Fiches Belges
Measure Implementation
Measure possibility

Legal Framework
Applicable Framework

Competent authority
Request/decision
Execute/recognise measure

Accepted Languages
Languages

Execution Deadline
Deadlines

Legal info
Special requirements
Other information

Fiches Belges: L-Awstrija

Infiltrar minn aġenti ta' l-Istat li qed jagħmel it-talba fit-territorju ta' l-Istat li qed issirlu t-talba (202)

1. MEASURE IMPLEMENTATION

L-Awstrija

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

"Yes. The deployment of a foreign undercover investigator in Austria shall be ordered if 1. the offences underlying the foreign criminal proceedings comply with the prerequisites for issuing a European arrest warrant, and 2. if there were no chances of investigating the offences, or if their clarification were seriously complicated without the planned investigating operations."

2. LEGAL FRAMEWORK

L-Awstrija

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: Convention implementing the Schengen Agreement; Convention on Mutual Legal Assistance between Member States of the European Union (29.05.2000)

3. COMPETENT AUTHORITY TO:

L-Awstrija

* 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.

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

N/A

4. ACCEPTED LANGUAGES

L-Awstrija

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

L-Awstrija

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

L-Awstrija

a. Special requirements

"Dual criminality is required. A request for ordering and performing the investigative measure shall comprise a copy, a certified copy or a photostat copy of the order of the competent authority. If this is not a court order, the authority requesting judicial assistance shall present a statement explaining that the prerequisites required for such measures are met under the law applicable in the requesting State."

b. Other useful information

The deployment of an official of a Member State operating under cover or under a false identity in Austria is only admissible on the basis of an order, issued in advance of such an operation by the public prosecutor responsible for the area in which the operation is planned to start, and only on the basis of a request by a judicial authority of a Member State, which has granted this deployment in the course of previously launched criminal proceedings or preliminary investigations. The deployment may only be ordered for that period of time that is probably required to reach its purpose, at the most, though, for one month. Issuing a new authorization is only admissible if the prerequisites continue to apply, and if it can be presumed, on the basis of certain facts, that the continued operation will be successful. As soon as the prerequisites for a continued operation no longer apply, or the purpose of the investigating operations is no longer obtained, or is likely not to be obtained, the deployment shall be ended immediately. The foreign undercover investigator shall be exclusively directed and monitored by the Federal Ministry of the Interior (Federal Office of Criminal Investigations). The public prosecutor shall communicate the order for an undercover investigation to this authority pursuant to the provisions of the Ordinance on Classified Information, Federal Law Gazette II No. 256/1998. The undercover investigator shall only act on the basis of Austrian legal provisions. He shall observe the principles of lawfulness and proportionality (§ 5 of the Code of Criminal Procedure). Any provocation of criminal offences (§ 5 (3) of the Code of Criminal Procedure) is inadmissible. The further details concerning the deployment of an undercover investigator shall be determined in close cooperation with the requesting authority and included in the order by the public prosecutor. Just like the information and messages that are obtained by way of the undercover investigation, these details must be laid down in a report (§ 100 of the Code of Criminal Procedure) or an official memo (§ 95 of the Code of Criminal Procedure). The undercover investigator shall have the right to collect information and to establish contacts to the suspects or other persons in their environment. If further offences are being suspected in the course of conducting the undercover investigations, the undercover investigator shall report these, as soon as possible, to the authority directing the operation, giving, however, due consideration to his/her own security and the progress of the investigations (§ 2 (1), § 78 (1) of the Code of Criminal Procedure). The results of the investigations obtained by the operation shall be recorded in a report, which shall be communicated to the public prosecutor ordering the operation. The report shall also list in what sham transactions the undercover investigator engaged. The undercover agent may use false documents to pretend another identity. However, in order to enter a third person's premises, they are not allowed to pretend access rights (§ 131 Austrian CCP).

Last reviewed on 30 Jannar 2018 by EJN Secretariat

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