General information
Anyone who deliberately tells the untruth or conceals the truth in court or before the authorities makes it more difficult for the state’s decision-making bodies to establish the truth. However, trust in the judiciary is based – among other things – on the reliability of witness statements.
False testimony or false accusation can significantly influence the outcome of proceedings and lead to unjust decisions. In order to protect the integrity of the legal system and emphasize the importance of the duty to tell the truth, the criminal offences of false testimony and false accusation are important components of a constitutional justice system and administration.
False testimony (Sec 288 StGB)
Any person who during formal questioning makes false material statement to the court as a witness or as a respondent, so long as the person is not a party to the proceedings, or who, acting as an expert, presents false results or a false opinion, is liable to prosecution under Sec 288 StGB. Expert witnesses who provide false findings or a false expert opinion also commit the offense of giving false testimony.
Any person who gives false testimony under oath in court or reinforces false testimony under oath or who makes any other false statement under oath is also liable to prosecution.
In addition, any person who commits one of the acts specified therein in proceedings before a commission of inquiry of the National Assembly or a federal, State, or municipal disciplinary authority, is also liable to prosecution under Sec 288 StGB.
Any person who, as a witness or expert witness, commits one of the acts listed there in an investigative proceedings before the criminal investigation or prosecution authorities also commits the offense of giving false testimony.
Moreover, any person who gives false testimony during formal questioning makes false material statements as a witness or who, acting as an expert witness, presents false results or a false opinion is liable to prosecution (Sec 289 StGB).
In summary, the offense of giving false testimony as a so-called special offense can only be committed by certain persons in different situations. Non-sworn parties in the case, accused persons or defendants cannot be prosecuted for giving false testimony.
Criminal act
In the case of witnesses and persons providing information, the offense includes making a false statement during a formal hearing on the matter and, in the case of experts, making a false report or expert opinion.
A false statement consists of a false report of sensory perceptions, i.e. what the witness saw, heard or did. A statement is false if it does not correspond with reality. The concept of false testimony also includes the concealment of material facts, even if the witness was not expressly asked about them and provided that the concealed fact is not completely outside the subject of the evidence or the testimony had to create the appearance of completeness in relation to the subject of the evidence.
An expert’s finding is incorrect if the facts required for the expert opinion are stated objectively incorrectly. The expert opinion is incorrect if it does not reflect the expert’s true conviction. This is the case, for example, if the expert himself does not believe in the correctness of the conclusions he has drawn or doubts them without saying so.
The corresponding criminal acts require intent. The perpetrator must therefore at least seriously consider it possible and accept that his statements are “false” in the sense described above.
Expection of false testimony
According to Sec 290 para 1 StGB, any person who gives false testimony in order to avert any infamy, any risk of criminal prosecution, or a direct and significant financial detriment to themselves or a relative is therefore not criminally liable if the person was exempt from the duty to give testimony or could have been exempted from that duty and if the person
- did not know the circumstances of the exemption,
- did not disclose the reason for the exemption in order to avert any of the stated consequences insofar as these could have arisen merely from the disclosure, or
- if the person was held to give testimony.
In addition, Sec 291 StGB contains a provision on active repentance for false testimony. Accordingly, the offender is not to be punished for giving false testimony if he corrects the false statements before the conclusion of the person’s questioning. Correcting means replacing the false statement with a truthful account. The prerequisite is that the perpetrator replaces the incorrect information in all points that are not completely irrelevant by communicating what he considers to be the correct circumstances.
Penalties
The basic penalty for giving false evidence (Sec 288 StGB) is a prison sentence of up to three years.
In the case of false testimony under oath – which is now very rare in Austria – the perpetrator is punished with a prison sentence of six months to five years.
Giving false testimony before an administrative authority (Sec 289 StGB) is punishable by a prison sentence of up to one year or a fine of up to 720 daily rates.
False accusation (Sec 297 StGB)
Any person who puts another to the risk of official prosecution by falsely suspecting the person of an offense requiring official prosecution or of violating official or professional, commits the criminal offense of false accusation, if the perpetrator knows that the suspicion is false.
False accusation thus punishes knowingly false suspicions that expose another person to the risk of criminal or disciplinary prosecution.
Criminal act
The offense consists of the perpetrator knowingly falsely suspecting another person of having committed an official offense or a disciplinary offense. Suspicion within the meaning of Sec 297 StGB means arousing suspicion or significantly strengthening an existing suspicion. The false suspicion must be directed against a specific victim. The suspicion is false if the alleged offense was not actually committed or was committed by another person.
The false accusation must expose the victim to the concrete danger of prosecution by the authorities or under disciplinary law, whereby it is irrelevant whether prosecution actually occurs. In principle, the required danger can only occur if the suspicion reaches an authority appointed to prosecute. This applies in particular to the criminal investigation department, the public prosecutor’s office or a disciplinary authority.
In addition, the perpetrator must know that the suspicion is false. He must also have at least conditional intent to expose the victim to the risk of prosecution by the authorities as a result of his false accusation.
Penalties
The basic penalty for the offense of false accusation is a prison sentence of up to one year or a fine of up to 720 daily rates. If the severity of the accusation increases and the falsely accused act relates to an offense that is itself punishable by a prison sentence of more than one year, the penalty increases considerably: in this case, a prison sentence of six months to five years may be imposed.
Examples
- In investigation proceedings against his supplier, with whom he is friends, an entrepreneur testifies untruthfully that he had no knowledge of the criminal acts of which his supplier is accused. He is liable to prosecution for giving false testimony pursuant to Sec 288 para 1 StGB.
- In order to “weaken” a competitor, entrepreneur A files an anonymous criminal complaint with the public prosecutor’s office against his competitor B for fraud, although A knows that the accusations are false. A thereby makes himself liable to prosecution for false accusation under Sec 297 para 1 StGB.
Effective criminal defense by a specialisd lawyer
Criminal defense and the involvement of a lawyer in the event of allegations of false testimony or false accusation can be of considerable importance in criminal proceedings. In such cases, not only the reputation but also the personal freedom of the person concerned is often at stake due to the threat of punishment. An effective defense ensures that all evidence is thoroughly examined. A lawyer can help you to correct misleading statements and refute false accusations against you.
