The objection on grounds of a violation of rights is a formal legal remedy in Austrian criminal proceedings. It enables any person to defend themselves against the violation of a subjective right during the investigation proceedings. It is directed against actions or omissions by the public prosecutor’s office or the criminal police where they refuse to allow the exercise of a right granted by law or order or carry out investigative or coercive measures without a legal basis.

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Systematic position within the investigation proceedings

The objection on grounds of a violation of rights is a special legal remedy within the investigation proceedings. It is not one of the classic remedies against court decisions, but is directed exclusively against actions or omissions by the public prosecutor’s office and the criminal police.

The investigation proceedings are the phase of criminal proceedings in which the authorities examine a suspicion of an offence, gather evidence and decide on coercive measures. This stage of the proceedings is particularly burdensome for those affected because it is often associated with significant interference with personal rights, for example through house searches, data evaluations or restrictions of defence rights.

This is where the objection comes in. It enables affected persons to obtain legal review of state measures already during the ongoing investigation proceedings. The law therefore deliberately places it in the section of the Code of Criminal Procedure that governs the tasks and powers of the investigating authorities. This makes it clear that the objection is a control instrument over state investigative activity.

Its systematic role is particularly evident in three functions:

• It creates immediate judicial oversight of measures taken by the investigating authorities.
• It protects individual procedural rights already at an early stage of the proceedings.
• It prevents unlawful measures from remaining in place permanently.

The objection is therefore a central component of the system of legal protection in investigation proceedings.

Purpose and significance of the objection as a legal remedy

The objection corrects unlawful interferences with the rights of affected persons quickly and effectively. Investigating authorities have far-reaching powers because they are intended to investigate criminal offences effectively. At the same time, they must remain strictly bound by statutory limits.

This is precisely where Section 106 StPO applies. The provision enables affected persons to request a review of state action not only at the end of criminal proceedings, but already during the investigation. This creates early legal protection against unlawful measures.

The objection fulfils several practical functions:

• It enables rapid review of investigative measures.
• It compels the authorities to legally review their approach.
• It leads to a binding court decision on alleged violations of rights.

Its significance is particularly evident in measures that interfere with fundamental rights. These include, for example, searches, seizures or the refusal of access to the file. Without this instrument, affected persons could often only challenge such interferences at a very late stage.

The objection therefore serves not only the formal control of state action, but specifically protects the legal position of accused persons, victims and other parties to the proceedings.

When a violation of rights occurs during the investigation proceedings

A violation of rights exists if a person is impaired in a subjective right during the investigation proceedings. A subjective right is a specific statutory entitlement that an individual can assert against the investigating authorities.

Section 106 StPO names two typical situations in which such a violation arises. In plain terms, this means:

• A violation of rights exists if a person is denied the exercise of a procedural right provided by law. This includes, for example, the right to inspect the file, the right to a defence, or the right to be heard.
• A violation of rights also exists if an investigative measure or coercive measure was ordered or carried out contrary to statutory provisions. Examples include searches without sufficient prerequisites or measures that disregard formal procedural rules.

The law expressly clarifies that no violation of rights exists where the law does not prescribe the conduct of the public prosecutor’s office or the criminal police in a binding manner and the authority exercises its discretion within the statutory framework. Not every burdensome decision can be challenged as long as it remains within the legally permitted scope.

This means they may choose between several legally permissible courses of action. If they make a decision within this framework, no challengeable violation of rights arises, even if the affected person considers the measure disadvantageous.

This distinction is often difficult in practice. Whether a violation of a subjective right has actually occurred always depends on the specific circumstances and the legal basis of the respective measure. This is precisely why the objection is of great practical importance.

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The concept of a subjective right in criminal proceedings

A subjective right is a specific statutory entitlement of an individual vis-à-vis the investigating authorities. It is not about general fairness, but about clearly regulated rights that the law expressly grants.

Such rights are held in particular by accused persons, victims and directly affected persons. They oblige the public prosecutor’s office and the criminal police to act in a certain way.

Typical examples include:

• the right to inspect the file, in order to know the status of the proceedings
• the right to a defence, i.e. the involvement of a lawyer
• the right to be heard, for example before burdensome decisions

The provision permits an objection if such a right has been violated.

Not every dissatisfaction with an investigation is sufficient. Only the violation of an individual right granted by law opens the way to an objection.

The precise classification therefore determines success or failure.

Typical cases of a violation of rights by the public prosecutor’s office or the criminal police

Violations of rights usually arise where authorities interfere significantly with personal rights or disregard procedural rights.

In practice, two main groups emerge:

• Denial of a procedural right, for example where access to the file is refused without sufficient reasons
• Unlawful investigative or coercive measures, for example a search without statutory prerequisites

Measures by the criminal police may also be affected. In such cases, the public prosecutor’s office examines the alleged violation of rights.

However, burdensome does not automatically mean unlawful. Authorities may carry out legally permissible measures as long as they comply with the statutory requirements.

This is precisely why a thorough legal analysis is required.

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Distinction from an appeal and other legal remedies

The objection on grounds of a violation of rights must not be confused with an appeal.

An appeal is directed against a court decision. The objection, by contrast, is directed against the conduct of the investigating authorities.

If an appeal is lodged against the court authorisation of a measure, an objection against its execution must be combined with that appeal. The appellate court then examines both issues together.

The difference lies in the purpose:

• The objection corrects a specific violation of rights in the investigation proceedings.
• The appeal reviews a court decision.

Correct classification is crucial. Choosing the wrong remedy can mean that a violation of rights is not effectively reviewed.

Who is entitled to lodge an objection

The objection on grounds of a violation of rights may be lodged by any person who claims to have been violated in an own statutory right during the investigation proceedings.

This means you must be personally affected. A general interest in the proceedings is not sufficient. What matters is whether the action or omission specifically interferes with your own legal position.

Typically entitled to lodge an objection are:

• Accused persons, if their defence rights are restricted
• Victims, if they are denied procedural rights
• Third parties, for example in the case of searches or seizures on their premises

If a person entitled to lodge an objection dies, close relatives may assume the right under certain conditions. This prevents the law from allowing a possible violation of rights to simply remain without consequences.

In practice, objections often fail because there is no violation of one’s own rights. It is therefore essential to carefully examine before filing whether a personally held right is actually affected.

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Deadline and formal requirements for the objection

The objection is subject to a clear deadline. It must be filed within six weeks. This period begins from the time the affected person becomes aware of the alleged violation of rights.

Anyone who waits too long loses their right to review.

The objection must be filed with the public prosecutor’s office. The application must clearly set out

• which measure or decision it is directed against
• what exactly the alleged violation of rights consists of
• what correction is sought

A mere feeling of unease or general criticism is not sufficient. The application must clearly and systematically explain why a statutory right has been violated.

This is precisely where many mistakes occur in practice. Unclear or incomplete applications often lead to dismissal.

Procedure before the public prosecutor’s office after filing

After filing, the public prosecutor’s office immediately examines whether a violation of rights exists. It first decides itself whether to grant the objection. If it recognises an error, it restores the lawful situation immediately. It informs the affected person how it has remedied the violation of rights.

If the public prosecutor’s office considers the objection unfounded or does not respond within four weeks, the court becomes involved. Upon request or in the event of inaction, it refers the matter to the competent court.

This two-stage system has a clear purpose. First, the authority is to be given the opportunity to correct an error itself. Only if that does not happen does an independent court decide.

For affected persons, this phase is strategically important. A precise reasoning increases the likelihood that a correction will already be made at this level.

Referral to the court and the court’s jurisdiction

If the public prosecutor’s office does not grant the objection or does not respond within four weeks, it must refer the matter to the competent court. Submission also occurs if the affected person expressly requests a court decision.

From this point on, it is no longer the investigating authority that decides, but an independent court. As a rule, the competent court is the one that would also be responsible for the corresponding measures during the investigation proceedings.

Even if an indictment has already been filed, the court that would have been competent during the investigation proceedings still decides. This keeps subject-matter jurisdiction clearly delineated.

Judicial review ensures that the alleged violation of rights is assessed by a neutral body.

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Course of the court objection proceedings

The court first examines whether the objection is admissible and was filed in time. It dismisses inadmissible or late applications.

If the objection is admissible, the court decides on the merits. It assesses whether a violation of a subjective right has actually occurred.

If the facts can only be clarified by taking evidence directly, the court may schedule an oral hearing. This hearing is not public. The affected person, the public prosecutor’s office and, where applicable, the criminal police are given the opportunity to comment.

The proceedings are limited to the specific legal issue. It is not about guilt or innocence, but solely about the alleged violation of rights.

Legal remedies against the court’s decision

Both the public prosecutor’s office and the person lodging the objection are entitled to appeal against the court’s decision.

This appeal has suspensive effect. This means that the decision does not become finally effective for the time being while the appeal proceedings are pending.

The Higher Regional Court (Oberlandesgericht) decides on the appeal. It may refuse to deal with the matter if no legal question of fundamental importance arises.

This multi-stage system provides additional oversight. At the same time, the proceedings remain limited to the central question of whether a specific violation of rights exists.

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Legal consequences of a successful decision

If the court upholds the objection, the public prosecutor’s office or the criminal police must restore the lawful situation.

This means in concrete terms: An unlawful measure may not be maintained. For example, if a procedural right was wrongly denied, the authority must grant that right. If a measure was carried out unlawfully, it must be corrected or terminated.

In doing so, the court does not impose a penalty and does not decide on guilt or innocence. It clarifies solely whether a violation of rights in the investigation proceedings exists.

The decision is binding on the investigating authorities. They must implement the court’s directive.

Strategic significance for accused persons and affected parties

The objection is more than a formal instrument. It enables affected persons to actively intervene in ongoing investigation proceedings if their rights have been violated.

Especially at an early stage of criminal proceedings, errors can have significant consequences. Unlawful measures or denied defence rights often influence the further course of the proceedings.

A timely objection can therefore:

• ensure compliance with key procedural rights
• bring unlawful interferences to an end quickly
• significantly improve the starting position for the further proceedings

Anyone who remains inactive may, in some circumstances, accept a measure that can hardly be corrected later.

Your Benefits with Legal Assistance

The objection on grounds of a violation of rights is only effective if it is precisely reasoned and used strategically.

Even the question of whether a subjective right has actually been violated requires a careful analysis of the legal basis and the specific measure. Errors in classification quickly lead to dismissal.

Legal representation therefore offers clear advantages:

• Precise legal assessment of whether a challengeable breach exists
• Structured and persuasive reasoning for the objection
• Compliance with all deadlines and formal requirements
• Integration of the objection into an overarching defence strategy

The objection is not an isolated instrument. It often influences the further development of the investigation proceedings. Anyone who responds correctly at an early stage significantly improves their position.

Professional legal support ensures that your rights not only exist, but are also effectively enforced.

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FAQ – Frequently Asked Questions

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