Media reports about high-profile white-collar criminal proceedings often revolve around persons who turn state’s evidence;[1] they can help to solve criminal cases, in particular by incriminating co-defendants, and thus avoid being prosecuted. However, based on the media reports, it usually remains unclear how state’s evidence status can actually be obtained under the Austrian Code of Criminal Procedure. This article will seek to explain in simple terms the offences which allow for a person to turn state’s evidence, the scope of cooperation required in the criminal proceedings, the privileges associated with state’s evidence status and factors which actually can lead to losing the status.
In a nutshell, what is governed by section 209a of the Austrian Code of Criminal Procedure under the heading "Withdrawal from prosecution due to cooperation with the public prosecutor's office", represents a win-win situation for the person turning state’s evidence and the prosecuting authorities alike. In return for the disclosure of information about the criminal offences of others by the person turning state’s evidence, concessions will be made with regard to this person’s prosecution or punishment, and the prosecutor will obtain information which he would not be able to obtain or would only obtain with difficulty if it were not for the cooperation of the person turning state’s evidence, particularly in cases where evidence is frequently lacking – i.e. when serious white-collar crimes are investigated.
However, it is not possible to obtain state’s evidence status in any and all criminal proceedings. Much rather, the first requirement is that one of the following elements applies to the offence to be prosecuted:
- it either falls within the jurisdiction of a regional court and is tried in proceedings involving lay assessors or juries (in general, this applies to offences liable to be punished with more than five years of imprisonment – for details, cf. section 31 (2) and (3) of the Code of Criminal Procedure), irrespective of which public prosecutor's office is in charge, or
- if the Austrian Public Prosecutor’s Office for White-Collar Crime and Corruption (WKStA) is in charge (this concerns serious white-collar crimes such as fraud or breach of trust with very high amounts of damage – cf. section 20a of the Austrian Code of Criminal Procedure for details) or
- if the case at hand involves participation in a criminal or terrorist organisation (sections 277 et seq. of the Austrian Criminal Code, again irrespective of which public prosecutor's office is in charge).
Only in case of these selected serious offences doesAustrian legislation provide for advantages in terms of prosecution in return for information. At this point, brief mention should be made of the special provisions for leniency witnesses in antitrust cases (section 209b of the Code of Criminal Procedure), which will not discussed in detail below.
Moreover, the scope and content of the information provided by the person who could potentially serve as state’s evidence is relevant for granting such status. Firstly, the person potentially eligible for state’s evidence status must show remorse and admit his own contribution to the offence. Furthermore, he must voluntarily disclose information tothe prosecuting authority which goes beyond his own contribution to the offence. The information disclosed must relate to new facts or evidence - i.e. not yet on record – which is likely to contribute significantly to the investigation of the offence. Adistinction must therefore be drawn between the offence committed by the person turning state’s evidence, which this person confesses to, on the one hand and the offence being investigated, about which the person turning state’s evidence provides new information not yet on record, on the other hand. The person potentially turning potential state’s evidence must not yet have been interrogated as a defendant about the offence to be investigated and must not have been subjected to any other coercive investigative measures (e.g. house searches, seizures, pre-trial detention). However, if the person turning state’s evidence was previously interrogated or subjected to coercive measures in connection with his own contribution to the offence only, this does not rule out the granting of state’s evidence status.
It is often difficult to assess in advance if the new facts or evidence communicated by a person who could potentially be granted the status of state’s evidence are really substantial in nature, especially at the beginning of an investigation. The value of the contribution to the investigation of a criminal offence will usually only become apparent in retrospect. Therefore, if a person seeking to turn state’s evidence discloses new information, such status should be granted (for the time being) unless the prerequisites are not met from the outset. Thus, the offence must meet the criteria for the granting of state’s evidence status on the one hand, and the prosecution must ex ante consider the contribution useful for the extensive investigation of the case, on the other hand. The relation between the nature and scope of the contribution which the person potentially eligible for state’s evidence status made to the offence and the weight of the information contributed to the investigation is also relevant for the decision on whether to grant state’s evidence status or not. The offence committed by the person wishing to turn state’s evidence must not outweigh the value of his contribution to the investigation of the offence.
In the event that the prosecution affirms (for the time being) that the conditions for granting state’s evidence status have been met, the public prosecutor's office will provisionally withdraw from prosecution if the person turning state’s evidence performs one of the acts provided for in sections 200 to 203 of the Code of Criminal Procedure. At the same time, he will be ordered to continue cooperating in the investigation of the offences. In return for the (provisional) withdrawal from prosecution, the following acts may be called for:
- the payment of an amount of money (to be set in proportion to the weight of the offence underlying the proceedings for granting state’s evidence status and the economic capability of the person granted such status)
- community service or
- a period of probation in combination with instructions and cooperation with probation services
The public prosecutor's office in charge of the investigation will decide on the type and scope of the act to be performed.
However, even if the person granted state’s evidence status fulfils the obligation imposed on him, the public prosecutor's office may resume prosecution under certain circumstances. This would in particular be the case if the person granted state’s evidence status breaches his duty to cooperate with the public prosecutor's office or if it turns out that the documents or information provided were false (a person turning state’s evidence must not lie) or if - in retrospect – they did not make a substantial contribution to establishing the truth.
The case against the person who turned state’s evidence must at the latest be dropped after the perpetrator was convicted with the substantial assistance of that person and such judgment became final and unappealable.
The conclusion to be drawn from these considerations is that the disclosure of one’s own contribution to an offence and the offer of cooperation with the investigating authorities always also come with a risk for the person wishing to turn state’s evidence. This is because the public prosecutor's office may find - either immediately after information was disclosed or when deciding whether to continue prosecuting - that the information provided was not essential to establishing the truth, and consequently, the privileges with regard to the prosecution and punishment in return for information will no longer apply. At the most, contributions to establishing the truth which are not sufficient for the granting of state’s evidence status may be taken into account as attenuating circumstances pursuant to section 41a of the Criminal Code when the sentence is meted out. However, this form of attenuating circumstances is only applicable to offences connected to a criminal or terrorist organisation – a fact which is actually not fully comprehensible.
If you have any questions, please do not hesitate to contact the KWR white collar crime law team.
[1] For ease of reading, the generic masculine form will be used in this blog post. Designations used in this article with regard to persons refer to all genders.