A brief look at the application of the

A brief look at the application of the EIO in Austria from a practical perspective Thomas Mühlbacher

Federal law on judicial cooperation in criminal matters with the Member States of the European Union (EU-JZG) Chapter III Chapter IV Chapter VII General Provisions European Arrest Warrant and Surrender Procedures between Member States Recognition and Enforcement of Judicial Decisions European Investigation Order, Judicial Assistance and other Cooperation in Criminal Matters Supervision of Judicial Decisions Recognition of European Protection Orders in Criminal Matters Final Provisions, Provisions on entering into force and on transition

Chapter IV - European Investigation Order, Legal Assistance and other Cooperation in Criminal Matters v Part One - Subdivision One (§§ 55 – 55 m) Executing a European Investigation Order v Part One – Subdivision Two (§§ 56 – 56 b) Obtaining the Execution of a European Inverstigation Order

Executing a European Investigation Order v Prerequisites: § 55. (1) A European Investigation Order issued by another Member State except Denmark or Ireland shall be executed pursuant to the provisions of this subsection. . (3) If the proceedings in the issuing State are not conducted by a justice authority, a European Investigation Order can only be executed, if a court can be seised against the decision of the issuing authority and the Investigation Order has been approved by a judicial authority of the issuing State

Executing a European Investigation Order v Inadmissibility of Execution § 55 a. (1) The execution of a European Investigation Order is inadmissible, if: 1. if the underlying action is not punishable by a court under Austrian law; 2. if it relates to a criminal act which was allegedly committed outside the territory of the issuing State and entirely or partially in Austria or onboard an Austrian ship or aircraft, and such action is not punishable by a court under Austrian law; 3. if the principle of ne bis in idem would be violated; 4. if under Austrian law investigation measures may only be ordered for the purpose of clarifying certain designated criminal actions, or such actions the commission of which is subject to a legally specified punishment and the criminal action underlying the European Investigation Order does not meet such requirements

Executing a European Investigation Order v Inadmissibility of Execution (Cont. ) 5. if its provisions are contrary to immunity; 6. if it would be detrimental to essential national security interests, endanger sources of information or require the use of classified information about intelligence activities; 7. if there are reasonable grounds for suspecting, that the recognised principles as set out in Art. 6 of the Treaty on European Union or the rights granted by the Charter of Fundamental Rights of the European Union would be infringed upon; 8. if the right of a person to refuse to give evidence would be circumvented, unless the person entitled to refuse giving evidence is a suspect in the proceedings of the issuing authority; 9. if the proceedings in the issuing State are not conducted by a justice authority;

Executing a European Investigation Order v Inadmissibility of Execution (Cont. ) 10. if in the case of a European Investigation Order for the purpose of transferring a person in custody such transfer from Austria is likely to prolong the custody; 11. if the suspect has not agreed to be interrogated by technical means of audio and video transmission in the case of a European Investigation Order for such purpose or if the European Investigation Order is aimed at interrogating the suspect by telephone conference; 12. if in the case of a European Investigation Order for the purpose of a controlled delivery the requirements of § 99, para. 4 St. PO have not been met; 13. if in the case of a European Investigation Order for the purpose of the surveillance of communication such surveillance would not have been approved in a comparable domestic case.

Selected Practical Problems - traffic offences are not punishable by a court under Austrian law no comparable offence (e. g. Art. 196 slovenian criminal code “violation of basic labor rights”) competence of different authorities for EIO and EAW insufficient knowledge of the facts date of service (deadline for appeal)

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