Juvenile Arrest, Detention, and Pre-Trial Custody: What Parents Need to Know

The trigger may seem more or less dramatic: a knock at the door with a search warrant; a night patrol after a suspected burglary; a call from the school management because officers are picking up your son; or police waiting outside the school gate with a holding order for your daughter. What looks different from the outside is often the same constellation in legal terms: Section 170 StPO arrest with a ground for arrest, then Section 172 StPO holding for up to 48 hours, and, if the detention and rights protection judge agrees, Section 173 StPO pre-trial detention. Three stages, three legal situations.

Three things matter in the first minutes. First: call the law firm immediately. In an active arrest, every hour counts, the online appointment booking is secondary here. You can also reach an emergency contact through the Bar Association (Rechtsanwaltskammer) of Salzburg or Vienna (depending on the regional court district), if no firm is available; many parents are not aware that there are specialist criminal-defence lists. Second: your child does not have to make a statement on the substance to the police. Provide personal details, yes. Remain silent on the substance until defence counsel has had file access. Anyone who tells “the whole story” in the heat of the moment creates accusations that can hardly be corrected later. Third: no voluntary handover of devices and no consent to a search. Demand the written warrant; record which devices are seized and on what basis, everything that follows builds on that.

Important to know: at every questioning of an arrested juvenile, the presence of defence counsel is mandatory by law. No one, not even the juvenile, can waive it. Section 39 para. 3 JGG obliges the criminal police and the court to bring in stand-by defence counsel where no chosen counsel is acting. The police may not question before counsel has arrived. If officers suggest otherwise (“we just want to do a brief interview, the lawyer can come later”), expressly invoke Section 39 para. 3 JGG.

This article focuses on the JGG-specific perspective: which special rules of juvenile criminal law protect your child in the arrest and pre-trial detention phase? The general procedural rules that also apply in adult criminal law, seizure, search, file access, are covered in our house-search article and in the general procedural timelines in the overview article.

In the first moments of crisis, the three terms tend to blur. In legal terms, however, these are three clearly separate stages, each with its own requirements, its own maximum duration and its own appeal route. Anyone who can sort the terms also understands at which thresholds the defence must act.

Arrest (Section 170 StPO). The most intensive provisional intervention before the court's detention decision. Requirements: strong suspicion and an enumerated ground for arrest, caught in the act, risk of flight, of obstruction or of repetition, lack of identification. The arrest follows either an order of the prosecution with court authorisation or, in case of imminent danger, by the criminal police itself. From a defence perspective, the careful examination of the ground for arrest is central: where one of the grounds is missing, the arrest is unlawful, a complaint against measures under Section 106 StPO and a constitutional rights complaint to the Supreme Court (GRBG, 6-week deadline) are possible.

Holding (Section 172 StPO). The phase after the arrest: the arrested person is held in a police holding cell until brought before the prosecutor. Maximum duration 48 hours from the moment of police access. Within those 48 hours, with defence counsel involved, questioning, medical examinations, the first conversation with counsel and the preparation of the mandatory hearing can take place. Counsel's phone calls and correspondence are in principle not subject to surveillance (counsel-client privilege), including in the holding cell.

Pre-trial detention (Section 173 StPO). The longer variant, imposed by the detention and rights protection judge at the mandatory hearing within 48 hours of the arrest. Requirements: strong suspicion, a ground for detention under Section 173 para. 2 nos. 1-4 StPO (risk of flight, obstruction, repetition, carrying-out), proportionality, no less intrusive measure available (Section 173 para. 5 StPO). In juvenile criminal law, additionally the modifications of Section 35 JGG: subsidiarity, district court bar, shorter periods, substitution duty.

Three safety lines for parents. From these three stages, three thresholds emerge at which the defence must act. At the arrest, document the grounds for arrest and the cautioning. At the holding, organise the first conversation with counsel and prepare the mandatory hearing. At the mandatory hearing before the rights protection judge, drive through the substitution strategy, apply for less intrusive measures (Sections 172 para. 2, 173 para. 5 StPO), preliminary probation supervision (Section 179 StPO), and where pre-trial detention threatens, a social network conference (Section 35a JGG).

The Juvenile Justice Act (JGG) modifies the general StPO mechanics of pre-trial detention at several points, almost always in the juvenile's favour. Anyone who knows these special rules can use them. Anyone who does not know them regularly misses levers that would significantly relieve the proceedings.

Section 35 para. 1 JGG, subsidiarity and proportionality. Detention only when, and only as long as, it is unavoidably necessary. Before imposition, substitution by educational or family-law measures is to be examined as a priority: living with parents, institutional placement, supervised housing, preliminary probation supervision under Section 179 StPO. The proportionality test is tightened, a threatened loss of school, apprenticeship, or work place regularly weighs against pre-trial detention.

Section 35 para. 1a JGG, the district court bar. The central provision in many constellations. Where the district court is competent for the main proceeding (sentencing range up to 1 year, for instance simple criminal damage Section 125 StGB, simple theft Section 127 StGB, negligent bodily injury), the imposition of pre-trial detention against juveniles is absolutely excluded. Even where a ground for detention would exist. The arrest and a brief holding period remain permissible, the pre-trial detention itself is categorically prohibited.

Section 35 para. 1b JGG, no conditional mandatory pre-trial detention. The conditional mandatory pre-trial detention foreseen for adults at sentencing ranges of 10 years or more (Section 173 para. 6 StPO) does not apply to juveniles and young adults. What matters here is the age at the time of the offence.

Section 35 para. 3a JGG, shorter detention periods. In juvenile proceedings, the detention periods are significantly shorter than in adult proceedings. In addition: appeals by the juvenile do not extend the period. After the indictment, the sequence is: first 1 month, then 2 months. After service of the written judgment, further orders are possible without a detention period (Section 175 para. 2 StPO remains relevant). The exact sequence of periods follows the RIS wording of the provision in the version in force, as of 2026 with the most recent amendments BGBl. I 157/2024 and BGBl. I 50/2025.

Section 35a JGG, social network conference. A conference moderated by the head of the local probation office, with parents, teacher, employer, child and youth welfare and, where applicable, therapists. It produces a written concept (housing, school, therapy, monitoring) that serves the court as the basis for cancelling pre-trial detention with less intrusive measures. Requirement: consent of the juvenile, the defence should actively manage this. More on this in the “Out of pre-trial detention” section below.

Section 37 JGG and Section 39 JGG, questioning and mandatory defence. Arrested juveniles are questioned exclusively in the presence of defence counsel, no waiver is permissible. For questioning without deprivation of liberty, where no counsel is present, a trusted adult must be involved. For indictable offences, mandatory defence applies throughout the proceeding from the moment of information. For arrest, presentation for immediate questioning, or the mandatory hearing under Section 174 StPO, stand-by defence counsel must be involved, see the next sections in detail.

In adult criminal law, the involvement of defence counsel at police questioning is largely optional: it can be waived; counsel can be appointed only at the mandatory hearing before the rights protection judge. In juvenile criminal law, the opposite applies, at arrest or the mandatory hearing, the involvement of defence counsel is mandatory, and no one can waive it. Section 39 para. 3 JGG is the central provision. This section sets out the mechanics in detail.

Who organises stand-by defence counsel? The competent Bar Association runs a stand-by service that is reachable 24/7. On arrest or presentation, the criminal police (or, at the mandatory hearing, the rights protection judge) notifies the stand-by service. A lawyer from the stand-by pool is assigned, they meet the client at the police station or at court, conduct the first conversation and represent at the mandatory hearing. Where a chosen counsel is announced and reachable shortly thereafter, the criminal police waits for them. Where no one is reachable, the criminal police calls for stand-by counsel, and may only then question.

When is stand-by counsel involved? Section 39 para. 3 JGG names three triggers. First, the arrest of a juvenile. Second, presentation for immediate questioning. Third, the mandatory hearing under Section 174 para. 1 StPO before the detention and rights protection judge. All three triggers mean mandatory presence of counsel; this presence cannot be waived, not by the juvenile, not by the parents.

What does it cost? Three answers, depending on the constellation. First, legal aid under Section 39 para. 2 JGG: no application required, the standard is milder than under Section 61 para. 2 StPO. The relevant factor is the income and asset situation of the juvenile, including maintenance claims against the parents, so in most cases effectively the parents. Second, stand-by defence counsel: settled in the system of the Bar Association, effectively cost-neutral for the client in the arrest phase. Third, chosen counsel: a fee claim only exists where the chosen counsel is expressly retained by the legal representative (Section 170 ABGB), without that retainer, there is no direct claim against the parents. Practical tip: chosen counsel should also be retained by the legal representative.

Change of counsel after the mandatory hearing. After the mandatory hearing, the client may take a different chosen counsel, stand-by counsel has no claim to the follow-on mandate. Handovers are arranged by post-delivery of the file. If as parents you do not yet have a specific defence-counsel recommendation in the arrest phase, the Bar Association of Salzburg or Vienna (depending on the district) helps with a specialist-list recommendation.

In juvenile criminal law, three role constellations interlock: defence counsel, trusted adult, and legal representative (parents). Who may attend, when, and who is better off not attending, depends on the procedural stage and on the personal circumstances. From a defence perspective, the choice of trusted adult is a lever in itself.

Who is a trusted adult under Section 37 para. 2 JGG? Parents or persons with custody, other relatives (grandparents, older siblings), teachers, educators, a representative of the child and youth welfare provider, probation officers, and other trusted adults (coach, priest, psychotherapist). The list is non-exhaustive. The choice is a highly personal right of the juvenile: parents cannot force their admission as trusted adult where the juvenile names a different person.

Arrested juveniles are questioned exclusively in the presence of defence counsel, counsel cannot be waived (Section 39 para. 3 JGG). At all other questioning without deprivation of liberty, where no counsel is present, a trusted adult must be involved. Where no trusted adult is available within a reasonable period or the juvenile names none, the questioning is to be recorded by audio-visual means (Sections 37 para. 1 with 36a JGG), the audio-visual recording as a fall-back rule.

When are parents unsuitable as trusted adult? In four constellations. First: victim constellation, the parents are themselves victims of the offence (intra-family offence, theft, criminal damage to the family car, family violence). Second: instigator or co-perpetrator constellation, parents are themselves charged or involved in the offence complex. Third: statement-pressure constellation, parents visibly exert pressure, either to speak or to remain silent. Fourth: family conflict, broken relationship, hostile attitude. In all such cases, it is the defence's task to show the juvenile that they can choose other trusted adults, typically a teacher, a representative of the child and youth welfare, or another older reference person.

Notification duties of the criminal police. Parents (legal representative) are to be notified without delay (Section 38 JGG with Section 50 StPO and Section 32 SPG). The child and youth welfare provider must likewise be notified without delay under Section 33 para. 1 JGG. The pleadings court is also notified (Section 33 para. 1 JGG). The school authority is not notified at the arrest phase, protection from stigmatisation under Section 33 para. 4 JGG. School notification only occurs in case of a conviction to a sentence of more than six months imprisonment.

Parents' right to attend at questioning. Arrest / mandatory hearing constellation: counsel is mandatory, parents have no mandatory right to attend the mandatory hearing, but they are to be notified and receive file access (Section 38 JGG). Other questioning without deprivation of liberty: counsel or trusted adult, the juvenile chooses. Where parents are chosen as trusted adult, they may attend. Trial: parents attend as participating persons, also where the public is excluded (Section 42 JGG). More on the parents' participation rights in the overview article.

Anyone who has understood at which thresholds an arrest and pre-trial detention proceeding is decided can also assess the defence's task more accurately. Nine stations, from the first police contact to the trial, with the central defence step per station.

Four anonymised case constellations from defence practice run through the timeline and show different axes. Constellation A, Night-time arrest after burglary (three 16-year-olds are stopped by a patrol on the way home from a burglary; an indictable offence under Section 129 StGB; mandatory defence throughout the proceeding; regional court jurisdiction, the district court bar does not apply; defence levers are differentiation of contributions, substitution with residence and school conditions, social network conference, and diversion without a sentencing cap under Section 7 JGG). Constellation B, Drug check and unexpected arrest (a 15-year-old pupil is stopped outside a club with 1.5 g of cannabis and one MDMA tablet; Section 27 para. 1 SMG with a sentencing range of up to 1 year; district court jurisdiction, hence Section 35 para. 1a JGG: pre-trial detention categorically excluded; defence levers are to invoke the district court bar, diversion under Section 35 SMG, finding of guilt without sentence under Section 12 JGG as a fallback). Constellation C, Arrest after a search under Section 207a StGB (a 16-year-old is arrested after a search regarding the forwarding of explicit images; an indictable offence under Section 207a para. 1 StGB; regional court jurisdiction; defence levers are testing the sexting privilege, substitution with internet ban and sex-education counselling, social network conference; for further reading see our articles on the house search in criminal proceedings and on cyberbullying). Constellation D, Schoolyard fight with serious bodily injury (a 17-year-old hits a fellow pupil, with potentially permanent eyesight damage; for Section 85 StGB an indictable offence; regional court jurisdiction; defence levers are testing the offence, substitution with class or school transfer and anti-aggression training, victim-offender mediation; for more, see our topic page on offences against life and limb).

Where the rights protection judge has imposed pre-trial detention, the proceeding is not “lost”, quite the opposite. Juvenile criminal law provides five levers with which the defence replaces, shortens or substitutes pre-trial detention. This section summarises the five most effective levers.

Lever 1, Application for less intrusive measures (Sections 172 para. 2, 173 para. 5 StPO with Section 35 para. 1 JGG). Always check, already at the presentation to the prosecutor, at the latest at the mandatory hearing. For juveniles, the threshold for less intrusive measures is significantly lower than in adult criminal law, Section 35 JGG tightens the substitution duty. Content of the application: residence condition (parents, institution, supervised housing); school or apprenticeship-attendance condition; contact ban with co-defendants or victim; therapy condition; preliminary probation supervision under Section 179 StPO; anti-violence or anti-aggression training NEUSTART; reporting obligation at the police station. More on the mechanics of the less intrusive measures at haftrecht.at.

Lever 2, Application for a social network conference (Section 35a JGG). As soon as pre-trial detention is ordered or threatens. The client's consent is a precondition, the defence should actively manage this. Preparation: involve parents, teacher, employer, therapists and child and youth welfare; document the binding nature of their commitments in writing (a letter from the employer that the apprenticeship place will be kept; a letter from the school that the school place will be reserved; therapy admission confirmation). Submit the concept to the head of the local probation office, then to the court before the next detention hearing.

Lever 3, Detention appeal (Sections 87, 88 StPO). Possible at every imposition or continuation decision of the rights protection judge. Content: challenge to the strong suspicion (file gaps, evidential basis); challenge to the ground for detention (no flight route, no concrete risk of repetition); proportionality challenge (threatened loss of school or apprenticeship place); substitution offer (probation supervision, social network conference). Deadline typically 14 days from service of the detention order; in the individual case, the exact deadline is to be checked in the order. More on the appeal mechanics on the haftrecht.at page on detention appeal and on our topic page on appeals.

Lever 4, Detention review with substitution concept. Before every continuation date under Section 35 para. 3a JGG. Content: updated substitution concept from the social network conference; report from the probation service; school or vocational development during the detention so far; therapy confirmations. Where the ground for detention has fallen away or substitution works, pre-trial detention is to be cancelled, no pro forma extension.

Lever 5, Application for an expert opinion (maturity and capacity to be guilty). Where there are indications of delayed maturity (Section 4 para. 2 no. 1 JGG) or lack of capacity (Section 21 para. 1 StGB). Defence risk: the expert opinion can also establish lack of capacity and trigger commitment to an institution for mentally abnormal offenders (Section 21 para. 1 StGB). Therefore, before applying, an initial medical assessment; in case of an uncertain outcome, first a private opinion for in-house notes.

Constellation A, Burglary (stations 5-9). At the night-time arrest after the suspected burglary under Section 129 StGB, the district court bar does not apply, regional court jurisdiction. At the mandatory hearing, differentiation of contributions (instigator, co-perpetrator, follower; assistance under Section 12 third variant StGB halves the sentencing range under Section 5 no. 4 JGG). Substitution: residence with parents, daily school/apprenticeship reporting to probation service, anti-aggression training. Social network conference after imposition of pre-trial detention. Likely outcome for followers and restitution: diversion with victim-offender mediation. More on the relevant offences on the topic page on property crimes.

Constellation D, Serious bodily injury (stations 5-9). Where Section 85 StGB applies as an indictable offence, mandatory defence applies throughout the proceeding. Regional court jurisdiction, district court bar does not apply. Risk of repetition (further escalation against victim or family) as ground for detention. Substitution: class or school transfer as residence condition; anti-aggression training NEUSTART; victim-offender mediation. With active mediation, diversion is realistic, because diversion in the JGG has no sentencing cap. More on the relevant offences on the topic page on offences against life and limb.

A handful of mistakes are typical from defence practice, they regularly cost procedural room or create usable incriminations that can hardly be corrected later. This list serves as a negative checklist for the first 72 hours.

“Voluntary statement to clear things up” at the police station. Creates a binding interrogation record with use at trial. What would be right: exercise the right to silence, remain silent until counsel has arrived.

Waiving the wait until counsel arrives. For juveniles legally not possible (Section 39 para. 3 JGG, no waiver). Where the police nonetheless take the statement: invoke Section 39 para. 3 JGG, possibly file a supervisory complaint.

Parents sign “on behalf of the child” a diversion offer or interrogation record. Parents act in their own right (Section 38 JGG), not in representation of the juvenile, they cannot bind the juvenile, but create an unclear procedural situation. What would be right: bring in counsel, withdraw parental statements.

Phone call with the child in the holding cell “under supervision”. Recording by the police is possible; content can flow into the file. What would be right: arrange a counsel conversation, counsel contact is not subject to surveillance.

Parents hand over the child's phone or laptop “voluntarily”. No need for a seizure order on the part of the criminal police, evidence usable without issue. What would be right: demand the written warrant, no voluntary handover.

Parents talk to the police about prior history or family conflicts. Can be used against the juvenile (motive, personality picture). What would be right: remain silent until counsel has arrived; parents have nothing to prove either.

Parents “defend” the child morally at the mandatory hearing. Burns special-prevention arguments, the court sees no acceptance of responsibility. What would be right: counsel speaks; parents document the supporting social network factually and in writing.

Statements during an ongoing search. Statements are recorded without a counsel conversation having taken place. What would be right: exercise the right to silence; only confirm identity, otherwise remain silent, see our house-search article.

Assumption “district court matter, so unproblematic”. District court jurisdiction means a pre-trial detention bar, but arrest and 48-hour holding are nevertheless permissible. What would be right: the mandatory hearing still takes place; counsel involvement is still mandatory.

Talking to the school before the proceeding is concluded. Bypasses the protection from stigmatisation under Section 33 para. 4 JGG; the school learns more than it needs to. What would be right: school conversations only after the proceeding is concluded; counsel advises on what may be said to whom, see overview article.

When defence counsel is mandatory. At every arrest. At every summons in juvenile proceedings. At every search. At every letter from the prosecution that hints at a suspicion. The first hours decide. Stand-by defence counsel (Section 39 para. 3 JGG) is effectively cost-neutral for the client in the arrest phase; for chosen counsel, legal aid under Section 39 para. 2 JGG with a milder standard applies. There is no reason to delay the consultation, and many reasons to seek it immediately.