Deceased or untraceable prosecution witness: can the record support the verdict?

Section 252(1) StPO restricts the reading of earlier statements at trial. Item 1 covers the witness’s death, unknown whereabouts and cases in which personal attendance could not be secured for the substantial reasons listed in the provision. Each situation has its own requirements. Convenience or failure to attend on the hearing date alone does not establish permission to read the statement.

A deceased witness presents a different factual situation from someone whose address might still be established. The assessment therefore needs both evidence of unavailability and the specific earlier interview record. These documents allow the defence to examine the statutory category relied on and the statement that is actually to be introduced at trial.

An undelivered summons and unknown whereabouts are different facts. If an address is known, the assessment must consider what is actually known about the witness’s location and what efforts were made to reach them. The circumstances matter, including the importance of the witness evidence and the seriousness of the allegation.

The Austrian Supreme Court (OGH) addressed this in its decision of 19 November 2025, 15 Os 90/25m. A single summons to the witness’s known address in Bulgaria was unsuccessful. No further enquiries followed. On those facts, the OGH found that the requirement of unknown whereabouts under section 252(1)(1) StPO had not been met. The judgment sets no fixed number of required summons attempts. It calls for assessment of the actual efforts and the importance of the statement.

The documented sequence is therefore central to the defence: which address was known, what the service attempt established and which further information or enquiries were available. The fact that the witness lives abroad does not answer those questions.

Agreement by the prosecutor and the accused is a separate ground under section 252(1)(4) StPO. Without that agreement, item 4 cannot be relied on. The other statutory categories require their own assessment. If their requirements are met, permission does not additionally depend on consent under item 4.

An objection by the defence therefore needs to address the statutory ground. It should identify the specific defect, such as inadequate enquiries about whereabouts or an obstacle unsupported by evidence. The trial record should also allow the procedural sequence to be reconstructed. An objection to reading the statement and a response to its contents concern different issues; both may be necessary.

Section 252(2a) StPO provides for presenting the essential contents of documents instead of reading them, subject to its consent requirements. The documents must be accessible to all members of the trial panel (Schöffengericht) and the participants in the proceedings. This summary is a statutory procedure. It cannot be used as an unrestricted substitute to bypass the requirements governing an earlier witness statement.

Under section 252(3) StPO, the accused must be asked after each reading and presentation whether they wish to comment. The provision also regulates requests for further reading. Omitted context may matter to the defence: an earlier uncertainty, a qualification or the question establishing what the witness actually perceived. Section 252(4) protects the provision’s limits against circumvention.

Lawful introduction of a statement and its evidential value are separate questions. Section 258(1) StPO restricts the judgment to matters introduced at trial. Under subsection 2, the court must carefully assess the credibility and probative value of the evidence, individually and together with all circumstances supporting or contradicting it. A lawfully read statement becomes part of the evidential basis; that does not establish its contents as true.

Specific questions guide the assessment: what did the witness perceive personally, what uncertainties appear in the record and how does the account fit documents, recordings and other statements? Which inconsistencies were raised at trial? Sections 252 and 258 create neither a blanket ban on conviction without this witness’s personal testimony nor an automatic preference for the earlier record.

A detailed review starts with the complete earlier interview record and any audio or video recording. It also requires the summons, service evidence, documents concerning enquiries or the obstacle to attendance, and the trial record. The latter shows which statement was read or presented, how the participants responded and which requests or explanations were recorded.

The next step is to compare the statutory ground with the actual sequence. If whereabouts were said to be unknown, efforts to reach the witness are central. If consent was relied on, its scope needs examination. Assessment of the evidence also requires the prosecution and exculpatory material to be considered together. An isolated passage from the earlier record will rarely suffice for this review.

In 15 Os 90/25m, the OGH found a ground of nullity under section 281(1)(3) StPO because the statement had been read unlawfully. The procedural response available in another case depends on the court, the stage of the proceedings and what actually occurred. Have the documents examined against the trial events rather than predicting the outcome from the witness’s absence alone.