Fiches Belges
Measure Implementation
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Competent authority
Request/decision
Execute/recognise measure

Accepted Languages
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Execution Deadline
Deadlines

Legal info
Special requirements
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Fiches Belges: Austria

Hearing witnesses: standard procedure (702)

1. MEASURE IMPLEMENTATION

Austria

Is this measure possible in your Member State under International Judicial Cooperation?

Yes. As a rule, every witness is heard individually and in the absence of the parties and other witnesses. Persons who are prevented from following a charge due to illness or infirmity, or other circumstances worthy of consideration, may be heard in their home or other place of residence. According to Art 4 of the European Convention on Mutual Assistance in Criminal Matters (20.04.1959), the assistance of participation of agents or other parties of the proceedings (e.g. private party, lawyer) of the requesting State in the execution of the measaure is possible and permissible on demand.

2. LEGAL FRAMEWORK

Austria

International legal framework applicable for this measure in your Member State

Directive regarding the European Investigation Order in criminal matters in relation to Member States. Since Austria has not yet implemented the afore mentioned Directive: European Convention on Mutual Assistance in Criminal Matters (20.04.1959); Convention implementing the Schengen Agreement; Convention on Mutual Legal Assistance between Member States of the European Union (29.05.2000)

3. COMPETENT AUTHORITY TO:

Austria

* receive the request/decision for judicial cooperation

The public prosecutor’s office with competences for the court district in which the act of judicial assistance is to be performed. If the competences cannot be determined, the public prosecutor’s office in Vienna is responsible.

* execute/recognise the measure (if other than the receiving authority)

During preliminary proceedings, the practical execution of the measures is performed by the public prosecutor's office who can entrust the criminal police with this duty. Only upon explicit and reasoned request, the hearing can be carried out by a judge.

4. ACCEPTED LANGUAGES

Austria

Accepted languages for the request/decision

German, English, French and - in case of reciprocity, if the requesting state would accept a request in german language - also the language of the requesting state.

5. EXECUTION DEADLINE

Austria

Deadlines for the execution of the request/decision (where applicable)

None (requests in urgent cases shall be marked as urgent).

6. CONCISE LEGAL PRACTICAL INFORMATION

Austria

a. Special requirements

N/A

b. Other useful information

"Some persons must not be heard as witnesses, as their testimony would otherwise be null and void (e.g.: clergymen; state officials subject to official secrecy; members of a committee; persons who are incapable of saying the truth). Persons who are to give evidence against a relative (unless they have joined the proceedings as a private party) and particularly vulnerable victims who have already had an opportunity to take part in an earlier adversarial examination are released from their obligation to testify. The following persons have the right to refuse to give evidence: 1. Persons who would otherwise expose themselves or a relative to the risk of (further) criminal prosecution; 2. defence counsels, attorneys-at-law, patent agents, notaries public and chartered accountants with regard to matters that have come to their attention in their respective capacities; 3. specialists in psychiatry, psycho-therapists, psychologists, probation officers, registered mediators and staff members of recognized institutions for psycho-social counselling and care with regard to the matters that have come to their attention in their respective capacities; 4. media proprietors (publishers), media staff members and staff members of a media company or media service with regard to questions that relate to the person of the author, the supplier of or informant for programs/articles and records or that relate to communications that they received with a view to their activities, 5. persons entitled to vote with regard to their vote if the law states that the election of the voting process is to be by secret ballot. The following persons may refuse to answer individual questions: 1. persons, whenever they would otherwise expose themselves or a relative to disgrace or the risk of an immediate or significant property-law disadvantage; 2. persons who were or might have been violated in their sexual sphere on account of the offence with which the accused is charged, whenever they would have to disclose details of the offence, the description of which is regarded as being unreasonable for them; 3. persons whenever they would have to disclose circumstances of their highly personal living sphere, or the highly personal living sphere of other persons. Under Austrian law, it is also possible to carry out a hearing in a way that the parties in the proceedings and their representatives can follow the interrogation and exercise their right to ask questions by using technical equipment for audio and video transmission, without being present during the interrogation if necessary in order to protect the witness (e.g. children, particularly vulnerable victims etc). In general, witnesses are entitled to be accompanied by a person of trust. Minors under the age of 14 or witnesses suffering from mental disorder must be accompanied by such a person. Giving evidence under oath is considered to be against the fundamental priciples of Austrian law. There shall be compliance with a request for judicial assistance which requires a procedure that differs from Austrian laws on criminal procedure, if this is compatible with the criminal procedure and its principles."

Last reviewed on 30 January 2018 by EJN Secretariat

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