INTRODUCTION

Public interest in terms of criminal procedural law is primarily the interest of the public in criminal prosecution. There is no definition of the term “public interest” in the Austrian Code of Criminal Procedure (ACCP) and procedural laws only refer to it in exceptional cases. The first part of this contribution relates to public interest and its relevance for the decisions of the prosecutor to file charges or to refrain from investigation proceedings. In this regard, public interest is associated with the principle of mandatory prosecution. While this is true for Continental European Countries like Austria and Germany, countries with an Anglo-American law tradition like England & Wales follow the approach of discretionary prosecution. Due to the lack of a definition of “public interest” in the ACCP, factors shaping this term have been identified. The second part of this chapter deals with the content of the terms “particular public interest” and “extraordinary public interest“. Provisions of the ACCP and the Law of the Public Prosecution Service contain these terms, which serve a specific function.

PUBLIC INTEREST IN CRIMINAL PROSECUTION

UNDERLYING PRINCIPLES OF CRIMINAL PROCEDURE LAW

The prosecution of criminal offences is in the public interest. Although this is not a separate principle of criminal procedure law in Austria and the Code of Criminal Procedure does not contain the term as such, the ex-officio principle (Offizialprinzip) and the principle of mandatory prosecution (Legalit a tsprinzip) which are laid down in Section 2 ACCP express that fact. According to the ex-officio principle only the state has the right to prosecute (ex-officio) offences and impose criminal sanctions. The principle of mandatory prosecution traditionally is embedded in the criminal law of Continental European Countries and aims to secure uniform prosecution of criminal offences. It stipulates that investigation and prosecution authorities have a duty to investigate any reasonable suspicion of a criminal offence that has come to their attention (not including offences that are only prosecuted at the request of entitled persons) and probe it ex-officio in investigation proceedings