BVwG: No penalty for ex-ÖVP government member

Jun 24, 2022 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Federal Administrative Court (Bundesverwaltungsgericht, BVwG) ruled that the right of the former government member to refuse to testify was admissible, as he was able to prove the risk of criminal prosecution.

In the spring of 2022, the investigative committee questioned the ex-finance minister on the advertising and PR expenditures of the Ministry of Finance as well as on the economic and budgetary policy of the ÖVP (an Austrian political party) during his term of office. However, he refused to testify, saying that he was a defendant in the Ibiza proceedings. The danger of criminal prosecution existed, as it was likely that, due to his truthful statement, an authority called upon to prosecute him would at least initiate investigations to clarify the suspicion that had arisen. A specific danger must be proven.

In a letter dated April 2022, the chairperson of the investigative committee submitted an application to the BVwG for the imposition of a penalty on the respondent for continued unjustified refusal to testify before the investigative committee pursuant to Section 45 para. 2 in conjunction with Sec. 55 para. 2 of the Rules of Procedure for Parliamentary Committees of Inquiry (Verfahrensordnung für parlamentarische Untersuchungsausschüsse, VO-UA). Thus, the BVwG was to review the legality of the refusal to testify.

However, the overall consideration of all the arguments mentioned and the consideration of the investigations by the Public Prosecutor's Office for Economic Affairs and Corruption (Wirtschafts- und Korruptionsstaatsanwaltschaft, WKStA) ultimately led the BVwG to the conclusion that the ex-member of the government was "in a position to credibly demonstrate the dangers of criminal prosecution". The penalty requested by the ÖVP corruption investigation committee was thus rejected.

BVwG W193 2254341-1/20ETS (24.05.2022)