Strasbourg, 2nd April 2004
CCJE (2004) 18
Consultative Council of European Judges (CCJE)
Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation of Austria
A. ACCESS TO JUSTICE
1. Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.
Austria has a very detailed system of registration, observation and statistics. The system in general works quite well. The functioning of the courts in general is admitted by the bar and by the public. Unfortunately from time to time the few cases which take too much time due to different reasons cause a great echo in the media, which leads to political proposals to fasten the jurisdiction as such.
Due to this good performance of the judiciary ADR (including courts of arbitration) is not used very much.
2. Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.
This question obviously deals with the costs of the parties and the simplification of the access to the court.
Here one has to mention the simplified procedure so called Mahnverfahren, which has a long tradition in Austria. In those cases, where the object of the litigation is a certain amount of money only there the plaintiff has to use a standardized form , on the grounds the plaintiff gives in this action the court issues an order to pay without having heard the other party. The defendant can object, which starts a normal procedure. If the defendant does not object the order to pay is equally enforceable like a judgement. Of cause there are some exceptions where this simplified procedure is not allowed. More than 75 percent of the civil cases are settled definitely by such a Mahnverfahren.
There are many cases where the parties do not need to be represented by a lawyer; the most important is at the district courts that the value of the object of the litigation does not exceed 4000.-EUR or in cases of divorce. There is a tendency to change the law in order to enlarge the number of cases where you are forced to take a lawyer. Due to the effective “legal aid” system (see point 3 following) the impact of a chance in this direction might not have too much impact on the number of cases.
3. Have measures been taken to ensure an effective "legal aid" system? If so, please describe the system, with specific reference to:
There is an effective “Legal aid” system.
(a) Eligibility requirements;
Everybody who cannot effort the expenses of a trial without destruction of the necessary support gets legal aid. Depending how far it is necessary legal aid covers the fees of the court, the costs of experts and the representation by a lawyer, who is paid by the state. Legal aid will not be given, if the action is of a kind that persons who have enough money taking into account all circumstances would not take such an action.
(b) identification of authorities entitled to grant the aid;
The legal aid is granted by the court of first instance
(c) budgetary arrangements.
The fees of the court and the costs of the experts are not paid by the party to whom legal aid is granted; sometimes the other party has to pay this fee. If the financial situation improves during the next 3 years the fees and costs have to been paid. The lawyer who represents the party to whom legal aid is granted is not paid at all. It is a duty for every lawyer to do a certain number of cases each year. The chamber of the advocates decides, who has to represent in a certain case. By law every year a certain amount of money is paid to the chamber of the advocates by the state.
4. Have other measures been taken? For example,
a) conditional fee agreements (“CFAs”), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if her or she wins;
Such a regulation does not exist.
b) legal costs insurance for
- a party’s own legal costs and/or
- any costs which if her or she loses he or she has to pay to the winning party;
There is a great number of insurances with different arrangements to which amount which sort of costs are covered. It is quite common that Automobile Clubs offer such insurances for good conditions. There certainly is an impact to an increasing number of cases by this phenomenon.
c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.
There exists a table of fares set by the law. It limits the amount the loosing party has to pay, even if the winning party and his/her lawyer have agreed a higher amount. The table is no fixed amount per case, but limits the amount the lawyer can charge for certain listed activities, which means that the sum of the costs also depends on the number and kind of activities.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
1. Have measures been taken to relieve judges from non-judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.
The following tasks only of that listed in the Appendix of Recommendation No. R (86) 12 are exclusively in the jurisdiction of courts:
Administration of property of those lacking legal capacity (partly)
Appointment of legal representatives for legally incapacitated adults and for absent persons
Commercial Register for companies and ships
Collection of judicial fees
Measures relating to estates of deceased persons
There is a discussion to transfer some parts of the procedure concerning the estate of deceased persons to the notaries.
2. Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.
There are no such bodies especially for “small claims” disputes.
3. Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.
There is a permanent review of court workloads. There is the possibility of increasing the number of judges at the respective court by creating a new position for an additional judge. This is one of the responsibilities of the minister of justice. Due to the fact that irremovebility of judges is guaranteed by the constitution there is no other possibility to react on the reduction of workload than to wait till one of the judges leaves this court be it that the judge applies for a position at another court be it for retirement. Transfers of clerks and other staff of the court are easier to handle.
4. What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?
The management of the courts is entrusted to the chief judges of the courts. They are assisted by administrative officials but the final responsibility lies upon the chief judges. The chief judges are very much dependent on the ministry of justice, which decides over the distribution of resources between the courts.
There are some special seminars on management techniques which chief judges can participate in.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
1. Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.
There is a system of court inspection which does not include the contents of the judgement but the performance of the court as such, structural aspects, building, other facilities, the performance of the president of the court, data collection, work of the clerks. Every court is evaluated every five years.
There is an assessment of the performance of each judge in the second year after he/she came in a new position. It is done by the Personalsenat of the court (this is a body composed of the president of the court, the oldest vice-president of the court and three other judges elected by the judges of the court). If the result of the assessment is that a judge does not fulfil his/her work very good, there is an new assessment one year later, if the result is that he/her fulfils it insufficient for a period of two following years, the judge has to be dismissed.
The Personalsenat of the court where a position of a judge is vacant makes a proposal who of the candidates for this position shall be appointed by the president of the state or the minister of justice. It has to rank the candidates according to their qualification for the position in question. So in fact in this situation of a carrier there is another assessment.
In both situations the criteria are the qualities and abilities which the law postulates as necessary for being a judge (the knowledge, the ability to communicate, the diligence). The judge can appeal to the Personalsenat of the Court of appeal/ resp. of the Supreme Court.
2. Please describe the operation of quantitative statistical data collection concerning judicial activity. Please identify, in particular:
In Austria we have a long tradition of registration of the files. In the beginning this was established mainly to know where the file physically is (e.g. at the judge, at the secretary in the registration office, at the expert) and to see the final result of the case. Meanwhile the registration was implemented in a high-sophisticated IT-system, and almost every step of the procedure can be found in the computer. This makes it easy to do statistics of all kind.
(i) institutional subjects (centralised and/or decentralised) in charge of data collection, data analysis, as well as receiving follow-up;
All files are registered from the very beginning by the clerks of the court by means of a computer-program, those which come in by electronic means automatically. The same happens at every important step of the procedure (e.g. every hearing, judgment, remedies). Out of this data, which are gained decentralised all kinds of statistics are produced by the ministry, some to be internally used within the jurisdiction others to be published every year.
(ii) judicial activities that form the object of data collection and analysis;
The judges association and the ministry of justice agreed that there should not be an evaluation of the results of cases (content of judgements like duration of imprisonment , amount of compensation ) insofar as one single judge is compared with the other single judge.
(iii) relevance of statistical data in professional evaluation of individual judges;
if the number of cases a judge finishes or the number of cases which are pending
longer than a certain time is very much below the average of other judges this gives a hint that there is a special situation, which has to be clarified. One of the reasons might be that a judge does not fulfil his/her duties or is not able to do so
(iv) relevance of statistical data in evaluation of performance of judicial offices and/or chief judges.
Considering the fact, that the mentioned statistical data deal with the number and duration of cases, which due to the independence of the judges, cannot be influenced by the presidents of the court, such data are of very small relevance in evaluation of performance of chief judges
3. Please describe monitoring procedures in operation in your country that, employing assessment data as above, may result into actions aimed at a better control of reasonable duration of proceedings or better allocation of resources (such as variations of judicial and/or administrative staff, revision of territorial or subject matter distribution of cases, "performance contracts" and the like);
The law orders that the cases should by equally distributed to the judges of the court. This is done every year in advance by the Personalsenat of the court (see above). The data of the last year help in doing so.
The data of the whole court compared with other courts can be used by the ministry when deciding how many positions for judges and clerks should be assigned to a certain court.
4. In case that some or all of the above actions are the task of agencies other than the judiciary, what is the role played by the judiciary in the same actions?
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
1. Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialised schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favour of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.
There are numbers of mediators and training institutes for mediation in the country, but there is only a small demand for mediation and ADR. People seem to be quite satisfied with the traditional court system.
By law there exist ADR as a possible procedure in small criminal cases. Only if the object of a claim is a certain type of disputes between neighbours the parties have to try an ADR before they can go to court.
In some cities there exist a commission of the local government to solve certain disputes on rents and property of apartments. In these cities one has to go to these commissions first before one starts a court procedure.
In family cases the judges can interrupt the procedure to give the parties the possibility to try mediation or an other ADR-method in the meantime.
2. Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?
Only for the mediators which deal with the cases of disputes between neighbours and with family mediation as mentioned in point D a 1 above a legal regulation how to become such a mediator and some principle guidelines how to act as a mediator were created. The will come into force on 1.5.2004.
3. Is legal aid applicable to all or some ADR procedures?
In some of the family cases mentioned above a contribution from the states budget can be provided if the requirements of legal aid would apply.
4. Is confidentiality protected? Is any document of the ADR procedure apt to be produced in court, in case mediation failed?
For ADR with mediators mentioned in point D2 confidentiality is protected by the procedural criminal as well as by the procedural civil law. In the mentioned cases of neighbourhood disputes it has to be documented that there had been an ADR in advance.
5. May the judge consider refusal to access ADR or to accept an amicable settlement when making orders relating to trial expenses or costs?
Normally such facts cannot be considered by the judge when deciding on the expenses of the trial.
b) in-court ADR
There is no in-court ADR in civil cases (but see point D b 1 amicable settlement).
1. What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent? May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in-court mediation.
In every civil procedure the judge should try to reach an amicable settlement in every stage of the procedure. In family cases since many years some judges already recommend mediation outside the court and a standstill of the procedure during the mediation process. Beginning with next year a judge not only can recommend such mediation but can order to see a mediator and can interrupt the procedure for a time period of six months maximum.
2. If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?
The judges are not entitled to appoint mediators or conciliators. The parties can choose them out of a list, where all mediators are listed who fulfil the requirements.
3. What legal relevance does an in-court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?
In general only a settlement in the court or an order or judgement of a judge is enforceable.
c) out-of-court ADR
1. What kind of judicial control is possible on out-of-court ADR agreements?
They could be object of a procedure at court like every other agreement. Normally they are not enforceable as such. (see D b 3)
d) ADR in administrative law disputes
1. Is it possible under your system that a public entity participates in an ADR procedure? Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?
Administrative law disputes are not settled by ADR.
e) criminal law and ADR
1. Please describe the role and extent of ADR proceedings vis-à-vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?
In certain circumstances (smaller crimes, clear fault, agreement of the parties) the public prosecutor can decide to use a certain ADR instead of accusing the suspect at the court. Even if the public prosecutor accuses the suspect the judge can use ADR instead of the procedure.
One of this ADR-methods which is provided by the criminal procedural code is to reach a settlement between the accused person and the victim with the help of some special trained mediators.
E. CASE MANAGEMENT
a) in general
1. Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.
Such data are not available. The Austrian judiciary is said to work quite quickly.
Every year the ministry of justice publishes a thick book of data, created from the statistical material mentioned in point C 2 above. Out of the last edition (2002) one can find the following:
At the end of the year 2002 at the district courts out of the 731387 civil cases of 2001 only 6651 were left. At this time 6651 cases were older than one but not older than two years, 1632 were older than two but not older than three years and 1057 were older than three years.
In 2002 out of the 764652 civil cases 597917 (78%) were finally settled by an order of payment within a Mahnverfahren (see point A 2 above). Those Mahnverfahren certainly in average do not last longer than two to four months.
At the end of the year 2002 at the district courts out of the 59352 criminal cases of 2001 only 2030 were left. At this time 7119 cases only were older than 6 months.
At the end of the year 2002 at the country courts out of 34532 civil cases of 2001 only 3478 were left. At this time 3478 cases were older than one but not older than two years, 1363 were older than two but not older than three years and 1417 were older than three years.
At the end of the year 2002 at the country courts 1353 criminal cases were older than one year.
At the country courts acting as second instance of the district courts at the end of 2002 16 cases were older than one year. At the courts of appeal acting as second instance 23 cases were older than one year. At the Supreme Court 27 cases were older than one year.
There is a great problem at the supreme administrative court, which has much too much workload, what leads to great delays.
2. Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgement, to determine the calendar and the time-limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?
There could be long debates upon the meaning of “sufficient”. Having in mind that civil procedure in general is dominated by the parties the law has to find a compromise. The Austrian Civil Procedural Code by Franz Klein from 1895 is still said to be a modern and well constructed instrument for a civil procedure. It mainly is focused on the oral hearings intending to finish a procedure in one or two very concentrated hearings. When time passes many things have changed, many of which have prolonged the duration of the procedure. Besides of the Mahnverfahren (see point A 2 above) , which dated from 1873 and was incorporated into the Civil Procedural Code in 1895 and made obligatory in 1973 in recent years a number of changes were made to accelerate the procedure. On the other hand more and more remedies were introduced which slowed the procedure down. The number of written pleadings is limited, and in most cases needs the permission of the judge. The judge is free to determine the calendar. There are some sanctions against abusive behaviour, but there are still discussion how to improve these possibilities of the judge.
3. Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?
Yes, there are only a few types of procedures where there is still a panel at first instance.
b) in civil disputes
1. Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.
Many of the recommendations of R (84) 5 already are implemented in the Austrian law and the court administration. Nevertheless some of the points still could be improved.
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24-25 November 2003.
There is the Mahnverfahren (see point A 2 above).
There exists a provisional procedure if it is necessary to get a provisional injunction earlier than a final judgement can be delivered after a full ordinary procedure.
3. As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:
(i) simplified methods of commencing litigation;
To start is litigation is very simple anyway. The easiest way is to go to court and start with a protocol or to use the electronic way to send the action.
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
yes in a Mahnverfahren there is no hearing at all
in a provisional procedure there may be no hearing in certain cases
(iii) exclusively written or oral proceedings, as the case may be;
see (ii) above; normally the judge can decide, if written statements are allowed
(iv) prohibition or restriction of certain exceptions and defences;
in certain types of cases and in a provisional procedure
(v) more flexible rules of evidence;
the rules of evidence are not inflexible at all
(vi) no adjournments or only brief adjournments;
the law provides with a number of circumstances when one is allowed to adjourn; in some very rare cases there is almost no legal possibility to adjourn.
(vii) the appointment of a court expert, either “ex officio” or on application of the parties, if possible at the commencement of the proceedings;
experts are always appointed by the court;
(viii) an active role for the court in conducting the case and in calling for and taking evidence;
normally the court can only take the evidence which at least one of the parties agrees with, how, when and in which order he/she does take evidence is up to the judge; in some type of cases (e.g. paternity) the judge is obliged to find the evidence which are necessary.
(ix) the rendering on the part of the judge of a mere "oral" judgement.
The law provides for an oral judgement, but in fact this is done very seldom
4. As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:
4.1 the judge has the power to decide summarily on:
(i) disputes on which an early decision is required (urgent cases procedure); YES
(ii) disputes concerning recovery of certified uncontested debts; NO, but why is there a dispute ?
(iii) small claims (please specify monetary limit); NO
(iv) employer-employee relations; NO
(v) landlord and tenant relations; YES, some cases
(vi) questions of family relations (divorce, custody of children, maintenance); YES some cases if like (i)
(vii) disputes involving consumers; NO
(viii) disputes relating to road accidents; NO
(ix) manifestly ill-founded claims. YES under certain circumstances
4.2 a summary judgement has or does not have the force of "res judicata"
no it has not;
4.3 a summary judgement is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated.
Yes it is
5. Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).
Provisional injunctions are available in every case, if there is a danger that the decision in the ordinary procedure might be too late which would cause damage.
6. Please describe the relevance of time-limits and interlocutory judgements to assure a reasonable duration of ordinary proceedings.
There is the possibility to set time-limits (to bring the data of a possible witness, to pay the money necessary to appointed and hear an expert, to get some evidence from abroad). There are interlocutory judgements; if it makes sense the judge can decide at first if there is a debt at all and afterwards in a final judgement how much there is to be paid.
7. What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.
There is a lot of different possibilities how to protect a claim or a right by a provisional injunction, the judge has to choose the mean which harms the opposite party least; it should not totally anticipate the possible result of the final judgement. There is no difference if the other party was heard before or not. If the other party was not heard before it is easier to annul the provisional injunction. After the hearing of the other party the judge of the first instance can do this by himself without an appeal to the second instance.
8. Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?
No, there is no such possibility
9. In what circumstances is a first degree judgement provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions the party filing an appeal may obtain suspension of enforcement?
Every first degree judgement is provisionally enforceable if there is evidence of some danger that at a later moment the enforcement would not be possible, or if the enforcement to a later moment would have to be abroad.
Without such an evidence a provisionally enforcement is possible under certain circumstances listed in the law, the most important of which is that the first and the second instance have decided in the same way and there is an appeal to the Supreme Court.
10. Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?
Many of the recommendations of R (95) 5 are still in force in the Austrian Civil Procedural Code. There have been some steps to reduce the possibility to appeal to the third instance in recent time.
Final decisions of a court are always subject to an appeal, procedural decisions normally only can be subject to an appeal together with the final decision.
11. Please express your view concerning measures to improve:
(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;
(ii) transparency of information concerning assets of debtors; the debtors is forced to declare all his assets, after an enforcement procedure was started and failed.
(iii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
Due to the fact that within the large number of Member States of the Council of Europe there is a large variety of systems of enforcement, one should study these different systems and their efficiency as well as the different systems of civil procedures before deciding.
c) in criminal matters
1. Please describe, in general, implementation in your country of Recommendations No. R (87) 18 concerning the simplification of criminal justice and No. R (95) 12 on the management of criminal justice. Some specific aspects will be dealt with by following questions.
Concerning Recommendation R (87) 18 a simplified procedure as mentioned in part II c of the Recommendation was abolished a few years ago. At the same time most of the proposals of part I “discretionary prosecution” were introduced into the Criminal Procedural Code. The public prosecutor is assisted by mediators out-of court similar to part II b of the Recommendation, but the decision lies upon the public prosecutor or the court. (see point D a 1 above).
Recommendation Nr R (95) 12 deals mainly with topics which belong to other aspects of the work of the CCJE (management of courts and training), on which the CCJE already issued opinions. There is no need for a separate criminal justice agency in Austria. (see also point E a 1 above)
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24-25 November 2003 (although these materials mainly concern civil justice).
See here the ADR methods in the Criminal Procedural Code as mentioned in point D e above.
3. Please indicate (and provide details) if in your country:
(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);
see point D e above
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;
up to a certain amount offences against the tax or customs law are not in the jurisdiction of the courts but in the competence of the administrative authorities; offences against the traffic law are only dealt with by the criminal justice system if they caused an injury of a person (but not of the injury is very harmless)
(iii) out-of-court settlements are possible;
no, there is only assistance by out-of court mediators see point D e above
penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);
penal orders have been abolished since the 1.1.2000
(iv) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed;
the procedure of “guilty plea” does not exist in Austria
(v) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution;
in general yes
(vi) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail;
not by e-mail
(vii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions)
yes there are some possibilities to reduce the content of the written decision ; there are discussions how to enlarge the number of cases at which the judge is allowed to use this short way of issuing the written decision
4. Please describe the role of the bench in the several stages of investigations (concentrating on the three stages referred to Principle III, a.6 of Recommendation No. R (87) 18. Please also describe the role of the bench as to "guilty pleas" and sentencing, if such phases may take place out of court. Please describe the respective role of professional judges and juries in findings of guilt and determination of penalties, in those cases that are tried before a jury.
In the pre-trial stage of the procedure there are only professional judges, most of the decisions are entrusted to a single judge , in some cases a bench of three judges has to decide (like supervision of telecommunication).
In trial dealing with less serious crimes, which are most of the cases, there is a single professional judge. In trials dealing with the most serious crimes (murder, robbery ) there are three professional judges and a jury of eight lay-judges . The jury decides upon the guilt, if the jury finds the accused person guilty, the jury and the three professional judges together decide upon the punishment. The other crimes between the first and the last group are decided by two professional and two lay-judges (guilt and punishment).
There is no guilty plea in Austria.