The Elements of Common Law in the Austrian Criminal Proceedings

This contribution focuses on common law elements in the Austrian criminal procedure which represents a traditional continental (inquisitional) criminal procedure system. However, there occur some elements which can be seen as elements of the Anglo-American (common law) criminal procedure. These elements are recognizable mainly in the pre-trial stage where they represent penetration of the principle of opportunity into the system which was previously based exclusively on the principle of legality. These elements are mainly the diversions and the possibility of public prosecutors to discontinue criminal procedure due to the lack of public interest in a concrete case. The trial stage does not show any common law element as Austria is a very conservative state. However, from the historical point of view there is one – the trial by jury in serious and political offences. The juries were regulated in the Criminal procedure Code of 1873 and they have survived till today. The Criminal procedure Code of 1873 was inspired by the Napoleonic Code d'instruction Criminelle (1808) which was influenced by the English criminal procedure and its trial by jury.