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Own suspicion during witness questioning: request accused rights in time

Own suspicion during witness questioning in Austria: status under section 48 StPO, information, right to silence and lawyer contact under section 164 StPO.

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22 September 2026, Mag. Christopher Angerer, Rechtsanwalt

If a person is initially questioned as a witness and a concrete suspicion of an offence against that person develops during the questioning, the person’s role must be reviewed immediately. Section 48 StPO links accused status to specific facts and to evidence-taking or investigative measures intended to clarify that suspicion. A general feeling of unease does not automatically decide the issue.

This article explains the threshold for the status question, the information and rights provided by section 164 StPO for an interview as the accused, and the documents that should be secured after such questioning. The specific rights to refuse testimony as a witness require a separate assessment.

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Quick orientation

What applies when suspicion develops during questioning?

Choose the situation closest to your case. The result identifies the next check concerning your role, information and decision about making a statement.

Would you like to discuss the questioning?

01 Question 1

Which situation applies?

The selection does not replace a review of the summons, record and state of the file.

Overview

All recommendations at a glance

01

Clarify the role and scope of questioning before answering further.

Ask in which capacity you are being questioned and which facts the questions concern. Section 48 StPO makes accused status depend on specific facts and further investigative measures. The mere concern that an answer may be uncomfortable does not resolve the status question.

Assess the witness questioning and any rights to refuse testimony separately. If your role is uncertain, arrange legal assistance before giving further substantive answers.

Assess the status change from the concrete suspicion →
02

Raise the concrete suspicion and accused status immediately.

If specific facts point to your own criminal conduct and evidence is taken or investigative measures are carried out to clarify that suspicion, section 48 StPO requires the status to be reviewed. Ask for a clear explanation of your role and the allegation. The legal classification cannot be derived from the tone of individual questions alone.

If the questioning continues as an interview of the accused, the information and defence rights under section 164 StPO apply. Until the position is clear, avoid a spontaneous statement on the substance.

Read about information and contact with a lawyer →
03

Secure the information and lawyer contact before questioning continues.

Before an interview as the accused begins, section 164 StPO requires information about the offence of which the person is suspected. The person must also be informed of the right to make a statement or remain silent and of the right to consult a defence lawyer beforehand. Anyone who wants a lawyer present can in principle request that the interview be postponed until the lawyer arrives.

The law provides a narrow exception where special circumstances make an immediate interview or other urgent investigation necessary to avert a serious danger to the investigation or an impairment of evidence. The specific reasons and further course must then be recorded.

Rights in an interview as the accused →
04

Review the earlier statement, role change and record together.

An answer already given cannot be undone by a later assertion. The key questions are which facts were known at which time, when your possible involvement was raised and whether questioning then continued in the correct capacity. Keep the summons, notes and record.

For a subsequent interview as the accused, check whether the information required by section 164 StPO was given and whether further answers were recorded correctly. The legal significance of the earlier statement depends on the contents of the file.

Review the record and next steps →

When does witness questioning become an interview as the accused?

Section 48(1)(2) StPO defines the accused as a suspect who, on the basis of specific facts, is concretely suspected of having committed a criminal act and against whom evidence is taken or investigative measures are ordered or carried out to clarify that concrete suspicion. The provision therefore combines the concrete suspicion with a further investigative step.

In practice, this means that the change does not depend solely on questions becoming uncomfortable or the interviewer viewing answers critically. The review concerns the specific facts, the subject of the measure and the point at which the person is treated as a possible perpetrator.

Anyone who cannot recognise their status should ask about their role and the allegation. This clarification creates the basis for deciding whether the next answers are governed by the rules for witnesses or for the accused.

What rights apply once the interview is as the accused?

Under section 164(1) StPO, the need for translation assistance must be checked before the interview begins. The accused must then be told which offence they are suspected of. The person must also be informed of the right to make a statement or remain silent and of the right to consult a defence lawyer beforehand.

The accused may bring a defence lawyer to the interview. If this right is exercised, section 164(2) StPO generally requires the interview to be postponed until the lawyer arrives. After the interview or after connected sections, the lawyer may ask the accused questions and make statements.

An exception requires special circumstances. An immediate interview or other urgent investigation must appear necessary to avert a serious danger to the investigation or an impairment of evidence. In that case, an order by the prosecution or written reasons from the criminal police must generally be served immediately or within 24 hours.

What applies while the role is still unclear?

A person can stand between different procedural roles during one questioning situation. The label used in the first letter therefore does not decide every later question. The decisive issue remains whether the conditions in section 48 StPO are met in the concrete procedural position.

Until the issue is clarified, the person should not guess at their legal position. They can ask about the purpose of the questioning, the specific allegation and the capacity in which they are being questioned further. The special rights of witnesses to refuse testimony must be assessed separately.

The general article on witnesses in criminal proceedings addresses those rights. The article on the interview as the accused explains summonses, silence and contact with a defence lawyer in greater detail.

Which documents and steps matter afterwards?

Keep the summons, correspondence, record and contemporaneous personal notes. Record when the questioning began, when specific facts about your own possible involvement were first raised and whether your role or the allegation was expressly explained.

Sections 164(3) and (4) StPO provide further guidance for an interview as the accused. The accused is first questioned about personal circumstances and must then be given an opportunity to describe the allegation in a connected account. Questions must be clear and understandable. Promises, threats and coercive measures to obtain a confession or other information are prohibited.

A statement may assist the defence, but it may also be used as evidence against the accused. The further handling of the record and file should therefore be coordinated. The articles on damaging credit under section 152 StGB and tax fraud under section 39 FinStrG show how strongly the legal assessment depends on the concrete allegation and documents.

Decision criteria

Keep witness questioning and accused status separate

The decisive issue is which facts and investigative measure are already present.

Review points when a role changes during questioning
Review point Witness questioning Interview as the accused
Starting point Statement about another or general set of facts Possible criminal conduct by the person is based on specific facts
Clarification Ask in which capacity and about which subject the questions are asked Review the allegation and accused status under section 48 StPO
Decision about a statement Assess the witness duty and rights to refuse separately Observe the right to silence and lawyer contact under section 164 StPO
Documents Keep the summons, subject of questioning and notes Keep the information, allegation, record and time of the status clarification

The concrete classification depends on the procedural position and contents of the court file.

Clarify the role first. If the questions concern possible criminal conduct by you, record when the role was clarified and request the legally required classification before answering further on the substance.

Frequently asked questions

Own suspicion during witness questioning

Does a witness automatically become the accused when questions become more critical? +

No. Section 48 StPO requires specific facts creating a concrete suspicion and evidence-taking or investigative measures to clarify it. The concrete procedural position must be assessed.

What must be communicated before an interview as the accused? +

Under section 164(1) StPO, the person must be told which offence they are suspected of. They must also be informed of the right to make a statement or remain silent and to consult a defence lawyer beforehand. Any need for translation assistance must be checked first.

Can I request a defence lawyer immediately after the role is clarified? +

Yes. The accused may bring a defence lawyer to the interview. If this right is exercised, the interview generally has to be postponed until the lawyer arrives. The statutory exception has specific conditions.

What should I keep after such questioning? +

Keep the summons, correspondence, record and contemporaneous personal notes. The sequence, the time when questions about your own involvement arose, the information given and every explanation of your further role are particularly important.

Related topics

Further information

Interview as the accused: make a statement or remain silent?

Summons, right to silence, lawyer contact and records in Austrian criminal proceedings.

Witness in criminal proceedings: rights and refusal to testify

Witness duties, refusal to testify and protective measures in Austria.

Damaging credit under section 152 StGB

Organise the concrete allegation and documents in a possible damaging-credit case.

Tax fraud under section 39 FinStrG

Review documents, roles and evidence questions in financial criminal proceedings.

Topics
witness questioningown suspicionrights of the accusedsection 48 StPOsection 164 StPOdefence lawyercriminal proceedings

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