Austria: Austrian Supreme Court Overturns Exclusion Of Suspects From Meetings Between Prosecutor And Expert Witness

Last Updated: 5 September 2018
Article by Oliver Loksa

In a recently published decision, the Austrian Supreme Court ("OGH") clarified and strengthened the rights of suspects in criminal proceedings. It overturned the lower courts' decisions denying suspects the right to be present at a meeting between the expert witness appointed by the court and the prosecutor.

Legal Background on the Right to Have Expert Witnesses Appointed by the Court

By means of the Criminal Procedure Law Amendment Act 2014 (StPRÄG 2014), in effect of 1.1.2015, the legislator introduced new provisions regarding the appointment of expert witnesses in preliminary criminal proceedings (Ermittlungsverfahren). This amendment was deemed necessary to protect rights offered by Art 6 (3) ECHR, after the OGH (OGH 23.1.2014, 12 Os 90/13x) had denied that such protection was sufficiently given. The decision was rendered with regard to the prosecutors' practice to appoint expert witnesses to establish the facts of the case and thus to act as the prosecutors' extended arm instead of as neutral experts solely rendering an expert opinion based on already established suspicion (Ris-Justiz RS0129286).

Based on the current system, under Sec. 126 ACCP expert witnesses are appointed by prosecutors in preliminary criminal proceedings. However, a suspect is alternatively entitled to request the appointment of an expert witness by the court. Procedurally, such an appointment is undertaken as a component part of the suspect's request for the taking of evidence by the court (Beweisantrag im Rahmen gerichtlicher Beweisaufnahme). In such scenario, this request is addressed at the court; the prosecutor does not have competence to rule on such matter and is thereby rendered not competent to prevent the court's expert appointment.

In the recent decision, the OGH ruled for the first time on the application of such rules in an actual case.

Safeguarding Equality of Arms

As can be derived from the published decision (OGH 25.6.2018, 17 Os 7/18k (17 Os 13/18t, 17 Os 14/18i)), the matter concerned white-collar crime (business crime) proceedings against various suspects due to allegations of embezzlement and other criminal offences.

In the course of the preliminary criminal proceedings, suspects requested for the expert witness to be appointed by the court. This request was granted, as was the prosecutor's subsequent request for a meeting with the expert witness to discuss open issues of the expert witness' assignment in presence of the court. However, the suspects were not granted the right to be present at the meeting neither by the Regional Court for Criminal Matters Vienna nor by the Higher Regional Court Vienna as court of appeal. In essence, the courts reasoned that:

  • No rights of suspects to be present at meetings between the court and the expert witness are stipulated in the Austrian Code of Criminal Procedure (ACCP);
  • The prosecutor's presence would be purposeful to ensure an efficient conduct of the proceedings; and
  • There could be no violation of the principle of fair trial / equality of arms due to the court's presence at the meeting.

However, the OGH overturned the lower courts' decision and took a different stance:

Referring to literature by scholars, it unambiguously stated that in case of the expert witness having been appointed by the court upon request by the suspect, suspect and prosecutor are to be considered equal parties being granted the same rights. Both are entitled to address open questions and request amendments to the expert report under the same conditions and both have the identical right to be heard. In order for this not to be put into jeopardy and the court to be able to fulfill its obligation as authority overseeing the work of the expert witness, the OGH requires communication with the expert witness to be undertaken via the court.

Consequently, granting the prosecutor the right to discuss the expert witness' instructions without in turn granting the same right to suspects constituted an infringement of suspects' rights.

The OGH also took inspiration from Sec. 270(3) ACCP, according to which the president of a criminal tribunal is entitled to correct typing errors, miscalculations and irregularities of form contained in a decision without consulting the parties to the proceedings. However, it constitutes established case-law (Ris-Justiz RS0123183) that upon consultation of either party, the right to be heard has to apply to the other party equally. Such reasoning was explicitly stated in OGH 21.4.2009, 11 Os 34/09y (11 Os 35/09w, 11 Os 36/09t) concerning the consultation of the tribunal's president with the prosecutor but in absence of the suspect.

A Further Step Towards Fair Trial

The OGH's decision might be seen as hardly surprising, given that in the past scholars have already convincingly argued that amendments introduced in 2015 would be stripped of their meaning, should prosecutors continue to be entitled to hold talks with expert witnesses without the presence of suspects.

A different approach than the one by the OGH would indeed thwart the idea behind the current system introduced to ensure equality of arms. It would again result in expert witnesses appearing as the prosecutor's extended arm and would consequently lead to a suspicion of the expert witness' bias, as prosecutors would uphold a greater sphere of influence over the expert witnesses. This is not to say that prosecutors generally exercise improper influence over expert witnesses, however, as the guiding principle established nearly 100 years ago in R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233 goes: "Not only must Justice be done; it must also be seen to be done." The amendments by the legislator to ensure that the expert witness does not just act as neutral person of evidence (Beweisperson) but is also seen as such, would otherwise be circumvented.

Therefore, the OGH's decision is certainly welcome, particularly so for its clarity. While it is relevant to all types of criminal proceedings, its relevance in particular for white collar crime proceedings cannot be understated, as such proceedings are often heavily influenced by expert witnesses' opinions. The decision, itself, establishes case-law providing clear guidance for courts, prosecutors and suspects regarding rights and obligations concerning the conduct of proceedings if the expert witness is appointed by the court upon request of suspects. It also demonstrates the necessity for a defendant to affirmatively exercise rights offered by the ACCP and to understand those rights. Should a suspect opt not to request the expert witness' appointment by the court, such suspect is deprived of this defensive weapon equivalent to those of the prosecutor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions