Update: Austrian government publishes bill on contribution to defence costs in criminal proceedings

Bill brings further positive changes…

The draft bill provided for two scenarios in which a contribution to costs could have been granted: termination of the pre-trial proceedings or acquittal after the trial. After receiving criticism from various sources, even from public authorities, the contribution to defence costs has justly been extended to cases in which the pre-trial proceedings have already been concluded, i.e. an indictment has been filed, but the suspect was not acquitted only after the hearing. Such scenarios can occur after the successful filing of an appeal against the indictment or if the prosecutor's office withdraws from the indictment before the trial.

The second major positive amendment concerns the specification of the transitional provision. According to the draft bill, the new provisions should have been applicable retroactively to all acquittals and terminations in pre-trial proceedings after 1 January 2024. This provision has been criticised in various statements filed within the review period (Begutachtungsverfahren) for not addressing whether new requests for contribution to defence costs can be filed even if a contribution has already been granted based on the old legal status. Only the Austrian Bar (ÖRAK) and the Austrian White Collar Crime Association (AWCCA), of which Oliver M. Loksa is the president, demanded such an extension. Fortunately, the Austrian government agreed.

On a minor but still potentially relevant note, the government also followed the AWCCA when it exclusively raised an imprecision included in the initial draft bill. The bill now explicitly provides that the new provisions are applicable to cases terminated or suspects acquitted "from" ("ab") and not "after" ("nach") 1 January 2024.

… but deficiencies remain.

The new provisions continue to not provide for a proper reimbursement of all necessary and useful (notwendig und zweckmäßig) legal costs. In particular, the relatively modest cap for scenarios where pre-trial proceedings are terminated (max. EUR 12,000) does not reflect the reality of white collar crime proceedings. The new provisions might continue to make it difficult for suspects to engage in pre-trial white collar crime proceedings or might even discourage them from doing so.

In addition, it would have been preferable if the government bill, or at least the explanatory notes on the draft bill (Erläuternde Bemerkungen zur Regierungsvorlage), had more clearly specified the criteria for determining the contribution to costs and the corresponding amounts. As currently constituted, much will depend on the courts' interpretation of the law.

Conclusion

As already stated in the last Legal Insight addressing the government bill, the new legal situation offers a vast improvement for former suspects, especially after analysing the amendments undertaken in the bill to be adopted. It is good to see that some of the criticism directed at the initial draft bill has not gone unheard.

At the same time, criminal law sanctions are increasingly being used as tools to address the civic agenda. It is therefore to be hoped that the adequacy of the new legal system will be evaluated in due time.

authors: Oliver M. Loksa, Marc Cistota