Vienna Higher Regional Court overturns diversion in Pilnacek laptop proceedings

In a diversion, the court provisionally suspends proceedings without issuing a conviction. In the present case, each of the two defendants was assigned 250 euros in procedural costs and 180 hours of community service. The Vienna Higher Regional Court did not follow this approach and overturned the diversion at the request of the WKStA.

Reasoning of the Higher Regional Court

In its reasoning, the OLG referred, according to a press release, to the particular importance of truthful witness statements for the administration of criminal justice. "Die Strafrechtspflege ist im höchsten Maße auf die Richtigkeit und Vollständigkeit von Zeugenaussagen angewiesen", the court quoted from its decision. This applies "gerade auch in einer Konstellation, in der durch die falschen Beweisaussagen signifikante Verwirrung rund um den Verbleib des Laptops des auch durch intensive Medienberichterstattung in der Öffentlichkeit stehenden Mag. Pilnacek gestiftet und in weiterer Folge erheblicher Aufwand für die Strafverfolgungsbehörden bewirkt wurde", it continues.

The OLG justified the overturning of the diversion with "generalpräventiven Erwägungen". If, in cases of false statements, the response were merely diversion instead of a verdict, the impression would arise among the public "der Eindruck der Bagatellisierung, was den Beweiswert wahrheitsgemäßer Aussagen generell wesentlich in Frage stelle". The court emphasized that it needed "einer spürbaren staatlichen Reaktion, um der Allgemeinheit zu vermitteln, dass solche Delikte mit angemessener Härte verfolgt werden".

Parallels to Earlier OLG Decisions

The overturning follows the same pattern as previous OLG decisions in comparable cases. The court had recently overturned the diversion against former ÖVP parliamentary group leader August Wöginger and against Linz mayor Klaus Luger, likewise justifying this with the need to prevent false witness statements from being treated as trivial matters. "Es soll nicht der Eindruck entstehen, man könne es sich mit einer Diversion ‚richten'", the OLG stated.

In the specific case, according to the WKStA, it concerns two close confidantes of Pilnacek who had been summoned to the parliamentary investigative committee on the Pilnacek case. The indictment accuses them of having given false testimony during their formal interrogations regarding the whereabouts of the laptop. "Gegenstand dieses Verfahrens ist der Verdacht, sie hätten in Ermittlungsverfahren der WKStA jeweils als Zeuginnen bei ihrer förmlichen Vernehmung zur Sache rund um den Verbleib des Laptops des verstorbenen Mag. Pilnacek die Unwahrheit gesagt", according to the court's release.

The central evidentiary question revolves around the location of the laptop. According to the indictment, one of the two women – a former roommate of Pilnacek's – allegedly stated during her interrogation that she no longer knew when or where she had taken possession of the device. The prosecutor's office, however, assumes that she took the laptop herself on the 7th [day] and passed it on to the second defendant, who in turn is alleged to have given it to Pilnacek. The exact chronological sequence and the circumstances of the handover are the subject of the proceedings.

Statements of the Defendants

In court, the two women showed varying degrees of confession. One of them, Anna P., pleaded "voll umfassend schuldig" and thus assumed full responsibility for her statements. The second defendant, Karin Wurm, also assumed responsibility before the court but declared that she did not feel "nicht schuldig". The court of first instance had apparently not viewed these statements as an obstacle to granting diversion.

The proceedings had already attracted media attention two weeks earlier, when "Kurier" reported that an additional criminal complaint had been filed against the two women. Investigations surrounding the confidantes of the deceased top jurist are thus intensifying. Pilnacek was found dead on October 20, 2023, in a side arm of the Danube near Rossatz in Lower Austria. His death triggered a broad public debate about political influence on the judiciary.

The overturning of the diversion means that the two women will not get off with merely a footnote in the criminal record. Instead, they must answer in ordinary proceedings before the court of first instance, which will now pronounce either a conviction or an acquittal. How long the proceedings will take remains open. The competent prosecutor's office welcomed the OLG's decision, as it sends a clear signal against false witness statements.

Significance for the Pilnacek Case

For the practice of criminal justice in Austria, the decision has significance beyond the individual case. By overturning the diversion, the Vienna Higher Regional Court is signaling that false statements in investigative proceedings – particularly when, as here, they generate media attention and cause investigative effort – are to be prosecuted consistently. Defense attorneys regularly criticize in such cases that general deterrence is not a sufficient reason to deviate from an otherwise possible diversion.

The defendants must now prepare for a main trial in which their statements will once again be scrutinized. Should the court of first instance reach a conviction, the women face fines or imprisonment of up to three years, as false witness testimony constitutes a misdemeanour. A final judgment would also result in an entry in the criminal record.

Parallel to the criminal proceedings, investigations continue surrounding the Pilnacek case, which was once considered one of the biggest political scandals of the Second Republic. The clarification of the circumstances surrounding the section chief's death and possible political influence on the judiciary has occupied the WKStA, parliamentary investigative committees, and the media for years. The statements of the two confidantes are regarded as a possible building block in resolving open questions.

Outlook on the Main Trial

The Vienna Higher Regional Court emphasized in its release that the decision does not prejudge the question of guilt. The overturning of the diversion expressly does not mean that the two women have already been convicted. It merely means that the prosecutor's office now has the opportunity to have the charges examined in a main trial with full evidentiary proceedings. How the two women will react to the new trial remains to be seen.

From the WKStA's perspective, the decision is an important signal. The authority had previously emphasized on multiple occasions that the clarification of the Pilnacek case was possible only with truthful witness statements. From its perspective, the overturning of the diversion strengthens the pressure on defendants to testify in future proceedings. The defense counsel for the two women has announced that it will carefully review the OLG's decision.

Overall, the decision shows that Austrian criminal justice is pursuing false testimony with growing determination – especially when it is given in proceedings of particular public interest. The Pilnacek case thus remains not only politically, but also criminally, a matter of ongoing significance.