Hearing children: Persons who are incapable of saying the truth because of their young age must not be heard as witnesses, as their testimony would otherwise be null and void. When hearing a witness who has not yet reached the age of fourteen and might have been injured in his/her sexual sphere by the offence, the opportunity to take part in the hearing shall be restricted to such an extent, that the parties in the proceedings and their representatives can follow the hearing and exercise their right to ask questions by using technical equipment for audio and video transmission, without being present during the hearing (= prior adversarial hearing). When hearing minors under the age of forteen, a person of trust has to be present.
Hearing victims: Victims have the right to be informed of the subject-matter of the proceedings and of their essential rights prior to their hearing. Particularly vulnerable victims are liberated from their obligation to testify if the parties had the opportunity to participate in a prior adversarial hearing. Persons who are to give evidence against a relative are released from their obligation to testify, unless they have joined the proceedings as a private party. In general, witnesses (and thus also victims) 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.
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 counseling 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 hearing and exercise their right to ask questions by using technical equipment for audio and video transmission, without being present during the hearing 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 principles of Austrian law.
There shall be compliance with a request for judicial assistance which requires a procedure that differs from Austrian law on criminal procedure, if this is compatible with the criminal procedure and its principles.