AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
• case management at the beginning of proceedings; and • the court’s taking of evidence in the main hearing. Parties may file written submissions presenting facts, offering evidence and presenting legal issues at any time prior to one week before the main hearing. Case Management Hearing The case management hearing is referred to as a “preparatory court session”, which structures how evidence will be taken following this court session. It is also set to explore the possibility of an amicable settlement. Second Part of the Hearing The second part of the hearing focuses on witnesses and experts. The process (including the direct exami- nation of witnesses) is led by the judge. The parties and/or their counsel are allowed to interrogate wit- nesses only after the court has finished its direct examination. The judge will formally “close” the oral hearing once the taking of evidence is completed. 7.3 Jury Trials in Civil Cases Jury trials are not available in Austrian civil cases. 7.4 Rules That Govern Admission of Evidence The Court’s Role and the Burden of Proof The court will take evidence as the parties may request (eg, through witness testimony) and/or as submitted (eg, through documents). The court may disregard evi- dence it considers to be immaterial, or if it is already sufficiently convinced of a certain fact. The general rule is that each party is responsible for discharging its burden of proof and providing the court with the evidence that may establish the facts favourable to its position. There are some specific rules available, such as those regarding prima facie evidence, which shift the need to establish certain facts to the other side. Types of Evidence Evidence may be in the form of documents, visual inspection of places or things, witness testimony, experts, and the testimony of the parties.
Evidence obtained by illegal means may be used in civil proceedings. Judges will evaluate the evidence before them and state the basis of their evaluation.
7.5 Expert Testimony Court-Appointed Experts
Austrian civil procedure relies on court-appointed experts who owe their duties primarily to the court and are required by statute to be neutral. If there are doubts as to neutrality or competence, court-appoint- ed experts may be challenged. The same rules apply regarding judges. Even the mere appearance of lack of neutrality can suffice for a successful challenge. Party-Appointed Experts Party-appointed experts are permitted but are regard- ed as other witnesses. They do not have the same special status as court-appointed experts and their testimony may be disregarded at the discretion of the court. 7.6 Extent to Which Hearings Are Open to the Public Hearings are open to the public, other than in the unu- sual case upon application of a party and in specific circumstances (eg, if personal issues are discussed or trade secrets are at stake). Transcripts of the hearing (usually a summary by the judge) are not made public. 7.7 Level of Intervention by a Judge Active Role of the Judge The judge has the predominant and most active role throughout a hearing and will not only preside in the process of the hearing but will also take the lead in examining witnesses. The judge decides when to end the trial. The court may disregard open requests for taking evidence, such as hearing one of the witnesses, if it has been satisfied by the evidence already taken. Timing of Judgments While an immediate oral judgment at the end of the trial is possible, in practice, judgments are generally rendered in writing later. This process may take sev- eral months from the time the oral hearing is closed.
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