Law of Evidence at Austria
The Law of Evidence in Austria forms part of the broader Austrian civil and criminal procedural laws and governs how facts are established in court through proof. Austrian evidence law is not codified as a separate legal code but is instead embedded in the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO) and the Code of Criminal Procedure (Strafprozessordnung, StPO). Below is an overview of the key features of evidence law in Austria:
⚖️ Civil Law – Law of Evidence (ZPO)
1. Principles of Evidence in Civil Proceedings
Free evaluation of evidence (freie Beweiswürdigung): Judges are not bound by strict rules regarding the weight of evidence; they evaluate all presented evidence freely and based on their conviction.
Burden of proof (Beweislast): The party asserting a claim generally carries the burden of proof. In specific cases, statutory rules shift the burden.
Relevance and admissibility: Only evidence relevant to the case is considered. Irrelevant or illegally obtained evidence may be excluded.
2. Types of Evidence Recognized
Documents (Urkunden): Contracts, written correspondence, etc.
Witness testimony (Zeugen): Common and important form of evidence.
Expert opinion (Sachverständigengutachten): Provided by court-appointed or party-nominated experts.
Inspection (Augenschein): Direct observation by the court of objects or places.
Party examination (Parteienvernehmung): Statements by the parties themselves, which have lower evidentiary value.
3. Role of the Judge
Austrian civil proceedings are inquisitorial, not adversarial. The judge plays an active role in collecting and evaluating evidence, though parties still propose evidence.
🔍 Criminal Law – Law of Evidence (StPO)
1. Inquisitorial System
The Austrian criminal process is based on an inquisitorial model, where the investigating judge and the public prosecutor play active roles in gathering evidence.
Evidence is gathered both in favor and against the accused.
2. Types of Criminal Evidence
Similar to civil law: witness statements, forensic evidence, expert reports, documents, and confessions.
Use of technical surveillance (e.g., wiretaps) is allowed under strict judicial oversight.
3. Rules on Admissibility
Illegally obtained evidence (e.g., through torture or rights violations) may be inadmissible. Austrian law emphasizes protecting due process and human rights, especially under the influence of the European Convention on Human Rights (ECHR).
4. Presumption of Innocence
The prosecution bears the burden of proof.
The accused has a right to silence and cannot be forced to self-incriminate.
📜 Influence of EU and ECHR Law
Austria is a member of the European Union and a signatory to the European Convention on Human Rights. These supranational legal frameworks significantly influence evidence law by:
Ensuring fair trial rights under Article 6 ECHR.
Imposing minimum standards for the collection and use of evidence.
Restricting or banning evidence obtained through human rights violations.
🧩 Key Differences from Common Law Systems
| Feature | Austria (Civil Law) | Common Law (e.g., UK, US) |
|---|---|---|
| Role of Judge | Inquisitorial – judge is active | Adversarial – judge is referee |
| Admissibility Rules | Fewer strict rules; focus on relevance | Detailed exclusionary rules |
| Discovery | Limited or no pre-trial discovery | Broad discovery obligations |
| Hearsay Rule | Less restrictive | Often inadmissible without exception |
| Precedent | Limited role | Binding precedent (stare decisis) |
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