Fiches Belges

Austrian laws forsees provisions for the optical and acoustic surveillance of persons. 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 clear up a punishable offence carrying a prison term of more than three years, or 3. if the clearing up 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 Code), or the clearing up or prevention of a punishable act 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 punishable act 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 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. 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. The optical surveillance of persons in the process of clearing up a punishable act 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 clearing up of a punishable act, 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.

Directive regarding the European Investigation Order in criminal matters in relation to Member States; otherwise: 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)

The public prosecutor’s office with competences for the court district in which the act of judicial assistance is to be performed. If the request calls for a cross-border observation, the public prosecutor’s officer shall be responsible in whose court district the border is most likely to be crossed. In the case of an observation by an aircraft flying to Austria, however the public prosecutor’s office shall be responsible in whose court district the aircraft is to land. If the competences cannot be determined on the basis of the present provisions, the public prosecutor’s office in Vienna shall be responsible. The practical execution of the measures is performed by security authorities (police).

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

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

Dual criminality is required. Please note that 1. under Austrian law a car is also considered to be a room; 2. that optical and acoustic surveillance of persons by use of technical means can only be granted for future periods of time. There is no possibilty to declare admissible the results of an optical and acoustic surveillance that had been carried out without prior approval by the competent Austrian judicial authority. 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. A surveillance shall only be admissible to the extent that proportionality is maintained. A surveillance to prevent punishable acts 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 clear up 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. After the end of the investigative measure, the public prosecutor's office shall immediately serve its order to the accused and those affected by the execution of the investigative measure. However, service can be postponed as long as it would jeopardize the purpose of the current or any other criminal proceeding. 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.