Not everyone is obliged to testify in criminal proceedings. Austrian criminal procedural law recognizes different protective mechanisms: the exemption from testimony and the right to refuse testimony. Both serve to protect witnesses, but they pursue different goals and apply in different situations.

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Exemption from Testimony

Exemption from testimony applies to situations where a witness is fundamentally not obliged to testify. This means that neither the police, the public prosecutor’s office, nor the court may demand substantive testimony.

A central concern of exemption from testimony is to respect personal close relationships and particularly vulnerable situations.

Proceedings Against Close Relatives

A classic scenario for exemption from testimony arises when criminal proceedings are directed against a person close to the witness. The law aims to prevent anyone from being forced to exacerbate a family conflict or incriminate a person with whom they have a close personal relationship through their testimony.

As long as this close relationship exists, testimony may only be given if the witness voluntarily and explicitly waives their right. Without such a declaration, no admissible interrogation may take place.

Protection of Particularly Burdened Victims

Persons who are particularly burdened by the proceedings themselves may also be exempt from the obligation to testify. This primarily concerns victims of serious violent or sexual offenses, for whom repeated questioning would constitute a significant psychological burden.

After a contradictory examination has already been conducted, further testimony may be waived. In these cases, existing records are used in further proceedings to avoid additional burdens.

Exemption from Testimony and Court Appearance

Exemption from the obligation to testify does not necessarily mean that a witness does not have to appear at all. The court may still issue a summons. However, if the witness announces in good time that they do not wish to testify, their appearance may be waived, provided there is no specific reason for questioning.

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Limits of Exemption from Testimony

Exemption from testimony is not absolute. Anyone who consciously and actively participates in criminal prosecution, for example, by filing their own motion or explicitly supporting the prosecution, thereby expresses that they do not wish to claim protection. In such cases, the exemption from the obligation to testify lapses.

Refusal to testify

In contrast, with the right to refuse testimony, the fundamental duty to cooperate remains. However, the witness may leave certain questions unanswered if protected interests would be violated thereby.

This right primarily serves to prevent self-incrimination and to protect particularly sensitive confidential relationships.

Protection against self-incrimination

No one is obliged to provide information that could lead to their own criminal prosecution. This applies both to new accusations and to additional burdens in ongoing proceedings. The decisive factor is whether the testimony creates a real criminal risk.

Protection of Close Relatives

The right to refuse testimony also applies if not the witness themselves, but a person close to them, would come into the focus of criminal prosecution through their testimony. The law recognizes that family ties deserve special protection and should not be undermined by state compulsion to testify.

Confidentiality in Sensitive Professions

Certain professions rely on confidentiality. Persons who gain insight into particularly personal, economic, or legal matters in their professional activity may not disclose this information.

Protection of Journalistic Work

The work of the media is also under special protection. Journalists and media employees may refuse to testify if this would reveal sources or disclose internal information. This protection is a prerequisite for effective public reporting.

Secret Ballot

Finally, no one may be forced to disclose their personal voting behavior. The free exercise of democratic rights requires that corresponding decisions remain secret.

Circumvention Prohibition

Circumventing the right to refuse testimony is prohibited. Access to protected documents or the questioning of auxiliary persons is inadmissible if protected content would nevertheless be disclosed thereby.

Your Benefits with Legal Assistance

Legal advice helps to correctly assess one’s role in the proceedings and to utilize existing protective rights.

The lawyer examines whether and to what extent testimony must be given and whether there is a right to leave individual questions unanswered.

• 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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