General
The Austrian Code of Criminal Procedure applies the principle of ex officio investigation of the truth (Sec 2, 3 StPO). Therefore, the criminal investigation department, the public prosecutor’s office and the court must ex officio collect all evidence relevant to the course and outcome of the criminal proceedings. In preliminary proceedings, this task falls primarily to the public prosecutor’s office within the scope of its leading function.
Despite this obligation, the accused has the option of requesting the hearing of evidence (Sec 55 StPO) if they believe that important evidence has not yet been included in the criminal proceedings. The right to request evidence is also enshrined in constitutional law (Art 6 para 3 lit d ECHR). The successful submission of a request for evidence can prove to be a decisive element of an effective and targeted defence.
Eligible parties, timing and form of the application
The accused is entitled to submit motions to introduce evidence at all stages of the proceedings until the end of the main hearing. Not only the accused or defendant themselves are entitled to submit motions, but also their criminal defense lawyer and, in addition, private parties and their legal representatives. In the case of juvenile accused, their legal representatives also have this right. In the main proceedings, the public prosecutor’s office is also authorized to submit motions to introduce evidence within the meaning of Sec 55 StPO.
Requests for evidence can be made both orally – for example, during the questioning of the accused – and in writing during the preliminary investigation. After the indictment has been filed, such requests can also be made in the written response to the indictment (Sec 222 para 3 StPO). In the main hearing, motions to introduce evidence – like all other motions – must be made orally; in the main proceedings, motions to introduce evidence submitted in writing must therefore also be repeated orally, otherwise they have no legal effect.
Requirements for the content of a motion to introduce evidence
According to Sec 55 para 1 StPO, a motion to introduce evidence must contain the following elements:
- Subject matter of the evidence – the specific fact to be proven.
- Means of evidence – the source of knowledge (e.g. witness hearing, expert opinion, documentary evidence, visual inspection).
- Decisive information on feasibility – information that enables the request for evidence to be complied with (e.g. name and address of a witness).
- Relevance of evidence – two aspects must be distinguished here:
- Relevance of the subject matter of the evidence: The subject matter of the evidence must relate to circumstances that are decisive for the proceedings and thus also be relevant to the question of guilt or subsumption. A subject matter of evidence is relevant if it concerns essential facts in the criminal proceedings.
- Suitability as evidence: In addition, the request for evidence must demonstrate the extent to which the evidence cited can contribute to clarifying the subject matter of the evidence (e.g. why a witness may have made certain observations).
The explanations regarding the relevance of the evidence may be omitted if this is “obvious” (Sec 55 para 1 last sentence StPO) or self-evident.
It is advisable to strictly adhere to these requirements and always include all components of a motion to take evidence – even if it is supposedly “obvious”.
Reasons for not taking evidence (Sec 55 para 2 StPO)
In general, the taking of inadmissible, unusable and impossible evidence must be refrained from. In addition, a request for evidence by the accused may be rejected if:
- the subject matter of the evidence is obvious or irrelevant to the assessment of the suspicion of an offence (nr 1),
- the evidence requested is not suitable for proving a significant fact (nr 2) or
- the subject matter of the evidence can already be considered proven (nr 3).
“Obvious” refers to facts that are known to the general public or at least to the court. A subject of evidence is irrelevant if it is simply immaterial to the criminal proceedings. The suitability of a piece of evidence must be denied if it is not in itself capable of proving the alleged fact. A subject of evidence is considered proven if, on the basis of the criminal proceedings to date, the existence of a fact can be assumed without doubt.
Legal protection
If the public prosecutor’s office refuses to take evidence or fails to act, the accused is entitled to lodge an objection on the grounds of a violation of rights (Sec 106 StPO).
During the preliminary investigation, the criminal investigation department must collect the requested evidence or forward the request to the public prosecutor’s office. The latter must arrange for the evidence to be taken or inform the accused of the reasons for not doing so. In the event of unlawful compliance, rejection or inaction on the part of the public prosecutor’s office, the accused may lodge an objection on the grounds of a violation of rights.
If the right to request evidence is violated in the main proceedings, a procedural objection (Sec 281 para 1 nr 4 StPO) is possible, provided that the request was made in the main hearing or expressly repeated.
Role of the defence lawyer
The request for evidence can be an extremely important tool in criminal defence. However, it must be legally precise and carefully drafted in order to meet the strict criteria of Sec 55 StPO. Even a single – often avoidable – omission can result in evidence that is essential to the defence not being taken into account.
An experienced criminal defence lawyer ensures that motions to introduce evidence are submitted correctly in terms of form and content and are introduced into the criminal proceedings in a strategically sensible manner. In addition, due to their comprehensive expertise, a criminal defence lawyer can effectively use the respective legal protection instruments on behalf of the accused in the event of rejection, thus increasing the chances that the evidence will ultimately be admitted. In this way, the lawyer pays close attention to comprehensively safeguarding this central right of the accused.
