Austria
The Austrian Code of Civil Procedure (Zivilprozessordnung) lists the following five types of evidence:
- documentary evidence;
- witness testimony;
- expert evidence;
- inspections; and
- the hearing of the parties.
Each party must offer all evidence necessary to substantiate the statements included in its respective pleadings. Documentary evidence is normally adduced to the court by the submission of the document and a reference made to it in the party's written or oral argument. The Austrian Code of Civil Procedure is based on the legal principle of the free evaluation of evidence (Freie Beweiswürdigung), which means that Austrian courts enjoy wide discretion as to how they assess the submitted evidence. The court may not, however, admit evidence that it considers irrelevant to the matters in dispute, or which appears to have been submitted with the intention of delaying the proceedings.
During proceedings, a party may ask the court to order the other party to disclose a particular document in its possession so that it can be relied on as evidence in the proceedings. In the context of discovery requests, evidence may be obtained by the court ex parte.
The requesting party must state the contents of the requested document as precisely and completely as possible, and indicate all facts and matters which are to be proven by the document. The requesting party also must prove that the document is in the possession of the opposing party. A distinction is made between joint documents and other documents. A joint document is drawn up in multiple people’s interests or records mutual legal relations. If the court orders that a joint document be disclosed, the obligation to present the document is final and cannot be avoided by the opposing party. If the document in question is not a joint document, the party opposing disclosure may refuse to present the document by invoking one of the grounds for refusal listed in Section 305 of the Austrian Code of Civil Procedure, e.g. if the content concerns matters of family life, if the disclosure of the document would be disgraceful to the party or third parties or would involve the risk of criminal prosecution, etc. The refusal to present a document can also be justified in specific circumstances, such as where it contains commercially sensitive information.
On the other hand, Section 304 of the Austrian Code of Civil Procedure lists certain grounds which, if present, are determinative in favor of disclosure, e.g. if the party opposing disclosure has referred to the document in the proceedings, committed itself under civil law to deliver or present the document, or if the document concerned is a joint document.
In accordance with the jurisprudence of the Austrian courts, no discovery / disclosure process exists. Further, even evidence obtained through illegal means is, in principle, admissible in proceedings, save where it was obtained in violation of constitutionally guaranteed fundamental rights.