Both types of evidence-taking via videoconference are possible and permitted in Austria. Austrian civil procedure law is regulated by the Code of Civil Procedure (ZPO – Zivilprozessordnung) for contentious proceedings and the Non-Contentious Proceedings Act (AußStrG – Außerstreitgesetz) for non-contentious proceedings. The provisions relating to the taking of evidence can be found in the ZPO (Sections 266 to 389), and the AußStrG (Sections 16, 20, and 31 to 35, with partial reference to the ZPO) as well as in the individual provisions regulating specific types of proceedings, such as in Section 85 on the duty of participation in paternity proceedings. The relevant national procedures and legal rules are described in detail in the answers to the following questions and in the factsheet ‘Taking of evidence – Austria’.
In accordance with Section 277 of the ZPO (contentious proceedings) and Section 35 of the AußStrG in conjunction with Section 277 of the ZPO (non-contentious proceedings), videoconferencing can be used for the taking of evidence and therefore also for the examination of parties and witnesses and for expert witness testimony.
In accordance with Section 277 of the ZPO (contentious proceedings) and Section 35 of the AußStrG in conjunction with Section 277 of the ZPO (non-contentious proceedings) videoconferencing can be used for the taking of evidence. However, factual impediments may preclude this, for instance when certificates or visual inspection are to be used in the taking of evidence.
Any person can be summoned by his/her local court and examined there by videoconference. All courts, public prosecutor’s offices and prisons in Austria are equipped with at least one videoconferencing system. There is no rule in Austrian law according to which videoconferencing for the taking of evidence is permitted only in court buildings.
In civil matters there are no general data protection provisions in Austrian law for the recording of examinations via videoconference. The agreement of all persons involved in the videoconference is therefore required for the recording. This applies to the indirect taking of evidence, which, under Article 10(2) of Regulation (EC) No 1206/2001 on cooperation between the courts in the Member States in the taking of evidence in civil or commercial matters (‘the Regulation’), is to be carried out in accordance with the law of the requested State.
A request for direct taking of evidence, however, is made in accordance with the law of the requesting State (Article 17(6) of the Regulation). Should that law provide for the recording of videoconferences without the agreement of the persons concerned, this is admissible from Austria’s point of view.
In principle, examinations via videoconference can be recorded on all videoconferencing systems. In locations where court proceedings are generally recorded (in many criminal courts) the existing technical equipment can be used to record the examination via videoconference. The examination can be recorded in all other locations by simply installing a relevant storage medium.
(a) Under Article 10(2) of the Regulation, evidence is to be taken in accordance with the law of the requested State. The examination must therefore be carried out in German (in some Austrian courts Croatian, Slovenian or Hungarian are also permitted). The requesting court can apply to use its own official language (or any other language) as part of a special procedure for executing its request for the taking of evidence. However, the requested court can reject this if it is not possible due to major practical difficulties (Article 10(3) of the Regulation).
(b) Under Article 17(6) of the Regulation, the requesting court is to carry out the direct taking of evidence in accordance with the law of its own Member State, and thus in one of the official languages permitted by that law. However, as the requested Member State, Austria is entitled under Article 17(4) to require the use of its language as a condition for the taking of evidence.
With regard to the indirect taking of evidence, regardless of any reimbursement made in accordance with Article 18(2) of the Regulation, the responsibility for providing interpreters lies primarily with the requested court. The courts involved should, however, cooperate in a constructive manner (here as in other areas).
With regard to the direct taking of evidence, according to Article 17 of the Regulation the responsibility for providing interpreters lies primarily with the requesting court. Article 17 does not require the requested Member State to provide assistance with this, but it does not preclude such assistance either. Section 39a(4) of the Court Jurisdiction Act (JN ‑ Jurisdiktionsnorm) requires a court providing judicial assistance to give practical help with the taking of evidence upon request from the the foreign court. This would include finding a suitable interpreter, for instance.
The decision on the State from which interpreters are to come has to be made on the basis of what is appropriate in the individual case.
The person to be examined is summoned to an examination by videoconference in Austria in the same way and subject to the same periods of notice as would apply if they were being called before the court trying the case.
There are no call charges for using videoconferencing via Internet Protocol (IP). For videoconferencing via ISDN, callers will incur charges, just as they do for a telephone call. These charges vary depending on the location of the installation being called.
This is primarily the responsibility of the requesting court, which is bound by Article 17(2) of the Regulation and which in most cases itself invites the persons concerned to attend the videoconference. If the Austrian central authority or an Austrian court notices that Article 17(2) of the Regulation may have been breached while the direct taking of evidence is being prepared or carried out, the authority or the court must, in cooperation with the requesting court, ensure compliance with this provision in an appropriate manner. Employees of the court in Austria are trained in the application of Regulation (EC) No 1206/2001, and they also have access to the European ‘Guide on videoconferencing in cross-border proceedings’ via the intranet of the Ministry of Justice.
Photographic identification is used to verify the person’s identity. The person’s identity is also checked as part of the examination (Section 340(1) ZPO).
The provisions pertaining to oath-taking for parties are in Sections 377 and 379 of the ZPO and those for witnesses can be found in Sections 336 to 338 of the ZPO.
Parties and witnesses are both obliged to take an oath. While parties cannot be legally forced to take an oath, witnesses can be penalised for unlawfully refusing to take an oath (Sections 325 and 326 of the ZPO; punishments are the same as those for refusing to testify and include fines or up to 6 weeks’ imprisonment).
According to Section 288(2) of the Criminal Code (StGB – Strafgesetzbuch), giving or confirming false evidence under oath or otherwise falsely taking an oath provided for in the relevant legislation are punishable by a term of imprisonment of between six months and five years.
False evidence given by a party to the proceedings who has not taken an oath is not considered a punishable offence. But a witness who has not taken an oath and who gives false evidence can be sentenced to up to three years’ imprisonment (Section 288(1) of the StGB).
In accordance with Article XL of the Introductory Act to the Code of Civil Procedure (EGZPO – Einführungsgesetz zur Zivilprozessordnung) the provisions of the Act of 3 May 1868, Imperial Law Gazette (RGBl.) No 33 (Wording of the oath and other formalities) must be observed (see http://alex.onb.ac.at/cgi-content/alex?aid=rgb&datum=18680004&seite=00000067).
According to Section 336(1) and Section 377(1) of the ZPO, persons who have previously been convicted of giving false testimony, or who are under the age of fourteen, or who have an insufficient understanding of the nature and meaning of the oath as the result of a lack of maturity or because of an intellectual disability, are unable to take an oath, and may therefore not be put under oath.
The aforementioned provisions relating to the examination of a witness or a party under oath cannot be applied in cases pursuant to the Non-Contentious Proceedings Act (Section 35 AußStrG).
At all locations with videoconferencing facilities owned by the Ministry of Justice one employee is in charge of looking after the videoconferencing equipment. This person can operate the videoconferencing equipment and make minor adjustments to the settings. All videoconferencing equipment is linked to a central unit in the IT department of the Federal Ministry of Justice (BMJ – Bundesministerium für Justiz). From there, IT administrators can fine-tune all videoconferencing systems located across Austria.
The following information is required from the requesting court:
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