General rule of active repentance
According to Art 167 Austrian Criminal Code (ACC) active repentance supersedes any liability for certain property crimes such as embezzlement, fraud, offences of dishonesty or misuse of funds. A perpetrator may benefit from active repentance if he (i) fully rectifies any damage caused by the offence or (ii) enters into a contractual obligation to fully compensate the victim within a set period. Furthermore the law contains a timeliness requirement as it clearly defines that this must be done before the authorities become aware of the person's culpability. The victim, however, may be aware of the offence and may also urge the perpetrator to commit to active repentance. Still, the perpetrator must commit to active repentance voluntarily and may not be forced to do so.
If the perpetrator is not able to compensate the victim – e.g. because he does not know the victim's identity or is not able to get in touch with the victim – he may still benefit from active repentance if he fully rectifies any damage caused by the offence after reporting his culpability to the authorities and deposits the relevant compensation with the authorities. A perpetrator who genuinely seeks to rectify the damage is also not liable if a third person in his name fully rectifies any damage or fully compensates the victim.
As mentioned, it is also sufficient to enter into a contractual obligation with the victim to compensate him or her within a certain period of time. In criminal cases with high damages this is often very useful. The perpetrator can commit to compensating the victim for all damages within a feasible timeframe; while the victim will be fully reimbursed and can close the unpleasant case. In this regard it is important to consider the following requirements:
- (a) The contractual obligation must cover any damages caused by the offence. Even in cases in which victims would be willing to agree on a lower amount the perpetrator only benefits from active repentance if the contractual obligation covers the full amount.
- (b) It is necessary that given the term of the instalments it is realistic and expectable that all instalments will be paid. In a recent case the Austrian Supreme Court decided that if the respective term exceeds the average life span (in this particular case 240 years) this requirement is not met (cf RS0131082).
Exceptions from the general rule
The ACC contains specific offences that allow active repentance but don’t follow the general rule described above and defines a specific regime for these. One of these offences is money laundering (Art 165 ACC). According to Art 165a ACC active repentance is possible in case the perpetrator "secures essential parts" of the assets that are subject to the money laundering for the Austrian authorities. Such securing must also be voluntary and timely, meaning that the perpetrator must secure the assets of their own free will prior to the Austrian authorities becoming aware of the offence. The law does not explicitly say how the assets need to be secured.
The main difference is that the provision explicitly refers to securing the assets towards the Austrian authorities. Therefore, from the wording of the provision, compensation to the benefit of the victim of the predicate offence is not sufficient for active repentance. Based on this, in case the perpetrator of money laundering fully compensates the victim of the predicate offence – timely and voluntarily – active repentance is only possible by way of analogy. This question will ultimately need to be answered by the Austrian Supreme Court.
Active repentance can be a very useful tool – not only for the perpetrator. In case the victim is a company which has no benefit from triggering criminal proceedings as the sole focus is to retrieve lost funds it might be very practical to approach the perpetrator and discuss entering into a contractual obligation. It is not harmful if the initiative for this comes from the victim as long as the perpetrator is not forced to do something and agrees voluntarily.