Audiovisual interrogation in Austria: recording, video and protocol

The terms are often used interchangeably. An audio or video recording stores the course of the examination. Transmission of speech and images technically conveys the examination to another location. In a contradictory examination, the statement is taken with the participation of the procedural parties because repeating it at the main hearing may not be possible.

The distinction matters in practice. A video connection alone does not show that a file is stored. Conversely, an examination may be recorded even though everyone is in the same room. Before the examination, ask for the specific legal basis and the form of documentation.

For accused persons, the general rules on questioning apply in addition to the recording rules. Witnesses have their own protective and objection rights. The person’s procedural status must therefore be clear first.

Under section 97(1) StPO, an audio recording or an audio and video recording is permissible if the person being examined has been expressly informed and the examination is recorded in full. The rule concerns documentation of the conversation. It does not permit selected favourable or incriminating passages to be recorded as a substitute for the complete examination.

For a witness, the recording must stop as soon as the witness objects, subject to special statutory provisions such as section 165 StPO. For an accused person, prior information is also required. The recording does not restrict the right to remain silent.

A recording can make later review easier. It does not remove the need to examine the caution, the questions, the presence of the lawyer and the completeness of the documentation.

Section 153(4) StPO provides, in the circumstances defined there, for an immediate examination using technical facilities for the transmission of speech and images where the witness or accused is outside the district of the competent prosecution authority or court. Exceptions may arise from procedural economy or special reasons.

The provision describes the connection between the authority’s location and the location of the person being examined. It therefore answers how the participants communicate. Whether an audiovisual file is also stored is governed by the rules that apply to recordings, in particular sections 97 and 165 StPO.

For practical purposes, the summons and record should show where the examination took place, who was present and whether a recording was made in addition to the transmission. Those details can matter when the procedure or documentation is later challenged.

Before questioning begins, section 164 StPO requires the accused to be told, among other things, which offence is suspected. The accused must be informed of the right to make a statement or remain silent, to consult a lawyer beforehand and of the possible use of the statement as evidence.

The accused may have a lawyer present. If this right is exercised, the examination must in principle be postponed until the lawyer arrives. The lawyer may not intervene in the questioning itself, but after it has ended or after thematically connected sections may ask the accused questions and make statements.

An audiovisual record does not replace these rights. It makes the statement permanently reviewable. Anyone who does not yet know the accusation and the file should therefore discuss with a lawyer whether a statement is sensible before answering on the facts.

Section 165(1) StPO permits a contradictory examination and its audio or video recording where there is concern that the examination will not be possible at the main hearing for factual or legal reasons. The statement is secured for later use in the proceedings.

The court conducts the examination on an application by the prosecution and applies the rules on questioning at the main hearing by analogy. In principle, the prosecution, the accused, the victim, the private claimant and their representatives must have an opportunity to participate and ask questions.

Permissibility depends on the specific reason why a later examination is expected to be impossible. General convenience is not enough. The order, the concrete risk to the later examination and the participation rights granted should be examined.

For particularly vulnerable victims or other witnesses with comparable protection needs, section 165(3) StPO allows participation to be limited so that the procedural parties and their representatives follow the examination through technical facilities for the transmission of speech and images and exercise their right to ask questions without being present in the examination room.

This arrangement may also be ordered in the interests of finding the truth. Where protection needs are significant, the court may instruct an expert to conduct the questioning. The witness’s encounter with the accused and other procedural participants should be avoided as far as possible.

For certain minor witnesses the form is mandatory when the statutory conditions are met. For other particularly vulnerable witnesses it may be ordered on application. The legal condition, the concrete protection situation and the organisation of questioning are decisive.

For a recording under section 97(1) StPO, a written summary of the examination may be prepared instead of a protocol. The person conducting the official act signs it and places it in the file. The recording and the summary are therefore different forms of documentation.

Where technical facilities for transmission of speech and images are used, section 165(5a) StPO requires the recording to be transcribed in full without delay and placed in the file as a protocol. An audiovisual file and a written protocol may therefore exist alongside each other.

Under section 51 StPO, the accused may in principle inspect the results of the proceedings. Whether and in what form a copy of a recording is provided may depend on special statutory rules. Before commenting on the content, the recording, the full transcript, the cautions and any applications should be reviewed together.