For those involved, being summoned for questioning as a suspect often causes a great deal of uncertainty. Are you obliged to make a statement to the police? Is a defence lawyer allowed to be present? And what consequences might your statements have for the rest of the criminal proceedings?

The following article provides an overview of the procedure for questioning a suspect in Austria, the key rights of suspects, and the importance of thorough preparation for the questioning.

What is an interrogation in criminal proceedings?

An interrogation is defined as the questioning of a person following formal notification of their status and rights in the proceedings (Section 151(2) of the Code of Criminal Procedure). This distinguishes an interrogation from a mere informal enquiry. The statements made during an interrogation are recorded in the minutes. The statements made during an interrogation are of particular significance as evidence in the subsequent criminal proceedings.

Practical tip: This does not mean that spontaneous statements made outside a formal interview cannot be used as evidence. Spontaneous statements or ‘informal remarks’ made by a suspect outside a formal interview may be recorded by the police in an official report and, in principle, may be used in criminal proceedings.

Interrogations serve to investigate a criminal offence and to take evidence (Section 153(1) of the Code of Criminal Procedure). As a rule, suspects and witnesses are interrogated. However, depending on their status in the proceedings, different rights and obligations apply to them.

Defendants are not obliged to incriminate themselves and may refuse to give evidence in accordance with Section 49(1)(4) of the Code of Criminal Procedure. If they choose to give evidence, their statements may be used in their defence, but may also be used against them. Defendants are not under an obligation to tell the truth. Witnesses, on the other hand, are generally obliged to give accurate and complete evidence.

When does a suspect become a defendant?

A suspect is regarded as an accused person as soon as specific facts suggest that they may have committed a criminal offence, and the authorities have therefore gathered evidence through certain investigative steps or ordered or carried out specific investigative measures (Section 48(1)(2) of the Code of Criminal Procedure).

From that point onwards, the person must be treated as a suspect and, as a matter of principle, informed of their rights.

What does a summons to attend a suspect’s interview mean?

A person who is to be questioned must, as a general rule, be summoned in writing (Section 153 Section 2 of the Code of Criminal Procedure). Such a summons must be complied with. In the event of an unjustified failure to appear, the accused may be brought before the court, provided that this consequence was expressly stated in the summons. However, this must be distinguished from the question of whether an accused person is obliged to give evidence on the matter.

The statement itself cannot be enforced. Under Section 7(2) of the Code of Criminal Procedure, accused persons may not be compelled to assist in their own conviction (nemo tenetur se ipsum accusare). On occasion, police officers may contact suspects by telephone and ask them to attend for questioning. Unlike a written summons, which specifies whether the questioning is of a suspect or a witness, this may not be made clear in a telephone call.

In any case, it should first be clarified whether the intention is to question the person as a witness or as a suspect. If the intention is to question the person as a suspect, legal advice should be sought immediately.

What information regarding their legal rights must be provided before the suspect is questioned?

The Criminal Investigation Department or the Public Prosecutor’s Office must inform every suspect as soon as possible of the preliminary investigation being conducted against them, the suspicion of an offence against them and their key rights in the proceedings (Section 50(1) of the Code of Criminal Procedure). These include, in particular, the rights of suspects under Section 49 of the Code of Criminal Procedure, as well as the briefing prior to questioning under Section 164(1) of the Code of Criminal Procedure.

Before the questioning begins, it must be ascertained whether translation assistance is required. The accused must then be informed of the offence of which they are suspected. They must be advised that they may comment on the allegation or refuse to make a statement, and that they may consult a defence lawyer beforehand. Furthermore, they must be informed that their statement may be used in their defence, but may also be used as evidence against them (Section 164(1) of the Code of Criminal Procedure).

The information on their rights must be provided in a language and form that the accused can understand. The information provided, as well as any waiver of a right of the accused, must be recorded in writing (Section 50(2) and (3) of the Code of Criminal Procedure).

Is a suspect obliged to make a statement to the police?

A defendant may not be compelled to incriminate themselves. They are free to give evidence or to remain silent (Section 164(1) of the Code of Criminal Procedure). The decision as to whether, and what, information is provided to the police or the public prosecutor’s office is of considerable importance for the preliminary investigation. Anyone who is not familiar with the contents of the investigation file will find it difficult to assess which details may exonerate them and which could complicate their defence.

No statements regarding the matter should therefore be made without legal advice and without having inspected the case file. Any oral statement – if made at all – should only be given once the contents of the case file have been reviewed and a defence strategy has been established.

Why is access to the case file so important before the suspect is questioned?

Defendants have the right to inspect the case file (Section 49(1) of the Code of Criminal Procedure). This enables them to examine the findings of the criminal proceedings and to find out about the current status of the investigation. If a defendant is summoned for questioning, an application to inspect the case file should be made as soon as possible. At the same time, a request may be made to postpone the questioning until after the case file has been inspected.

Only by familiarising oneself with the contents of the file is it possible to make a well-founded assessment of exactly what allegations have been made, on what grounds the suspicion is based, and whether it would be appropriate to make an oral statement, submit a written response, or, for the time being, refrain from commenting on the matter.

MPW Lawyers carefully review the investigation file and discuss with the accused what further steps would be advisable.

Is a defence lawyer permitted to be present during the questioning of the accused?

The accused has the right to have a defence lawyer present during their questioning (Section 164(2) of the Code of Criminal Procedure). If they exercise this right, the questioning must be postponed until the defence lawyer arrives. Having a defence lawyer present can help to restore calm and clarity even during the preliminary investigation.

Particularly for people facing criminal proceedings for the first time, an interview with the accused often presents an exceptional situation in which it is difficult to keep a cool head. The defence lawyer ensures that the accused’s rights are upheld and that the legal requirements are adhered to during the questioning. These include, in particular, providing proper information on legal rights, asking permissible questions and ensuring that the statements are recorded correctly.

However, during the ongoing questioning, the defence counsel may not participate directly in answering individual questions. Once the questioning has concluded, or after sections dealing with related topics, he may put questions to the accused and make statements (Section 164(2) of the Code of Criminal Procedure). For this very reason, the alleged offence, whether a statement is to be made at all, any potential questions and the planned defence strategy should be discussed in detail before the interview begins.

How does an interview with a suspect take place?

At the start of the questioning, the accused is asked about their personal circumstances. They must then be given the opportunity to comment, in a coherent account, on the allegations made against them (Section 164(3) of the Code of Criminal Procedure). Further questions may then be asked in order to clarify the facts of the case. The nature and scope of the questioning depend on the specific charge, the scope of the investigation file and the officer conducting the questioning.

Some questions are asked in great detail. In other cases, the accused may first set out the facts of the case from their own perspective before further questions are asked. When answering, it is generally more effective to respond briefly, objectively and directly to the question asked. Finally, it is usually advantageous to submit a written statement prepared in consultation with the defence lawyer.

Which questions and questioning techniques are inadmissible during the questioning of a suspect?

The questions put to the accused must be clear and easily understandable. They must not be vague, ambiguous or leading (Section 164(4) of the Code of Criminal Procedure). Questions which present the accused with circumstances that are to be established only through their answer may only be asked if this is necessary for understanding the context. Such questions and the answers given to them must be recorded verbatim (Section 164(4) of the Code of Criminal Procedure).

Questions which treat a fact not admitted by the accused as having already been admitted are not permitted (Section 164(4) of the Code of Criminal Procedure). Particular care must therefore be taken when recording questions and answers. In order to induce the accused to make a confession or provide other information, neither promises nor false representations, nor threats or coercive measures, may be used (Section 164(4) of the Code of Criminal Procedure).

The accused’s freedom of decision-making and action, their memory and their capacity for understanding must not be impaired by any measures whatsoever. Interference with physical integrity is also prohibited (Section 164(4) of the Code of Criminal Procedure). In the case of lengthy interrogations, breaks must be taken where necessary to ensure that the accused’s freedom of decision-making is not impaired by fatigue.

Statements obtained through unlawful interrogation methods or other unauthorised interference with the free exercise of will may not be used to the detriment of the accused, subject to the conditions set out in Section 166 of the Code of Criminal Procedure.

When is it advisable to submit a written statement?

Defendants may also set out their position in the form of a written statement, known as a ‘responsible statement’. A written statement may be particularly useful in cases involving extensive or complex facts. It allows the facts to be presented in a structured manner, at one’s leisure and taking into account the contents of the case file.

At the same time, exculpatory documents may be submitted, witnesses named or applications for evidence made. Even if a suspect feels unable to make a calm and coherent oral statement due to the stress of the questioning situation, a written statement may be a suitable alternative. A written statement may be submitted at the start of the questioning and treated as the suspect’s own statement.

It can then be explained that no further details regarding the matter will be provided. Whether a written statement is submitted, an oral statement is given, or both are combined, always depends on the individual case and the defence strategy in question. A statement drafted by the defendant themselves without knowledge of the investigation file can be just as detrimental, or even more so, than an unprepared oral statement.

How should an interview with a suspect be prepared?

If, after reviewing the case file and seeking legal advice, a defendant decides to make a statement, the questioning should be carefully prepared. This allows relevant information to be identified and helps to avoid statements that are apparently contradictory, unclear or unnecessarily rambling. When deciding whether it is advisable to make a statement, consideration should also be given to whether any witnesses or co-defendants have already given evidence, and if so, which ones.

Depending on the circumstances of the case, it may be advisable for the accused to wait until after other parties to the proceedings have been questioned before making a statement. Furthermore, if allegations can be refuted by documentary evidence or witness statements, it should be considered whether these should be presented or referred to during the questioning, or whether they should be submitted in a separate written submission.

What is particularly important after the suspect has been questioned?

Following the interview, the transcript must be checked thoroughly and carefully. It must accurately reflect the questions asked and the answers given. Any omissions, inaccuracies or ambiguities in the transcript should be identified and corrected before the interview is concluded. Even discrepancies that may appear minor can become significant in the course of further proceedings.

If a trial takes place at a later date, any discrepancies between the statement made to the police and the evidence given in court are routinely raised. It is often difficult to substantiate a claim made at a later stage that a statement was intended differently or was recorded incorrectly. The accused or their legal representative may request a copy of the interview transcript.

It should also be clarified what further investigative steps are planned and when the report is due to be submitted to the public prosecutor’s office. Even after the interview, access to the case file remains important. New statements from witnesses or co-defendants, and other findings from the investigation, may necessitate a supplementary statement, further applications for evidence or a further interview.

If the accused considers that the allegations made against them have been refuted by their questioning, by written statements or by other findings of the investigation, they may consider submitting an application for the case to be dropped to the relevant public prosecutor’s office.

What are the rules for young defendants?

Special protective provisions apply to juvenile suspects during questioning. A juvenile is defined as a person who has reached the age of 14 but has not yet reached the age of 18. This is to be distinguished from a young adult, who has reached the age of 18 but has not yet reached the age of 21.

Criminal proceedings relating to offences committed by juveniles must be conducted without delay, taking particular account of the accused’s age and level of maturity. The questioning of a juvenile accused must also be conducted in a manner that takes account of their age and their stage of development and education. In certain situations, a juvenile must be represented by a defence lawyer.

This applies when the young person is being questioned following an arrest or bringing before the authorities, as well as during a reconstruction of the offence or a line-up (Section 37(1) of the Juvenile Court Act). In all other cases of questioning, unless the young person is represented by a defence lawyer, a person in whom they have confidence must be called in. If it is not possible to call in a suitable person of confidence within a reasonable time, the questioning must be recorded on video and audio (Section 37(1) of the JGG in conjunction with Section 36a(2) to (4) of the JGG).

Suitable candidates for the role of trusted person include, in particular, the legal representative, a parent or guardian, a relative, a teacher, a childcare worker or a representative of the child and youth welfare service, the youth court support service or the probation service (Section 37(2) of the German Juvenile Court Act (JGG)).

Conclusion: Why is preparation before the suspect’s interview crucial?

The questioning of the accused can have a significant impact on the subsequent course of the preliminary investigation. Accused persons have the right to remain silent, to inspect the case file, to instruct a defence lawyer and to set out their position in writing. However, it is not only crucial to be aware of these rights, but also to exercise them in a timely and appropriate manner.

Only after reviewing the investigation file is it possible to assess whether it is advisable to make an oral statement, submit a written statement, or refrain from making any comment on the matter for the time being. Seeking advice at an early stage from a solicitor specialising in criminal law provides clarity regarding the allegations and the next steps to be taken. MPW Solicitors apply for access to the case file, review the investigation file, prepare suspects for questioning and accompany them to the interview.

Where the defence strategy so requires, a written statement will also be prepared. This enables clear decisions to be taken at an early stage, prevents avoidable errors or misunderstandings, and ensures that the accused’s interests are safeguarded as effectively as possible throughout the proceedings.