.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. © Federal Ministry of the Interior – Sicherheitsakademie / NWV, 2017 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 32 2017 .SIAK-InternAtIonAl edItIon 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 33 .SIAK-InternAtIonAl edItIon 2017 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