As of 1 January 2011, leniency was introduced to the Austrian criminal law. It created a new system, as there is generally no possibility for people who are accused of having committed a crime to proactively approach criminal authorities in order to receive less or even no penalty in exchange for information. Because of this, the new provision regarding leniency was temporary and expires on 31 December 2016.
Although an analysis of the last five years showed that leniency was only applied in a very limited number of criminal proceedings, there are plans to prolong this provision. However, based on the experiences of the past years, the provision will come into force in an amended form on 1 January 2017. This article highlights some of the changes which are planned as of 1 January 2017.
According to the new provision, it is necessary that the person who wants to make use of leniency is suspected of having committed a serious crime (which is defined in the provision). In any case, it is necessary that the person reveals knowledge and information regarding criminal actions that exceed the ones he himself is accused of having committed. Furthermore, the provision aims to strengthen the element of voluntariness of the person which wants to make use of leniency. This person has to proactively approach the authorities, not vice versa. This is a reaction to criticism of leniency in criminal proceedings, as from several sides it was seen as kind of a "deal" with the authorities (as known from common law jurisdictions), which is not intended by Austrian criminal law.
The most important improvement is that the new provision stipulates the right of every person who fulfills the numerous requirements to make use of leniency. This is new since under the old version of the provision, only the Public Prosecutor had the authority to decide whether to make use of leniency towards a specific person. Under the new provision, a person seeking leniency has the right to object to the decision of the Public Prosecutor in case it refuses to apply the provision. Furthermore, it will be possible to claim the right of using leniency towards the court once the trial has already started. This ensures judicial control in all stages of criminal proceedings.
Leniency is still very new to the Austrian criminal law system. After the first five years, it seems that improvements to the provision will come into force as of 1 January 2017. It will be interesting to see whether the practical relevance of leniency will be increased as a result.