Fiches Belges
Implementatie onderzoeksmaatregel
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: Oostenrijk

Onderschepping en registratie van andere vormen van communicatie (103)

1. Implementatie onderzoeksmaatregel

Oostenrijk

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

"The optical and acoustic surveillance of persons is admissible 1. if and for as long as it is urgently suspected that a person affected by the surveillance has kidnapped or otherwise seized another person, and if the surveillance is restricted to processes and comments at the time and location of the deprivation of liberty, 2. if it is restricted to processes and comments that are intended to be brought to the knowledge of an under-cover investigator, or another person informed of the surveillance, or that may be perceived by that person directly, and if it appears to be required in order to investigate a criminal offence carrying a prison term of more than three years, or 3. if the investigation of a crime carrying a prison term of more than ten years, or of a crime by a criminal organization or terrorist association (§ 278a and § 278b of the Criminal Law Code), or the investigation or prevention of a criminal offence committed or planned within the framework of such an organization or association, or the determination of the whereabouts of the person accused of such a criminal offence would otherwise be without prospects of success or be essentially impeded, and a. the person who is the target of the surveillance is urgently suspected of a crime carrying a prison term of more than ten years, or of a crime pursuant to § 278 a or § 278b of the Criminal Law Code, or b. it is to be expected, on account of certain facts, that a person who is thus urgently suspected will establish contact with the person who is the target of the surveillance. (2) To the extent that this is unavoidable for performing the surveillance pursuant to paragraph (1) item 3, it shall be admissible to penetrate a certain flat or other rooms protected by domestic authority, if it is to be expected, on account of certain facts, that the accused will use the rooms in question. (3) The optical surveillance of persons in the process of investigating a criminal offence is also admissible 1. if it is restricted to processes outside of a flat or other rooms protected by domestic authority, and if it is conducted exclusively for the purpose of monitoring objects or premises in order to record the conduct of persons who enter into contact with the objects, or who enter the premises, or 2. if it is performed exclusively for the purpose mentioned in item 1 in a flat or other rooms protected by domestic authority, and the investigation of a criminal offence, committed with intent, that carries a prison term of more than one year, would otherwise be essentially impeded, and the proprietor of that flat or those rooms expressly agrees to the surveillance."

2. LEGAL FRAMEWORK

Oostenrijk

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:

Oostenrijk

* 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)

The practical execution of the measures is performed by security authorities (police).

4. ACCEPTED LANGUAGES

Oostenrijk

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

Oostenrijk

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

Oostenrijk

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

"A surveillance shall only be admissible to the extent that proportionality is maintained. A surveillance to prevent criminal offences within the framework of a terrorist association or a criminal organization shall only be admissible if one may conclude from certain facts that there is a serious danger to public security. Investigative measures may only be ordered for such a future period of time that are likely to be required in order to fulfil the purpose. Another order is admissible in every case, whenever it is to be expected on account of certain facts that the further performance of an investigative measure will lead to success. Moreover, the investigative measure shall be ended as soon as its requirements have ceased to apply. Orders and court authorizations shall indicate the designation of the proceedings, the name of the accused, the offence of which the accused is suspected and its statutory designation, as well as the facts from which it results that the order or the authorization is required and proportional in order to investigate the offence. In addition, the order shall also contain the following: 1. the name or other identification features of the proprietor of the technical device that was or will be the origin or target of a message communication, or of the person whose surveillance is being ordered, 2. the premises envisaged to carry out the investigative measure, 3. the type of message communication, the technical equipment and the terminal device, or the type of the technical means that is likely to be used for the optical and acoustic surveillance, 4. the time when the surveillance begins and ends, 5. the premises which may be entered on the basis of the order, 6. the facts from which results the serious danger to public security. 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 januari 2018 by EJN Secretariaat

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