Amendments to the Austrian Code of Criminal Procedure bring substantial improvements to defendants' rights, but also facilitate the public authorities' access to confidential bank data.
We have prepared a series of Legal Insights to inform you about these amendments: (i) Part 1 – Amendments regarding the Attorney Client Privilege (published on 31 March 2016); (ii) Part 2 – Improvements to Defendants' Rights (published today); and (iii) Part 3 – New Rules regarding the prosecution authorities' access to bank data (published on 14 April 2016).
1. Better access to a lawyer in case of an arrest
After having been arrested, an arrestee must be transferred to the custody of the competent court within at least 48 hours. After having been transferred to the court prison, the arrestee must be questioned by an investigative judge within 24 hours. At this initial hearing, which is not a trial and which normally takes place within the court prison, the investigative judge informs the arrestee of the offence he is suspected of having committed, and asks the suspect whether he pleads guilty or not guilty. After the initial hearing, the investigative judge decides whether the arrestee should be remanded to custody pending investigation and trial, or be released with or without bail or other security. Up to now, the police, as well as the public prosecutor, could rather deliberately monitor and limit a defendant's contact with his or her attorney during these first very important hours of an arrest. As of 1 November 2016, this will have to stop, as Austria has implemented Directive 2013/48/EU, which lays down certain minimum rules concerning the right of access to a lawyer in criminal proceedings.
Pursuant to the newly drafted sec 59 of the Austrian Code of Criminal Procedure, the contact between an attorney and his or her defendant may no longer be monitored. Further, limiting communication between the defendant and his attorney will only be permissible in exceptional cases, for instance if the prosecuting authorities can show reasonable grounds as to why a defendant's contact with an attorney might hamper the investigation. The police must provide the defendant with written reasons within 24 hours after his or her arrest. The decision of the police to limit a defendant's access to his or her attorney can be appealed by the defendant (please see our Legal Insight dated 31 January 2014 for further details: Austria: New legal remedy against police activities within criminal investigations).
2. Improvements regarding interrogations
In addition to the possibility to deliberately limit a defendant's right to consult with an attorney prior to his or her hearing, the role of the attorney during the interrogation was restricted to the right to ask additional questions at the end of the hearing.
As of 1 November 2016, the authorities are explicitly requested to wait on the arrival of an attorney. Upon the attorney's arrival, the defendant must be granted enough time to consult with his or her attorney prior to the interrogation. Furthermore, the attorney will be permitted to ask "additional questions" not only at the end of the hearing, but after each thematically separate "section" of the interrogation. This right to ask questions during the course of the interrogation will be of particular importance during complex interrogations regarding various subjects, as it will not only lead to more structured protocols, but will also provide the attorney with the opportunity to step in more frequently. Most importantly however, the attorney will finally be permitted to record "statements" regarding the course of the interrogation, ie, that the translator did not fully understand the defendant and/or that he or she was not granted sufficient time to consult with the defendant.
By Klara Jaros, Attorney at Law, Schoenherr