Fiches Belges

Observation is admissible in order to clear up a punishable act or to determine the whereabouts of an accused person. If the observation measure 1. is supported by technical aids 2. is to be carried out for a period longer than 48 hours or 3. is to be performed outside of Austrian territory it is admissible only in case of a suspicion of a punishable act, committed with intent, that carries a prison term of more than one year and where it is to be expected, on account of certain facts, that the person observed has committed the crime or will establish contact with the accused or that the whereabouts of a fugitive or absent accused may be determined.

Article 40 of the Convention implementing the Schengen Agreement

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. 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. The intervention of foreign agents is subject to authorization by the competent Public Prosecutor`s Office. Observation measures supported by technical aids or for a period longer than 48 hours or outside of Austrian territory may only be ordered for a period of time that is likely to be required in order to fulfill the purpose, but in any event no longer than for three months. However, the order may be repeated as far as the requirements are persisting. Observation measures shall be ended when 1. their requirements are no longer fulfilled 2. their purpose has been achieved or can no longer be achieved or 3. the public prosecutor orders the termination of the measures. The use of technical aids which, by means of the transmission of signals, make it possible to determine the spatial area in which the person under surveillance is located and the opening of vehicles and containers for the purpose of inserting such technical means is permissible in order to support the observation, provided that the observation would otherwise be futile or substantially impeded. The use of technical aids (also) allowing for the optical and acoustic surveillance is only admissible when the requirements for optical and acoustic surveillance (see measure A.56) are met. 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.