Not every criminal offence leads to a court judgement. In Austria, there is a special option for ending criminal proceedings without a conviction and sentence: diversion. This alternative is mainly used for minor offences. But what exactly does this mean for the accused and the criminal proceedings?
What is a diversion?
Especially when the facts are evident and everything ultimately boils down to the offender’s responsibility, the “diversion” may be an appropriate strategy in criminal proceedings. Diversion describes an alternative procedure in criminal proceedings. Instead of a conviction and subsequent sentence, the proceedings can be discontinued under certain conditions. The accused voluntarily accepts measures such as a fine, community service or participation in counselling programmes. This ends the criminal proceedings without a sentence being imposed in the traditional sense.
Diversion plays an important role in Austria’s criminal justice system because it relieves the burden on the courts on the one hand and helps to ensure that first-time offenders or people who have committed minor offences are not unnecessarily stigmatised on the other. Instead, the focus is placed on repairing the damage and preventing repeat offences. This makes the criminal proceedings more flexible and adapted to the circumstances of the individual case.
How does diversion work?
Diversion is an alternative to conventional criminal proceedings, in particular an alternative form of settlement. Normally, investigations and a possible indictment are followed by a court hearing, which leads to a judgement and a sentence. With diversion, this process is shortened. The accused does not have to face a public trial, but voluntarily accepts a measure (probationary period, fine, community service) that ends the proceedings without a conviction.
The procedure for diversion is as follows: After the public prosecutor’s office has completed the investigation, it can offer the accused a diversion if the conditions are met. This alternative can also come into play during a court hearing – in practice, this happens frequently! It is important that the accused is willing to accept the proposed measures, such as paying a fine or doing community service. If this is the case and the accused fulfils the conditions, the proceedings are discontinued. There is no conviction and the case is closed.
A major advantage of diversion is that it is quicker and less bureaucratic than regular criminal proceedings. The accused can leave the proceedings behind them quickly and the courts are also relieved. Instead of a lengthy court hearing, an amicable solution takes place in which the interests of the accused as well as those of the state and possible victims are taken into account.
Prerequisites
Diversion is mainly used in Austria for minor offences (petty crime). Typical examples are minor bodily harm or petty theft. In addition, diversion is preferably offered to first-time offenders – i.e. people who have come into conflict with the law for the first time. Anyone who has already been convicted several times or has committed a serious offence cannot usually benefit from this alternative.
Legally speaking, the so-called ultima ratio principle applies to diversion. This means that the state only imposes a penalty if there is no other, less severe way of punishing the misconduct. In the case of minor offences, it is therefore examined whether the imposition of a custodial sentence or fine is really necessary. If this is not the case, diversion can be considered in order to avoid unnecessary stigmatisation.
The most important point is that the accused takes responsibility for his crime – that he admits it and shows remorse.
Another crucial point in diversion is that the accused voluntarily agrees to the measures offered. This is not coercion. The accused must voluntarily accept measures such as the payment of a fine or the provision of community service. If he refuses, the regular criminal proceedings can be continued. This voluntary nature makes diversion a consensual solution in which the accused accepts responsibility without being formally sentenced.
Another important aspect of diversion is reparation. The accused is required to make amends for the damage caused by the offence – as far as possible. This can take the form of compensation payments or apologies to the victim. Making amends quickly not only strengthens the rights of the victim, but also shows that the accused accepts responsibility for their actions.
It also depends on the specific offence – in certain cases, no diversion is offered in practice despite the minor nature of the offence. This may be the case, for example, with false evidence (Section 288 StGB) because the judiciary does not grant diversion for reasons of general prevention.
Examples
In practice, diversion is often used for minor offences, particularly in cases of minor bodily harm, shoplifting or traffic offences. A classic example is so-called “petty theft” in a shop. Here, diversion could take the form of a fine or community service without the accused being brought before a court.
Specifically, let’s imagine that a person is caught stealing a small item in a supermarket – the offence is recorded on video and the perpetrator is clearly identifiable. Instead of taking the case to court, the public prosecutor’s office can now suggest that the person accept a diversion. The accused pays a fine and apologises to the shop owner. The damage is minor and the offence is seen as a one-off slip-up. As soon as the fine has been paid, the proceedings are discontinued. The accused has no criminal record and can quickly get back to his everyday life.
Diversion may also be possible in the case of road accidents involving minor property damage or personal injury. Instead of taking the case to court, the accused can make use of diversion, for example by apologising and making amends for the damage, and thus avoid a conviction.
Advantages of diversion
A major advantage of diversion is that it allows the accused to complete the proceedings without being entered in the criminal record. This means that diversion has no long-term negative effects on the life of the accused. In contrast to a conviction, which is noted in the criminal record and can possibly affect the professional and private future, diversion does not have the stigma of a previous conviction. As a result, the accused can get on with their life without the burden of an official conviction.
Another advantage is the speed. While regular court proceedings can often take months or even years, diversion is usually handled quickly. The accused can move on from the stressful situation more quickly and close the case. This also relieves the burden on the judiciary, as lengthy proceedings are avoided and resources are freed up for more serious cases.
Diversion places particular emphasis on the interests of the victim. In many cases, the aim is to make amends for the damage caused as quickly as possible. The victim benefits from the swift settlement of the claim, be it through financial compensation or other reparation measures. As a result, the victim is often helped more quickly than in a lengthy court case, where claims for damages are only settled much later.
Another advantage of diversion is its flexibility. It allows the individual circumstances of the accused to be taken into account. Instead of a standardised punishment, measures can be chosen that are better suited to the situation and personality of the accused. Whether a fine, community service or an apology – diversion offers various options that can be adapted depending on the case.
Disadvantages
Although diversion offers many advantages, it is not applicable to all criminal offences. Serious offences such as grievous bodily harm, rape or murder are not eligible for diversion. Repeat offenders who have already committed multiple offences also generally do not have access to this alternative termination of proceedings. Diversion is primarily intended for minor offences and first-time offenders where the offence is seen as a one-off slip-up.
One possible criticism of diversion is that, although the accused is not convicted, they still have to accept certain conditions. This can be perceived as coercion, particularly because the accused has to decide whether to accept the diversion or continue with the regular trial. In this context, there is often pressure to accept measures such as the payment of a fine or community service, even if the accused feels innocent. At the same time, waiving a judgement means that there is no official finding of innocence or guilt.
Another point of criticism concerns the transparency of diversion. As proceedings are often concluded without a public hearing and judgement, this could lead to a lack of public scrutiny. Critics criticise that in some cases diversion could be perceived as “secret justice”, as the reasons for the decision and the exact circumstances of the case are not always publicly known.
Diversion offers a valuable alternative to traditional criminal proceedings, especially for minor offences and first-time offenders. It makes it possible to conclude proceedings quickly and without the negative consequences of a conviction, which benefits both the accused and the victims. By making amends and accepting conditions, the accused takes responsibility without having to bear the risk of long-term stigmatisation.
However, diversion is not suitable for every case. It is based on voluntariness and is particularly suitable for minor offences where traditional penalties appear disproportionate. Nevertheless, diversion remains a double-edged sword: it can exert pressure on the accused to accept certain measures and the criteria for its application are not always clear.
Overall, diversion is an important addition to Austrian criminal law, which is aimed at efficiency, restitution and the gentle treatment of first-time offenders. It offers the possibility of reducing the burden on the legal system and finding more individual solutions for minor offences. However, whether it is the best choice always depends on the individual case.
Where can the legal regulations on diversion be found and read?
The legal regulations on diversion in Austria can be found in criminal procedure law. The most important provisions can be found in the 11th main section of the Code of Criminal Procedure (StPO), specifically in sections 198-209b StPO.
Here is an overview of the most important paragraphs:
- Section 198 StPO: General requirements for diversion.
- Section 199 StPO: Diversion through fines.
- Section 200 StPO: Diversion through community service.
- Section 201 StPO: Diversion through probation assistance and other duties.
- Section 203 StPO: Diversion through reconciliation (mediation between offender and victim).
- Section 204 StPO: Diversion by waiving prosecution.
- Section 205 StPO: Conditions for consent to diversion and its revocation.
- Section 206 StPO: Regulations on compensation for damages and involvement of victims.
- Sections 208-209b StPO: Special provisions and application of diversion for special offences or in juvenile criminal law.
The regulations on diversion in connection with drug-related offences can be found in the Narcotic Substances Act (SMG). Specifically, the diversion options are anchored in the following sections:
- Section 35 SMG: Diversion in the case of small quantities of narcotic drugs for personal use.
- Section 37 SMG: Alternatives to prosecution by the public prosecutor’s office, such as therapy conditions or medical treatment instead of criminal sanctions.
There are also specific regulations on diversion in juvenile criminal law. These can be found in the Juvenile Courts Act (JGG). The following provisions are particularly relevant:
- Section 6 JGG: Diversion measures for juvenile offenders (up to the age of 18). This stipulates that diversion should be prioritised if the requirements are met in order to avoid a conviction. It is also emphasised that more attention is paid to educational measures for juveniles.
- Section 7 JGG: Diversion for young adults (up to the age of 21). Similar to juveniles, diversion can also be considered for young adults, particularly in the case of less serious offences and with regard to rehabilitation and the educational purpose of juvenile criminal law.
