Austria

Text in original language, English and/or other available languages of the relevant national laws/provisions of the Criminal procedure codes on judicial cooperation in criminal matter:

Other links

Links to the relevant sections of the Council of Europe and United Nations Treaties Offices websites containing information on the conventions to which Austria is party

Austria has four Contact Points following the structure of the Courts of Appeal (situated in Wien, Linz, Graz and Innsbruck) and covering the region of these Courts of Appeal, additionally there are two Contact Points appointed at the Federal Ministry of Justice with a nationwide competence also performing the duties of the EJN National Correspondent and the EJN Tools Correspondent.

According to the Austrian declaration to Article 5 of the European Convention on Mutual Legal Assistance in Criminal Matter, ETS No. 030, being still applicable also with the MS of the EU, the execution of requests for search and seizure is only possible under the condition that it is consistent with the Austrian law (Art 5 para 1 letter c of the Convention).

In practice this means:

- a check of double criminality

- compliance with Section 56 para 2 of the Austrian Federal Law on Extradition and Mutual Legal Assistance, reading as follows:

(2) A request for ordering and performing one of the investigative measures governed by Chapter One to Chapter Eight of Title 8 of the Code of Criminal Procedure 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.

This provision sometimes causes extra work and communication necessities. Therefore, when drafting a letter rogatory to Austria, it is recommended to either:

- attach a court order or prosecutorial order or

- indicate in the request that the prerequisites required for such measures are met under the law or the requesting state.

This provision also applies to bank account information.

Austria has ratified the Protocol to the EU-MLA Convention 2001- hence all types of information foreseen there can be obtained from Austria.

There are some practical remarks to make:

- The jurisprudence of the Courts of Appeal has strengthened their view on granting access to bank information in relation to accounts which are not owned by the suspect person him/herself – especially in cases of unknown perpetrators and bank account information about third persons, the request has to clearly state why and under which factual grounds it is to be believed that the account has a relation to the alleged criminal behavior underlying the request. This presumed relation has to be shown in the request. Otherwise, the execution could be refused.

With regard to requests made under Art 1 of the Protocol, it has to be taken into account that Austria still has no centralized bank account register – so the execution of such requests can take some time. The Austrian prosecutor has to send a letter asking for the required information to the association of the Austrian banks which is distributing this letter to all its members. Banks are obliged to respond within a given timeframe (usually 14 days) in case they have a positive reply (“hit”). This situation might improve once the political discussion on the introduction of a central bank account register will be positively finished.

With regard to incoming MLA requests under Art 3 para 1 of the EU-MLA-Convention 2000 either issued by an administrative authority or concerning matters falling under the competence of administrative authorities under Austrian law the executing authority is determined by the Austrian declaration made under Art 24 para 1 of the mentioned Convention which reads as follows: [Austria names] as the competent administrative authorities within the meaning of Article 3(1): the district administrative authority having territorial jurisdiction (district chief officers' department or body of a city with a status of its own); however, in matters falling within the remit of the Land police departments in a local authority area in respect of which the Land police department is also the security authority of first instance, the Land police department and the district fiscal authority (tax and customs offices) shall be the competent administrative authorities.