Recently, a piece of draft legislation for the amendment of the leniency programme was put before the Austrian parliament. If passed, the amendment will bring some improvements for potential principal witnesses.

A leniency programme was introduced into Austrian criminal law for the first time in 2011. The legislator aimed to promote crime detection by granting an exemption from prosecution to principal witnesses. This was a significant change to Austrian criminal law since, until then the concept of plea bargaining was unknown to the Austrian legal system. Owing to its novelty, the relevant provision (section 209a of the Austrian Criminal Procedure Code – “StPO”) was limited to a “trial period” of six years, until 31 December 2016.

Section 209a StPO provides for the possibility of the public prosecutor’s office to provisionally withdraw from prosecution and apply alternative measures in dealing with a potential principal witness (such as payment of a sum of money, charitable work or probation period) instead of filing an indictment against that witness. The public prosecutor’s office can apply this provision only if the accused person voluntarily discloses his or her knowledge of another criminal offence. However, the decision on the actual application of the leniency programme is at the discretion of the public prosecutor’s office, with no right of appeal for the accused person.

In practice, this means that the accused has to cooperate with the public prosecutor’s office and disclose information comprehensively beforehand without knowing whether the leniency programme will be applied to their case. As a result, accused persons are reluctant to reveal information in practice. Thus it is not surprising that even after almost six years the number of leniency cases is still very low.

Since the provision was going to expire by the end of this year, discussions were taking place as to whether the leniency programme should be dropped, revised or renewed for a further period. After some back and forth the government submitted a draft bill for amendment of the current provision to the parliament in October.

The draft again provides for a temporal limitation. The amended provision shall expire by the end of 2021 in order to allow for an evaluation of its effectiveness in practice. As regards substance, the amended leniency programme will be open only to accused persons who offer a guilty plea and approach the public prosecutor’s office voluntarily and proactively in order to disclose knowledge relating to another serious crime. Furthermore, the leniency applicant’s contribution and value of information must outweigh the degree of his / her involvement in the crime. The most important change, however, is that the applicant has a legal claim to the granting of principal witness status if the legal requirements are met. According to the draft, an indictment can be appealed if the public prosecutor’s office wrongfully decides not to apply the leniency programme. Another key feature of the amendment is that accused persons can still apply for leniency at the actual trial stage.

While the amendment will certainly bring some substantial improvements, it remains to be seen whether these will be sufficient to enhance the effectiveness of the leniency programme in Austria.