Active Repentance. Basic Questions Regarding the Timeliness and Voluntary Nature of Damage Compensation

.SIAK-Journal – Journal for Police Science and Practice

Soyer, Richard/Pollak, Sergio (2017):

Active Repentance. Basic questions regarding the timeliness and voluntary nature of damage compensation

SIAK-Journal − Journal for Police Science and Practice (International Edition Vol. 7), 32-43. doi: 10.7396/IE_2017_D

Please cite this articel as follows:

Soyer, Richard/Pollak, Sergio (2017). Active Repentance. Basic questions regarding the timeliness and voluntary nature of damage compensation, SIAK-Journal − Journal for Police Science and Practice (International Edition Vol. 7), 32-43, Online: http://dx.doi.org/10.7396/IE_2017_D.

Note: A hard copy of the article is available through the printed version of the SIAK-Journal published by NWV (http://nwv.at). published online: 9/2017 .SIAK-InternAtIonAl edItIon 2017

Active Repentance Basic questions regarding the timeliness and voluntary nature of damage compensation

The legal institution of active repentance in the case of property crimes pursuant to Section 167 of the Austrian Criminal Code (StGB) is an internationally recognisable core element of the Austrian (criminal) legal culture. Active repentance enables the peaceful reconciliation of perpetrators and victims, and is thus, so to speak, a door-opener towards restorative justice. Active repentance completely compensates for the legal con sequences of the particular concluded and reprehensible property crime. The perpetrator is thus exempt from punishment by being positioned as though he had never formally committed the crime. This legal institution enjoys a great deal of acceptance in the country. The Austrian regulation partially provokes astonishment in related (criminal) jurisdic RICHARD SOYER, tions. The fact that positive behaviour after the infringement – in the form of restitution Head of the Department of Corporate for damages – does not merely reduce the punishment, but removes the punishment in Criminal Law and Criminal Law Practice at the Institute of Criminal toto, is something special in any case. In the opinion of the authors, the legal institution Law Sciences at the Johannes Kepler of active repentance has its full justification in the Austrian legal system. By the meeting University in Linz. of existential interests of the victim and the accused, it seems only in keeping with the notion that the state should take a step back with its requirement for prosecution and provide an attractive possibility to the involved parties to solve the “problem” them selves. The Austrian regulation of active repentance currently is a kind of driving force in Germany for reform ideas desirable from the perspective of the victim. There is also a certain need for action in Austria in terms of legal policy: The extension of the applic ability of the regulation to at least Section 136 of the Austrian Criminal Code (unauthor ised use of vehicles) is indicated, since it is, de lege lata, contrary to the system if the car thief can become exempt from punishment by active repentance (Section 127 of the Austrian Criminal Code), but at the same time, the temporary (car) thief who has made unauthorised use of a motorised vehicle is punished despite repentance for his behaviour. SERGIO POLLAK, Furthermore, making a wider repentance regulation available for crimes related to the Project Staff Member in the protection of non-cash means of payment (Sections 241a ff. of the Austrian Criminal Department of Corporate Criminal Law and Criminal Law Practice Code), which have a certain proximity to property crime, must be considered. at the Institute of Criminal Law Sciences at the Johannes Kepler University in Linz.

I. INTRODUCTION looks back on a long legal tradition and The legal institution of active repentance in development.1 This extremely practical the case of property crime (Section 167 of provision, indispensable in the Austrian the Austrian Criminal Code) is a peculiarity Criminal Code, provides the opportunity of Austrian (criminal) legal culture and for perpetrators of non-violent property

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crime (see para. 1 leg. cit.) to actively re Nevertheless, it is correctly understood as move an arisen criminal liability under an independent legal institution. certain conditions. Active repentance gives perpetrators and II. LEGITImACY Of ACTIvE victims the possibility for peaceful recon REPENTANCE ciliation, and is thus a door-opener towards It is interesting to consider why the (his restorative justice. torical) legislator opted for this legal insti The concept of active repentance is not tution in the case of property crime and a recent invention: the Josephine Criminal how the generously designed “loophole” Code contains a provision which is at back into legality is now legitimised in the the core of the current norm.2 This legal Austrian Criminal Code. institution has subsequently undergone changes which are reflected in the broad 1. THEORY Of CRImINAL field of application in force today. jUSTICE According to the prevailing view, active In the first place, this rule can be justified repentance is understood as a personal by the prevailing theory of criminal jus basis for the suspension of punishment.3 tice, although it must be noted that this The criminal, system-contrary, culpable, theory is “slightly” vague,9 which cannot reprehensible and concluded (proper be discussed further here. ty) crime is “neutralised” by the remedy According to the theory of criminal jus and the perpetrator is rendered exempt tice, the perpetrator of a concluded repre from punishment ex tunc. In short, active hensible property crime performs a special repentance wholly compensates for the preventative contraindication through his punishment arising as a legal consequence timely “voluntary” contrarius actus and re of the (concluded and reprehensible) socialises himself, so to speak.10 In short, property crime,4 although the perpetrator punishment is not (or no longer) needed to enters the punishment stage for at least a deter the perpetrator from further criminal brief moment.5 The law thus renders the offences. The perpetrator, by means of his perpetrator exempt from punishment, as voluntary and timely repentance, illustrates if he had never committed the crime in that it was wrong to commit the property question. 6 crime.11 Through this out-of-court proce It should be noted that active repentance dure, he expresses the fact that he wants is fundamentally only possible in the case to continue to live integrated in society.12 of concluded crimes.7 This regulation, At the same time, the perpetrator makes which is largely accepted in the country, amends with the victim, as he returns the partially causes astonishment in other re victim to its former state, i.e. before the lated (criminal) jurisdictions. Admittedly, property offence.13 it appears peculiar that positive behaviour Furthermore, the remedies create a gen after the infringement – in the form of res eral preventive effect, since the common titution for damages – does not merely ality of crimes is prevented in that the reduce the punishment, but removes it in perpetrators’ awareness of the validity toto. Due to a similar telos and its legal of norms is strengthened and they can, construction, Section 167 of the Austrian by their act of repentance, recognise the Criminal Code possesses a certain prox basic validity of rules.14 These considera imity to the withdrawal from the attempt tions eliminate criminal purpose – if the (Section 16 of the Austrian Criminal Code).8 conditions of Section 167 of the Austrian

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Criminal Code are present at the same terised by “restoring justice” by the per time – ex tunc,15 and the punishment as petrator. In the case of active repentance, an actual or compulsory substantive legal perpetrators and victims generally restore consequence is rendered superfluous in a the rightful state (together). At the same modern prevention-based criminal legal time, the state puts its right to criminal system.16 justice into the background.22

2. vICTImOLOGICAL APPROACH This legal institution also takes effect However, the intention of the (historical) long before alternative compensation for legislator is not only understood today the crime (see Section 204 of the Austrian from the point of view of the perpetrator, Code of Criminal Procedure [StPO]) and as granting the perpetrator complete impun is based on the “all-or-nothing principle” ity by means of material criminal law. It with respect to criminal sanctions. After should now be scrutinised from the victimo all, it is not merely a question of reduced logical point of view whether Section 167 sentence (see also Section 34 (1) 15 of the of the Austrian Criminal Code reflects Austrian Criminal Code). On the contra the interests of the victim or is (at least ry, in the case of active repentance, the partially) borne by this. natural restitution within the meaning of Against this backdrop, it is even sup Section 1323 of the Austrian Civil Code ported that in the case of active repentance, (ABGB) (argumentum: compensating for the victim-oriented perspective is brought the damage suffered)23 is also striven for to the fore.17 This can also be substantiated above all, and in some cases, the reversal historically and teleologically.18 of the unlawful property transfer or damage (= monetary replacement) is, too.24 The In order to investigate a criminal offence active repentance therefore reflects the car concerning its efficiency and its legal and dinal and, as it were, fundamental interests political legitimacy from the point of view of the victim, as it helps the victims ob of the victim, one has to ask the question, tain compensation quickly and generally “what do victims actually want”. It is clear smoothly.25 In addition, the situation in the from empirical investigations – especially case of property crime is characterised by victim surveys – that victims’ compensa a certain peculiarity. If the outcome of a tion is one of the most important issues in crime affects the legally protected right of a criminal case.19 In short: victims of prop life and limb, then it is in fact impossible to erty crimes want a replacement.20 In addi establish the state before the crime. In these tion, the majority of all victims of crime – cases, the primary concern is compensation meaning not only those of property crime – for the non-material damage (e.g. compen favour a “combination of civil and crimi sation for pain and suffering). The victims’ nal proceedings”.21 interests are completely different in the Simply put, the victim, above all, wants case of property crime, where damages the spoils or the property assets back from are by their nature exclusively material the swindler. As a result, victims of prop damages. This case is a priori concerned erty crime primarily wish to be restored to with eliminating the state perpetuated by the position they were in before the crime. the crime and restoring the original state – The timely and, as it were, voluntary be before the crime – in accordance with the haviour after the crime – which constitutes law, insofar that this is within the realm of active repentance – is therefore charac possibility. Of course, this is different in

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the case of property damage (Section 125 actus, which reverses (= neutralises) his of the Austrian Criminal Code). entire previous criminal behaviour and thus uno actu also replaces the punishability 3. ULTImA RATIO PRINCIPLE? in the presence of the statutory prere The legitimacy of Section 167 of the Aus quisites of Section 167 of the Austrian trian Civil Code can also be discussed Criminal Code. In this respect, the situa from the point of view of the ultima ratio tion in question is fundamentally different principle.26 According to this, punishment from those in which the punishment per se should be treated restrictively. The “crimi is questioned. nal law club” should only be reverted to Furthermore, an appeal to the ultima if all other mechanisms fail. In short: in a ratio principle appears to be doubtful from modern legal system, punishment should another point of view: eventually, the con be reduced to the absolutely essential level.27 cluded crime is highlighted here. The le The approach of justifying active re gislator states that it is a criminal offence pentance with the ultima ratio principle in the time before the trial stage (Section is not convincing. If one speaks about 15 of the Austrian Criminal Code), which ultima ratio, then it is about the justifica renders a discussion about whether crimi tion of punishment per se, i. e. whether the nal liability applies invalid in this respect. punishment should be applied. The basic idea of active repentance should be strictly 4. INTERIm RESULT differentiated from the ultima ratio princi It can thus be concluded as an interim ple. In Section 167 of the Austrian Criminal result that active repentance in property Code, a concluded crime must be present crimes can be based on two principles: as a prerequisite – at least for a “logical se The absence of a criminal purpose and the cond”. In order to remove the prerequisites victimological orientation of the norm in of the punishment, they must first exist. dicate that active repentance is equally in Therefore, in the case of Section 167 of the interest of victims and perpetrators. the Austrian Penal Code, an act committed illegally and culpably has to exist – even if III. PREREqUISITES Of ACTIvE for a very short time. REPENTANCE

The objection raised here is of a defini 1. TImELINESS tional nature, because it is not terminolo The legislator defines a timeliness require gically correct to speak of the subsidiary ment in its unfortunate wording “before of criminal law in this constellation, since the authority was aware of the culpability”. the prerequisites for punishment exist for But how can an authority (Section 151 (3) a short time. The continuation of this con Austrian Criminal Code) know of some sideration in the case of Section 167 of the thing that a criminal procedure has to clari Austrian Criminal Code rather concerns fy first? In this context, “culpability” can whether unpleasant punishment is no only mean the anticipation of the outcome longer needed as the “compulsory” legal of the process at the time of the repentance. consequence of the concluded crime only Namely, from the ex ante point of view of if the perpetrator “restores” the original the (tangible) suspicion28 that someone has situation, i.e. the conditions before the committed the crime in question. In other crime. The perpetrator rehabilitates him words, the suspicion of having committed self in these situations by his contrarius a criminal property offence that has been

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perpetrated in an unlawful, illegal and of these past investigation findings up to culpable manner must fall upon a specific the repentance behaviour (without any initiator and demonstrate a connection bet doubt). In other words, the material collec ween crime and perpetrator. tion significant in terms of culpability is in How, however, must this suspicion be this regard a constant in the entire process. lodged? It is indisputable that this has to be The findings and results of the investiga determined objectively.29 The principles of tion which were determined after this tem officiality and legality are equally decisive poral limitation may no longer be taken for this concept of suspicion. The principle into account for the purpose of assessing of investigating the material truth also suspicion. This leads to a strict “ban on inno plays a decisive role, since law enforcement vation” for the assessment of timeliness, authorities have to determine the material which is derived from the telos of Section truth without bias and with impartiality30 167 of the Austrian Criminal Code. (Section 3 of the Austrian Code of Crimi However, if the investigating authority nal Procedure [StPO]). The Austrian Code is purely one-sided and not objective from of Criminal Procedure determines the con the outset, and only determines a “situation cept of suspicion (fundamentally). This of suspicion” on a random basis – with the understanding of suspicion, which forms exclusion of other procedural-relevant the basis of the Austrian Code of Criminal eventualities (Sections 2 f. of the Code of Procedure, must therefore be consulted Criminal Procedure) –, then in reality there with regard to the interpretation of the is no suspicion, rather a mere “subjective culpability. speculation of suspicion” due to the one sidedness of the investigation. In these 1.1 moment of judgement cases, – despite an (accidentally) correct The time to the damage compensation or result – a (speculative and) merely sub liability is decisive in the judgement of the jective conviction prevails.32 This convic suspicion. This temporal factor determines tion is therefore not sufficient to rule out the limits for the public prosecutor’s office timeliness, as the suspicion is not based and the court in the evaluation of the ma on an objective result of the investigation terial collection that is significant in terms (infringement of objectivity).33 The sus of culpability. pect should namely not be the victim of an “out-of-process” investigation, which 1.2 Objective determination of results cannot be reconciled with the principles of as the basis for analysis of suspicion the Austrian criminal procedure (Sections Accordingly, only the state of the investi 2 f. of the Code of Criminal Procedure). The gation up to the date of the damage com axiom of suspicion is therefore its empiri pensation or liability must be taken into cal-objective foundation and, as it were, its account for the timeliness requirement rational verifiability. For the investigating of Section 167 of the Austrian Criminal authority, the suspicion of crime must arise Code.31 On the basis of this “petrified” in from the investigation without doubt. The vestigation, the public prosecutor’s office acid test is whether an objective, reason or the court in the criminal proceedings has able investigator would have additionally to assess the legal question as to whether explored the truth in another direction of the authority has already learned of the suspicion in the specific situation. defendant’s culpability. The suspicion In the case of an infringement of the ex must therefore be derived from the results ploration of truthfulness by the authority,

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that is, in the mere acquisition of a (spe according to the prevailing view.35 Such a culative and) subjective conviction, this suspicious interpretation seems too narrow one-sided result must be compared with a in view of the victimologically oriented hypothetical, objectively determined ma ratio legis,36 since the perpetrator is given terial collection substratum – just like the the incentive for, and the victim the chance investigation procedure lege artis should of, fast or uncomplicated satisfaction. An have been carried out. This hypothetical investigation merely on the basis of an ini material collection substratum must also tial suspicion (in the sense of Section 1 (3) be able to dispel with practical certainty of the Code of Criminal Procedure) and the existing, non-objectively determined one against a mere suspect (Section 48 (1) suspicion (= relevance of results) – which of the Code of Criminal Procedure) cannot can only apply in extreme cases of arbi rule out timeliness. trary (Art. 7 (1) of the Federal Constitu Correctly, one will have to assign the tional Act in conjunction with Art. 2 of the specific suspicious situation, which reveals Basic Law on the General Rights of Nation- a specific condensed connection between als [StGG]) and one-sided investigation. perpetrator and the deed according to time, Therefore, if the suspicion is not as crystal place, object and modus operandi37 and at clear in the course of a properly conducted the same time – above all from the point investigation as in the case of disregarding of view of a criminal procedure – acts as other potential offenders, one cannot speak a material distinction between the accused of an objective finding (which must serve and (mere) suspects.38 The suspicion can as the basis of suspicion). only be assessed in a systematic way like The interpretation of the timeliness pre in Section 170 of the Code of Criminal sented here is consistent with the legiti Procedure.39 In any case, a specific suspi mating purposes of Section 167 of the cious situation exists when there are indi Austrian Criminal Code, as it leaves the cations (= distinct signs) that suffice for possibility of active repentance open to the an objective, reasonable observer to hold perpetrator, thereby also giving the victim the said person (specifically) suspect40 – a better chance of effective and uncompli or to put it another way, as the perpetra cated compensation. tor.41 The specific suspicious situation can result from official investigations or from a However, it is debatable how “intensive report from the victim or a third party.42 If ly” this objective suspicion must be deve further sole offenders – not accomplices – loped. Section 167 of the Austrian Criminal are questioned, there is no specific suspi Code does not set a standard, therefore, the cion.43 A simple probability is sufficient concept of culpability must be reintroduced for the analysis of suspicion.44 again with the understanding of suspicion defined in the Code of Criminal Procedure 1.3 Analysis of suspicion within the framework of a systematic over The suspicion must therefore be derived all view. from the fact that a specific person has com In the first place, this could mean an initial mitted the crime known to the authority. suspicion (in the sense of Section 1 (3) of However, the meaning of “learn of culpa the Code of Criminal Procedure). In the bility” is debatable. Since an authority as initial phase of the process, however, there part of the state organisation cannot learn is simply a vague suspicion34 which can anything and thus cannot grasp the infor not properly suffice for active repentance mation intellectually, it can only mean the

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reception of the information giving rise to norms.51 The generous conception of ac suspicion at the authority’s sphere of influ tive repentance also reflects the protection ence.45 This view seems too general for us, of the victims’ interests, which explains as it can only apply in cases where the sus the generous regulation of voluntariness.52 picious circumstance is obtained unequi Therefore, it is only appropriate to assess vocally and in an almost intrusive manner the requirement of voluntariness of Section from the information received (whether in 167 in the Austrian Criminal Code auto video format, or as a document, etc). In all nomously from Section 16 of the Austrian other cases, on the other hand, timeliness Criminal Code. More precisely, the phrase would exist until the evaluation of the in “lack of coercion” should be used instead formation, and therefore, active repentance of the term “voluntariness” in order to pre would (still) be possible for the perpetrator vent errors.53 If the perpetrator only per pursuant to Section 167 of the Austrian forms active repentance in order to avoid a Criminal Code.46 report or prosecution, this does not exclude the attribute of voluntariness.54 2. LACK Of COERCION In any event, the “voluntariness” is ex (“vOLUNTARINESS”) cluded if the compensation is taken from Pursuant to Section 167 (2) of the Austrian the perpetrator by means of physical coer Criminal Code, the perpetrator is entitled cion, whether by the victim or a security to exemption, “if he, [...], even if forced by organisation.55 This originates from the the injured party, yet without being com following logic: an item violently removed pelled to do so”, undertakes to remedy the from the perpetrator cannot be recorded as situation. The “voluntariness” is therefore an act of voluntariness on the part of the interpreted differently and more gener perpetrator. The quoted expression of the ously than in the case of rescission from legislative language also functions as cor the attempt (Section 16 of the Austrian rective if the damage compensation has Criminal Code). According to case law47 , become almost unavoidable – in a hopeless this involves a certain asymmetry with re situation – from the point of view of the gard to the possibilities to return to com perpetrator.56 In this case, the perpetrator pliance in itself. is only anticipating the physical coercion. Prima vista, the perpetrator cannot be The concept of coercion in Section 167 of compelled to repentant behaviour pursu the Austrian Criminal Code is therefore ant to Section 167 of the Austrian Criminal regarded as physical coercion.57 In such as Code. The “voluntariness” is therefore to be a situation, the perpetrator is (hopelessly) interpreted in the case of active repentance “forced” into repentance. In any event, the by the adoption of norm-specific teleologi (subjective) assessment of the perpetrator cal aspects.48 The doctrines for rescission is decisive.58 from the attempt49 are not easily transfer able due to the differently supported legal In summary, the repentant behaviour is foundation.50 The legislator did not use the compelled if the perpetrator assumes that word “voluntarily” in Section 167 of the if he does not surrender the spoils himself, Austrian Criminal Code; instead, it used they will be immediately and forcefully the expression “without being compelled taken away from him anyway.59 In these to do so”. This systematic distinction in situations, he has been deprived of his auto wording suggests unequal treatment of nomous decision, since he – no matter how the requirements of voluntariness in both he behaves – will always end up without

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the spoils. If, consequently, the perpetra by for example sending the item back by tor could easily refuse to compensate the post.69 However, it should be noted here damage or simply refrain from doing so, that the perpetrator bears the risk of pro voluntariness exists a contrario.60 As the law viding damage reparations.70 The fact that already clarifies, the urging of the injured the victim refuses damage reparations does party does not impact active repentance. not preclude immunity from prosecution if the perpetrator provides compensation (at 3. fORmS Of ACTIvE any time) for the victim or deposits it with REPENTANCE the authority.71 Active repentance can be committed by compensating for damages, by a contrac 3.2 Obligation to compensate for tual obligation to compensate for damages damages (para. 2 item 2 leg. cit.) or by voluntary declaration and payment. Likewise, the perpetrator is granted active Para. 4 leg. cit. provides the possibility of repentance if he “is contractually required a “putative repentance” to the perpetrator. to compensate for the damage to the injured party within a certain time”. This consen 3.1. Damage compensation sual reimbursement of damages between (Para. 2 item 1 leg. cit.) perpetrator and victim suffices – at least for The perpetrator “is granted active repent temporary immunity from prosecution –, ance if he compensates all the damages as long as the perpetrator adheres to it.72 In caused by his act”. He must therefore com the case of non-compliance, punishability pensate for all the damage resulting from resumes in accordance with the last sen his act through the restitution of the goods tence of Section 167 (2) 2 of the Austrian or through (monetary) replacement.61 The Criminal Code. This non-compliance is compensation method is based on the in therefore the resolutive condition (dis dividual case62 of the respective crime and solving condition) regarding the suspen is not at the discretion of the perpetrator.63 sion of punishment. The perpetrator is He must return the victim to the state be therefore subject to performance risk, fore the crime pursuant to the nature and whereby it is not due to his own fault.73 extent of Section 1323 of the Austrian The contract for the reimbursement of Civil Code.64 In this case, proceeding from damages can be concluded either verbally an objective, abstract calculation of the da or in writing. Essentialia negotii shall be mage, normally only direct damage is to the numerical name of the entire damage be compensated.65 Full compliance in the to be remedied and the corresponding sense of Section 1324 of the Austrian Civil calendar period.74 The contractually de Code is not required by Section 167 of the fined payment must correspond to the Austrian Criminal Code.66 As a general full amount of the damage.75 If the actual rule, consequential damages are not to be damage exceeds that agreed in the con compensated.67 However, it is very impor tract, active repentance is categorically tant to take into account any reduction in excluded. It is therefore advisable from the value of the object when compensat the point of view of the perpetrator to pay ing for the damage, e.g. if the item was more in order to minimise the risk of the damaged by the crime.68 resurgence of punishability. The perpetrator can also undertake the damage compensation anonymously or without the cooperation of the victim,

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3.3 Payment in the case of voluntary 4. SUmmARY AND OUTLOOK declaration (Para. 3 leg. cit.) In conclusion, it should be noted that the The perpetrator will also gain immunity legal institution of active repentance has its from prosecution if he compensates for justification in the Austrian legal system. “the entire damage resulting from his Through the meeting of the interests of the crime by means of a voluntary declaration, victim on the one hand, and the accused which discloses his culpability to the on the other, it is therefore in keeping with authority (Section 151 (3)), and by pay the notion that the state should take a step ment to this authority”. The authority may back with its prosecution requirement and also not have been aware of the culpability enable the “stakeholders” to wipe the slate until the voluntary declaration according to clean “themselves”. para. 3 leg. cit. The voluntary declaration It is internationally recognised as a cor must reveal the culpability to the author nerstone of Austrian legal tradition and ity, i.e. to bring new insights.76 The phrase has the potential to be the impetus in other “in the course of a voluntary declaration” European countries (currently in Ger presupposes a temporal and manipulative many) for reforms desirable from the point connection between voluntary declaration of view of the victim.79 and payment.77 De lege ferenda, extending active re Payment is not to be understood in such pentance at least to Section 136 of the a way that the perpetrator must physically Austrian Criminal Code (unauthorised use surrender the item immediately in the case of vehicles) is also to be considered in of a voluntary declaration, or, in the truest Austria, since it is, de lege lata, contrary sense of the word, lay it on the table. On to the system if a car thief can become the contrary, an effective payment is enough exempt through active repentance (Sec here, i.e. if the perpetrator ensures the im tion 127 Austrian Criminal Code), but at the mediate receipt of the item to the injured same time the temporary (car) thief who party.78 has made unauthorised use of a motorised vehicle is punished despite repentance for 3.4 Damage compensation by a third his behaviour.80 In the same sense, it should party (Para. 4 leg. cit.) be considered on a legal and political level In addition, the seriously committed per to make a wider repentance regulation petrator can benefit from the immunity available with regards for crimes related from prosecution if a “third party or to the protection of non-cash means of another person participating in the crime payment (Sections 241a ff. of the Austrian (Section 12 of the Austrian Criminal Code) Criminal Code), which have a certain prox compensates for the resulting damage in imity to property crime, since it can lead to his name pursuant to the conditions set out unfair results in certain constellations – in in para. 2”. comparison to repentance possibilities for property crime.81

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1 Liebscher in WK-StGB § 167 Rz 1; AT II Kap 20 Rz 85; Lilie/Albrecht in 30 Schmoller in WK-StPO § 3 Rz 17 ff.; Kienapfel, BT3 § 167 Rz 1; Burgstaller in LK12 § 24 Rz 15. Fabrizy, StPO12 § 3 Rz 4. FS-Platzgummer 97. 15 Leukauf/Steininger, StGB3 § 167 Rz 2; 31 Kirchbacher in WK-StGB 2 § 167 Rz 35. 2 Kienapfel, BT3 § 167 Rz 1. Schroll, ÖJZ (1985) 358; Burgstaller in 32 Cf. 10 Os 98/80, 11 Os 203/82. 3 Tschulik, ÖJZ (1973) 653; Fuchs/Reindl- FS-Platzgummer 99 and 100 f. Cf. Rück 33 For more details on the procedural Krauskopf, BT I5 § 167 281; Lewisch, BT tritt vom Versuch E. Steininger, AT II Kap aspects of objectivity in criminal proceed I2 § 167 294; Kirchbacher in WK-StGB 2 20 Rz 85; Triffterer, AT2 Kap 15 Rz 50; ings: Schmoller in WK-StPO § 3 Rz 17 ff. § 167 Rz 1; Rainer in SbgK § 167 Rz 2; Tipold, Rücktritt 20 f.; Baumann/Weber/ and 84 ff.; Vogl in WK-StPO § 91 Rz 3. Kienapfel, BT3 § 167 Rz 9; Müller-Dietz, Mitsch, AT11 § 27 Rz 8; Roxin, AT II § 30 34 Seiler, Strafprozessrecht14 Rz 186. ÖJZ (1977) 343; see also Finger, Straf Rz 4; Rudolphi in SK8 § 24 Rz 4 mN; see 35 Rainer in SbgK § 167 Rz 28; Kirchbacher recht I3 869 ff.; Jeschek/Weigend, AT5 also Gössel in Maurach/Gössel/Zipf, AT8 in WK-StGB2 § 167 Rz 38; Kienapfel, BT3 548. § 41 Rz 31; Lilie/Albrecht in LK12 § 24 Rz § 167 Rz 50. 4 Roxin, AT I4 § 23 Rz 4. 15, BGHSt 9, 48, 52. 36 Related: Rainer in SbgK § 167 Rz 28. 5 Cf. Medigovic/Reindl-Krauskopf, AT II 16 Cf. Rücktritt vom Versuch Baumann/ 37 Rainer in SbgK § 167 Rz 28; Leukauf/ 249. Weber/Mitsch, AT11 § 27 Rz 8. Steininger, StGB3 § 167 Rz 16; Kienapfel, 6 See Kirchbacher in WK-StGB 2 § 167 17 Schroll, ÖJZ (1985) 358; Burgstaller BT3 § 167 Rz 50; Lewisch, BT I2 § 167 Rz 128. in FS-Platzgummer 100 ff.; Bertel/ 295 f.; Fuchs/Reindl-Krauskopf, BT I5 7 Kirchbacher in WK-StGB2 § 167 Rz 2 and Schwaighofer/Venier, BT13 I § 167 Rz 1; § 167 282 f.; further applicable: OGH 4; Tschulik, ÖJZ (1973) 653; RS0110959; Rainer in SbgK § 167 Rz 2. 10 Os 98/80 = EvBl 1981/139. also: 11 Os 97/98; does not apply to at 18 See in detail: Burgstaller in FS-Platz 38 Markel in WK-StPO § 1 Rz 27. tempts: see RS0090510; 12 Os 26/79; 11 gummer 102. 39 Fabrizy, StGB11 § 167 Rz 9. Os 35/81; 13 Os 97/81; 12 Os 12/82. 19 Sautner, Opferinteressen 297 ff. 40 Bertel/Venier, StPO § 48 Rz 1: zum 8 Kienapfel, BT3 § 167 Rz 4; Schroll, ÖJZ 20 Sautner, Viktimologie 188; id., Opfer Beschuldigtenbegriff; see also Bertel/ (1985) 357 f. interessen 297 ff.; Sautner/Unterlerchner, Venier, StPO § 170 Rz 2; Fabrizy, StPO12 9 Cf. § 167 StGB Burgstaller in FS Platz ÖJZ (2014) 64: zur Gesamtheit aller Opfer; § 170 Rz 2; Kirchbacher/Rami in WK- gummer 99, 100 und 102; Müller-Dietz, cf. Wiener Zeitung (2015). StPO § 170 Rz 5. ÖJZ (1977) 351; cf. RS0095166; for (si 21 Kilchling, Opferinteressen 349 f.; Sautner, 41 Leukauf/Steininger, StGB3 § 167 Rz 16; milarly recorded) rescissions in German Viktimologie 94 ff; id., Opferinteressen Liebscher in WK-StGB § 167 Rz 19. professional literature (§ 24 dStGB), see 297 ff. and 203 f. 42 Lewisch, BT I2 § 167 295. also: Lilie/Albrecht in LK12 § 24 Rz 20; 22 Moos, ZStR 1993 74; Rainer in SbgK 43 Bertel/Schwaighofer/Venier, BT13 I Herzberg/Hoffmann-Holland in MK2 § 24 § 167 Rz 2. § 167 Rz 13. Rz 32 ff. 23 Kirchbacher in WK-StGB 2 § 167 Rz 50. 44 Kirchbacher/Rami in WK-StPO § 170 10 Cf. Rücktritt vom Versuch Tipold, 24 Kienapfel, BT3 § 167 Rz 31. Rz 5. Rücktritt 20 f. and 24; E. Steininger, AT 25 Rainer in SbgK § 167 Rz 2; as well 45 Cf. Kirchbacher in WK-StGB 2 § 167 II Kap 20 Rz 85; Fuchs, AT8 Kap 31 Rz as Bugelnig in Lagodny, Strafrechtsfreie Rz 32; Liebscher in WK-StGB § 167 Rz 19. 7; Schroll, ÖJZ (1985) 358; as well as Räume 65. 46 Cf. Kirchbacher in WK-StGB 2 § 167 BGHSt 9, 48, 52; Roxin, AT II § 30 Rz 4; 26 Bugelnig in Lagodny, Strafrechtsfreie Rz 32. Rudolphi in SK8 § 24 Rz 4; Frister, AT5 Räume 64 f.; Müller-Dietz, ÖJZ (1977) 47 See also Moos, ZStR 1993 76; cf. § 24 Rz 2 f.; Lilie/Albrecht in LK12 § 24 351. Burgstaller in FS-Platzgummer 105; Rz 15; see also Frister, AT6 § 24 Rz 2 f. 27 In this sense, Weigend in LK12 Einl Kirchbacher in WK-StGB 2 § 167 Rz 43. 11 Cf. Rücktritt vom Versuch Jakobs, AT2 Rz 1; Hassemer/Neumann in NK4 Vor § 1 48 Kienapfel, BT3 § 167 Rz 54. Abschnitt 26 Rz 1. Rz 72; E. Steininger in SbgK § 1 Rz 143; 49 Cf. current opinion in E. Steininger, 12 Schroll, ÖJZ (1985) 358. Birklbauer/Jesionek, AT II6 1. AT II Kap 20 Rz 115 ff. 13 Cf. Müller-Dietz, ÖJZ (1977) 343; 28 Leukauf/Steininger, StGB3 § 167 50 Burgstaller in FS-Platzgummer 105. Finger, Strafrecht I3 871. Rz 15 f.; 13 Os 10/08g. 51 Cf. ibid. 14 Cf. Rücktritt vom Versuch E. Steininger, 29 Kirchbacher in WK-StGB 2 § 167 Rz 35. 52 Cf. ibid.

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53 See also Rainer in SbgK § 167 Rz 30. Kienapfel, BT3 § 167 Rz 47; RS0103979; Bockemühl/Gierhake/Müller/T. Walter 54 RS0095054; 12 Os 21/86; 12 Os 1/89. 11 Os 90/96. (Eds.), Festschrift für Bernd von 55 Rainer in SbgK § 167 Rz 31. 74 Rainer in SbgK § 167 Rz 41 f; Leukauf/ Heintschel-Heinegg (2015). 56 Relevant: Lewisch, BT I2 § 167 296 f.; Steininger, StGB3 § 167 Rz 37 f; Bertel/ Burgstaller in Fuchs/Brandstetter (Eds.), as well as Fabrizy, StGB11 § 167 Rz 8; Schwaighofer/Venier, BT13 I § 167 Rz 19; Festschrift für Winfried Platzgummer Kirchbacher in WK-StGB2 § 167 Rz 45; Kienapfel, BT3 § 167 Rz 41 ff. zum 65. Geburtstag (1995) = Burgstaller Rainer in SbgK § 167 Rz 31; case law: 75 Bertel/Schwaighofer/Venier, BT13 I in FS-Platzgummer. 12 Os 1/89 = SSt 60/6 = JBl 1989, 666; § 167 Rz 20. E. Steininger, Strafrecht Allgemeiner Teil RS0095274: „Mit der Wendung, ohne hie- 76 Kienapfel, BT3 § 167 Rz 64; Rainer in II (2012). zu gezwungen zu sein, stellt § 167 Abs 2 SbgK § 167 Rz 50. Fabrizy, Strafgesetzbuch11 (2013). StGB nicht auf eine Willensbeeinflussung 77 Rainer in SbgK § 167 Rz 49. Fabrizy, Strafprozessordnung12 (2014). wegen drohender Anzeigeerstattung und 78 Kirchbacher in WK-StGB § 167 Rz Finger, Strafrecht I3 (1912). strafgerichtlicher Verfolgung, sondern 121; Kienapfel, BT3 § 167 Rz 65. Foregger/Nowakowski (Eds.), Wiener auf die Unvermeidbarkeit der Schadens 79 Cf. Jahn/Ebner, Tätige Reue: Fixpunkt Kommentar zum Strafgesetzbuch (1979). gutmachung ab.“ einer Gesamtreform honorierungswür Frister, Strafrecht Allgemeiner Teil6 57 Burgstaller in FS-Platzgummer 108. digen Nachtatverhaltens im deutschen (2013). 58 Kirchbacher in WK-StGB 2 § 167 Rz 45. Vermögens und Wirtschaftsstrafrecht? Fuchs, Strafrecht Allgemeiner Teil I8 59 Bertel/Schwaighofer/Venier, BT13 I in Gierhake/Bockemühl/Müller/Walter, (2012). § 167 Rz 15; Kirchbacher in WK-StGB 2 Festschrift für Heintschel-Heinegg zum Fuchs/Brandstetter (Eds.), Festschrift für § 167 Rz 46; Burgstaller in FS-Platz 70. Geburtstag (2015) 221. Winfried Platzgummer zum 65. Geburts gummer 107. 80 Already for an analogous application: tag (1995). 60 Fabrizy, StGB11 § 167 Rz 8. Bertel/Schwaighofer/Venier, BT13 I § 167 Fuchs/Ratz (Eds.), Wiener Kommentar 61 Kirchbacher in WK-StGB § 167 Rz 88; Rz 3. Otherwise, the conclusive prevail zur Strafprozessordnung (2002 ff.). RS0095268; 14 Os 159/03. ing view; above all Kirchbacher in WK Fuchs/Reindl-Krauskopf, Strafrecht Be 62 Rainer in SbgK § 167 Rz 34. StGB2 § 167 Rz 22; Stricker in SbgK sonderer Teil I5 (2015). 63 Kirchbacher in WK-StGB § 167 Rz 94. § 136 Rz 121 f.; Rainer in SbgK § 167 Hassemer/Neumann in Kindhäuser/ 64 Leukauf/Steininger, StGB3 § 167 Rz 8 and 12. Neumann/Paeffgen (Eds.), Nomos Kom Rz 25; Rainer in SbgK § 167 Rz 14. 81 E.g. according to Bertel/Schwaighofer, mentar zum Strafgesetzbuch4 (2013) § 1 65 Kirchbacher in WK-StGB § 167 Rz 51; BT II11 § 241g Rz 2: A steals B’s bank StGB. Rainer in SbgK § 167 Rz 34; Fabrizy, card and goes shopping with it. On the Herzberg/Hoffmann-Holland in Joecks/ StGB11 § 167 Rz 10; cf. SSt 59/86 = EvBl following day, he gives to back to B and Miebach (Eds.), Münchner Kommentar 1989/71. compensates for the damages. Active re zum Strafgesetzbuch2 (2011) § 24 StGB. 66 Fabrizy, StGB11 § 167 Rz 10; Kirch pentance based on Section 241g of the Höpfel/Ratz (Eds.), Wiener Kommentar bacher in WK-StGB § 167 Rz 51; RS Austrian Criminal Code is not possible zum Strafgesetzbuch2 (1999 ff). 0095116; 12 Os 102/88. due to the use in legal exchange. Jahn/Ebner, Tätige Reue: Fixpunkt 67 Kirchbacher in WK-StGB § 167 Rz 54. einer Gesamtreform honorierungswür 68 Fabrizy, StGB11 § 167 Rz 10; RS Source of information digen Nachtatverhaltens im deutschen 0095355; 12 Os 102/88. Baumann/Weber/Mitsch, Strafrecht Allge Vermögens und Wirtschaftsstrafrecht? 69 Fuchs/Reindl-Krauskopf, BT I5 § 167 meiner Teil11 (2003). in Gierhake/Bockemühl/Müller/Walter, 282. Bertel/Schwaighofer, Strafrecht Besonde Festschrift für Heintschel-Heinegg zum 70 Kirchbacher in WK-StGB § 167 Rz 89. rer Teil II12 (2016). 70. Geburtstag (2015). 71 Leukauf/Steininger, StGB3 § 167 Bertel/Schwaighofer/Venier, Strafrecht Jakobs, Strafrecht Allgemeiner Teil2 Rz 27; Bertel/Schwaighofer/Venier, BT13 Besonderer Teil I13 (2015). (1991). I § 167 Rz 11. Bertel/Venier, Strafprozessordnung (2012). Jeschek/Weigend, Lehrbuch des Straf 72 Kienapfel, BT3 § 167 Rz 39. Birklbauer/Jesionek, Strafrecht Allgemei rechts – Allgemeiner Teil5 (1996). 73 Leukauf/Steininger, StGB3 § 167 Rz 47; ner Teil II6 (2012). Joecks/Miebach (Eds.), Münchner Kom

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mentar zum Strafgesetzbuch2 (2011). Roxin, Strafrecht Allgemeiner Teil II (2003). Kienapfel, Strafrecht Besonderer Teil II3 (1993). Roxin, Strafrecht Allgemeiner Teil I4 (2006). Kilchling, Opferinteressen und Strafverfolgung 1 Rudolphi/Wolter (Eds.), Systematischer Kom (1995). mentar zum Strafgesetzbuch8. Kindhäuser/Neumann/Paeffgen (Eds.), Nomos Rudolphi in Rudolphi/Wolter (Eds.), Systema Kommentar zum Strafgesetzbuch4 (2013). tischer Kommentar zum Strafgesetzbuch 8 § 24 Kirchbacher in Höpfel/Ratz (Eds.), Wiener Kom StGB. mentar zum Strafgesetzbuch2 (2013) § 167 StGB. Sautner, Opferinteressen und Strafrechtstheorien Kirchbacher/Rami in Fuchs/Ratz (Eds.), Wiener (2010). Kommentar zur Strafprozessordnung 1 (2015) Sautner, Viktimologie1 (2014). § 170 StPO. Sautner/Unterlerchner, Österreichische Juristen- Lagodny (Ed.), Strafrechtsfreie Räume (2015). Zeitung 2014, 63. Laufhütte/Rissing-van Saan/Tiedemann (Eds.), Schmoller in Fuchs/Ratz (Eds.), Wiener Kommen Leipziger Kommentar zum Strafgesetzbuch I12 tar zur Strafprozessordnung1 (2012) § 3 StPO. (2006). Schroll, Österreichische Juristen-Zeitung 1985, Leukauf/Steininger, Kommentar zum Strafgesetz 357. buch3 (1992). Seiler, Strafprozessrecht14 (2015). Lewisch, Strafrecht Besonderer Teil I2 (1997). Stricker in Triffterer/Rosbaud/Hinterhofer, Salz Liebscher in Foregger/Nowakowski (Eds.), Wiener burger Kommentar zum Strafgesetzbuch (2015) Kommentar zum Strafgesetzbuch 1 (1979 ff) § 136 StGB. § 167 StGB. Tipold, Rücktritt und Reue (2002). Lilie/Albrecht in Laufhütte/Rissing-van Saan/ Triffterer, Strafrecht Allgemeiner Teil2 (1994). Tiedemann (Eds.), Leipziger Kommentar zum Triffterer/Rosbaud/Hinterhofer, Salzburger Strafgesetzbuch I12 (2006) § 24 StGB. Kommentar zum Strafgesetzbuch (1992 ff.). Markel in Fuchs/Ratz (Eds.), Wiener Kommentar Tschulik, Österreichische Juristen-Zeitung 1973, zur Strafprozessordnung1 (2015) § 1 StPO. 653. Maurach/Gössel/Zipf (Eds.), Strafrecht Allge Vogl in Fuchs/Ratz (Eds.), Wiener Kommentar meiner Teil8 (2014). zur Strafprozessordnung1 (2015) § 91 StPO. Medigovic/Reindl-Krauskopf, Strafrecht Allge Weige nd in Laufhütt e/R is sing -va n Saan/ meiner Teil II (2013). Tiedemann (Eds.), Leipziger Kommentar zum Moos, Schweizer Zeitschrift für Strafrecht 1993, Strafgesetzbuch I12 (2006) Einleitung. 56. Wiener Zeitung (2015). Strafverschärfung ist Müller-Dietz, Österreichische Juristen-Zeitung wenig hilfreich (09.03.2015), Online: http:// 1977, 343. www.wienerzeitung.at/nachrichten/oesterreich/ Rainer in Triffterer/Rosbaud/Hinterhofer, Salz politik/739752_ Strafverschaerfung-ist-wenig burger Kommentar zum Strafgesetzbuch (2003) hilfreich. html (24.12.2015). § 167 StGB.