Ref. Ares(2014)4046025 - 03/12/2014
Providing an Alternative to Silence – Country Report Austria
Shahanaz Müller
Providing an Alternative to Silence:
Towards Greater Protection and Support for
Whistleblowers in the EU
COUNTRY REPORT: AUSTRIA
1
Providing an Alternative to Silence – Country Report Austria
Shahanaz Müller
This report belongs to a series of 27 national reports that assess the adequacy of
whistleblower protection laws of all member states of the European Union.
Whistleblowing in
Europe: Legal Protection for Whistleblowers in the EU, published by Transparency
International in November 2013, compiles the findings from these national reports. It can be
accessed at www.transparency.org.
All national reports are available upon request at xx@xxxxxxxxxxxx.xxx.
Responsibility for all information contained in the report lies with the author. Views expressed
in the report are the author’s own, and may not necessarily reflect the views of the
organisation for which they work. Transparency International cannot accept responsibility for
any use that may be made of the information contained therein.
The project has been funded with support from the European Commission. The sole
responsibility lies with the author and the Commission cannot be held responsible for any use
that may be made of the information contained therein.
With financial support from the Prevention of and Fight against Crime Programme of the European Union.
European Commission – Directorate-General Home Affairs
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Providing an Alternative to Silence – Country Report Austria
Shahanaz Müller
Providing an Alternative to Silence
Towards Greater Protection and Support for Whistleblowers in the EU
Country Report: AUSTRIA
Shahanaz M.S. Müller, B.A.
Walfischgasse 9/Top 3
1010 Vienna
Austria
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TABLE OF CONTENTS
I. INTRODUCTION
7
II. WB PROTECTION LAWS AND INSTITUTIONS
9
A. WHISTLEBLOWING PROTECTION LAW
9
1. THE AMENDMENT OF THE PUBLIC SERVICES LAW
9
2. DIFFERENT STATUTORY LEGISLATION IN THE LABOR LAW
13
3. §9B OF THE ENVIRONMENTAL INFORMATION ACT (“UMWELTINFORMATIONSGESETZ”) 15
B. OTHER REGULATIONS, WHERE ONE MIGHT BE ABLE TO CONSTRUE A
“WHISTLEBLOWING”-REGULATION (OBLIGATION TO WHISTLEBLOWING)
17
1. LABOR LAW
17
2. §286 OF THE AUSTRIAN CRIMINAL CODE (“STRAFGESETZBUCH”)
19
3. §78 AND 79 OF THE AUSTRIAN CRIMINAL PROCEDURE CODE
(“STRAFPROZESSORDNUNG”)
20
4. §48D OF THE SECURITIES EXCHANGE ACT (“BÖRSEGESETZ”)
21
5. §365U OF THE AUSTRIAN TRADE LAW (“GEWERBEORDNUNG”)
22
C. EXCURSUS: THE PROTECTION OF A WITNESS – APPLICABLE TO THE
WHISTLEBLOWER?
25
D. CONCLUSION
26
III. EXCURSUS: LENIENCY PROGRAM
27
IV. RELEVANT INSTITUTIONS IN AUSTRIA
29
A. THE AUSTRIAN FINANCIAL INTELLIGENCE UNIT (A-FIU)
(GELDWÄSCHEMELDESTELLE)
29
B. THE AUSTRIAN DATA PROTECTION COMMISSION (DIE ÖSTERREICHISCHE
DATENSCHUTZKOMMISSION)
29
C. THE AUSTRIAN DATA PROTECTION COUNCIL (DATENSCHUTZBEIRAT)
30
D. THE AUSTRIAN OMBUDSMAN BOARD (VOLKSANWALTSCHAFT)
31
E. PROSECUTION SERVICES - WIRTSCHAFTS- UND
KORRUPTIONSSTAATSANWALTSCHAFT (WKSTA) (OFFICIAL: ZENTRALE
STAATSANWALTSCHAFT ZUR VERFOLGUNG VON WIRTSCHAFTSSTRAFSACHEN UND
KORRUPTION)
34
F. ASSOCIATION “WHISTLEBLOWING.AT”
36
G. THE PRESS
37
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1. KURIER PLATFORM AUSTROLIX
37
V. PERCEPTIONS AND POLITICAL WILL
38
A. GENERAL PERCEPTION OF WHISTLEBLOWING
39
B. A WHISTLEBLOWER AS AN INSTRUMENT OF CORPORATE COMPLIANCE
40
C. THE TERM WHISTLEBLOWING IN CONNECTION WITH THE LAW
41
D. PERCEPTION OF WHISTLEBLOWING IN THE MEDIA
41
VI. CURRENT DEVELOPMENTS
42
A. THE WHISTLEBLOWER PLATFORM OF THE MINISTRY OF JUSTICE (MOJ)
42
B. INQUIRIES TO THE MINISTRY OF JUSTICE
43
C. DEVELOPMENTS IN THE AUSTRIAN PARLIAMENT
45
1. MAG. ALBERT STEINHAUSER – MOTIONS FOR A RESOLUTION
45
VII. CASE – WHAT HAPPENED TO A REAL WHISTLEBLOWER?
47
A. FACTS
47
B. ALLEGATION
48
C. EVIDENCE
48
D. DAMAGES
48
E. CURRENT STATUS
48
F. WHISTLEBLOWERS
49
G. CONCLUSION
50
VIII. STRENGTHS, WEAKNESSES AND RECOMMENDATIONS
51
A. STRENGTHS
51
B. WEAKNESSES
51
C. RECOMMENDATIONS
52
IX. REFERENCES AND SOURCES
53
A. ARTICLES IN JUDICIAL MAGAZINES/BOOKS
53
B. NEWSPAPER ARTICLES
54
C. INQUIRIES
56
D. LEGISLATION
57
1. DIENSTRECHTSNOVELLE
57
2. ENVIRONMENTAL PUBLIC SERVICES LAW (“UMWELTINFORMATIONSRECHT”)
58
3. AUSTRIA TRADE LAW (“GEWERBEORDNUNG”)
58
E. LENIENCY PROGRAM
58
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F. SPECIAL REFERENCES FROM THE INSTITUTIONS
59
1. AUSTRIAN DATA PROTECTION COUNCIL
59
2. WHISTLEBLOWING AUSTRIA
60
3. THE AUSTRIAN OMBUDSMAN BOARD (VOLKSANWALTSCHAFT)
60
4. THE AUSTRIAN FINANCIAL INTELLIGENCE UNIT – GELDWÄSCHEMELDESTELLE
60
G. PERSONAL INTERVIEWS
61
1.
61
2.
61
3.
61
4.
61
H. WHAT HAPPENED TO REAL WHISTLEBLOWER? (ARTICLES)
61
X. ABBREVIATIONS
62
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I.
Introduction
"We say in this nation that we are looking for people with
honesty, integrity, drive and dedication, and then when we find
such people, we take them out and whip them."
-anonymous whistleblower
According to the quotation, the truth is what people are looking for, but those who
have spoken the truth shall be punished for the information they provide. The quote
derives from a whistleblower, implying the consequences a whistleblower has to face.
Hence, the protection of a whistleblower is still one of the most sensitive topics one
can come cross. Though when talking about whistleblowing, more questions than
answers lay at hand:
What is a whistleblower?
Does the Austrian legislation provide for a protection of a whistleblower and
what perceptions does whistleblowing have in the public?
What is the situation like in Austria?
Are there people who have already “blown the whistle”?
And what happened to them afterwards?
Were they subjected to consequences?
Did they have to leave their job?
It becomes obvious that whistleblowing affects various statutory laws (labor, criminal,
data protection law). It also becomes obvious that the topic whistleblowing always
contains an emotional component: covering up something that is supposed to let alone
brings a conflict of interest. The whistleblower has to face the person who disguises
the information – at least at some point today. The whistleblower has to face those
that do not share his/her opinion. The whistleblower has to be (sometimes) heroic in
order to overcome obstacles –
who should I turn to for help? Who can provide
assistance?
Whistleblowing is not merely disclosing information about white-collar crimes,
corruption or malversations. It is so much more because the whistleblower usually is
the “Vernaderer” or the “tattletale”, who is rarely viewed as a hero. His/her actions
are rarely publicly honored and often not well received. In 2002 the whistleblowers
Sherron Watkins of Enron, Coleen Rowley of the FBI and Cynthia Cooper of
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WorldCom were named as Persons of the Year by Time Magazine. 1 This rarely
happens. Hence, this article examines the current developments in Austria and tries to
provide an overview about regulation, institutions, and cases and conclusively, pose
recommendations, which can enhance the protection of whistleblowers and the act
itself so that in the future telling the truth will be more appreciated than going along
with malversations.
1 Time Magazine, 30.12.2002, http://www.time.com/time/magazine/article/0,9171,1003998,00 html
(08.09.2012).
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II.
WB protection laws and institutions
In the following sections an overview will be provided of the current legislation for
the protection of a whistleblower and statutory laws to assess whether it is possible to
construe a whistleblowing regulation. Consequences that a whistleblower might face
are also explained in the respective sections. Furthermore, this Chapter introduces the
institutions that (can) function as a registration office (“Meldestelle”) for a
whistleblower.
Whistleblowing Protection Law
1.
The Amendment of the Public Services Law
On August 28, 2010, I was invited to meet with Stefan Ritter2, who is working at the
Federal Chancellery, specializing in public services law. I had written to Gabriele
Heinisch-Hosek, the Federal Minister for Women and the Civil Service
(“Bundeministerin für Frauen und Öffentlichen Dienst”) because I was aware of the
fact that she had advocated for a whistleblower protection law for the public servants.
Mr. Ritter had called me to discuss the reasons on which the new statutory laws were
based on. Ritter was part of the team who formulated the new statutory laws. He
explained that these were implemented due to the GRECO evaluation report.
According to the GRECO evaluation report Austrian public servants (“Bedienstete”)
were already obliged to report a malversation
(§ 53 section 1 BDG 1979, § 5 section 1
VBG and § 109 section 1 BDG 1979, § 78 StPO) but so far the Austrian legislation
did not provide a protection for these public servants (whistleblower), which was
viewed as providing enough protection. When corruption occurs a physical damage
cannot be determined. Corruption rather impairs the community. These regulations
were enacted in order to provide a protection for the informant and the goal is to
support the whistleblower not being subjected to oppressive sanctions from the
employer.3
2 This article has been approved and all statements have been confirmed by Mr. Stefan Ritter.
3 326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME 00326/fname 233998.pdf (16.08.2012), p.
10.
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Before the possible enactment of § 53a BDG 1979 and § 58b RStDG, the experts
from the Federal Chancellery presented to the GRECO evaluation team the current
legislation how public servants were already protected. As noted by Mr. Ritter, the
public servants are protected by the principle of equal treatment as guaranteed by the
Austrian constitution, the specific rules laid down by service law (especially those on
dismissal and transfer) and other legislation. But this protection was viewed as not
being sufficient. Ergo, new legislation needed to be passed.
On January 1, 2012, two new paragraphs entered into force to comply with the
GRECO evaluation report (Federal Law Gazette I Nr. 140/2011):
§ 53a BDG 19794
(in combination with § 5 VBG also applicable on contractual federal employees) and
§ 58b RStDG 5 . Both of these have the same headline, titled: protection from
discrimination (“Schutz vor Benachteiligung”), posing the first attempt in Austrian
legislation to legally standardize a protection for whistleblower in the public sphere.
Even though the public response was in favor of enacting a whistleblower protection
law in the private sector, the Austrian Parliament has so far not bowed to that request.
Both of the regulations have a similar coverage – they are both only employable to
federal public servants and contractual staff, contain internal and external reporting
mechanisms and only apply in case the disclosure was conducted in
good faith. The
prerequisite of good faith can also be found in the Austrian Trade Law (see
Chapter
III) 8)). Unlike the regulations themselves, they both do not contain detailed
information on when a disclosure is made in good faith. Only the annotations to these
specific regulations make it clear how these regulations shall be applied and most
importantly how they should be applied.6
As previously mentioned both regulations contain a protection for the whistleblower
when a disclosure is made in good faith. The disclosure has to be connected to a
crime related to the office the public disclosure is made to. According to both
regulations the public disclosure can either be conducted to the Agency Management
(“Dienststellenleitung”) or to the Federal Bureau of Anti-Corruption (“Bundesamt zur
4
§ 53a BDG,
http://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Bundesnormen&Dokumentnummer=NOR40133771
(21.09.2012).
5
§ 58b RStDG, http://www.jusline.at/58b Schutz vor Benachteiligung RStDG.html
(21.09.2012).
6 326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME 00326/fname 233998.pdf (16.08.2012), p. 9
ff.
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Korruptionsprävention und Korruptionsbekämpfung”). In this case only the second
institution – the Federal Bureau – is relevant in terms of the information, which the
whistleblower provides. The disclosure has to withhold information about a crime
constituting the competent jurisdiction of the Federal Bureau. An exclusive
enumeration of crimes, such as corruption in the public and private sector as well as
money laundering, is listed in the legislation of the Federal Bureau. 7
The
whistleblower protection only applies when the reported behavior potentially
falls within the competence of the Federal Bureau. Any other crime is not
mentioned in the annotations and hence it can be assumed that it will not constitute
the competence jurisdiction of the Federal Bureau and therefore not generate a
whistleblower protection for the public servant.8
Furthermore the whistleblower has to disclose the information in good faith, believing
the information to be verifiable and hence substantiate the information. 9 Already
ordinary negligence (“leichte Fahrlässigkeit”) excludes the application of the
whistleblower protection regulation. 10 Summarizing the requirements for the
application of the whistleblower protection, it can be noted that they are very strict. A
whistleblower has to be sure the information will be related to a corruption offence. If
the information turns out to be false, and the whistleblower had knowledge about this,
he might be subjected to disciplinary transfer or fear a dismissal.11
On the other hand, if the accusations are true and other public servants assist him in
the disclosures, the whistleblower protection regulation will be applicable to them as
well. Assisting the whistleblower is exemplified in the annotation as acting as a
witness in the course of action. It implies that the person who is supporting the
whistleblower faces a certain amount of risk when disclosing the information about
7 §4 Section 1 BAK-G.
8 326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME 00326/fname 233998.pdf (16.08.2012), p.
10.
9 326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME 00326/fname 233998.pdf (16.08.2012), p.
10.
10 326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME 00326/fname 233998.pdf (16.08.2012), p.
10.
11 Parlamentskorrespondenz Nr. 1180 vom 01.12.2011, Beamte, die Korruption melden, werden
künftig besser geschützt, http://www.parlament.gv.at/PAKT/PR/JAHR 2011/PK1180/ (16.08.2012), p.
1;
PÖLL, Regina, Korruption: Neue Regeln für Beamte, 26.10.2011,
http://diepresse.com/home/recht/rechtallgemein/704055/Korruption Neue-Regeln-fuer-Beamte
(16.08.2012).
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the employer. 12 Moreover, it is noted that the person who is “accused” with the
accusation will neither be denied nor limited of his/her procedural rights.13
Mr. Ritter further noted that this law does not provide the whistleblower with a
subjective public right. The representative of the employer taking discriminatory
repressive action against a whistleblower is subjected then to a disciplinary procedure.
But so far no disciplinary procedures are known yet, because the law has been only
passed recently, Mr. Ritter concluded.
Complete title of law or regulation:
Beamten-Dienstrechtsgesetzes 1979, §53a – Schutz vor Benachteiligung
(„Protection from discrimination“
)
Richter-
und
Staatsanwaltschaftsdienstgesetzes,
§58b
– Schutz vor
Benachteiligung („Protection from discrimination“
)
The table can be applied to both regulations §53a and §58b.
Yes No
Partial Notes
Broad
definition
X
of whistleblowing
Broad
definition
X
It merely is stated in the annotation that a person informing
of whistleblower
the authorities is a whistleblower and should be protected.
Broad
definition
X
Both regulations merely state that the informant shall not
of
retribution
suffer from any discrimination/disadvantages, but there is
protection
no precise specification.
Internal reporting
X
Notification
to
the
Agency
Management
mechanism
(“Dienststellenleitung”) according to the explanations
External reporting
X
Notification to the Federal Bureau of Anti-Corruption
mechanism
(“Bundesamt
zur
Korruptionsprävention
und
Korruptionsbekämpfung”)
12 326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME 00326/fname 233998.pdf (16.08.2012), p.
10.
13 326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME 00326/fname 233998.pdf (16.08.2012), p.
10.
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Whistleblower
X
No precise information in the annotation and in the
participation
regulations.
Rewards
X
No information in the regulations or the annotations
system
Protection
of
X
No information in the regulations or the annotations
confidentiality
Anonymous
No information in the regulations or the annotations
reports accepted
No sanctions for
X
The whistleblower has to report the malversation but only if
misguided
he has
probable cause and believes the information to be
reporting
verifiable. If this is not the case the regulation (and its
benefits) will not be applicable to the whistleblower.
Whistleblower
complaints
authority
Genuine
day
X
No information in the regulations or the annotations
in court
Full
range
of
X
No information in the regulations or the annotations
remedies
Penalties
for
X
No information in the regulations or the annotations
retaliation
Involvement
of
X
No information in the regulations or the annotations
multiple actors
2.
Different statutory legislation in the labor law
The Austrian labor law constitutes several different protection mechanisms.14 These
are the following:
There are various sections where an employee can appeal against his/her
dismissal („Kündigung“) or his/her suspension, in case the employer fires the
employee because of the following reasons/motives, which are connected
directly to whistleblowing:
14 The report that the Ministry sent to me was more detailed. I selected the most important points which
are in my opinion the most relevant.
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o joining/membership or activity in the labor union (105 Abs. 3 Z 1 lit. a
and b Arbeitsverfassungsgesetz)
o the employer took actions in order to prevent serious endangerment of
life and health at the workplace, because the responsible person was
not available (§ 8 Abs. 1 and Abs. 2 Arbeitsvertragsrechts-
Anpassungsgesetz)
o enforcement of a title or filing an appeal because of discrimination of
gender (§ 12 Abs. 7, § 13, § 51 Abs. 7, § 52 Gleichbehandlungsgesetz)
o enforcement of a title or filing an appeal due to discrimination of
ethnicity,
age,
religion,
sexual
orientation
or
ideology
(„Weltanschauung“) (§ 26 Abs. 7, § 27 Gleichbehandlungsgesetz)
According to §879 ABGB a dismissal/suspension is invalid because of
violation of morality: Since §879 ABGB also applies to unilateral legal acts,
even without an explicit statutory law, dismissals are invalid in case they
violate the basic principles of our society („Grundwerte der Gesellschaft“).
Even the judiciary accepts the principle15. The following possibilities why a
whistleblower might be fired could be: freedom of speech or affiliation to a
political party.16
Yes No
Partial Notes
Broad
definition
X
of whistleblowing
Broad
definition
X
of whistleblower
Broad
definition
X
The whistleblower is protected in numerous ways.
of
retribution
protection
Internal reporting
X
mechanism
External reporting
X
15 See
TROST in Löschnigg Angestelltengesetz8, Bd. II, § 20 Section 51; Judiciary opinion see
Schwarz/Martinek/Schwarz Angestelltengesetz7, p. 411.
16 See
BINDER Individualarbeitsrecht II6, p. 103.
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mechanism
Whistleblower
X
participation
Rewards
X
No information is noted in the specific legislation.
system
Protection
of
X
No information is noted in the specific legislation.
confidentiality
Anonymous
X
No information is noted in the specific legislation.
reports accepted
No sanctions for
X
The whistleblower can face dismissal or suspension in case
misguided
he/she conducts a false report.
reporting
Whistleblower
complaints
authority
Genuine
day
X
in court
Full
range
of
X
remedies
Penalties
for
X
retaliation
Involvement
of
X
multiple actors
3.
§9b
of
the
Environmental
Information
Act
(“Umweltinformationsgesetz”)
The §9b of the Environmental Information Act17 was included into the legislation on
the 18th of November 2009, titled: Protection of the Informant (“Informantenschutz”).
The Austrian Environmental Information Act is the only legislation in Austria that
generates a protection for whistleblowers
for the private sector.18
17
§9b of the Environmental Information Act,
http://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Bundesnormen&Dokumentnummer=NOR40113754
(21.09.2012).
18 See
LAIMER, Hans Georg: Welche Risiken ein Whistleblower trägt, Wirtschaftsblatt, 08.08.2012,
http://wirtschaftsblatt.at/home/1278686/Welche-Risiken-ein-Whistleblower-traegt (22.08.2012).
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According to section 1 of §9b Environmental Information Act the operator
(“Betreiber”) of an operational plant shall not punish, pursue or harass a company
employee (“Betriebsangehöriger”), if the company employee files a complaint for the
violation of specific national or international directives (Directive published by the
Federal Ministry of Economy, Family and Youth and the Federal Ministry of
Agriculture, Forestry, Environment and Water Management and EU-Directives). The
specific ministry is according to section 2 not allowed to pursue, punish or harass
someone who filed a complaint because of the infringement of the Directive.
According to the annotations of the specific Act, the specific matters of fact – punish,
pursue and – can include the lay-off, the termination or other specific provisions
under employment law (disciplinary transfer, restrictions in promotions or
compensation).19
Yes No
Partial Notes
Broad
definition
X
No precise information in the annotation and in the
of whistleblowing
regulations.
Broad
definition
X
No precise information in the annotation and in the
of whistleblower
regulations.
Broad
definition
X
The regulation merely states that the informant shall not be
of
retribution
punished, prosecuted or be pursued.
protection
Internal reporting
X
No precise information in the annotation and in the
mechanism
regulations.
External reporting
X
No precise information in the annotation and in the
mechanism
regulations.
Whistleblower
X
No precise information in the annotation and in the
participation
regulations.
Rewards
X
No information in the regulations or the annotations
system
Protection
of
X
No information in the regulations or the annotations
confidentiality
Anonymous
X
No information in the regulations or the annotations
19 396 der Beilagen XXIV. GP - Regierungsvorlage – Vorblatt und Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/I/I 00396/fname 169769.pdf (22.08.2012), p. 4.
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reports accepted
No sanctions for
X
No information in the regulations or the annotations
misguided
reporting
Whistleblower
X
No information in the regulations or the annotations
complaints
authority
Genuine
day
X
No information in the regulations or the annotations
in court
Full
range
of
X
No information in the regulations or the annotations
remedies
Penalties
for
X
No information in the regulations or the annotations
retaliation
Involvement
of
X
No information in the regulations or the annotations
multiple actors
a)
Decision by the Austrian Supreme Court of Justice (Labor
Law)20
In accordance with a decision of the Austrian Supreme Court of Justice made 14th of
June 2000, anchorless and subjective without merit made statements by the employee,
cannot be subsumed under
§9b of the Environmental Information Act. The
employee’s subjective perception is essential for the application of §9b of the
Environmental Information Act. 21 The employer certainly has no objective justifiable
interest in disguising illegal behavior or unfair business practices; hence the employee
is allowed to disclose information in case they constitute an infringement of the
national or international directives.22
Other regulations, where one might be able to construe a “whistleblowing”-
regulation (obligation to whistleblowing)
4.
Labor Law
20 Vgl. OGH, 14.06.2000, 9ObA118/00v,
http://www.ris.bka.gv.at/Dokumente/Justiz/JJT_20000614_OGH0002_009OBA00118_00V0000_000/
JJT_20000614_OGH0002_009OBA00118_00V0000_000.pdf (22.08.2012).
21 396 der Beilagen XXIV. GP - Regierungsvorlage – Vorblatt und Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/I/I 00396/fname 169769.pdf (22.08.2012), p. 4.
22 396 der Beilagen XXIV. GP - Regierungsvorlage – Vorblatt und Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/I/I 00396/fname 169769.pdf (22.08.2012), p. 4.
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The place where whistleblowing is most likely to occur is the place of employment: a
whistleblower notices a malversation in a corporation and informs his/her employer;
hence the question arises whether he/she – the employee – is obliged to notify/inform
his/her employer and whether this notification will generate consequences for the
informant?23
There are different ways to construe a “whistleblowing” regulation; these options will
be described as follows:
In accordance with the employee’s duty of good faith („allgemeine Treuepflicht des
Arbeitnehmers“), an
obligation to confidentiality („Verschwiegenheitspflicht“) arises
for the employee. Whistleblowing can violate this obligation and hence the following
elements of offenses can be fulfilled:
dismissal due to violation of trust („Vertrauensunwürdigkeit“),
(§ 27 lit 1
Angestelltengesetz),
or
treason of industrial and trade secrets,
(§ 82 lit e Fall 1 Gewerbeordnung
1859)
According to the judiciary, the filing of a „Strafanzeige“ of the employee does not
fulfill the elements of the offense (dismissal due to violation of trust) and hence does
not justify the dismissal of the employer.24
Their contractual obligation to keep illegal secrets is invalid.25 However, there is an
obligation for the employee to proceed in the most “gentel” („schonenden“) way,
which might imply that in the beginning the employee should try to talk with his
employer. Only allegations, which are subjectively based on no reasons and are
anchorless, constitute a reason for a dismissal due to violation of trust
(„Vertrauensundwürdigkeit“).
23 See
KNYRIM/KURZ/HAIDINGER: Whistleblowing-Hotlines: Mitarbeiter ‚verpfeifen’ zulässig?,
12.05.2006, page 4.
24 See
FRIEDRICH in Marhold/Burgstaller/Preyer Kommentar zum Angestelltengesetz8, § 27 Rz
165;
GRILLBERGER in Löschnigg Angestelltengesetz8, Bd. II, § 27 Rz 56.
25 Vgl. OGH 8 ObA277/97.
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If whistleblower uses company data or records from the company, or violates
telecommunication, trade and industrial, secrets, the whistleblower can be subjected
to a criminal procedure due to the violation of
§118 of the Austrian Criminal Code26.
There are some special notes in case the whistleblower is a member of a labor union:
The obligation to confidentiality is for those members legalized explicitly in §115
Section 4 ArbVG27.
An employer who is part of a labor union is bound to the confidentiality of industrial
and trade secrets. According to §122 Section 1 Z 4 ArbVG28, these employees can be
dismissed after an approval from the court, in case the sellout trade and industrial
secrets. The court has to object to the complaint, if the action the employer has done
is done in accordance with his mandate (of the labor union) and is justifiable when
weighing all the reasons.
The obligation of confidentiality is not violated, if the interests of the employers are
higher than the interest of the company owner and the compliance is colliding with
the interests of the labor union.29 When disclosing illegal secrets, the employer of a
labor union is equated with an employer (not working in a labor union). The labor
union has to proceed in the most “gentle” way (“schonendeste Art und Weise”).
Based on the legal decisions that dealt with the dismissal and whistleblowing, it can
be noted that whistleblowers are protected to a certain degree. Dismissals can be
justifiable, in case their allegations are cause- and anchorless and he/she failed to
proceed in the most “gentle” way This means that it is best to intervene in the specific
labor union institution (Betriebsrat / Arbeitsinspektorat), before customers and the
publicity is informed.
5.
§286 of the Austrian Criminal Code (“Strafgesetzbuch”)
26
§118 of the Austrian Criminal Code,
http://www.jusline.at/118 Verletzung des Briefgeheimnisses und Unterdrückung von Briefen StG
B html (21.09.2012)
27
§115 Section 4 ArbVG,
http://www.jusline.at/115 Grundsätze der Mandatsausübung Verschwiegenheitspflicht ArbVG.html
(21.09.2012).
28
§122 Section 1 Z 4 ArbVG, http://www.jusline.at/122 Entlassungsschutz ArbVG html
(21.09.2012).
29 Vgl. OGH 4 Ob 91/78.
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The Austrian Criminal Code states in §28630 that the person who purposely does not
inform the agency (“Behörde”) or fails to prevent that another person commits a
delinquency shall be punished. The person is only excluded from being subjected to
imprisonment if
if it is not simple for him/her to inform someone or if he/she would subject an
affiliated member to enormous danger or
if he/she only has come across information about the delinquency due to their
function as a counselor (“Seelsorger”) or
if he/she would break other legally acknowledged confidentiality obligations
and by breaking this entrusted information more harm would be done than by
not informing the agency.
The delinquent in this case is not the co-perpetrator, an accomplice or a criminal
accessory, rather is punished for not preventing the crime.
This legislation is also relevant in the daily life of the employee. An employee is
protected explicitly protected from the consequences of §286 due to the employee’s
duty of good faith and the resulting
obligation to confidentiality. Because in case the
employee violates the obligation of confidentiality, this can result in the violation of
professional secrecy or the violation of industrial (§121 of the Austrian Criminal
Code31) and trade secrets (§122 of the Austrian Criminal Code32).
6.
§78 and 79 of the Austrian Criminal Procedure Code
(“Strafprozessordnung”)
The paragraphs of the Austrian Criminal Procedure Code, §§7833 and 7934, oblige the
public institution or agency to file a complaint in case they become aware of a crime,
which is subject to their competency. The complaint shall be addressed either to the
criminal investigation department or the department of public prosecution. According
30
§ 286 of the Austrian Criminal Code,
http://www.jusline.at/286 Unterlassung der Verhinderung einer mit Strafe bedrohten Handlung St
GB html (21.09.2012).
31
§ 121 of the Austrian Criminal Code,
http://www.jusline.at/121_Verletzung_von_Berufsgeheimnissen_StGB html (21.09.2012).
32
§ 122 of the Austrian Criminal Code,
http://www.jusline.at/index.php?cpid=ba688068a8c8a95352ed951ddb88783e&lawid=11&paid=122&
mvpa=136 (21.09.2012).
33
§ 78 of the Austrian Criminal Procedural Code,
http://www.jusline.at/78. Anzeigepflicht StPO.html (21.09.2012).
34
§ 79 of the Austrian Criminal Procedural Code http://www.jusline.at/index.php?cpid=ba688068a8c8a95352ed951ddb88783e&lawid=14&paid=79&m
vpa=84 (21.09.2012).
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to section 2 of §78 of the Austrian Criminal Procedural Code an obligation to report
ceases to exist,
- if the report would affect an official capacity, whose requirement
would constitute a personal bond of trust;
- if and as long there are reasonable grounds to believe a criminal
offense will shortly be omitted in case damage settlement was
conducted.
The public institution has to do everything in its power to minimize the danger of the
victims and other possible affected persons (section 3 of §78 of the Austrian Criminal
Procedural Code). If considered necessary, a complaint can also be filed in the cases
of section 2.
Moreover, §79 states that as long as there is an official legal complaint obligation, any
documentation of files is when requested by the Criminal Investigation Department
(“Kriminalpolizei”), the public prosecution offices and the courts, to forward them if
it helps for to undermine a criminal offense. The investigation can be conducted
because someone filed a request or because of the official principle
(“Offizialprinzip”). The official confidentiality does not apply in these cases.
7.
§48d of the Securities Exchange Act (“Börsegesetz”)
§48d of the Austrian Securities Exchange Act 35 contains a legal provision to
whistleblowing.36 Persons, who are working in the financial industry, have to inform
the Financial Market Authority (“Finanzmarktaufsicht”) in case they become that a
transaction constitutes insider trading or market manipulation. 37
The whistleblower protection is included in §48d Section 9 of the Securities
Exchange Act. It obliges the Financial Market Authority, in case they receive
notification about a malversation from a whistleblower, under any circumstances not
to disclose the identity of the whistleblower. The protection is guaranteed in case the
whistleblower would or could be subjected to damages. Congruent with §365u of the
35
§48d of the Austrian Securities Exchange Act, http://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Bundesnormen&Dokumentnummer=NOR40102191
(21.09.2012).
36 See §48d Section 1 of the Securities Exchange Act;
RADINSKY, Orlin: Whistleblowing aus
juristischer Sicht – Verpflichtung zur Anzeige oder Laissez-Faire? http://at.cis-cert.com/News-
Presse/Newsletter/NL-Jan-2011/Whistle-Blowing-Pflicht-aus-rechtlicher-Sicht.aspx (20.08.2012).
37
RADINSKY, Orlin: Whistleblowing aus juristischer Sicht – Verpflichtung zur Anzeige oder
Laissez-Faire? http://at.cis-cert.com/News-Presse/Newsletter/NL-Jan-2011/Whistle-Blowing-Pflicht-
aus-rechtlicher-Sicht.aspx (20.08.2012).
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Austrian Trade Law, the whistleblowing does not constitute a breach of
confidentiality.
8.
§365u of the Austrian Trade Law (“Gewerbeordnung”)38
Due to the EU legislation, RL 2005/60/EG39, the Austrian trade law was modified in
order to be compliant with the directive. The headline, where the paragraph and the
following were inserted, is titled: notification requirement (“Meldepflichten”).
§365u of the Austrian trade law 40 obliges the businessman of a trade
(“Gewerbetreibende”), its key facility personnel and executive staff (“leitende
Angestellte”)
to
inform
the
Austrian
Financial
Intelligence
Unit
(“Geldwäschemeldestelle”41) in case they have probable suspicion or a qualified cause
to believe a crime is to be committed relating to money-laundering, to a foreign
terrorist organization or criminal organization or the financing of these organizations.
A specific enumeration of the crimes, which are subject to disclosure, can be found in
§365u of the Austrian Trade Law. The obligation to notify the Austrian Financial
Intelligence Unit arises only in connection to these specific crimes. Ergo §365u of the
Austrian Trade Law contains a legal provision to whistleblowing but only relating to
these specific crimes.42
A (probable) cause is sufficient for the previously named group (businessman, key
facility personnel and executive staff) in order to notify the Austrian Financial
Intelligence Unit (A-FIU). The A-FIU is authorized to inquire detailed (personal)
information from artificial persons or individuals. It becomes obvious that the person
who is notifying the A-FIU has to provide some documentation to substantially
undermine the information. Hence, §365u cannot be viewed as a general obligation to
blow the whistle if a malversation in connection to any of these previously named
crimes is committed or becomes obvious. It poses more as a specific obligation for the
group of people. In case the A-FIU believes the malversation to be true, the
38 The paragraph §365u of the Austrian Trade Law is appended in the ANNEX.
39 Directive 2005/60/EG of the European Parliament and of the Council of 26 October 2005 on the
prevention of the use of the financial system for the purpose of money laundering and terrorist
financing.
40
§365u of the Austrian trade law, http://www.jusline.at/365u GewO.html (21.09.2012).
41 For further information, see
Chapter V)A) – The Austrian Financial Intelligence Unit.
42
RADINSKY, Orlin: Whistleblowing aus juristischer Sicht – Verpflichtung zur Anzeige oder
Laissez-Faire? http://at.cis-cert.com/News-Presse/Newsletter/NL-Jan-2011/Whistle-Blowing-Pflicht-
aus-rechtlicher-Sicht.aspx (20.08.2012).
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businessman, they key facility personnel and the executive staff are responsible to
provide the A-FIU with all the relevant documentation.43
In the second passage of the paragraph, the whistleblower is protected from any
consequences, which may arise from breaching statutory, administrative, or
contractual provisions but only
if the disclosure was carried out in
good faith.44
This passage is consistent with Art 26 of the EU directive 2005/60/EG.45 It states that
the businessman or any of the persons exposing the disclosure cannot be held liable
for the notification. The disclosure only constitutes a breach of provisions if
notification is not carried out in good faith.46 In the annotation to the paragraph, it is
noted that the previous mentioned also applies to the key facility personnel and
executive staff.47 Usually, labor provisions bind the people who are obliged to notify
the A-FIU, but these do not apply if the disclosure is conducted in good faith.48
On the homepage of the Austrian Financial Intelligence Unit, which is a department
set up under the Federal Criminal Agency (“Bundeskriminalamt”), it is possible to
download the notification form.49 On the last page of the obligation form, it is noted
by all means to add documentation in order to guarantee an efficient handling of the
case.
a)
Whistleblowing according to the representatives of the Austrian
Financial Intelligence Unit50
On August 29, 2012, I was invited to meet with MinRat Mag. Josef Mahr, head of the
Money Laundering and Asset Recovering Unit,
and Ms. Mag. Scherschneva-Koller,
head of the Austrian Financial Intelligence Unit (A-FIU), to discuss the process of
whistleblowing, the receipt of notifications and the actual procedure. As previously
stated, §365u of the Austrian Trade Law is viewed as constituting a “whistleblowing
43
GRUBER/PALIEGE-BARFUß, GewO §365u annotation 1.
44 §365u passage 2 of the Austrian Trade Law; Gruber/Paliege-Barfuß, GewO §365u annotation 4.
45
Article 26 of the Directive - The disclosure in good faith as foreseen in Articles 22(1) and 23 by an
institution or person covered by this Directive or by an employee or director of such an institution or
person of the information referred to in Articles 22 and 23 shall not constitute a breach of any
restriction on disclosure of information imposed by contract or by any legislative, regulatory or
administrative provision, and shall not involve the institution or person or its directors or employees in
liability of any kind.
46
GRUBER/PALIEGE-BARFUß, GewO §365u annotation 4.
47
GRUBER/PALIEGE-BARFUß, GewO §365u annotation 4.
48
GRUBER/PALIEGE-BARFUß, GewO §365u annotation 4.
49 For further information, please visit the homepage,
http://www.bmi.gv.at/cms/BK/meldestellen/geldwaesche/start.aspx (20.08.2012).
50 The statments have been reviewed and confirmed by Mag. Scherschneva-Koller, head of the
Austrian Financial Intelligence Unit.
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regulation”. Mag. Mahr and Mag. Scherschneva-Koller did not share this view.
Instead, both of them noted the following:
A whistleblowing regulation cannot be construed of §365u of the Austrian
Trade Law because it does not allow the businessmen any decision or freedom
in turns of disclosing information. They are legally obligated to do so, hence
there is no range and no interpretation of the law whether a notification has to
be filed or not.
Furthermore, especially with the new amendments, the statutory laws contain
more specific regulation and oblige the businessmen to do so. Ergo, §365u of
the Austrian Trade Law cannot be viewed as a “whistleblower regulation”.
Complete title of law or regulation
§365u
Gewerbeordnung
(Austrian
Trade Law)
Yes No
Partial Notes
Broad
definition
X
of whistleblowing
Broad
definition
X
of whistleblower
Broad
definition
X
of
retribution
protection
Internal reporting
X
mechanism
External reporting
X
External reporting mechanism to the Austrian Financial
mechanism
Intelligence Unit (“Geldwäschemeldestelle”)
Whistleblower
X
participation
Rewards
X
system
Protection
of
X
confidentiality
Anonymous
reports accepted
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No sanctions for
X
The whistleblower is protected from consequences resulting
misguided
from the breach of contractual, statutory or administrative
reporting
provisions, only if the disclosure was carried out in good
faith.
Whistleblower
X
complaints
authority
Genuine
day
X
in court
Full
range
of
X
remedies
Penalties
for
X
retaliation
Involvement
of
X
multiple actors
Excursus: The Protection of a Witness – Applicable to the Whistleblower?
§162 of the Criminal Procedure Code51 allows the witness to disguise himself/herself
if he/she must fear that because of answering the questions their lives, health, physical
integrity and their freedom be endangered. However this specific regulation was
enacted for people who have to participate in a witness-protection program.
Furthermore, only there is a specific informative basis that the witness is subjected to
a serious endangerment. This element of §162 is probably the hardest to be existent
for a whistleblower. A serious endangerment is correlated to crimes such as
prostitution, drug trafficking or human trafficking. These are organized crimes where
the witness must fear for his/her life. Hence, it is usually not applicable to a
whistleblower and does not allow the judge or the investigator to apply this statutory
law to the whistleblower.
51
§ 162 of the Austrian Criminal Code of Procedure,
http://www.jusline.at/162. Anonyme Aussage StPO html (21.09.2012).
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Conclusion
As previously stated, a specific obligation to blow the whistle can be construed best in
the statutories of the labor law and a whistleblower protection for the public sector is
included in the new amendment of the public services law and in the private sector in
the environmental information act. Still a general legislation for both – public and
private – sector is absent.
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III. Excursus: Leniency Program
On January 1, 201152, the new “strafrechtliche Kompetenzpaket” was enacted which
included a leniency program. The leniency program was normalized in the Austrian
Criminal Procedure Code (§209a 53, §209b 54). The leniency program was already
existent in the Austrian anti-trust law and creates an incentive for perpetrators to
cooperate with the authorities. The leniency program does not only apply to
individuals, but also to corporate bodies and the authorities might exempt them from
punishment.
In order to being guaranteed the principal witness position, certain requirements need
to be existent55:
1.) The accused must disclose voluntarily knowledge about facts, which are not
part of an investigation against him or part of an investigation. It is not a
disadvantage if an investigation is already taking place against unknown
perpetrators or other accused persons.
2.) The knowledge must pose an essential contribution to crime that lies in the
competency of the Criminal Court of Lay Assessor or the WKStA or lead to the
disclosing of a person who has been operating in a criminal or a terrorist
organization (causality).
3.) No “spezialpräventive” reasons must object to the application of the leniency
program.
4.) The leniency program cannot be applied if the delinquency causes the death of
a person or the accused is suspicious of committing a crime that is against the
52
ECKEL, Martin: Ausweitung der Kronzeugenregelung, 20.01.2011,
http://wirtschaftsblatt.at/home/1182815/index (08.09.2012).
53
§209a oft he Austrian Criminal Code of Procedure,
http://www.jusline.at/209a Rücktritt von der Verfolgung wegen Zusammenarbeit mit der Staatsan
waltschaft StPO.html (21.09.2012).
54
§209b oft he Austrian Criminal Code of Procedure,
http://www.jusline.at/209b Ruecktritt von der Verfolgung wegen Zusammenarbeit mit der Staatsa
nwaltschaft im Zusammenhang mit einer kartellrechtlichen Zuwiderhandlung StPO html
(21.09.2012).
55
FABRIZY, Ernst Eugen: Die österreichische Strafprozessordnung (Strafprozessordnung 1975)11.
Kurzkommentar. Wien: Manz 2011, §209a 1-6.
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sexual integrity or self-determination (§§201-220a of the Austrian Criminal
Procedure Code).
The following points are listed in the annotation to the legislation, which is especially
relevant for the principal witness:
1.) The prosecutor
can apply the leniency program. It is within the prosecutor’s
discretion/judgment to apply the leniency program.
2.) The decision lies merely within the prosecution office.
3.) The person who submits the information has no subjective right for the
application of the leniency program.
There is an essential difference between the leniency program is that the principal
witness a person who has participated in the crime which is about to be disclosed. The
whistleblower is not part of the delinquency. The principal witness can, according to
the Austrian Criminal Code, still face “Diversion”, which allows the authorities to
charge him with
1.) a fine (§201 of the Austrian Criminal Procedure Code)
2.) community services (§202 of the Austrian Criminal Procedure Code)
3.) a probation time (§203 of the Austrian Criminal Procedure Code)
If the principal witness accepts any of these points (1.) -3.), then the authorities will
step back from prosecuting him/her.
The principal witness has to submit information that actually supports the authorities
in their procedure. Ergo, if the principal witness breaches his obligation to cooperate
with the authorities they are allowed to resume investigation against the principal
witness. The principal witness has to expose himself/herself to the authorities and
participate actively in court as well as already during the investigation in order to
receive the benefits of the leniency program.
This implies that the application of the leniency program is narrower than any
whistleblowing regulation, because it is legalized in the Austrian Procedure Code.
The biggest difference however is that the principal witness
was part of the
malversation and now comes to the decision to step out.
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IV. Relevant institutions in Austria
The Austrian Financial Intelligence Unit (A-FIU) (Geldwäschemeldestelle)
The
Geldwäschemeldestelle, a term which can be translated as Austrian Financial
Intelligence Unit (A-FIU), is constituted based on §4 Section 2 BAK. The A-FIU is
an institution organized under the Federal Criminal Agency („Bundeskriminalamt“)
and its competencies lie within the fight against money laundering international
organized crime according to the respective laws. Most of activities of the A-FIU
consist of the acceptance, the analysis and the transfer of the received notifications as
well as the correspondence with Interpol and Europol. Hence the A-FIU is a member
of the Egmont-Gruppe and referred to as Austrian Financial Intelligence Unit (A-FIU).
As the A-FIU, it generates fees for various institutions, such as the European Union,
the European Council, the FATF, UNODC and Egmont. As of 2010, the A-FIU
consisted of 11 members, consisting of staff of the executing branch, the head of the
A-FIU and the secretariat.56
The Austrian Data Protection Commission (Die österreichische
Datenschutzkommission)57
The Austrian Data Protection Commission (in German
Datenschutzkommission) is a
governmental authority charged with data protection. The data protection commission
is the Austrian supervisory authority for data protection, which constitutes as the
equivalent of a national data protection commissioner in other countries.
In terms of whistleblowing, the Data Protection Commission is involved in the
application of whistleblowing-hotlines. When corporations, especially subsidiaries (of
US companies) are obliged to implement a whistleblowing-hotline, they need to
inform the commission and file an administrative decision/approval (“Genehmigung”).
56 All of the information is based on the Jahresbericht 2010, available online:
http://www.bmi.gv.at/cms/BK/publikationen/files/Geldwsche Jahresbericht 2010.pdf (28.08.2012).
57 For further information, please visit the homepage of the Austrian Data Protection Commission,
https://www.dsk.gv.at/DesktopDefault.aspx?alias=dsken (16.08.2012).
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Sensitive data in terms of names, identities, and personal data is likely to be
transferred to another state and hence various legislations need to be considered.
For this report, I was in contact with a representative of the Data Protection
Commission to receive information on the potential applications for a whistleblowing
hotline and how long it usually takes from the filing until the actual approved hotline.
However, the representative denied to make any binding statements and hence, I did
not cite the representative. Furthermore, I kindly asked for an approval to cite, which
was also left unanswered.
From the correspondence, I can state the following: subsidiaries file application for
whistleblowing-hotlines and these are the companies who are mostly obligated to
comply because of their mother company. Only a few Austrian companies are filing
for such a hotline though. The Date Protection Commission receives about 30-40
applications per year. When requesting information and/or statistics from the Data
Protection Commission, the informant told me that they do not maintain this kind of
documentation.
The Austrian Data Protection Council (Datenschutzbeirat)58
The Austrian Data Protection Council is an institution that is setup at the Federal
Chancellery of the Republic of Austria. It is a supervisory board, advising the federal
and state governments on legal questions in terms of data protection. The main
function of the Council is to ensure the data protection, as well as actively advocating
for the development of data protection in Austria and preparing suggestions for its
improvement. Furthermore, the Council provides advisory opinions to current
legislations of the Federal Ministry and can also submit these opinions to the federal
and state governments, as well to the legislative bodies.
According to the administration of the Council, the members are representatives of
political parties, various statutory corporations (“Körperschaften”) and the Austrian
Association of Towns and Municipalities (“Österreichischer Städte- und
Gemeindebund”). The Federal Chancellor of the Austrian Republic individually
appoints one member of the Council. The Council meets when necessary, but when a
member demands a session, the chairman is obliged to follow that request.
58 For further information, please visit the homepage of the Austrian Data Protection Council,
http://www.bka.gv.at/site/6417/default.aspx (16.08.2012).
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Mr. Johann Maier, the chairman of the Austrian Data Protection Council, and the
board concordantly decided to discuss basic principles of whistleblowing for the first
time in the 191st session, which was held on the 16th of November 2009.59
Therefore, the Austrian Data Protection Council, advocating for a whistleblower
protection law, developed a questionnaire for private and public institutions on the
29th of June 2011 in the 208th session, which was sent on the 8th of July in 2011 to
these institutions in order to assess the legitimacy of whistleblowing and hence the
necessity for a whistleblower protection law.60 The ultimate goal of the questionnaires
is to compile information whether these institutions are apt to install such a hotline.
The results of these questionnaires are anticipated in the beginning of September 2012,
and the chairman, Mr. Maier, assured to pass them on to me.61 In the following bullet
points, a few selected questions of the questionnaires are presented:
Which social advantages and disadvantages can be seen if a whistleblower protection law
would exist? What is your opinion on whistleblowing-platforms established by the media?
Are there already existing whistleblower protection regulations in your institution or do you
think a hotline is necessary?
If yes, should only be internal or also external whistleblowing be regulated by law?62
The Austrian Ombudsman Board (Volksanwaltschaft)
The Austrian Ombudsman Board (AOB)
63 is an institution, “independently
monitoring Austria’s entire public administration since 1977 by order of the Federal
Constitution. It checks the legality of decisions by authorities and examines possible
cases of maladministration. The Ombudsman Board provides the opportunity for
all
citizens to file a complaint, “regardless of their age, nationality, or residence. A
complaint can be made at any time and entails no expense”.64 As of July 1st, 2012, the
59 Letter of the Austrian Data Protection Council from the 8th of June 2011 (1), p. 3; letter of the
Austrian Data Protection Council from the 18th of November 2009, p 1.
60
MAIER, Johann: Datenschutzrat: Fragebogen-Erhebung zu „Whistleblowing“, 26.09.2011,
http://www.bka.gv.at/site/cob
44855/currentpage
7/7398/default.aspx?wai=true (17.08.2012).
61 Correspondence with Mr. Johann Maier, Chairman of the Austrian Data Protection Council, from the
14th of August 2012.
62 Letter of the Austrian Data Protection Council from the 8th of June 2011 (1) (2), p. 9f.
63 For further information, please visit the homepage of the Austrian Ombudsman Board,
http://volksanwaltschaft.gv.at/en (22.08.2012).
64 All information is retrieved from the official homepage of the Austrian Ombudsman Board,
http://volksanwaltschaft.gv.at/en (22.08.2012). In addition information was provided by the Head of
the international unit.
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mandate of the AOB “also includes the protection and promotion of human rights”65.
The implementation of the Optional Protocol to the Convention against Torture, and
other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and
provisions of the Convention on the Rights of People with Disabilities (CRPD)
entrusted the AOB with the function of National Preventive Mechanism (NPM). In its
function as NPM within the OPCAT regime, the AOB constantly carries out on-site
visits of facilities selected at random. There are cases, which do not fall into the
jurisdiction of the AOB: such as disputes between private individuals as well as the
(independent) judiciary (“unabhängige Gerichtsbarkeit”). 66
In the year 2011, the AOB received 16.239 67 complaints. Complaints could be
subsumed under the following areas: social (common) area, judicial administration
(e.g. lengths of cases), internal security (police, procrastination of asylum cases).
Human rights are a horizontal issue that touches upon many of the AOB areas of
complaints. “On average, the affected parties are informed within 49 days whether the
AOB has determined a case of maladministration.”68
65 Annual Report of the Austrian Ombudsman Board to the National and Federal Council, 2011,
http://volksanwaltschaft.gv.at/downloads/850m2/Annual%20Report%20-%20Summary%202011.pdf
(24.08.2012), p. 5.
66 See Annual Report of the Austrian Ombudsman Board to the National and Federal Council, 2011,
http://volksanwaltschaft.gv.at/downloads/850m2/Annual%20Report%20-%20Summary%202011.pdf
(24.08.2012), p. 13 for further information.
67 Annual Report of the Austrian Ombudsman Board to the National and Federal Council, 2011,
http://volksanwaltschaft.gv.at/downloads/850m2/Annual%20Report%20-%20Summary%202011.pdf
(24.08.2012), p. 10.
68 Annual Report of the Austrian Ombudsman Board to the National and Federal Council, 2011,
http://volksanwaltschaft.gv.at/downloads/850m2/Annual%20Report%20-%20Summary%202011.pdf
(24.08.2012), p. 10.
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Source: Annual Report of the AOB, 2011.69
The AOB is known in Austria for its independent method of operation, its barrier-free
access for citizens and legal advice also in those cases where it has no jurisdiction.
The AOB has access to all files from other ministries, agencies, and the usual “official
secrecy” (“Amtsgeheimnis”) that these institutions have to adhere to is not applicable
in this case.
Most of the time people disclose their identity when filing a complaint with the AOB.
When the AOB wishes not to reveal the complainant’s identity it can start an ex-
officio investigation procedure on that matter.
The general procedure of a case is as follows:
1.) A person files a complaint that lies within the AOB jurisdiction.
2.) The AOB opens an investigation procedure and decides whether there is a
case of maladaministration.
3.) In case the complaint constitutes a case of maladministration, the subsequent
scenarios have to be differentiated:
- If the administration applied the law according to its content, the AOB can
recommend a change in legislation in the annual report which is presented
69 Annual Report of the Austrian Ombudsman Board to the National and Federal Council, 2011,
http://volksanwaltschaft.gv.at/downloads/850m2/Annual%20Report%20-%20Summary%202011.pdf
(24.08.2012), p. 16.
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to and debated in the parliament; this can lead to the amendment of an act
(e.g. dual citizen ship law)
- If the behavior constitutes a malversation, the AOB can write
recommendations and asks the institution who has conducted the
maladministration to resume the decision and make the proposed
amendments.
The AOB cannot be seen as a typical whistleblowing registry because its monitoring
competency is limited to maladministration. But its competencies still cover a broad
horizon. And since it is possible that a person can disclose their identity before the
AOB, but in the subsequent developments the AOB can conceal the whistleblower’s
identity, the AOB plays an important role in the current developments in terms of
protecting a whistleblower.
Prosecution Services - Wirtschafts- und Korruptionsstaatsanwaltschaft
(WKStA) (official: Zentrale Staatsanwaltschaft zur Verfolgung von
Wirtschaftsstrafsachen und Korruption)
The
Wirtschafts- und Korruptionsstaatsanwaltschaft (WKStA, Public Prosecutor´s
Office for Combatting Economic Crimes and Corruption) has been established as a
prosecuting body in Austria for economic criminal cases and corruption on September
1st, 2011. The Public Prosecutor’s Office for Combatting Econmic Crimes and
Corruption is the successor of the Public Prosecutor’s Office for Combatting
Corruption (
Korruptionsstaatsanwaltschaft, KStA). The KStA has been established
since the 1st of January, 2009. The WKStA is competent for the procedure of certain
economic crimes with damages exceeding five million Euros and for
corruption/bribery offences (“Bestechungsdelikte”), which are exclusively listed in
the Austrian Code of Criminal Procedure. If the damages do not exceed the five
million Euro range and special knowledge about the Austrian economy is required to
prosecute these cases, and for cases regarding bribery/corruption offenses
(“Amtsmissbrauch”), if there is a special public interest the WKStA is authorized to
attract the competency70. The responsibility of the WKStA includes not only the
prosecution, but also the main proceedings and the appeal proceedings.
70 See §20b StPO (Austrian Code of Criminal Procedure).
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Mr. Walter Geyer, a member of the advisory board of the Austrian Chapter of
Transparency International 71 , is head of the WKStA and agreed to discuss the
parameters and challenges of whistleblowing for this report. In the meeting with Mr.
Geyer, which took place on August 23rd, 2012 72 , he described his view on
whistleblowing. He noted that a whistleblower is an insider, who has knowledge
about a criminal offense, but who is not part of the malversation and who can disclose
information about the offense. This is the main difference between a whistleblower
and a principal witness (“Kronzeuge”)73, who is part of the operation. The hardest part
about the term whistleblower is that there is no official (legal) definition, Mr. Geyer
noted.
The WStKA receives information in two ways: openly and anonymously:
Anonymous Whistleblowing
Most of the times though, Geyer noted, people do disclose information
anonymously. (But very often they are not whistleblowers because they just file a
complaint file rather that they can provide
knowledge about an actual situation.
If a person constitutes as a whistleblower and has provided information
anonymously, it poses a difficulty since there is no opportunity to inquire further
information. Inquiries constitute a challenge and rarely have a positive outcome,
Geyer added.
Open Whistleblowing
A whistleblower that provides his identity often does not have the courage to tell
the “whole truth”. There is resistance because the information being exposed
might generate further consequences for him/her, Geyer explained.
What happens if the information the whistleblower provides turns out to be not
verifiable or true? A differentiation has to be made:
In case the information of the whistleblower is not verifiable or the information turns
out to be false, the whistleblower does not have to fear any criminal consequences. If
it turns out that he accused others on purpose, then the WKStA has to examine due to
71 For further information, please see http://www.ti-austria.at/ueber-uns/beirat-ti-ac.html (28.08.2012).
72 The statements of this meeting have been approved and confirmed by Mr. Walter Geyer and Mr.
Erich Mayer (Leiter der Medienstelle der WKStA).
73 For further information, please view the
Chapter IV) on the Leniency Program.
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the official principle (“Offizialprinzip”) if libel has been committed. Those cases are
hardly known within the WKStA.
The information by a whistleblower does not constitute as strong evidence if made
anonymously, rather accounts for a cause to find other documentary evidence. In this
case the anonymity is not an advantage because the WStKA has no opportunity to
retrieve further information from the whistleblower. Even though the anonymity
poses a challenge in these cases, Mr. Geyer is advocating for a whistleblower
protection law that can guarantee the whistleblower’s anonymity. He further
explained that this would imply blackening the name of the whistleblower out in the
complaint file/bill of indictment. Mr. Geyer explained that whistleblowing contains a
psychological element because the whistleblower – in case he is disclosing
information about his employer – is torn between keeping the information a secret and
between exposing the knowledge he/she has retrieved. The possible consequences a
whistleblower has to face are also points, which need to be taken into consideration,
Geyer concluded, and therefore a protection of the whistleblower could diminish
these deliberations.
Association “Whistleblowing.at”74
“Whistleblowing Austria” is an association registered under Austrian law since the 1st
July 2011. Its goal is to contribute to an open society in which it must be possible to
speak freely of corruption and other wrongdoings both within the state and the private
sector; hence "Whistleblowing Austria" aims at improving Austria’s whistleblowing
legislation. Whistleblowing Austria also provides advice and assistance to those who
wish to disclose wrongdoings and misconducts and who take action against them
within state institutions, private companies, international organizations or NGOs. Its
executive committee consists of six members who have a variety of expertise
(including in journalism, mediation, domestic and international law, sales
management, psychology and public information). It advised the
Austrian Data
Protection Council on the issue of whistleblowing.
74 For further information, please visit the homepage of the association, http://www.whistleblowing.at/
(16.08.2012).
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The Press
The past years have shown that information which concerns cases of white-collar
crimes were most likely to be handed over to the press. These disclosures of
malversations had often to do with political wrongdoings, corruption in the public
office or nepotism. Almost every newspaper in Austria has an investigative team who
has written about these expositions.
1.
Kurier Platform Austrolix
In an article published by the Austrian Data Protection Council, it was noted that the
newspaper “Kurier” has implemented a platform called “Austrolix”. From the article,
I became aware of the fact that it must function as platform where whistleblower can
disclose their information and the investigative reports of the press try to conduct
research, accordingly.
Up until this point, I had sent two inquiries to “Kurier”: one general inquiry and
another specific one, which were left unanswered. Based on the information found
online, I cannot assess whether the platform is (in-)active or how well it has been
received.
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V.
Perceptions and political will
A few years ago, the media and press in Austria looked to the United States and
almost “envied” their enhanced legislation on whistleblowing. The massive fraud
cases, such as Enron and Worldcon, paved the way for corporations to comply with
legislation, such as the Sarbanes Oxley Act and the Foreign Corrupt Practices Act
1977. Corporations are obliged to implement different tools, such as a
whistleblowing-hotline for their employees to submit notifications of questionable
accounting methods when witnessed within the company.75 Even in the year 2012, the
United States is ahead of its time, implementing under the Barack Obama
administration the Dodd Frank Act, a whistleblower law which rewards money to
whistleblowers who successfully generate a case and cause a verdict for a
malversation.
Recent developments in the Austrian economy and verdicts (or current
ascertainments) in the judicial system have shown that the topic on whistleblowing
has become more relevant than before. In the last few years, the Austrian populace
has been exposed to a wide series of news on corruption, embezzlement, fraud,
nepotism (Austria: “Freunderlwirtschaft”), and misappropriation; hence the trust in
the judicial system, the economy and the lack of the decision-making process has
been continuously decreasing.
Due to these disclosures the term whistleblowing has been used quite prevalently in
the media – newspapers and news coverage. The term “whistleblowing” appears in
the newspapers in many different ways. In general four parameters can be observed:
1) first of all the term whistleblowing is used in many different ways – it depends
on the content of the allegations made by him/her;
2) secondly as a new trend to uncover these cases of white-collar crimes and
hence as a tool to fight corruption;76
75
KNYRIM, Rainer: US-Hotlines: Grenzen für das Verpfeifen, Die Presse, 13.03.2006,
http://diepresse.com/home/recht/rechtspanorama/100377/USHotlines Grenzen-fuer-das-Verpfeifen-
(17.08.2012).
76
LUKANEC, Horst: Whistleblowing-Hotlines. Die Presse, 22.5.2012.
http://karrierenews.diepresse.com/home/ratgeber/arbeitsrecht/759772/WhistleblowingHotlines-
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3) thirdly, whistleblowing is often mentioned in reference to different laws,
especially labor law77 and data protection law78 and
4) fourthly in connection to enhance the protection of these whistleblowers79:
General perception of whistleblowing
As previously mentioned the first trend in the media has been to use whistleblowing
as an instrument to fight corruption and encourage people to step forward, when they
become aware of a wrongdoing. The term whistleblower holds a positive connotation,
when referring to a person who discovers a malpractice, which turns out to be true.
Instead when these allegations turn out to be false, a whistleblower is described in a
degrading way and the term is translated with “Denunziant/Verräter/Vernaderer” 80 –
a “shamus/squealer”.
It becomes obvious that the Austrian press is not consistent. On the one hand, a
whistleblower is admired because they can disclose corporations of their malversation
and encourage transparency. On the other hand, a whistleblower is described as
someone who is a “sneak”, betraying the trust of his colleagues, the company or the
system he/she is trying to expose. It indicates that because of the recent cases (see
Chapter VIII.)), there is no consistent line in the press to be seen.
(16.08.2012).
DIE PRESSE: Daimler: „Jede Firma sollte Whistleblower-Systeme einführen“, Die
Presse, 23.02.2012, http://diepresse.com/home/wirtschaft/international/734673/Daimler Jede-Firma-
sollte-WhistleblowerSysteme-einfuehren (17.08.2012);
NEUHOLD, Christian: Wie “Whistleblowing”
Firmen stärken kann, Format, 23.07.2012, http://www format.at/articles/1230/527/335646/wie-
whistleblowing-firmen (08.08.2012).
77
ANGERMAIR, Thomas/
PRCHAL, Robert: Aufdecker oder Nestbeschmutzer? Die Presse,
29.09.2008, http://diepresse.com/home/recht/rechtallgemein/418395/Aufdecker-oder-Nestbeschmutzer
(16.08.2012).
78
KNYRIM, Rainer: US-Hotlines: Grenzen für das Verpfeifen, Die Presse, 13.03.2006,
http://diepresse.com/home/recht/rechtspanorama/100377/USHotlines Grenzen-fuer-das-Verpfeifen-
(17.08.2012).
79
SEEH, Manfred: Whistleblowing – Anonyme Aufdecker ohne Rechtsschutz, Die Presse, 22.09.2011.
http://diepresse.com/home/panorama/oesterreich/695314/Whistleblowing Anonyme-Aufdecker-ohne-
Rechtsschutz (16.08.2012);
WETZ, Andreas: AKH: Eine Kultur des Wegschauens, Die Presse,
02.09.2011, http://diepresse.com/home/panorama/wien/690376/AKH Eine-Kultur-des-Wegschauens
(17.08.2012);
MÖCHEL, Andrea: Aufdecker sollen geschützt werden, Wirtschaftsblatt, 14.04.2010,
http://www.wirtschaftsblatt.at/archiv/416145/index.do (08.08.2012).
80
LUKANEC, Horst: Whistleblowing-Hotlines. Die Presse, 22.5.2012,
http://karrierenews.diepresse.com/home/ratgeber/arbeitsrecht/759772/WhistleblowingHotlines-
(16.08.2012).
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A whistleblower as an instrument of corporate compliance
As a new trend evolving due to globalization, many US-companies have subsidiaries
in Austria and hence they are obliged, just like the mother company, to comply with
the legislation implemented in the United States, e.g. Sarbanes Oxley Act, Foreign
Corrupt Practices Act. Therefore, certain Austrian companies – these subsidiaries –
are subjected to installing whistleblowing-hotlines in order to be consistent with these
laws. This duty causes other discussions in the media as well (see Ad. 3.), especially
in terms of data protection and labor law. The Daimler and Siemens corruption case
have encouraged the discussion in the press to view whistleblowing-hotlines as a tool
to fight corruption. The term “whistleblowing” is described with a general positive
connotation because it can help companies (or subsidiaries) to early prevent
corporations from being subjected to (public) investigation, media and press coverage,
legal fees and other consequences. In these articles whistleblowing is often mentioned
with the Data Protection Commission, because they have developed.81
Furthermore, a whistleblower is referred to as an “ombudsman” and considered part
of the internal control system of a corporation in order to enhance corporate security
and the monitoring of processes within a company. A whistleblower is therefore
described with a positive connotation, posing an asset to the company’s internal
control mechanisms, enhancing transparency and diminishing fraud and corruption.82
In the paper published by Schneider83, a whistleblower is described as an adjustor.84
Customers, contractors and uninvolved third parties can address him/her in case a
malversation is observed within the company.85 As an ombudsman, he is described as
not being part of the staff of the corporation. The description of the whistleblower in
Schneider’s article is consistent with the perception in the previously mentioned
newspapers. As long as the whistleblower can assist the company preventing it from
81
LUKANEC, Horst: Whistleblowing-Hotlines. Die Presse, 22.5.2012,
http://karrierenews.diepresse.com/home/ratgeber/arbeitsrecht/759772/WhistleblowingHotlines-
(16.08.2012).
82 See
SCHNEIDER, Thomas: Ombudsmann als Bestandteil der Unternehmensüberwachung, RWZ
2006/110, Heft 12 v. 22.12.2006, p. 378.
83 See
SCHNEIDER, Thomas: Ombudsmann als Bestandteil der Unternehmensüberwachung, RWZ
2006/110, Heft 12 v. 22.12.2006, p. 378 ff.
84 See
SCHNEIDER, Thomas: Ombudsmann als Bestandteil der Unternehmensüberwachung, RWZ
2006/110, Heft 12 v. 22.12.2006, p. 378.
85 See
SCHNEIDER, Thomas: Ombudsmann als Bestandteil der Unternehmensüberwachung, RWZ
2006/110, Heft 12 v. 22.12.2006, p. 378.
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any damages, the connotation is generally positive. In one article, the headline even
states “How Whistleblowing can strengthen the companies” and whistleblowing is
seen as the ultimate “weapon against corruption”. 86 Since whistleblowing is viewed
as an instrument of an effective compliance system, the term is contrasted with “to
tattle” (Austrian: “vernadern”).
The term whistleblowing in connection with the law
As already previously explained, introducing a whistleblowing-hotline generates
discussions, especially in terms of labor and data protection law. The discussion
evolves mostly around cases where people have anonymously or non-anonymously
disclosed a malversation and therefore been subjected to the consequences of these
exposures. The term “whistleblower” is used in these cases, depending on the
viewpoint of the people, who evaluate this behavior. On the one hand, a
“whistleblower” is described in these cases as a nest-fouler/nest-soiler
(“Nestbeschmutzer”87) or someone who is admired for his/her courage88.
Perception of whistleblowing in the media
In the annotations to the draft of the public services law89 a whistleblower and the
enacted regulation is viewed as an asset to strengthen the trust in the administration
and the Austrian economy. Because the law has been enacted due to the GRECO
evaluation report, it is noted that corruption is generating a massive amount of loss for
the Austrian economy and therefore whistleblowing – or the whistleblower – is
viewed as a tool to prevent corruption and malversations that endanger the economy.
86
NEUHOLD; Christian: Wie “Whistleblowing” Firmen stärken kann, Format, 23.07.2012,
http://www.format.at/articles/1230/527/335646/wie-whistleblowing-firmen (08.08.2012).
87
DIE PRESSE: Wenn Arbeitskollegen zu Aufdeckern werden, Die Presse, 29.08.2011,
http://diepresse.com/home/panorama/oesterreich/689163/Whistleblowing Wenn-Arbeitskollegen-zu-
Aufdeckern-werden (17.08.2012).
88
DIE PRESSE: Wenn Arbeitskollegen zu Aufdeckern werden, Die Presse, 29.08.2011,
http://diepresse.com/home/panorama/oesterreich/689163/Whistleblowing_Wenn-Arbeitskollegen-zu-
Aufdeckern-werden (17.08.2012).
89 326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME 00326/fname 233998.pdf (16.08.2012), p. 2.
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VI. Current developments
The Whistleblower Platform of the Ministry of Justice (MoJ)
For this section, I sent a questionnaire to
to ask him about his perception on whistleblowing in Austria and
the development of a whistleblower platform.
According to
, the
idea of establishing a whistleblower platform
originally was pushed by the MoI (Ministry of Interior), namely its former Federal
Bureau for Internal Affairs (BIA).
and still is a
strong promoter of such an instrument.
The first time the idea came up to develop
such a website, was as far as
recalled, in 2006.
At the conference in 2009, the platform was presented by the German LKA Lower
Saxony (Niedersachen). They illustrated both statistics as well as (other) empirical
data. Their experience (the LKA Saxony) was more than positive and promising and
the system helped them in some major criminal investigative cases. As con arguments
(by others) against the system, the following were stated: legal basis questionable,
advocates “Vernaderertum”, data protection issues and inconsistent with the StPO
(Austrian Code of Criminal Procedure).
On the international level, the United Nations Convention against Corruption
(UNCAC) in its articles 13, 33 would call for such mechanisms [as do – to a certain
extent - other international treaties, e.g. CoE conventions etc.].
understanding is
, that - in general - the StPO (Austrian Code of
Criminal Procedure) in its present version would already allow a whistleblower
platform to be implemented. With regard to the public sector, § 5 BAK-Gesetz by now
provides a special provision in this direction.
In a nutshell, subject to political will the necessary legislative arrangements could be
adopted relatively easily.
90
reviewed and confirmed the statements made in this section.
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also stated
that he is still advocating for a similar platform/instrument
in Austria (even
.
Furthermore, I asked him if,
, there were any
internal or external reporting mechanisms for disclosures. He stated the following:
Not a genuine one, externally we needed to follow the provisions of the StPO
(Austrian Code of Criminal Procedure). In addition, we tried - to the best of our
possibilities and subject to legal frameworks - to protect the integrity and well-being
of witnesses and whistleblowers.
In terms of recent developments taking place at the Ministry of Justice/Ministry of
Interior,
noted that he thinks no recent developments have taken place,
besides the (W)KStA and
, at
that time, pushing and urging fur such a system/legislation. From his point of view,
the WKStA is strongly supporting an initiative to develop a whistleblower-hotline.
When asked about if,
, he is still
advocating for a whistleblowing protection law, his response was
affirmative.
Conclusively,
stated the following:
I am a strong believer in a robust
and comprehensive whistleblower protection legislation. Experience has shown that
intranei
normally are in a position to provide strong and reliable information. At the
same time, they are regularly afraid to be socially stigmatized if being disclosed as
“informants” [see the negative connotation?]. Moreover, as a former police officer
and (criminal) investigator as well as from a practical point of view, a well though-
through whistleblower system could even add to the notion of predictability of legal
decision (“Rechtssicherheit”) as it would – inter alia – allow the investigator to
communicate with the source.
Inquiries to the Ministry of Justice
On March 28, 2012,
filed an inquiry to the Ministry of Justice (specifically to
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Whistleblowing regulation in the public sector
Whistleblowing regulation in the private sector
Whistleblowing hotline at the Austrian Ombudsman Board
The whistleblowing regulation in the public sector was fulfilled due to the
implementation of the new public services legislation for public servants. The
whistleblowing regulation in the private sector is still a topic he is rooting for. The
whistleblowing hotline for the Austrian Ombudsman Board was filed on the 21st of
October 200995 but lead to no legislation. Mag. Steinhauser explained that during that
time the topic whistleblowing was fairly new in Austria and hence, he wanted to
sensitize the other assemblymen. In the light of the recent events,
would definitely support the implementation of a whistleblowing hotline at every
Austrian (public) institution/agencies (“Behörden”) because every notification by a
whistleblower needs to be delegated to a specific institution.
Furthermore, he added that comparing the situation now to recent years,
could see different developments taking place, such as the possible
implementation of a whistleblowing homepage for the Ministry of Justice. It is more
likely that the Prosecution Services – Wirtschafts- und Korruptionsstaatsanwaltschaft
(WKStA) will receive a whistleblower hotline. If this would happen,
explained, he would advocate for a whistleblowing hotline at other
institutions.
The current developments in Austria are good because the topic whistleblowing has
garnered the attention of the media and the Parliament.
added that
still the discussion stays somewhat “low level”, because after all these years the terms
“Vernaderer” or “Denunziantentum” are always linked to a whistleblower. Moreover,
the discussion always focuses on the topic why whistleblower needs anonymity – this
implies that people have not understood the full scope of whistleblowing,
concluded.
95 The motion for resolution is available online:
http://www.parlament.gv.at/PAKT/VHG/XXIV/A/A_00827/imfname_169923.pdf (04.09.2012).
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VII. Case – What happened to a real whistleblower? 96
Facts
According to the articles, in 2009, there was a tender for a cleaning service
company for the “Allgemeine Krankenhaus Wien” (General Hospital Vienna),
to provide services for the cleaning of the hospital. The tender was conducted
by Manfred Blasoni, who was the administrative director of the AKH, and is
now a retiree. The Director of the AKH is named Reinhard Kepler.
The tender took place over a few months, starting in the year 2009, and it is a
necessity for the successful conduction of the tender that it is compliant with
the Public Procurement Law of Austria.
The Public Procurement Law constitutes a standstill period (“Stillhaltefrist”),
which foresees that the awarding authority and the contractor may not disclose
any information to external persons/institutions. Furthermore, no gentlemen’s
agreements are allowed during the tender process.
Several different companies laid an offer, but those who were most likely to
be awarded are called Ago Group and the Janus Group (owners: Dragan Janus
and Vuka Janus).
Janus Group’s offer was EUR 3 Million below the offer of Ago Group.
Moreover, all conditions that the General Hospital Vienna had required, were
fulfilled. The Janus Group has been in business for over 10 years, also for the
General Hospital, and there were hardly any complaints. The company’s
owner, Dragan and Vuka, are known for their high quality services and for
their numerous awards.
Ago Group laid a higher offer and despite the fact that the Janus Group laid a
cheaper offer, the award of contract went to Ago Group for 50 Million Euros.
96 The information for the case is based on newspaper articles (see bibliography).
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Allegation
The allegation was that the award procedure has not been compliant with the
Public Procurement Law, since the Janus Group despite laying a better offer
was not awarded and instead the award went to the Ago Group. Dragan Janus
laid according to insiders the best offer.
Manfred Blasoni is accused of malversation, abuse of office, and coercion.
There were “elephant rounds” between Manfred Blasoni, the Ago Group, the
Janus Group, and public servants of the General Hospital, where the Janus
Group was influenced not to interfere with the award procedure and assured if
“they would stay out of it”, they will be awarded smaller mandates.
Evidence
According to the articles, there are several documentary evidence: documents,
accountant’s opinion, statements by witnesses, and audio tapes
Several “poker nights and champagne parties” were held between Ago
representatives and public servants from the AKH (General Hospital Vienna).
According to an accountant’s opinion (KPMG), there was a “tacit agreement”
(stilles Übereinkommen), which stated that Dragan Janus will gain other
mandates in case they pull out of the tendering. Furthermore, the accountant’s
opinion states that the text of the tender was written for the needs of Ago (so
they would be selected).
Damages
According to Dragan Janus, the damages for not receiving the tender
amounted to EUR 40.234498,56.
The damages according to several articles for the selection of Ago Group
amount to EUR 3.000.000.
Current status
Currently, the Public Prosecution Services - Wirtschafts- und
Korruptionsstaatsanwaltschaft (WKStA) is evaluating whether the case will be
brought to the judge.
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However, the contracts with the Ago Group have been cancelled, and will end
in December 2013. Then, a new tendering will be conducted.
The Janus Group contract was cancelled. They do not work for the General
Hospital anymore.
Whistleblowers
In accordance with the newspaper articles, the staff of the AKH (General
Hospital), who had known about the practices of the respective responsible
people for a long time, remained silent.
Furthermore, not only people who have not been involved in the case, but also
the accused witness (in the article, no name is provided) had insider
knowledge that the AKH and the Ago Group have been involved in the same
case in the year 2005. Already in 2005, the Ago Group was a preferred choice
for the AKH as their cleaning Service Company and the responsible people
“put them through the tender”. Rankings were manipulated so that the Ago
Group was assigned again. The accused witness stated that already in the year
2005, she informed her employer about the malversations, but was “calmed
down” and assured that “the procedure was correct”.
Furthermore, an informant of “Die Presse”, who had worked as a lawyer
specializing on the public procurement law in the health department of the
“Stadt Wien” (City of Vienna), noted the severe malversations. Once he had
stated his “critical points”, he was mobbed and then subsequently fired from
his job. As a justification for his firing, the department stated that he was not
“capable of making decisions”.
Dragan Janus is also considered a whistleblower, because he recorded several
of the meetings he had with Manfred Blasoni. Hence, he and his wife have
been questioned. He is also willing to disclose the malversations that
happened at the General Hospital. The consequences for the Janus Group were
that about 1050 employees did not receive an employment. The Janus Group
has been a victim of corruption. The Director of the AKH, Reinhard Keppler,
signed the contract with the “competitor”, Ago Group and the contract with
the Janus Group has been cancelled, even though that Keppler was aware of
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Shahanaz Müller
the pending investigations (corruption, abuse of office) against the public
servants of the General Hospital.
Conclusion
I originally had planned to include more than one case in this report, but the only
ones I came across where those where the whistleblowing did not work to their
advance. This previously described case proves different things:
If there had been a proper whistleblower protection for Dragan Janus, he
would not be subjected to the losses (which derive from the contracts).
If the transparency in the Public Procurement Law would be existent and
the people actually complying with it, Dragan Janus would have been
awarded the contract-
The whistleblower protection did not apply in this case and hence, all the
“honest” work that Dragan Janus did by supporting his case so far has not
being rewarding for him.
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VIII. Strengths, weaknesses and recommendations
Strengths
Whistleblower protection law in the
public sector for the public servants
(Public Services Law)
Whistleblower protection law in the
private sector can be derived from
different statutory regulations
Attempts in the Ministry of Justice are conducted to implement a
whistleblower-hotline on their homepage
The topic whistleblowing has been brought up in the media quite prevalently
in newspapers/TV
All the institutions presented in the paper were aware of the topic and had
already heard about it, which implies that a discussion is taking plac
Weaknesses
The term whistleblower is most of the time connected to the following words
“Denunziant/Querulant”
There is no explicit – not one cumulative– regulation for the private sector and
public sector.
The involvement of the Data Protection Commission is quintessential for the
success of the application of a whistleblower-hotline and in the expansions of
corporations implementing whistleblower-hotlines in their companies; the
process needs to be transparent and openly communicated within Austria, so
that companies are aware of this circumstance. The application needs to be
conducted in a reasonable amount of time (3months).
There is a lack of transparency in the judicial system, especially in terms of
investigating high representatives and prosecuting them; hence, the tendency
for whistleblowers to stay anonymous is even more prevalent than before,
which makes the need for whistleblower protection legislation even more
prevalent and
necessary.
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Shahanaz Müller
There is no retribution for the personal consequences a whistleblower has to
face, especially psychological consequences.
Recommendations
1. Whistleblowing regulation in the private sector – not only to protect the
whistleblower, but also to regulate the whistleblowing itself
2. Definition of whistleblowing in statutory laws – public and private sector
3. Precise definition of the retribution a whistleblower will face once being
subjected to wrongful allegations by the people, he/she blew the whistle on
4. Precise definition of internal and external reporting mechanisms that a
whistleblower can use (see recommendation
no. 7)
5. Obligatory regulation for companies of a certain size to implement a
whistleblower-hotline
6. Enhance the process of application for a whistleblowing-hotline – taking less
time (closer cooperation between the Data Protection Commission and the
specific companies that need to implement a hotline due to international
regulations, such as FCPA, SOX etc.)
7. Implementation of a whistleblowing-hotline at the Prosecution Services –
Wirtschafts- und Korruptionsstaatsanwaltschaft (WKStA) and make this
hotline public so that the people are aware of it
8. Discussion in the media about whistleblowing, rather than “Vernaderertum”
and more in the sense of what improvements it can bring to
institutions/companies and their internal control system
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IX. References and sources
Articles in judicial magazines/books
BRODIL, Wolfgang: Arbeitsrechtliche Aspekte von Whistleblowing
In: Zauberwort Compliance? Grundlagen und aktuelle Praxisfragen, Peter
Lewisch (Hrsg.), Zentrum für Wirtschafts- und Finanzstrafrecht der
Universität Wien, Wien: 2012, S. 89-99
BRODIL, Wolfgang: Verpfeifer, Pfeifen und Verpfiffene, Exolex 2009,
Pages 1024-1027
JAHNEL, Dietmar: Whistleblowing-Hotlines im Datenschutzrecht, Ecolex
2009, Pages 1028-1032
KNYRIM, Rainer/
KURZ, Barbara/
HAIDINGER, Viktoria: Whistleblowing-
Hotlines: Mitarbeiter ‚verpfeifen’ zulässig?, 12.05.206, ARD – Aktuelles
Recht zum Dienstverhältnis
LEISSLER, Günther: „Whistleblowing“ in Österreich – die ersten Schritte…,
Ecolex 2009, Pages 361-363
LUKANEC, Horst: Whistleblowing-Hotlines. Die Presse, 22.5.2012.
Available online:
http://karrierenews.diepresse.com/home/ratgeber/arbeitsrecht/759772/Whistle
blowingHotlines-
Last visited: 16.08.2012.
MAZAL, Wolfgang: Whistleblowing – kollektivarbeitsrechtliche Aspekte,
Ecolex 2009, 1033-1034
RISAK, Martin: Whistleblowing durch den Betriebsrat, Ecolex 2012, Pages
243-246.
RADINSKY, Orlin: Whistleblowing aus juristischer Sicht – Verpflichtung zur
Anzeige oder Laissez-Faire?
http://at.cis-cert.com/News-Presse/Newsletter/NL-Jan-2011/Whistle-Blowing-
Pflicht-aus-rechtlicher-Sicht.aspx
Last visited: 20.08.2012.
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REIS, Leonhard: Zur Zulässigkeit von Whistleblowing-Hotlines, RdW
2009/351, Heft 6 v. 17.06.2009, Pages 396-399.
SCHNEIDER,
Thomas:
Ombudsmann
als
Bestandteil
der
Unternehmensüberwachung, RWZ 2006/110, Heft 12 v. 22.12.2006, pages
378-383.
SPRING, Philipp: „Whistleblowing-Hotlines“, Ecolex 2009, Pages 363-366
SPRING, Philipp: „Whistleblowing“ – „Verpfeif“-Maßnahmen aus
datenschutzrechtlicher Sicht, Ecolex 2007, Pages 139-142.
Newspaper articles
ANGERMAIR,
Thomas/
PRCHAL,
Robert:
Aufdecker
oder
Nestbeschmutzer? Die Presse, 29.09.2008.
Available online:
http://diepresse.com/home/recht/rechtallgemein/418395/Aufdecker-oder-
Nestbeschmutzer
Last visited: 16.08.2012.
APA – Standard: Whistleblower-Regelung für Öffentlichen Dienst, Der
Standard, 27.10.2011.
Available online:
http://derstandard.at/1319181328393/Dienstrechtsnovelle-Whistleblower-
Regelung-fuer-Oeffentlichen-Dienst
Last visited: 16th of August 2012.
DIE PRESSE: Daimler: „Jede Firma sollte Whistleblower-Systeme
einführen“, Die Presse, 23.02.2012.
Available online:
http://diepresse.com/home/wirtschaft/international/734673/Daimler_Jede-
Firma-sollte-WhistleblowerSysteme-einfuehren
Last visited: 17.08.2012.
DIE PRESSE: Justizministerin Karl testet Homepage für Whistleblower,
30.12.2011.
Available online:
http://diepresse.com/home/politik/innenpolitik/720291/Justizministerium-
testet-Homepage-fuer-Whistleblower
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Last visited: 04.09.2012.
DIE PRESSE: Wenn Arbeitskollegen zu Aufdeckern werden, Die Presse,
29.08.2011.
Available online:
http://diepresse.com/home/panorama/oesterreich/689163/Whistleblowing_We
nn-Arbeitskollegen-zu-Aufdeckern-werden
Last visited: 16.08.2012.
JAINDL, Oliver: Whistleblower”-Hotlines auf rechtlich dünnem Eis,
27.03.2012.
Available online: http://www.wirtschaftsblatt.at/archiv/512368/index.do
Last visited: 08.08.2012.
LAIMER, Hans Georg: Welche Risiken ein Whistleblower trägt,
Wirtschaftsblatt, 08.08.2012.
Available online:
http://wirtschaftsblatt.at/home/1278686/Welche-Risiken-ein-Whistleblower-
traegt
Last visited: 22.08.2012.
KNYRIM, Rainer: US-Hotlines: Grenzen für das Verpfeifen, Die Presse,
13.03.2006.
Available online:
http://diepresse.com/home/recht/rechtspanorama/100377/USHotlines Grenzen
-fuer-das-Verpfeifen-
Last visited: 17.08.2012.
MÖCHEL, Andrea: Aufdecker sollen geschützt werden, Wirtschaftsblatt,
14.04.2010.
Available online: http://www.wirtschaftsblatt.at/archiv/416145/index.do
Last visited: 08.08.2012.
NEUHOLD; Christian: Wie “Whistleblowing” Firmen stärken kann, Format,
23.07.2012,
Available
online:
http://www.format.at/articles/1230/527/335646/wie-
whistleblowing-firmen
Last visited: 08.08.2012.
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ORF News: Korruptionsjäger im Web – Anonymität im überwachten Netz,
08.08.2012, Available online: http://orf.at/stories/2134731/2134750/
Last visited: 16.08.2012
ORF News: Whistleblowing: Korruptionsjänger im Web, 09.08.2012
Available online: http://orf.at/stories/2134823/
Last visited: 16th of August 2012.
PÖLL, Regina, Korruption: Neue Regeln für Beamte, 26.10.2011,
Available online:
http://diepresse.com/home/recht/rechtallgemein/704055/Korruption_Neue-
Regeln-fuer-Beamte
Last visited: 16.8.2012.
SEEH, Manfred: Whistleblowing – Anonyme Aufdecker ohne Rechtsschutz,
Die Presse, 22.09.2011.
Available online:
http://diepresse.com/home/panorama/oesterreich/695314/Whistleblowing An
onyme-Aufdecker-ohne-Rechtsschutz
Last visited: 16.08.2012.
WETZ, Andreas: AKH: Eine Kultur des Wegschauens, Die Presse,
02.09.2011.
Available online:
http://diepresse.com/home/panorama/wien/690376/AKH Eine-Kultur-des-
Wegschauens
Last visited: 17.08.2012.
Inquiries
Inquiries to the following Austrian institutions:
- Bundesamt für Korruptionsprävention und Korruptionsbekämpfung,
(
Federal Agency for Combatting Corruption and the Prevention of
Corruption) 28.08.2012, (no reply)
- Wirtschafts- und Korruptionsstaatsanwaltschaft, 14.08.2012 (
reply:
20.08.2012)
- Data Protection Commission („Datenschutzkommission – DSK“),
08.08.2012 (
reply: 09.08.2012)
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Available online:
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME_00326/fname_23399
6.pdf
Last visited: 16.08.2012.
326/ME XXIV. KP – Ministerialentwurf – Erläuterungen,
Available online:
http://www.parlament.gv.at/PAKT/VHG/XXIV/ME/ME_00326/fname_23399
8.pdf
Last visited: 16.08.2012.
Parlamentskorrespondenz Nr. 1180 vom 01.12.2011, Beamte, die
Korruption melden, werden künftig besser geschützt,
Available online:
http://www.parlament.gv.at/PAKT/PR/JAHR_2011/PK1180/
Last visited: 16.08.2012.
2.
Environmental
Public
Services
Law
(“Umweltinformationsrecht”)
396 der Beilagen XXIV. GP - Regierungsvorlage – Vorblatt und
Erläuterungen,
Available online:
http://www.parlament.gv.at/PAKT/VHG/XXIV/I/I_00396/fname_169769.pdf
Last visited: 22.08.2012.
OGH, 14.06.2000, 9ObA118/00v,
Available online:
http://www.ris.bka.gv.at/Dokumente/Justiz/JJT_20000614_OGH0002_009OB
A00118 00V0000 000/JJT 20000614 OGH0002 009OBA00118 00V0000
_000.pdf
Last visited: 22.08.2012.
3.
Austria Trade Law (“Gewerbeordnung”)
Gruber/Paliege-Barfuß, GewO7. §365u with annoations
Leniency Program
ECKEL, Martin: Ausweitung der Kronzeugenregelung, 20.01.2011.
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Available online:
http://wirtschaftsblatt.at/home/1182815/index
Last visited: 08.09.2012.
FABRIZY, Ernst Eugen: Die österreichische Strafprozessordnung
(Strafprozessordnung 1975)11. Kurzkommentar. Wien: Manz 2011.
Special references from the institutions
4.
Austrian Data Protection Council
Homepage of the Austrian Data Protection Council,
http://www.bka.gv.at/site/6417/default.aspx
Last visited: 17.08.2012.
MAIER, Johann: Datenschutzrat: Fragebogen-Erhebung zu „Whistleblowing“,
26.09.2011.
Available online:
http://www.bka.gv.at/site/cob
44855/currentpage
7/7398/default.aspx?wai
=true
Last visited: 17.08.2012.
Schreiben an das Bundesministerium für Land- und Forstwirtschaft,
Umwelt und Wasserwirtschaft betreffend das Bundesgesetz, mit dem das
Umweltinformationsgesetz
geändert
wird;
in
der
Fassung
des
Ausschussberichtes
(424
d.B.
24.
GP);
Whistleblowing
Grundsatzdiskussion/Stellungnahme des Datenschutzrates
Quoted as: Letter of the Austrian Data Protection Council from
the 18th of November 2009, page
Schreiben des Datenschutzrats an alle Bundesministerien, an die
Verbindungsstelle der Bundesländer, an den Österreichischen Gemeindebund,
an den Österreichischen Städtebund, an die Gewerkschaft Öffentlicher Dienst
betreffend Fragebogen des Datenschutzrates hinsichtlich Whistleblowing vom
8. Juni 2011 von Mag. Johann Mair – für den öffentlichen Bereich
Quoted as: Letter of the Austrian Data Protection Council from
the 8th of June 2011 (1), page
Schreiben des Datenschutzrats an die Kammer für Arbeiter und Angestellte
Wien., an die Vereinigung der Österreichischen Industrie, an die
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http://www.krone.at/Nachrichten/Ausschreibungen_muessen_erneut_geprueft
_werden-AKH-Skandal-Story-313965
Last consulted: 13.09.2012
WETZ, Andrea: AKH-Skandal: Millionenklage gegne Wiener Filz,
01.09.2012.
Available online:
http://diepresse.com/home/panorama/wien/1285401/AKHSkandal_Millionenk
lage-gegen-Wiener-Filz
Last consulted: 13.09.2012
WETZ, Andrea: AKH: Eine Kultur des Wegschauens, 02.09.2011.
Available online:
http://diepresse.com/home/panorama/wien/690376/AKH Eine-Kultur-des-
Wegschauens?from=suche.intern.portal
Last consulted: 13.09.2012
KLENK, Florian: Die Korruptionsakte AKH, 27.10.2010.
Available online:
http://www.florianklenk.com/2010/10/27/die-korruptionsakte-akh/
Last consulted: 13.09.2012
X.
Abbreviations
A-FIU – Austrian Financial Intelligence Unit
AKH – General Hospital (Vienna)
AOB – Austrian Ombudsman Board
ArbVG, AVRAG, AngG – Austrian Labor Laws
BIA – Federal Bureau of
GewO – Austrian Trade Law
IACA – International Anti-Corruption Academy (Laxenburg)
LKA – Landeskriminalamt
MoI – Ministry of Interior
MoJ – Ministry of Justice
StGB – Austrian Criminal Code
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StPO – Austrian Criminal Code of Procedure / Austrian Criminal Procedure
Code
63