Section 278b - Terrorist association

(1) A person who leads a terrorist association (paragraph 3) is to be sentenced to imprisonment from five to fifteen years. A person who leads a terrorist association that confines itself to threatening terrorist offences (Section 278c, paragraph 1) is to be sentenced to imprisonment from one year to ten years.

(2) A person who participates in a terrorist association as a member (Section 278, paragraph 3) is to be sentenced to imprisonment from one year to ten years.

(3) A terrorist association is a union planned for a long period of time of more than two persons aimed at the commission of one or more terrorist criminal offences (Section 278c) by one or more members of the association."

(As amended by Federal Law Gazette I No. 134/2002)

For the sake of completeness:

According to Section 34, paragraph 1, No. 16 and 17 of the Austrian Penal Code, it would constitute a special mitigating ground in the sentencing, if the "perpetrator surrendered to the police when it would have been easy for him/her to escape or if he/she made a confession or if he/she contributed considerably to the establishment of the truth.

3. Can measures/benefits encouraging the co-operation of witnesses and pentiti be used in combination with protection measures (arrangements concerning trial proceedings, sentencing conditions, special penitentiary regimes, etc.)? If so, please specify and indicate under which conditions they are applied.

These measures can be implemented in connection with judicial authorities and law enforcement. However, as mentioned above (question 2), there is no possibility in Austria to grant a witness exemption from punishment in the case of co-operation with justice. Apart from the possibility laid down in Section 41a of the Austrian Penal Code, which assumes a certain kind of perpetrator (perpetrator of a criminal offence punishable under Sections 277, 278, 278a or 278b or of a criminal offence connected with such a conspiracy, association or organisation), no special sentencing conditions or special penitentiary regimes for witnesses and pentiti are foreseen in the Austrian Penal Law.

4. For which kind of crime and under which circumstances can witness and pentito protection be applied? Can the measures be extended to the relatives or other persons close to the witness/ pentito?

Witness protection is only foreseen in cases involving serious crime (organised crime and terrorism). If the admission criteria are fulfilled, besides ■he protected person, his/her close relatives can also be admitted to the programme.

Apart from terrorism, there is no restriction on the type of case. Witnesses re given protection if they need it (in most cases children and victims of sexual offences). Please see the reply to question 1.

5. What urgent measures (e.g. immediate relocation to a secret place) can be taken in order to protect witnesses and pentiti?

In the first instance, the main measure is to relocate the protected person, ^though it is also possible to provide him/her with personal protection at us/her place of residence

6. Which institutions are involved in the protection of witnesses and pentiti and what is their roie (e.g. law enforcement agencies, special independent agencies, prosecutor's offices, judicial authorities, etc.)? How does co-operation between the relevant institutions work in practice?

Regarding protection measures, the security authorities have exclusive competence. In the scope of the whole witness protection programme competence is given both to the judicial and the law enforcement authorities The law enforcement authorities decide whether a person will be admitted to the programme.

Combating terrorism in general lies within the competence of the Ministry of the Interior, more precisely the Federal Agency for State Protection and Counterterrorism, whereas protection of source, even in relation to terrorist activities, is provided by the competent special branch of the Federal Criminal Office. The Ministry of the Interior informs the Ministry of Justice about relocated pentiti in Austria, but otherwise the Ministry of Justice is not the competent authority for questions relating to the relocation of protected witnesses.

7. Are there any specific provisions governing the protection of witnesses and pentiti in relation to acts of terrorism? If so, please specify. Are there any specialised counter-terrorism institutions? If so, what is their role in the protection of witnesses and pentiti in relation to acts of terrorism?

There are no special legal provisions for the protection of source in connection with terrorist activities and there exists no special terrorism witness protection service. However, pursuant to Section 22, paragraph 1, No. 5 in connection with Section 54a of the Austrian Security Police Law, the security authorities have been entrusted with providing particular protection to any person who might be able to disclose information about a dangerous attack or a criminal association and who will, therefore, be especially endangered.

8. How does the framework governing the use of measures protecting witnesses and pentiti and encouraging them to co-operate with justice guarantee respect for human rights and individual freedoms? Please indicate the procedures in place, if any, to monitor compliance with human rights standards.

The witness protection programme is based on the willingness of the protected person and may be terminated without further declared reasons at anytime.

b. procedural measures

9. At which stage(s), and in which context, is it possible for witnesses and pentiti to benefit from procedural measures of protection?

In principle it is possible for witnesses and pentiti to benefit from measures of 3tection at any stage of the proceedings. For example, as already sntioned under question 1, "restricted examinations" of victims of sexual ences take place at a pre-trial stage in order to avoid repeated aminations.

10. Is there the possibility for witnesses and pentiti to obtain legal assistance at this (these) stage(s)?

As matter of principle, all authorities active in criminal proceedings eluding the police) are obliged to inform witnesses and pentiti about their rights and to take into account their interests, especially with regard to the protection of privacy.

The legal situation of witnesses who are crime victims was improved to a considerable extent by a governmental bill, which was introduced into Parliament recently and entered into force on 1 January 2006 (thus anticipating the improvement of the situation of crime victims by the `Strafprozessreformgesetz", Federal Law Gazette I No. 19/2004, which will enter into force on 1 January 2008 and represents a complete reorganisation tie pre-trial phase of criminal proceedings as regulated in the Austrian je of Criminal Procedure).

However, besides this amendment, multi-disciplinary support is available for certain witnesses. Besides information and legal advice, several institutions provide temporary shelter as well as psychological, social and financial assistance. For instance, a psychologist supports children when they are examined. A non-profit association called "WeiBer Ring" which supports crime victims financially or with legal advice and information about therapy, should be mentioned in this context.

Furthermore, according to the Crime Victims Act (Verbrechensopfergesetz -VOG), which has been recently amended by Federal Law Gazette I §48/2005, victims of intentionally committed offences are entitled to economic compensation and social benefits (like psychological care) under certain conditions.

Witnesses, who are crime victims, can find important information on the homepage of the Austrian Federal Ministry of Justice (www.bmj.gv.at or www.justiz.gv.at): http.//www.justiz.gv.at/_cms_upload/_docs/opferschutz.pdf.

Please also see the reply to question 18.

11.Are there alternative methods of giving evidence which allow the protection of witnesses and pentiti from intimidation resulting from face to face confrontation with the accused? If yes, please specify (e.g. full or partial anonymity, video-conference, disguise, exclusion of the defendant from the courtroom when the witness is giving evidence, exclusion of the media or the public from the trial, etc.) and indicate under which conditions these methods are used.

and

12. On which grounds and on the basis of which criteria can anonymity be granted? Is there the possibility to obtain legal assistance at this stage?

Please see the reply to question 1.

12.Are pre-trial statements of witnesses and pentiti and testimonies of anonymous witnesses and pentiti regarded as valid evidence? If yes, under which conditions?

Yes, pre-trial statements of witnesses and pentiti and testimonies of anonymous witnesses and pentiti are regarded as valid evidence, if the parties have had the opportunity to be part of the examination and to examine the witness. Otherwise the witness must be re-examined in the trial (principle of immediacy - Section 252, paragraph 1, of the Austrian Code of Criminal Procedure). Additionally, according to Section 258, paragraph 3, and Section 323, paragraph 2, of the Austrian Code of Criminal Procedure, the court is obliged to consider carefully if the secrecy of the personal data of the witness examined affects the probative value of such a witness. That is, the judges have to take into account the possibility that the probative value of an anonymous witness's statement may be reduced.

Please also see the reply to question 15.

13.Is it possible, and if so, under which conditions, to use information provided by "pentitr? How is their credibility assessed?

Yes, in Austria it is possible to use information provided by "pentitr, if they are able to testify in the trial or if the parties of the proceedings examined them in the pre-trial stage.

Please see the reply to question 15.

15. Which are the opportunities for the defence to exercise its rights, including the right of the accused to challenge the witness'/ pentito`s credibility in criminal proceedings (including at the pre-trial stage) and the respect of the "equality of arms" principle?

Please see the reply to question 1 (Section 162a, paragraph^ of the Austrian Code of Criminal Procedure: pre-trial examination of witnesses; 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; Section 250, paragraph 3, of the Austrian Code of Criminal Procedure: the defence counsel is allowed to examine the witness with the help of a monitor; Section 258, paragraph 3 and Section 323, paragraph 2, of the Austrian Code of Criminal Procedure).

According to the Austrian Constitution (principle of fair trial subject to Article 6, paragraph 3d, of the European Convention on Human Rights), Section 166a of the Austrian Code of Criminal Procedure as well as a decree of the Federal Ministry of Justice, it is common practice for witnesses to be able to change their looks, for example by wearing wigs, etc. However, the rights of the defence must be ensured by providing an adequate personal impression of the witness and his/her visual expressions. Therefore further measures to provide anonymity, such as the distortion of his/her voice, cannot be based upon Section 166a of the Austrian Criminal Procedure Code. His/her figure, voice, body language and gestures must be sufficiently apparent ("non verbal communication") for an evaluation of his/her credibility to be possible in the context of assessment of evidence. Witnesses are not allowed to give evidence totally disguised or masked (for instance while wearing a boiler suit, gloves and a helmet so that no impression of his/her non-verbal communication is possible).

In order to give the above-mentioned common practice a legal basis, Section 162 of the Draft Act amending the Code of Criminal Procedure provides that an endangered witness can change his/her appearance (using wigs, etc.), but may not cover his/her face in such a way as to prevent a sufficient impression of his/her body language.

Concerning the framework (legal provisions and established practice) governing the use of measures encouraging witnesses and pentiti to cooperate with justice, see the reply to question 2.

с. Non-procedural measures -

16.At which stage(s), and in which context, is it possible for witnesses and pentiti to benefit from a protection programme?

The witness protection measures can be applied from the beginning of the investigation and end when the reason for the danger no longer exists. This is also possible after the conclusion of a non-appealable procedure.

17.Is there the possibility for witnesses and pentiti to obtain legal assistance at this (these) stage(s)?

Access to the assistance of a lawyer is still possible at this stage of the procedure.

Please see the reply to question 10.

18. What is the procedure for admittance to a protection programme? Please specify, in particular, who takes the initiative, the criteria for admittance, the assessment of the relevance of a testimony and how admittance to the programme is formalised.

Initiative:

Judicial Authority or law enforcement.

Admission criteria:

relevant case of organised crime or terrorism, importance of the testimony, relevant danger, willingness and capability of the protected person.

Evaluation of the testimony:

1. done by the prosecutor.

2. done by the investigation authorities.

Admission procedure:

1. Conversation with he investigation authorities (law enforcement, collection of relevant information, contact with judicial authorities);

2. First contact with the witness (willingness), examination of the criteria and capacity evaluation;

3. Analysis (evaluation of the admission criteria);

4. Witness instruction/advice (admission of or objection to a witness by the law enforcement).

19. Please indicate the measures that can be adopted for the protection of witnesses and pentiti (e.g. surveillance of the residence, physical protection, protection of personal records, relocation, change of identity, subsidies, assistance in job search, relocation of a detainee to another prison or to special units).

The implemented measures are so complex that reference is only made to the most important ones, such as those mentioned in the questionnaire.

20. What can the duration of a protection programme be? Which are the procedures for assessing the degree of danger for the witnesses/pentiti and their compliance with the obligations of the programme? Is it possible to challenge a decision of suspension, revocation or termination of a protection programme?

The duration of the protection depends on the degree of danger of the protected person. If the threat to the witness is removed or reduced, he/she must be taken out of the protection programme. The level of danger is evaluated periodically in close co-operation with the investigation authorities.

Observance of the admission conditions is guaranteed by the permanent monitoring of the protected person by the witness protection service. The Austrian legal provisions foresee no right of appeal against a decision to remove a person from the witness protection programme.

d. International co-operation

21. Which measures (e.g. use of modern telecommunications means, assistance in relocating protected witnesses, exchange of information between witness protection authorities) have been adopted in the context of mutual legal assistance in order to facilitate international co-operation? How are the financial implications of international co-operation activities dealt with?

The measures are restricted primarily to resettlement, exchanges of information, protection at the place of residence, maintenance of recourse to public authorities (courts), etc. The sending state must cover the costs of the protected person. The personal costs for the witness protection service are.covered by the state that admits the protected person to the programme.

21. Has your country entered international (bilateral or multilateral) agreements on the protection of witnesses and pentiti? If so, please indicate what kind of provisions they include.

So far, no bilateral or multilateral witness protection agreements have been concluded (except one with Hungary, which is under elaboration). Co-operation in the field of witness protection is on the basis of police secondment.

23. How can international co-operation in the field of the protection of witnesses and pentiti be improved?

One goal for the future, which should be envisaged, could be the harmonising of witness protection provisions in this area, in order to guarantee an efficient compliance procedure.

e. Statistics

24. How many people currently benefit from witness or pentito protection measures/programmes, and for how long? How many of them are foreign people? If the measures/programmes can be extended to relatives and other close persons, please indicate (and, if possible, specify the relationship with the witness/pen tito) how many people are included in this category. Please also provide figures on the different kinds of measures (procedural and non-procedural) adopted, and on the number of cases involving international co-operation.

At present fifteen protected persons are in a witness protection programme, ten of these persons coming from abroad. Seven persons are close relatives in the sense of the questionnaire.

Eight witness protection cases are involved in criminal law proceedings. Out of these eight cases, seven refer to international proceedings.

f. Proposals and comments

25. Please provide any comments/proposals concerning the implementation of the terms of reference of the PC-PW and, in particular, instruments to be adopted to strengthen the protection of witnesses and pentiti.

Please refer to the concepts of Europol, which have been elaborated in the scope of expert meetings.

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