Use of Administrative Evidence in Criminal Proceedings in Austria

• Date: 26 October 2022
• Year: 2022
• Author: Daniel Gilhofer LL.M. (WU) MSc (WU)
• Pages: 48
• DOI: https://doi.org/10.30709/eucrim-2022-017

I. Use of Lawfully Obtained Administrative Evidence in Criminal Proceedings

The Austrian Code of Criminal Procedure (österreichische Strafprozessordnung, öStPO) does not contain any regulations that explicitly deal with administrative evidence. Therefore, it needs to be examined whether administrative evidence is evidence in the sense of the Austrian Code of Criminal Procedure, even if it was lawfully obtained. If administrative evidence already fails to fulfil the concept of evidence under the Austrian Code of Criminal Procedure, then any such evidence would not be usable.

The concept of evidence must be derived from the Austrian Code of Criminal Procedure as there is no legal definition of evidence.¹ Different types of evidence are scattered throughout the law: statement of the accused (Sec. 164 öStPO) and witness (Sec. 160 öStPO), documentary evidence (Sec. 252 öStPO), expert evidence (Sec. 125 et seq. öStPO), and visual inspection (Sec. 149 öStPO). However, case law² und legal doctrine³ assume that the types of evidence are not exhaustively listed in the law. Rather, in criminal proceedings, in principle, everything that is suitable according to logical rules of providing evidence and of investigating the truth can be used as evidence.⁴ On the basis of the ex officio principle (Sec. 2 öStPO) and the principle of objectivity and exploration of truth (Sec. 3 öStPO), criminal investigation authorities, prosecution authorities, and criminal courts are obliged to acknowledge evidence that may be helpful in determining the truth in essential points.⁵ For administrative evidence, it follows that it falls under the concept of evidence in the Austrian Code of Criminal Procedure and must therefore be used if it can assist in the search for the substantive truth.

II. Use of Unlawfully Obtained Administrative Evidence in Criminal Proceedings 1. Distinction between prohibition to collect evidence and prohibition to use evidence in Austria

In order to be able to assess whether illegally obtained administrative evidence may be used in criminal proceedings, it is first necessary to address the relationship between the collection and use of evidence and its prohibition in general. The collection of evidence refers to the gathering of information relevant to the proceedings. Conversely, prohibitions on collecting evidence ban authorities from collecting certain evidence. The Austrian law uses various regulatory techniques for this purpose. In some cases, explicit prohibitions are stipulated by the law and are intended to prevent the collection of certain evidence.⁶ Much more often, however, the legislator has not chosen the path of explicit prohibitions but instead linked the taking of evidence to certain requirements that the authorities must comply with in their investigative activities. If the authorities wish to carry out a certain investigative measure, they must check in advance which formal and substantive requirements must be fulfilled so that the collection of evidence is lawful.⁷

The use of evidence is logically downstream from the collection of evidence. After the authorities have collected evidence that is important for the assessment of the facts, a decision must be made based on the evidence obtained. This decision-making process is referred to as utilisation of the evidence.⁸ A prohibition on the use of evidence obliges the decision-making body to disregard the evidence in its decision. This can pose a significant problem for the decision-making body: Prohibitions on the use of evidence are merely legal constructs that prohibit the decision-making body from using the information obtained as evidence in the proceedings.⁹ In fact, however, the evidence is usually still part of the file. The decision-making body will therefore also have knowledge of the information contained in the prohibited evidence. Nonetheless, it must then mentally block it out in the decision-making process and act as if it did not exist at all.¹⁰

The collection and use of evidence describe different procedural steps and must be considered separately from each other. Nevertheless, they are not unrelated to each other. The collection of evidence forms the basis for the use of evidence, because only evidence that has been collected can be taken into account in subsequent proceedings. In this respect, there is a close relationship between the gathering of evidence and the use of evidence, which naturally also extends to the relationship between the prohibition on gathering evidence and the prohibition on using evidence.¹¹ Therefore, on the one hand, errors in the collection of evidence can, under certain conditions, also lead to prohibition on subsequently using the evidence. These cases are called dependent prohibitions on the use of evidence.¹² On the other hand, however, there are also prohibitions on the use of evidence that exist independently of whether evidence has been collected in conformity with the law. These are called independent prohibitions on the use of evidence.¹³

2. Prohibitions on the use of evidence in administrative proceedings and their relevance for criminal proceedings

The fact that administrative evidence is also generally admissible as evidence in criminal proceedings does not necessarily mean that such evidence can be used in criminal proceedings in every individual case. The reason for this is because restrictions could arise from administrative procedural law that may render evidence inadmissible if its rules on the collection of evidence have not been complied with. In Austria, administrative procedural law is not uniformly regulated but different procedural laws are instead applied, which makes it difficult to make general statements about which prohibitions on the use of evidence exist.¹⁴ Prohibitions on the use of evidence are structured very differently in the specific procedural laws. For tax procedures, for example, the Austrian Federal Fiscal Code (öBAO) applies, which does not contain any explicit prohibitions on the use of evidence. Anything that is suitable for establishing the relevant facts and is useful in the individual case may be considered as evidence in tax proceedings. Accordingly, the Supreme Administrative Court¹⁵ has consistently ruled that the usability of evidence is not excluded by the fact that it came under the possession of the tax authority as a result of a violation of the law. The situation is different for proceedings in which the provisions of the Austrian General Administrative Procedures Act (öAVG) are applied, because prohibitions on the use of evidence exist for this type of procedure.¹⁶ It is, e.g., argued that evidence must not be used in administrative proceedings if witnesses are questioned about circumstances that are subject to official confidentiality but they have not been released from this obligation.¹⁷

Notwithstanding, the existence of the prohibition on the use of evidence in the respective administrative procedural law does not indicate whether this evidence can also be used in criminal proceedings. Especially in the case of dependent prohibitions on the utilisation of evidence, it is inferred from the prohibition on collection to the prohibition on utilisation. This connection generally only exists for those cases in which the use of evidence also takes place under the procedural laws pursuant to which the evidence was collected. Normally, a prohibition on the use of evidence only states that the evidence must not be used in the respective proceedings and not that the prohibition on the use of evidence also applies to other proceedings. If evidence is unlawfully collected in administrative proceedings and then used in criminal proceedings, this probably means that existing, dependent prohibitions on the use of evidence in administrative procedural law will often no longer apply. Accordingly, explicit regulations that only prohibit the usability of evidence in administrative proceedings have no influence on criminal proceedings. The prohibition to be interrogated on matters protected by official confidentiality in the öAVG cannot therefore prevent the utilisation of evidence in criminal proceedings, because it only refers to the utilisation process in administrative proceedings.¹⁸

3. Prohibitions on the use of evidence in criminal proceedings and their relevance for administrative evidence a) Prohibitions on the use of evidence in criminal proceedings in general

In Austria, dependent prohibitions on the use of evidence are accepted very restrictively in criminal procedure.¹⁹ A prohibition on the use of evidence does not necessarily follow from every violation of a collection rule.²⁰ If it were assumed that prohibitions on the collection and use of evidence fully overlapped, the principle of substantive truth would be significantly limited, because every procedural error, no matter how small, would have an impact on the facts to be established by the court. Rather, the principle of substantive truth, which requires the actual historical facts to be established, must be carefully weighed and balanced with other procedural principles.²¹ Tensions can arise in particular with principles that guarantee the fairness of criminal proceedings.²² On the one hand, it would probably be difficult for a state under the rule of law to accept that a defendant is convicted solely based on evidence obtained unlawfully by law enforcement agencies. On the other hand, it is equally problematic if a defendant who is guilty in reality cannot be convicted only because prohibitions on the use of evidence are overly generously embodied in the law.²³ This conflict of interest is solved by limiting dependent prohibitions on the use of evidence so that only certain violations of the law in the collection of evidence result in a prohibition on the use of evidence.²⁴

Past case law²⁵ and legal doctrine²⁶ largely agreed that prohibitions on the use of evidence are an...