Not everyone who is summoned as a witness in criminal proceedings must automatically testify. Austrian criminal procedure law recognizes the right to refuse to testify (§ 157 StPO). It protects certain individuals from endangering themselves, relatives, or particularly vulnerable relationships of trust through their testimony.

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Protection against self-incrimination

A central right to refuse to testify exists when a person would be placed in a criminally dangerous situation by giving a truthful statement.

This is particularly the case if the statement threatens the initiation of an investigation against the witness himself or if a statement in already ongoing proceedings would lead to the person concerned incriminating himself beyond his previous responsibility.

The right to refuse to testify is not unlimited. If someone has been legally convicted of the same crime, this right no longer applies because there is no further risk of self-incrimination. The situation is different in the case of a final acquittal: Here, the right to refuse to testify remains in place, as a retrial is legally possible. A confession also means that there is no longer a right to refuse to testify, because the risk of self-incrimination has already materialized.

Protection of relatives from criminal prosecution

The right to refuse to testify does not only apply if a witness would incriminate himself. It also exists if a truthful statement would expose close relatives to the risk of criminal prosecution.

No one must provide information as a witness that could lead to a family member being involved in an investigation or suffering criminal disadvantages. In this way, the law takes into account the special protection of family relationships and prevents witnesses from being placed in an irresolvable conflict of loyalty.

Relatives include, in particular, close family members such as parents, children, grandparents and grandchildren, as well as spouses and registered partners. This relative status remains even if a marriage has been divorced or a registered partnership has been dissolved. Life partners are also treated as relatives, but only as long as the cohabitation actually exists.

Protection of professional confidentiality

In addition to protection against self-incrimination, the law also recognizes that certain professional groups rely on strict confidentiality. Therefore, they may remain silent about content that has been entrusted to them in the course of their profession.

This right to refuse to testify applies to, among others:

• Defenders and lawyers
• Patent attorneys
• Notaries
• Certified Public Accountants

They may remain silent about anything that has become known to them in this professional role. The aim is to protect the relationship of trust between client and advisor.

There is also a right to refuse to testify in the area of personal care, for example for:

• Specialist doctors for psychiatry
• Psychotherapists and psychologists
• Probation officers
• Mediators

Here, the protection of personal circumstances and internal conflicts, which could not be openly addressed without this protection, is paramount.

Protection of journalistic sources

A particularly important area is the editorial secret. Media owners, publishers and employees of media companies or media services may refuse to testify when it comes to:

• the identity of authors, senders or informants or
• communications that have been made to them in the course of their journalistic activities.

This is to ensure that informants can speak to the media without fear of disclosure.

Secrecy of voting behavior

No one is obliged to disclose how they exercised a legally secret right to vote or vote. This right to remain silent protects the free and uninfluenced exercise of democratic rights.

No circumvention of the right to refuse to testify

The right to refuse to testify must not be circumvented. Inadmissible are, for example, the interrogation of assistants, employees or trainees in order to obtain protected information, as well as the seizure or confiscation of protected documents or data carriers.

The right to refuse to testify protects witnesses from unfair burdens and secures particularly sensitive relationships of trust. It is an essential component of fair criminal proceedings and prevents people from being placed in legal jeopardy or having to violate professional duties through their participation in the search for the truth.

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Restrictions

The profession-related right to refuse to testify applies exclusively to facts that became known in the course of the respective professional activity. Private perceptions or information outside the exercise of the profession are not covered by this.

Your Benefits with Legal Assistance

A lawyer checks whether and to what extent a right to refuse to testify exists and prepares specifically for an interrogation.

Especially in emotionally stressful situations, legal support provides clarity, structure and legal certainty and protects against suffering irreversible disadvantages through hasty statements.

• Support throughout the entire proceedings
• Clear assessment of the legal matter
• Protection against legal disadvantages

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FAQ – Frequently Asked Questions

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