White Collar Crime: Leniency for Voluntary Principal Witnesses

As of 1 January 2017, an interesting amendment of the Austrian Code of Criminal Procedure came into effect. The amendment effectively implements the EU Directive 2013/48/EU, regarding the right of access to a lawyer in criminal proceedings, widens the scope of application of so called “diversion” proceedings, and adds a number of other new regulations.

The most controversial part of the legislative process leading to the amendment was the regulation of permitting leniency for principal witnesses. Although a similar regulation already existed, it was set to expire at the end of 2016. The background is that Austrian law does not endorse plea bargaining, thus the concept of leniency for voluntary principal witnesses was met with considerable resistance. The discussion of whether to prolong the existing principal witness regulation was heated, politically charged, and attracted media attention. Ultimately, consensus was found in an improved regulation. The main points are:

  • Leniency for principal witnesses may be granted in cases of corruption and  white-collar crime, as well as for criminal offences that are punishable with a five-year sentence or more (other than crimes entailing sexual violence and/or fatal consequences).
  • The principal witness status can be requested during the main trial (and not only before investigations are commenced).
  • Legal certainty and legal protection of potential principal witnesses has been improved through the introduction of a right of appeal against the refusal of a public prosecutor to grant leniency to a principal witness who testifies voluntarily.
  • The concept of self-initiative and voluntary action remains: the potential principal witness must actively – and of his/her own accord – approach the public prosecutor with knowledge or evidence of criminal actions. Moreover, the contribution of the potential principal to the clarification of the facts of the crime must outweigh the witnesses’ own crime.

The new regulation, which was supported by – and received acclaim from – international organizations, is an important step towards uncovering large-scale corporate crimes. Without the benefit of insider knowledge of principal witnesses, resolving these highly complex criminal structures is often impossible, rendering the prosecutor’s task futile. Leniency for voluntary principal witnesses is a resource-efficient investigative tool designed to tackle the problem of solving fraudulent or conspiratorial crimes – particularly corruption. Thus, this legislation represents a great success in the fight against corruption and for more transparency.

© Katharina Wiltschek