Austria

a. General information

1. Please describe the framework (legal provisions and established practice) governing the use of measures protecting witnesses and pentiti.

In Austria there exists no distinction between pentiti and witnesses. First of all, protective measures in this area are incumbent on the police authorities. The legal basis for the protection of witnesses has been adopted according to the Council Resolutions of 23 November 1995 on the Protection of Witnesses in the fight against international organised crime and of 20 December 1996 on individuals who co-operate with the judicial process in the fight against international organised crime. Witness protection is seen as a security police task, which is regulated in the Austrian Security Police Law (Sicherheitspolizeigesetz - SPG). To avoid possible misunderstandings, it has to be pointed out in this context, that according to the Austrian legal system the notion of Security Police only refers to the maintenance of quiescence, order and security and to the common duty to render first assistance (see Section 3 of the Austrian Security Police Law).

If there are good reasons for the assumption that a witness might be a target for a punishable offence directed against his/her life, health or against his/her personal liberty, the police is obliged to inform the endangered witness and to take the protective measures required by the situation - (Section 22, paragraph 4, of the Austrian Security Police Law). Furthermore, the security authorities are entrusted with the protection of any person who might be able to disclose information about a dangerous attack or a criminal association and will therefore be particularly at risk and - if necessary — with the protection of the relatives of such people (see Section 22, paragraph 1, No. 5 of the Austrian Security Police Law especially in connection with Section 54a of the Austrian Security Police Law).

As a matter of principle, measures to protect endangered witnesses within the scope of criminal procedure include provisions to hear witnesses whose identity is not disclosed, to allow the pre-trial records of the cross-examination of witnesses and to hear the cases in camera. These measures pursue protective interests whilst respecting the requirement for the trial to be held in public.

Apart from combating terrorism, Austria has always been a pioneer in the afield of the protection of children as victims and witnesses. Since 1993, the Austrian Code of Criminal Procedure has provided the possibility for

videotaped testimonies, usually conducted by an expert, to be used in court. These new instruments have proved to be very worthwhile in that they allow the examination of vulnerable witnesses to be carried out in a particularly careful, respectful and thorough manner. A child witness is questioned only once, if the prosecutor and the accused (with his/her defendant) participated in the interrogation before the trial.

Section 162a, paragraph 1, of the Austrian Code of Criminal Procedure provides for the pre-trial examination of witnesses if there is a risk that the examination of a witness at the trial will be impossible for reasons of fact or of law. In this case the investigating judge has to give the prosecutor, the defendant and the defence counsel the opportunity to take part in the examination and to interrogate the witness.

In order to avoid the repeated examination of victims of sexual offences, the Penal Code Amending Act of 1998, Federal Law Gazette I No. 153, introduced the obligation to conduct such examinations at an early stage of the proceedings (pre-trial stage). Section 162a, paragraph 2, of the Austrian Code bf Criminal Procedure takes into consideration the protection of the witness's interests in view of his/her age, psychological condition or health. The investigating judge, in protecting those interests, may restrict the opportunity to participate in the examination in such a way that the prosecutor, the defendant and the defence counsel follow the examination and interrogate the witness in a separate room using audio-visual equipment.

A psychological expert can conduct such a "restricted examination". It is very beneficial for a child to be interrogated by such an expert without being present in the courtroom. In order to ensure that the child will not be traumatised the psychologist can modify the questions of the judge into a child's language. All courts are equipped with technical equipment so that videotaped testimonies are commonly used now. The fact that a record of the examination can be read out or shown during the trial guarantees that the examination need not be repeated (after such an examination the witness has the right to refuse to testify again; see Sections 152, paragraph 1, sub-paragraphs 2a and 3, and 162a, paragraph 3, of the Austrian Code of Criminal Procedure).

Taking into account the need to strike a fair balance between the protection of the rights of the defence and the protection of the life and safety of witnesses and their relatives, the graduated protection of witnesses is provided by Sections 166, paragraph 1, and 166a of the Austrian Code of Criminal Procedure.

Pursuant to Section 166, paragraph 1, of the Austrian Code of Criminal Procedure the personal data of witnesses, with the exception of the statement of their name and an eventual relationship to the accused or others involved, are to be recorded in the minutes in such a way that such

personal data are not disclosed in the presence of third persons. This protection of the personal sphere of witnesses is to be observed in particular in the trial on indictment (Section 248, paragraph 1, of the Austrian Code of Criminal Procedure).

Furthermore, during the first interrogation on his/her personal data, a witness is allowed to declare another address, suitable for the serving of a summons, instead of his/her permanent residence. These provisions are designed to provide for the reasonable risk of witnesses' exposing themselves or their relatives to danger by declaring their personal data and location in public.

If there is a risk that, because of certain facts, the witness would expose him/herself or another person to a grave danger to his/her life, health or personal liberty, Section 166a of the Austrian Code of Criminal Procedure entitles the judge to exempt the witness from any depositions on his/her personal identity or from answering any other questions allowing the witness's identity to be discovered. This provision also allows a witness to remain anonymous at the court conducting the proceedings.

According to the Austrian Constitution (principle of fair trial subject to Article 6, paragraph 3d, of the ECHR), Section 166a of the Austrian Code of Criminal Procedure, as well as a ministerial order of the Federal Ministry of Justice, it is common practice, on the above-mentioned conditions, for witnesses to be allowed to disguise themselves, by wearing wigs, sunglasses, etc.

Any witness, independent of his/her age, may testify in the absence of the accused. Section 250, paragraph 1 of the Austrian Code of Criminal Procedure entitles the judge to banish the accused from the courtroom exceptionally while a witness is testifying.

The witness's protection can be reinforced during the trial by testifying anonymously in a separate room using a video-recorder (Section 250, paragraph 3, of the Austrian Code of Criminal Procedure). In such a case, the witness is examined by the other members of the court, the prosecutor and the defence counsel with the help of a monitor.

Moreover, there is the possibility to conduct the questioning by means of video-conferencing if such a witness is unable to appear in court (to attend the trial) without exposing him/herself to a grave danger (Section 247a, Paragraph 1, of the Austrian Code of Criminal Procedure).

According to Article 90, paragraph of the Austrian Constitution and Article 6, paragraph 1, of the European Convention on Human Rights, all court proceedings are public, unless otherwise provided by statute. Thus, all criminal trials are, within technical limits, generally open to all unarmed adults. Audio and video-recorders and cameras are not permitted. Section 229, paragraph 2, of the Austrian Code of Criminal Procedure

provides for the possibility of excluding the public from the court during the examination of endangered witnesses.

Taking into account the possibility that the probative value of an anonymous witness's statement may be reduced, the court is obliged to consider carefully how the secrecy of the personal data of the witness examined affects the probative value of such a witness (Section 258, paragraph 3, and Section 323, paragraph 2, of the Austrian Code of Criminal Procedure).

2. Please describe the framework (legal provisions and established practice) governing the use of measures encouraging witnesses and pentiti to co-operate with justice.

In connection with the fight against organised crime, the necessity has emerged in Austria, as it has everywhere, to protect endangered witnesses as well as pentiti against intimidation. Although there are several measures for protecting vulnerable witnesses in Austria and encouraging them to give evidence, there is no possibility for granting such witnesses full or limited immunity before the Austrian jurisdiction. The facility of granting a witness exemption from" punishment in return for his/her co-operating with justice is unknown in the Austrian Code of Criminal Procedure.

It is only possible to reduce the penalties of an accused person who co­operates with the law enforcement and justice authorities in the investigation or prosecution of an offence in the field of organised crime. This possibility is laid down in Section 41a of the Austrian Penal Code (the so-called quasi crown witness provision):

"Section 41a

(1) If the perpetrator of a criminal offence punishable under Sections 277, 278, 278a or 278b or of a criminal offence connected with a conspiracy, association or organisation informs a prosecution authority about facts which contribute essentially:

1. to removing or reducing considerably the dangers arising from the conspiracy, association or organisation;

2. to promoting the clearing up of such an offence in addition to his/her own complicity; or

3. to finding a person who participated in such a conspiracy in a leading position or had a leading position in such an association or organisation;

his/her sentence may be reduced to under the legal minimum penalty under Section 41 if this is adequate given the significance of the disclosed facts compared with the guilt of the perpetrator. Section 41, paragraph 3, is applicable mutatis mutandis.

(2) Paragraph 1 applies mutatis mutandis to the participant in a conspiracy, association or organisation punishable under the prohibition law or to the rpetrator of a criminal offence connected with such a conspiracy, associations or organisation.

(3) In the case where the knowledge of the perpetrator relates to criminal offences to which the Austrian penal laws are not applicable, paragraph 1 shall apply nevertheless so far as legal assistance would be admissible."

(As amended by Federal Law Gazette I No. 105/1997 and most recently by federal Law Gazette I No. 134/2002).

`Section 278 - Criminal association

(1) A person who founds a criminal association or participates in such an association as a member is to be sentenced to imprisonment of up to three years.

(2) A criminal association is a union planned for a long period of time of more than two persons aimed at the commission of one or more crimes by one or more members of the association, other considerable acts of violence against life and limb and not only minor damage to property, theft, fraud or misdemeanours under Sections 104a, 165, 177b, 223 to 239, 241a to 241c, 241 f, 304 or 307 or under Sections 104 or 105 of the Aliens Act.

(3) A member of a criminal association who commits a criminal offence within the scope of its criminal orientation or participates in its activities by providing information or assets or in another way with the awareness that he/she thereby promotes the association or its criminal acts.

(4) If the association does not commit to a planned criminal offence, no member shall be punished if the association dissolves itself voluntarily or if it is clear from its conduct that it has given up its plan voluntarily. Furthermore a person who withdraws voluntarily from the association before a planned offence is committed or attempted shall not be punished for criminal association. A person who participates in the association in a leading position shall not be punished for criminal association only if he/she ensures that the danger presented by the association is removed by informing the authorities (Section 151, paragraph 3) or in another way."

{As amended by Federal Law Gazette I No. 134/2002 and most recently by federal Law Gazette / No. 15/2004)

"Section 278a - Criminal organization

Whoever establishes an association of a considerable number of persons, intended to last for a long period of time and similar to an enterprise, or who participates in such an association as a member (Section 278, paragraph 3), shall be liable to imprisonment for a term of six months to five years if the association:

1. is oriented, even if not exclusively, towards the repeated and planned commission of grave offences against life and limb, freedom, or property, or of grave offences relating to the sexual exploitation of human beings, smuggling of aliens, illegal trafficking in military weapons, nuclear and radioactive material, dangerous waste, counterfeit money or drugs, and

2. aims at profits on a high scale or at considerable influence on politics or economy, and

3- undertakes to corrupt, or intimidate, others, or to particularly protect itself against prosecution measures.

Section 278, paragraph 4, shall apply mutatis mutandis.

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