Prosecutor P pursues a criminal prosecution against V in connection with a suspected murder. He makes an application to Judge J to remand V in custody pending his trial on grounds of the danger V poses to the public. Notwithstanding V's protestations of innocence, J grants the application. After a period of months in custody, V is brought before Judge K, who finds that the evidence against V is manifestly inadequate and dismisses the prosecution, saying that it should never have been brought. V seeks damages from P and/or J (and/or the State) for pecuniary and non-pecuniary losses occasioned by the prosecution. Does it make any difference whether P and/or J were negligent, grossly negligent, reckless or actuated by malice? What if P and/or J acted entirely properly but were misled by lies told by crucial witnesses? Or if their error was in interpreting the law (eg in treating a killing in the course of military action as a possible murder)?

AUSTRIA

The federal State can be held liable irrespective of fault for any harm caused to a person who was deprived of her liberty in the course of a criminal prosecution (§1 StEG). This is not only so if the arrest was illegal (eg because the statutory conditions were not fulfilled at that point in time), but even if all legal requirements for detention are initially given, but the suspect is subsequently acquitted upon trial. Therefore, V will be eligible to claim compensation under that statute in all variants of this hypothetical. The Strafrechtliches Entschädigungsgesetz (StEG) also provides for the proper basis of action if V claims that his constitutional rights as guaranteed by Art 5 European Convention on Human Rights (ECHR) and/or Art 7 Gesetz über den Schutz der persönlichen Freiheit (PersFrG) had been violated (as would probably be in the last variant posed).

Liability of the federal State under the StEG might be reduced or excluded if full compensation to V seems ‘inappropriate’ (§3 para 2 StEG) in light of the grounds for suspecting V at the time of his arrest or custody, or in light of the reasons for dismissing prosecution, which seems unlikely, though, in light of the facts given (‘manifestly inadequate’ evidence).