraordinary measure for the benefit of the person convicted on the grounds of substantial reservations against the correctness of the facts on which the decision was based as disclosed by the file.
V. Decisions on competence
Pursuant to sec. 28 StPO, the Procurator General’s Office rules on competence disputes of the public prosecutor’s offices in preliminary criminal proceedings and may (ex-officio or upon application) transfer proceedings from one public prosecutor’s office to another one for good cause.
In cases where competence of the Public Prosecutor’s Office cannot be derived from the statutory provisions governing local competence for certain legal matters (sec. 25 para. 1 to 3 StPO), the Procurator General’s Office will decide which Public Prosecutor’s Office is responsible for conducting the preliminary criminal proceedings (sec. 25 para. 4 StPO).
VI. Disciplinary proceedings
In addition, the Procurator General participates in disciplinary proceedings against judges, notaries, lawyers, candidate lawyers and members of the Administrative Court, as well as members or substitute members of the Constitutional Court in the case of impeachment proceedings. In many of those cases, the Procurator General’s Office issues extensive statements commenting on the questions raised in the legal remedies, and by expressing its opinion contributes to the correct application of the law.