In 2011 the Austrian legislator introduced a leniency programme in Austrian criminal law for potential principal witnesses. Discussions are underway as to whether the leniency programme should be extended for another five years in order to evaluate the practical implications and efficiency.
With effect from 1 January 2011, the Austrian legislator introduced a leniency programme for potential principal witnesses, in Sec 209a of the Austrian Criminal Procedure Code (Strafprozessordnung "StPO"). According to this provision, the public prosecutor's office has the possibility of temporarily withdrawing from the prosecution of an accused person and applying the provisions of alternative forms of action (diversionelle Erledigung), if a person voluntarily discloses information of criminal offences committed by others to the authorities. In order to evaluate the effectiveness and practical impact of the leniency programme, Sec 209a StPO was limited to six years and will expire on 31 December 2016.
Even though statistics showed that the leniency programme was seldom used, the Austrian government decided to propose a bill in April 2016 (Strafprozessrechtsänderungsgesetz II, "bill"), declaring Sec 209a StPO with some minor amendments, as a permanent part of Austrian criminal procedural law. The draft bill was strongly opposed by various parties, ie by the Austrian Supreme Court which dismissed the leniency programme as impermissible plea bargaining. Others argued that the proposed regulation does not provide enough protection to the leniency applicant. Because of these critical comments the proposed bill was retracted and revised by an expert commission. The revised draft now suggests a new limitation until 31 December 2021 and proposes the following:
The leniency programme will only be available
- to applicants who have not yet been questioned as accused or subject to any coercive measures from the public prosecutor's office (such as house searches etc); and
- for "serious offences" ie offences which (i) would have to be tried before either two or eight lay judges (offences where the maximum sentence exceeds five years and a few other offences enumerated by law), (ii) fall within the competence of the Austrian Public Prosecutor’s Office against white-collar crime and corruption (Zentrale Staatsanwaltschaft zur Verfolgung von Wirtschaftsstrafsachen und Korruption), or (iii) involve a criminal organisation.
In order to be accepted into the programme, the leniency applicant has to offer (i) a guilty plea regarding his or her (minor) involvement in a serious offence, and (ii) substantial new information or evidence on a serious offence and/or the whereabouts of an executive of a criminal organisation. If these requirements are met, the applicant shall have a subjective right that the public prosecutor's office (temporarily) withdraws from the prosecution and applies the provisions of alternative forms of action (diversionelle Erledigung).
Although the planned implementation of this subjective right in the revised Sec 209a StPO and the consequential judicial control of this right constitute a major improvement for all future applicants, it has to be noted that some risks remain. Most importantly, the applicant has no "guarantee" that the offered information and or evidence will be considered "sufficient" within the meaning of the revised Sec 209a StPO. Further, the public prosecutor may consider the applicant's involvement as to severe to refrain from prosecution. It remains to be seen whether these risks will be addressed in the upcoming legislative process or if the bill will pass as currently proposed by the government and the expert commission.
On 18 October 2016 the bill was submitted to the Austrian parliament. We will monitor the legislative process and will provide updates on any significant developments. In the meantime, please contact us for further details.
Originally published as Schoenherr legal insights on 2 November 2016.