What section 164(4) StPO prohibits, when section 166 StPO excludes a statement as evidence, and what to check in the written record and recordings.
Mag. Christopher Angerer, Rechtsanwalt
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Section 164(4) of Austria's Code of Criminal Procedure (StPO) prohibits threats, coercive measures, promises and misrepresentations when they are used to move an accused person to confess or make other statements. It also protects the person's freedom to decide and act, memory and capacity to understand.
Section 166 StPO sets separate conditions for excluding a statement from use as evidence. The wording of the exchange, the order of questions, the written record and any available recordings therefore matter to the assessment.
This guide helps organise the exchange and relevant records. It does not replace an individual legal assessment.
This guide sorts initial questions. It does not determine whether a statement can be used as evidence.
Section 164(4) StPO prohibits threats, coercive measures, promises and misrepresentations when used to obtain a confession or other statement. Record the words used, who said them and which questions followed. The separate conditions in section 166 StPO govern whether the statement may be used as evidence.
Questions must be clear and understandable. A question that puts forward circumstances which can only be established by the answer is permitted only when necessary to understand the context. In that situation, both the question and the answer must be recorded verbatim.
Describe the measure used and its concrete effect during questioning. Record whether your ability to decide, remember or understand the situation changed. The legal assessment depends on the full course of questioning and the surrounding circumstances.
Put the disputed questions and answers in order. Compare your prompt note with the written record and any available audio or video recording. The conditions in section 166 StPO must be assessed separately before drawing a conclusion about the use of a statement as evidence.
Section 164(4) names promises, misrepresentations, threats and coercive measures. Their use is prohibited when the purpose is to obtain a confession or other statement from the accused. The rule addresses the method used to obtain information during questioning.
The provision protects freedom of decision and action, memory and the capacity to understand. It also covers measures, including interference with physical integrity, that impair those capacities. The legal significance of a specific event depends on how it happened and on its actual effects.
Section 164(4) links the listed methods to the purpose of obtaining a confession or other statement. The exact words, the person who used them, the timing and the questions that followed therefore need to be considered together. A promise must be assessed by its content and its connection to the statement sought.
A reliable assessment considers the full exchange: what came before the words, what answer was expected and what was later recorded. Words recalled directly should be kept distinct from a later inference about purpose or legal effect.
Questions must be clear and understandable. Section 164(4) prohibits questions that are vague, ambiguous or misleading. It also prohibits questions that treat an unadmitted fact as though the accused had admitted it.
A specific rule applies when circumstances are put to the accused even though the answer itself would be needed to establish them. This is permitted only if the question is necessary to understand the context. In that situation, both the question and the answer must be entered in the record verbatim. This specific requirement does not apply to every question and answer.
Section 166(1) StPO provides two grounds. A statement obtained through torture may not be used as evidence to the disadvantage of an accused person. The same applies to a statement obtained through another unauthorised interference with freedom of decision or through an impermissible questioning method, if that method violated fundamental procedural principles and exclusion is essential to remedy the violation.
The statutory text contains a specific exception for use against a person who is accused of a legal violation in connection with an interrogation. Under section 166(2), statements obtained in the manner described in subsection 1 are null and void. Applying this rule requires assessment of its statutory conditions against the full course of events.
As soon as practicable, note the date, time, location, people present, language used and order of the exchange. Write down remembered words as accurately as possible and mark any paraphrase as such. Keep existing summonses, notes and documents unchanged.
Your own prompt note does not replace the official record. Compare particular questions, answers and pauses with the written record and any available recording. The article on audiovisual questioning and recording explains the role of audio and video records. The separate article on the accused person's rights during questioning covers the broader statement and defence issues.
A lawyer can assess the exchange, the written record, any available recordings and the conditions in section 166 StPO together. Prepare the specific differences and the points in time to which they relate. This article does not predict a particular outcome in an individual case.
The conditions in section 166 StPO govern evidential use. For other impermissible methods, subsection 1 requires, among other things, a violation of fundamental procedural principles and exclusion that is essential to remedy that violation.
Section 164(4) requires verbatim recording in the specific case where circumstances that can only be established by the answer are put to the accused because this is necessary to understand the context. Both the question and the answer must then be recorded verbatim.
Section 164(4) prohibits promises and misrepresentations when used to obtain a confession or other statement. The words used and the context of the exchange matter to the legal assessment.
Record the particular difference, the question concerned and your recollection as soon as practicable. A comparison with any available recording may help clarify the exchange. The legal significance depends on the specific circumstances.
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